Aspects of Divorce
Residency Requirements and Grounds for Divorce
You must be a resident of Texas for six months and a county resident for 90 days to file for a divorce.
Either spouse can get a divorce simply by stating in the petition that the marriage has become “insupportable” due to conflict between the parties and that there is no reasonable expectation of reconciliation. If both spouses are in agreement that there should be a divorce, they can agree in writing (called a “stipulation“) that the marriage can be ended.
The legal divorce process begins when one of the spouses files an “Original Petition for Divorce” with the District Court. The other spouse is then served with the paperwork and given time to respond. If the parties are in agreement about property and debt division, as well as any existing child custody and child support matters, the divorce can be finalized without a trial. If the parties can’t come to an agreement, the court will set a time for a hearing to resolve all remaining issues.
After the Original Petition for Divorce has been filed, either party can request temporary assistance from the court, including temporary custody and child support orders, and orders to determine who pays community debts during the divorce proceedings.
Dividing the Property
Texas is a “community property” state, which means that all assets and debts acquired during your marriage are owned equally between the spouses.
But not all property is considered “community property”:
- For example, any assets you had before you married will be considered “separate property” if you kept that property separated from property acquired during the marriage
- The income produced by a separate property investment is also separate property, as long as it hasn’t been “comingled”, i.e., mixed together with community money
- Property you inherit from your family during your marriage will generally be considered your own separate property if it was willed exclusively to you and you did not comingle it with community assets during the marriage
It’s important to collect all the information you can about all your property, including when you purchased it, approximately how much it is worth, and details such as account numbers, serial numbers and so forth. Collecting this information before you see a divorce lawyer can save you a lot of time and money.
Although it is rare, a court can order alimony (called “spousal support” in Texas). When deciding whether to award spousal support, a court will generally consider such factors as:
- The duration of the marriage
- The needs of each party
- The financial resources and liabilities of each party
- The responsibility of either spouse for children
- All sources of income available to either party
A court can also order temporary spousal support while the divorce is pending. Depending on the length of the marriage, the court may order spousal support for a certain number of years.
Child Custody and Visitation
In Texas, if the parents cannot agree otherwise, the court will make custody decisions based on what is in the “best interest” of the child. Courts will presume that joint legal custody is best, unless proven otherwise. In deciding which parent should have primary physical custody, the court will consider:
- The history of contact between the parents and the child
- The health, safety and welfare of the child
- The mental and physical health of the parents, and how close they live to each other
- The preference of a child age 12 or older
- Evidence of child abuse
- The living conditions and income of both parties
After the custody order is signed by the judge and filed with the court clerk, both parents are bound by it. If a parent is denied court-ordered access to a child, he or she may bring the issue back before the court. The judge may also decide to modify the visitation order and order makeup visitation for the time missed.
In Texas, child support is based on the paying parent’s net income and other resources, as follows:
- 20% of net resources for one child
- 25% of net resources for two children
- 30% of net resources for three children
- 35% of net resources for four children
- 40% of net resources for five children
A Texas child support order can be modified if there has been a change in circumstances, such as a big increase or decrease in the paying parent’s income or the child reaching the legal age of majority. If a parent is not paid child support as ordered, that party may file an action for enforcement against the non-paying party, which may result in an order for that party to pay back-end child support or even jail time for their repeated failure to pay.
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