The Divorce Process In Texas
Q: How long must I have lived in Texas prior to filing for divorce in a Texas court?
A: To file for a divorce in Texas, at least one spouse needs to have maintained residency in the state for a minimum of six months and for at least 90 days, that residency needs to have been in the county in which the spouses are divorcing. (Texas Family Code, Sec. 6.301)
Q: After the divorce is filed, how long does it take to finalize?
A: In Texas, a divorce cannot be final for at least 60 days after the petition is filed. The divorce is final as soon as the judge pronounces it so in open court and signs the decree of divorce. If the spouses are not in agreement, it typically takes longer. Anywhere from four months to one year is possible, depending on the complexity of the issues and the degree of conflict.
Q: What is “venue,” and what is the proper venue for a divorce case?
A: “Venue” refers to which type of court and in what locality the case is filed. In Texas, proper venue for a divorce action is the district or county court in the county where at least one of the parties is domiciled. County and district courts are located in Georgetown for Williamson County and in Austin for Travis County.
Q: What are the recognized grounds for divorce in Texas?
A: Texas law allows “no-fault” divorces. However, if one spouse is at fault for the breakup of the marriage, the court may take that into consideration in determining what is an equitable (fair) division of the couple’s property. For that reason, you may want to include fault grounds in your petition for divorce. The statutory grounds for a fault divorce are: adultery, cruel treatment (that renders further living together insupportable), abandonment (for at least one year with the intent to abandon), long-term incarceration (more than one year), confinement to a mental hospital for at least three years or living apart for at least three years. For a no-fault divorce, your petition alleges “insupportability,” which is defined as discord or conflict of personalities that destroys the legitimate ends of the marriage and prevents any reasonable expectation of reconciliation.
Q: What is the divorce process in Texas?
A: A typical Texas divorce requires the following steps:
- One spouse (referred to as the petitioner in the divorce petition) files an Original Petition for Divorce with the court in the county where the couple is divorcing. The papers are then served to the other spouse (referred to as the respondent). The respondent may sign a waiver that gives up their right to be served papers, but only if the spouses are collaborating and working together to finalize the divorce. (Texas Family Code Sec. 6.402 and Sec. 6.408)
- At the time of filing, the petitioner has the option of requesting a standard Temporary Restraining Order from the court that requires (a) assets cannot be sold, given away, destroyed, concealed or otherwise “disappear” before the court or spouses have had a chance to divide them equitably, and (b) spouses must remain civil toward one another and may not engage in actions that would result in threats or harassment. If a Temporary Restraining Order is issued, the court is required to schedule a hearing within 14 days of issuing the order and the court has the option of converting the order into a temporary injunction against both parties depending on the circumstances.
- If no Temporary Restraining Order is issued, the respondent has 20 days plus the next following Monday to file a document called an answer. (Texas Family Code Sec. 6.409 (b)). In most cases, the court takes into consideration temporary orders, which remain in effect while the divorce is pending. Temporary orders commonly cover issues related to custody and visitation of a child or children, monetary support of the child or children, temporary use of property, management of debts and debt services, temporary spousal support requests and payment of attorney’s fees.
- If the spouses don’t think they have received all of the information and documents they need from one another, they then engage in discovery. This is a process by which participants exchange documents and information.
Q: What is mediation?
A: Mediation is a process by which the parties meet with a third-party neutral, the mediator, to determine areas of agreement, areas of dispute and options to resolve the disputed issues in an effort to reach a settlement. The mediator is a professional specifically trained to mediate disputes. Mediation can be used in virtually all family law cases, like paternity, child custody and post-decree modifications, and not solely in divorce cases. Typically, mediation is a voluntary process; it is not a requirement unless the parties agree to mediate and the court orders that the parties attempt mediation. Mediation can take place with or without attorneys present. The cost of mediation depends upon a number of factors, including the experience level of the mediator, the time the parties spend with the mediator and whether the parties choose to have their attorneys present. Any agreements made in mediation are not binding until the parties sign a settlement agreement.
Q: What is a collaborative divorce?
A: Collaborative divorce is a dispute resolution process that is meant to “encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship, including disputes involving the conservatorship of, possession of or access to, and support of a child, and the early settlement of pending litigation through voluntary settlement procedures.” (Texas Family Code Sec. 15.001). Spouses who choose collaborative divorce work together along side their respective attorneys to amicably negotiate the equitable distribution of marital assets and debts as well as custody, visitation and support matters without going to court. The effectiveness of collaborative divorce lies in the fact that spouses maintain a focus on problem solving through open communication and finding common ground based on shared values.
Unlike traditional divorce which requires parties to go to court to resolve issues, collaborative divorce does not allow parties to take issues to court for resolution. And in reality, there is no financial incentive to do so on the part of the representing attorneys. If matters escalate and/or both parties determine that their issues are contested and require court intervention, representing lawyers are required to withdraw representation from the case and both parties are required to obtain new legal representation. The parties of a collaborative divorce never lose their ability to move forward with contested court proceedings; the collaborative divorce process simply ends and both parties start over with new representation in traditional divorce proceedings.
Q: What is the difference between mediation and collaborative law?
A: There are a couple of differences. First, in collaborative law, the couple should be totally committed to resolve issues without litigation. Each party must be represented by an attorney. If, after the parties commit to the collaborative law process but cannot reach agreement, resulting in litigation, the parties must each hire new lawyers. Secondly, in theory, parties agreeing to mediation may choose not to have a lawyer assisting them. While this indeed saves money, the party with less knowledge or power in the relationship may end up conceding more than is necessary to reach an agreement.
Q: What if DIY (do-it-yourself) divorce and/or mediation fail?
A: A DIY divorce focuses on discussing the settlement of the divorce either through direct means (uncontested divorce) or with the help of a mediator or attorney mediators. If both parties are able to come to an amicable agreement on things, either a representing attorney or one of the spouses can prepare a document that contains all of the agreed upon terms of the divorce. This document is call an Agreed Decree of Divorce and both spouses and their attorneys are required to sign it before giving it to a judge to sign.
In the event that an amicable agreement cannot be reached, a trial date is usually set where remaining issues are presented to a judge. At the end of the trial, a Final Decree of Divorce is prepared by one of the representing attorneys who then presents the document to the judge for approval and their signature. The Final Decree of Divorce is legally binding to both parties and should resolve all lingering issues pertaining to the divorce as well as contain the court’s ruling on the matter.
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
A: In all child custody cases, custody is determined by what is in the “best interest” of the child. The court may also take into consideration the child’s wishes. The determination can depend greatly on the child’s age and maturity. In Texas, the presumption of the court is to maintain joint managing conservatorship of the children by both parents. In Texas, “conservatorship” includes “custody” of the children, meaning which parent’s residence is the legal residence of the children. Joint Managing Conservatorship ensures that parents share parental rights, duties, financial support and responsibilities. Contrary to popular belief, Joint Managing Conservatorship does not grant a 50-50 split of custody time nor does it award child support to one parent. In most cases, however, this does mean that a child’s domicile should be established in the final court orders to ensure adherence to the order.
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: Child support is generally calculated using the Texas Child Support Guidelines. To put it simply, child support is usually 20 percent of the obligor’s (the party paying support) net pay for one child, 25 percent for two children, 30 percent for three children and so on, with a maximum of 40 percent. (Texas Family Code Sec. 154.125). Courts may also order the obligor to also pay the cost of health insurance for the child (Texas Family Code Sec. 154.181 (b)(1)).
In some cases where a child support order is already in place, modification is needed to account for a change in circumstances such as the loss of employment, a change in jobs that resulted in a cut in pay, or a need for additional financial support because of changes to the child’s situation. If a modification request is submitted and at least three years has passed since the order was issued by the court, the parent seeking the change only needs to show that the support obligation is no longer within Texas support guidelines. If the modification request is submitted before the three-year mark, that parent needs to show that there has been a significant change in circumstances to warrant a change in the support obligation. To provide clients with a guideline, here is a Texas child support calculator: https://www.oag.state.tx.us/cs/calculator/
This is for estimating purposes only and the court will determine the actual amount.
Q: When does the duty to pay child support end?
A: Absent marriage or other acts that would emancipate the child, Texas law requires child support orders to remain in effect “until the child is 18 years of age or until graduation from high school, whichever occurs later.” (Texas Family Code Sec. Sec. 154.001 (a)(1)). If the child is disabled, however, child support may be extended indefinitely depending on circumstances and the child’s needs. Unlike some other states, Texas law does not require a parent to pay support for college expenses, including tuition or other secondary-education expenses. If parents come to a separate agreement about providing financial support during attendance of college, a separate contract may be signed and enforced.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the divorce process and/or after the divorce has become final. Courts may issue orders awarding temporary spousal support in cases where one spouse is unemployed or their earning capacity is significantly less than the other spouse. It’s important to keep in mind that under Texas law, there are no guidelines for temporary spousal support orders. As such, if you are seeking support for any reason, you need to come prepared to show the court what your financial needs are and proof that your spouse has the means to meet those needs. Support awarded pending the final decree of divorce does not extend beyond the period of time necessary for the completion of the divorce action.
Q: What is the duration of alimony payments?
A: If a party qualifies for court-ordered spousal support, the maximum duration is commonly based on the length of the marriage. If the marriage lasted 10 to 20 years, the maximum duration is five years. If the marriage lasted 20 to 30 years, the maximum duration is seven years. If the marriage was longer than 30 years, the maximum duration is 10 years. (Texas Family Code Sec. 8.054). There are a few exceptions to this, and also a judge is not required to order the maximum number of years.
Q: What factors will the court consider when determining how much alimony to award to a party?
A: The court will consider the needs of the requesting spouse and the ability of the other spouse to pay. The court will additionally consider the health and age of the parties, ability to work, responsibility for children, availability of funds and the length of the marriage, among other factors. In accordance with Sec. Sec. 8.055 of the Texas Family Code, the “court may not order maintenance [greater than] $5,000 [per month] or 20 percent of the paying spouse’s average monthly gross income,” whichever is less.
Q: On what basis does the court decide how marital property is divided?
A: The court starts with a presumption that all the property earned or acquired by either spouse during the course of marriage is considered community property, owned equally by the spouses. (Texas Family Code Sec. 3.002). The court divides community property by determining what is “just and equitable.” (Texas Family Code Sec. 3.203) which often results in a 50-50 split of marital assets and debts. In some cases, however, division of property may be altered due to mitigating factors such as fault in the marriage, a prenuptial or post-nuptial agreement, unequal earning power or even settlement agreement made between both spouses.
Q: Is the “separate property” of one spouse divided during divorce?
A: Property that is acquired before the start of the marriage and/or property that is acquired through inheritance or a gift does not get pooled with the marital assets and as such, it is not equitably divided as part of the divorce process. In other words, separate property is as its title suggests: It is separate and not part of the marital estate. If you have separate property and want to make sure that it is not included in the marital estate, “[t]he degree of proof necessary to establish that property is separate property is [through] clear and convincing evidence.” (Texas Family Code Sec. 3.003 (b)). For example, you might show that you inherited some money from your grandmother and always kept it in a separate account with only your name on it.
Q: Will an item that is considered separate property but used occasionally by both parties be considered marital property and divided equitably?
A: The property may be subject to equitable distribution rules depending on the circumstances.
Q: Can I still get medical insurance benefits through my ex-spouse’s employer after the divorce?
A: Yes, under federal law, specifically the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), you may still be able to receive medical insurance coverage under your former spouse’s group plan. This law requires employers, who maintain a workforce of 20 or more employees, to offer “continuation coverage” for at least first three years after divorce or termination of a marriage.
To obtain COBRA benefits, contact your former spouse’s employer directly and request the appropriate forms. You must file your application with your spouse’s employer no later than 60 days after divorce or termination of your marriage. If you miss that deadline, you will not be considered eligible to receive these benefits.
Hiring An Attorney — Reducing Attorney Cost
Q: Should I hire an attorney?
A: Some people try to represent themselves in divorce court (referred to as “pro se” in legalese), which of course they are entitled to do. If there are no children and the divorce is truly uncontested (All issues have been agreed to by both parties), DIY (do-it-yourself) divorce may be worth trying. Nevertheless, we have had many clients who (1) started out with a DIY divorce only to find that all issues were not actually resolved, (2) made mistakes that the court would not accept and/or could cause one party to be put at a severe disadvantage by the other party. We offer our DivorceXpress and DivorceXpress Plus to address this client need. A bad divorce decree can affect a person for the rest of their lives. It’s especially important to have a good lawyer if your spouse has hired one, plans to contest the divorce or has threatened you with physical harm. To find a good attorney, see our video on this subject.
Q: How can I reduce the cost of my divorce?
A: Preparation. Preparation. Preparation. Even if you try to pursue a DIY divorce, preparation is important. At Patricia L. Brown & Associates, want our clients’ divorce to be as quick, as efficient and lowest cost as possible. One of the best ways to do this is to make a list of all your assets and properties. Include bank accounts, stocks and bonds, retirement and investment accounts, insurance policies, cars, real estate and any businesses owned by you or your spouse, jointly or separately. Also list your income and your spouse’s, and provide paycheck stubs if you have them. List all your marital debts. Include jointly held credit card debt, mortgages, any outstanding loans and financing. List payment amounts, who is paying and how often. You will also need copies of your income tax returns. Prepare a list of all the questions you have in advance of your meeting with an attorney.
Sources: U.S. Legal, Divorcenet.com, Texas Family Code
For answers to all of your divorce questions, contact our law office at 512-436-0826.