What is the Divorce Law in Texas?

What is the Divorce Law in Texas?

Aug 08, 2023
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In the State of Texas, the vast majority of divorces are no fault. While the state does allow fault-based divorce, the matter of fault must be proven – and the burden falls to the spouse who claims the other is at fault. If you are facing a Texas divorce, a better understanding of the divorce process and applicable laws can help. One of the most important first steps anyone moving toward a divorce can take is seeking the professional legal guidance of an experienced Texas divorce attorney early on in the process.

 

In Order to File in Texas

In order to file for divorce in Texas, the following requirements apply:

  • At least one of you must have lived in Texas for at least six months. 
  • You can file in the district court of the Texas county where at least one of you has lived for at least the last 90 days. 
  • Regardless of where the filer lives, they can file for divorce in Texas as long as the spouse they are divorcing has lived in the state for at least the last six months. 

These residency requirements are important to know if you recently moved to the state, and our divorce attorneys can confirm whether you are eligible to file for divorce in Texas and which county court is the appropriate one for your case.

 

Grounds for Divorce in Texas

As mentioned, most Texas divorces are no fault, and the grounds are called insupportability, which amounts to the irreconcilable differences that many other states employ. The grounds for fault-based divorce in Texas include the following:

  • Cruelty, which refers to willfully and consistently causing one’s spouse to suffer unnecessarily
  • Adultery, which refers to a voluntary sexual relationship with someone who is not one’s spouse and which applies until the couple is officially divorced, including any time when they may be living apart
  • A felony criminal conviction 
  • Abandonment, which refers to a spouse who leaves voluntarily for a period of at least one continuous year

A divorce that is based on fault can directly affect how the terms of the divorce are resolved. It’s important to note, however, that even in a no-fault divorce, the matter of fault can be reflected in the divorce terms – based on the court’s discretion in the matter. 

 

The Cooling-Off Period

When a couple files for divorce in Texas, there is a mandatory cooling-off period of 60 days before it can be finalized. This means that there is no such thing as a quick divorce that takes a week or two in the State of Texas. 

The truth is, however, that most couples require more than 60 days to resolve the terms of the divorce, and many divorcing couples require considerably more time. If you and your soon-to-be ex are able to reach mutually acceptable terms within the 60-day time frame, your divorce can be finalized in as few as two months. 

 

The Terms of Divorce

Your divorce will follow its own path and will not look exactly like anyone else’s, but this doesn’t alter the fact that the terms of divorce do not vary from case to case, including:

  • The division of marital property
  • Child custody arrangements
  • Child support
  • Alimony 

Each of these terms that applies to your divorce case must be resolved between you and your spouse – with the skilled legal guidance of your respective divorce attorneys. 

 

Mediation

If your negotiations stall, mediation is also an option. At mediation, you and your divorcing spouse – along with your attorneys – will meet with a professional mediator who, in their role as a neutral third party, will help you explore your best options, help you better understand how the court is likely to rule in your case and help you hammer out mutually acceptable resolutions to those divorce terms that remain unresolved. 

 

Contested Divorce

If one or more divorce terms remain unresolved after you’ve exhausted your negotiation efforts, you’ll need the court’s intervention on those matters. At this point, your divorce becomes contested, and the terms that are unresolved will no longer be yours to decide.  

 

The Division of Marital Property

Male hand separating puzzle house with images of property, children & pets, representing property division. MBH Fort Worth | Family Law

In the State of Texas, any assets that you and your spouse acquired while you are married are considered marital property, and it doesn’t matter who made the purchase or whose name is connected to the asset. The only exceptions include:

  • Any inheritances or gifts that one spouse receives in their name alone 
  • Any compensation that is based on pain and suffering from a personal injury claim

All other assets are considered marital, and in the event of divorce, they must be divided between the couple equitably, which means fairly – in relation to the circumstances involved. 

 

Separate Assets

Any assets that either spouse owned prior to marriage and kept separate throughout the marriage remain the separate asset of the original owner. It must be noted, however, that – when marital and separate assets become commingled – it can blur the line that separates them, which isn’t uncommon over the course of a marriage. 

 

The Factors Considered

When Texas courts make determinations regarding the division of marital property, they take a range of primary factors into careful consideration, including:

 

  • The overall size of the marital estate
  • Each spouse’s separate estate
  • Each spouse’s earning capacity 
  • Each spouse’s overall health
  • Whether either spouse engaged in improper use or wasting of marital assets
  • The tax considerations of the proposed division
  • Any future inheritances anticipated by either spouse
  • The child custody arrangements
  • Either spouse’s child support or alimony obligations
  • Any additional factors the court considers relevant to the case at hand

 

Child Custody Arrangements

When Texas courts are called upon to make child custody orders, they always prioritize the best interests of the involved children. This means – barring a serious reason for ruling otherwise – they attempt to maximize the amount of parenting time each spouse is awarded. It is widely believed that children are better off when they have ongoing relationships with both parents, and Texas courts uphold this belief. 

 

Legal Custody

Texas courts address both legal custody and physical custody. Legal custody addresses decision-making authority, which includes matters like the following:

  • The matter of the children’s education and daycare
  • The matter of the children’s healthcare needs
  • The matter of the children’s religious upbringing
  • The matter of the children’s participation in extracurriculars and travel
  • The matter of where the children’s primary residence is

Upon divorce, you and your ex can continue making these decisions together, or one of you can take on the sole responsibility. Additional options include:

  • You and your ex can continue to make these primary decisions together, but one of you has the legal authority to break a tie if your best mutual efforts to resolve the matter together fail.
  • You and your ex can divide this decision-making authority between you according to the category of decision that needs to be made.

When it comes to emergencies and to matters that arise on a daily – or even hourly – basis, the parent who is available at the time is on call to make the necessary decisions.

 

Physical Custody

Physical custody determines when the children are with one parent or the other, and while parenting time schedules can vary widely, they all fall into one of two basic categories, including:

  • One parent is the primary custodial parent and has the children for the majority of overnights. 
  • Both parents are awarded an equal number of overnights – or close to an equal number of overnights.

If you and your children’s other parent can devise a schedule that works for you and that you’re both willing to sign off on, there are no limits to your scheduling options. If you need the court’s intervention, however, you can expect one of its standard scheduling plans. 

 

The Factors that Guide Child Custody Determinations

Because Texas courts base their child custody determinations on the children’s best interests, they look to a range of factors like the following when ruling on these cases:

  • The ages of the children
  • The children’s needs, including any physical, educational, or emotional special needs
  • Each parent’s preference on the matter of the child custody schedule
  • The preference of each child who is considered mature enough to weigh in 
  • Each parent’s ability to meet the needs of the children
  • Each parent’s willingness to engage in effective co-parenting with the other
  • Each parent’s commitment to foster an ongoing, close relationship between the children and their other parent
  • Each parent’s level of involvement in raising the children thus far
  • Whether domestic violence, child abuse, or child neglect is an issue
  • How well the children have adjusted to the status quo, which refers to their current home, school, and community
  • Any additional factors the court deems relevant to the case being heard

If the children are doing well in their current situation, Texas courts will generally implement child custody orders that help maintain the status quo – rather than terms that interrupt it. 

 

Child Support

Child support is determined according to a preset calculation methodology, but there are instances in which the court will deviate from this norm. In general, the primary factors when it comes to child support are each parent’s earnings and the number of overnights each parent has. Even, however, when the parents divide their overnights with the children evenly, the higher earner is very likely to have the child support obligation. 

Factors that go into the child support calculation process include:

  • Each child’s age 
  • Each child’s physical, emotional, and educational needs
  • Each parent’s income and additional financial resources, assets, and debts
  • The amount of time each parent spends with the children
  • Overall childcare and education expenses
  • The cost of medical insurance and who covers it 
  • Out-of-pocket medical expenses and who covers them
  • The cost of the children’s travel between parents
  • Any additional factors the court considers relevant

The basic child support calculation in Texas includes the following:

  • The parent with the child support obligation pays 20 percent of their net monthly income for one child. 
  • The parent with the child support obligation pays 25 percent of their net monthly income for two children. 
  • The parent with the child support obligation pays 30 percent of their net monthly income for three children. 
  • The parent with the child support obligation pays 35 percent of their net monthly income for four children.  
  • The parent with the child support obligation pays 40 percent of their net monthly income for five children. 
  • The parent with the child support obligation pays no less than 40 percent of their net monthly income for six or more children. 

 

Alimony

Either spouse can request alimony in a Texas divorce, but there is no guarantee that either will receive it. Alimony is reserved for those divorces that leave one spouse unable to continue supporting themself at or near the standard of living achieved during the marriage while the other is in a financial position to help. 

 

Primary Instances When Alimony Is Awarded

There are several primary instances when alimony is awarded in divorce. 

The Marriage Lasted 10 Years, and the Recipient Has Insufficient Funds

If the marriage lasted at least ten years and the spouse requesting alimony lacks the assets or income to provide their own reasonable needs, the court may award alimony. 

The Marriage Lasted 10 Years, and the Recipient is Disabled

If the marriage lasts at least ten years, and the spouse requesting alimony is either disabled or is the primary caregiver of a child who is disabled, alimony is considered appropriate. 

The Payor Was Convicted of Domestic Violence against the Other

If the spouse requested to pay alimony has a conviction or deferred adjudication for domestic violence against the recipient that occurred within two years of the divorce or while the divorce was pending on their record, alimony may be ordered – with no requirement regarding the length of the marriage. 

 

The Parties Agree

When both spouses are able to reach a mutually acceptable agreement on the matter of alimony, the court is almost certain to include their agreed-upon terms in the divorce decree. 

 

The Matter Is Addressed in a Prenup or Postnup

If the couple has a binding prenuptial or postnuptial agreement that addresses the issue of alimony, the included terms will be honored.  

 

Basic Duration Requirements

Texas courts have basic requirements in place regarding the duration of alimony, including:

  • If the alimony is based on a domestic violence conviction, it can be awarded for up to five years.
  • If the alimony is based on a marriage that lasted at least ten years but less than 20, it can be awarded for up to five years. 
  • If the alimony is based on a marriage that lasted for at least 20 years but less than 30, it can be awarded for up to 10 years. 

If, however, the alimony is based on either the recipient’s disability or the disability of a child for whom they are the caregiver, it can be awarded until they are able to provide for their own reasonable needs. In other words, there is no maximum duration, and the alimony may be ongoing.  

 

Relevant Factors

The basic factors that are considered in alimony cases include all the following:

  • Each spouse’s age
  • Each spouse’s overall physical and mental health
  • Each spouse’s level of education
  • Each spouse’s earning potential
  • Each spouse’s income and assets – after the division of marital property
  • The amount of time it would take for the recipient of alimony to gain the education, job skills, or training to become more financially independent

 

Texas Divorce FAQs

Is a divorce attorney required?

Without a seasoned divorce attorney in your corner, it will be much more difficult to protect your parental and financial rights. It is always in your best interest to work closely with a skilled Texas divorce attorney. 

What if my spouse refuses to negotiate?

While most divorcing spouses would prefer to retain their decision-making power, which motivates them to negotiate terms outside of court, some dig in their heels and refuse to give an inch. In these instances, heading to court is generally advised. 

How do I know if I’ve found the right divorce attorney for me?

Divorce is a very personal matter, which means you need a divorce attorney whom you are comfortable opening up to. Other important matters include:

  • A divorce attorney who is accessible and attentive to your legal needs
  • A divorce attorney who makes you feel heard
  • A divorce attorney who ensures that you understand the divorce process and that you have the information you need to make the right decisions for you

Often, you need to trust your instincts when you meet with a law firm to know if it is the right representation for you.

 

Turn to an Experienced Texas Divorce Attorney for the Help You Need Today

The formidable divorce attorneys at Mims Ballew Hollingsworth – proudly serving both Fort Worth and Southlake appreciate how important your divorce terms are to your future and are committed to fiercely advocating for your parental and financial rights. We’re on your side and here to help, so please don’t delay reaching out to contact us online for more information today.

 

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Constance Mims

Constance Mims has over fifteen years of experience practicing exclusively family law. Mrs. Mims is Board Certified in Family Law, by the Texas Board of Legal Specialization. She is Collaborative Law certified and is a shrewd negotiator, not to mention her experience in the most challenging child custody, child support, spousal maintenance, alimony, prenuptial agreements, and divorce issues, both in court and in the appellate arena.

Contact Us Today!

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This page has been written, edited, and reviewed by a team of legal writers following our comprehensive editorial guidelines. This page was approved by Founding Partner, Constance Mims who has over 15 years of experience practicing exclusively family law. Mrs. Mims is Board Certified in Family Law, by the Texas Board of Legal Specialization..

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