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, one of the spouses has to have been a resident of the state for a continuous six-month period. In addition, one of the spouses must have been a resident of the county where the divorce is filed for at least 90 days.
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 procedure in Texas?
A: A typical Texas divorce requires the following steps:
- One spouse (the petitioner) files an Original Petition for Divorce with the court and has the papers personally served on (delivered to) the other spouse (the respondent). If the spouses are working together, the respondent can sign a waiver, giving up the right to be personally served with the papers.
- At the time of filing, the petitioner can request that the court issue a standard Temporary Restraining Order that: (a) requires that no assets disappear before they can be divided by the court, and (b) requires that the spouses act civilly toward each other and not threaten or harass each other. If a Temporary Restraining Order was issued, the court must schedule a hearing within 14 days of issuance. At that time, the court may make the Temporary Restraining Order into a temporary injunction against both parties.
- If no Temporary Restraining Order is issued, the respondent has 20 days plus the next following Monday to file a document called an answer. Commonly, the court will also consider temporary orders, which will be in effect while the divorce is pending. Temporary orders usually involve temporary custody, visitation, and support of the children, and temporary use of property and servicing of debt. It can include temporary spousal support and the payment of interim attorney’s fees as well.
- If the spouses think they haven’t gotten all the information they need from each other, they then engage in discovery, which is the process by which they exchange information and documents.
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: The goal of collaborative divorce is to assist people choosing to end their marriage in a cooperative, transparent way, without destroying their family in the process. Collaborative divorce is a dispute resolution process where spouses and their attorneys work together cooperatively to negotiate equitable settlements without going to court. The focus is on constructive problem solving based upon the divorcing couples’ individual and shared values rather than on adversarial bargaining and court-imposed solutions. A collaborative divorce differs from a traditional divorce in several ways. In a collaborative divorce there is no financial incentive for a lawyer to go forward with contested issues. The collaborative method prohibits taking any issues to the courtroom to be resolved. In fact, if a party believes he or she must go forward to court with contested issues, each of the collaborative lawyers must withdraw from the case, and both parties must obtain new lawyers to represent them in any litigation. The parties in the collaborative divorce always retain their ability to go forward with contested court proceedings — although this ends the collaborative divorce process, and the lawyers must withdraw from the representation.
Q: What if DIY (do-it-yourself) divorce and/or mediation fail?
A: The spouses discuss settlement of the case, either directly ( uncontested divorce) or with the help of attorneys or mediators. If they can work out an agreement on everything, one of the spouses or attorneys will prepare an Agreed Decree of Divorce, which will contain all of the terms of the agreement. The spouses and their attorneys sign it, and eventually the judge does as well. If the spouses are not able to agree on all of the issues in the case, a trial date will likely be set. At the conclusion of the trial, one of the attorneys will prepare a Final Decree of Divorce to present to the judge for signature. This will contain all of the court’s rulings and will resolve all issues pertaining to the divorce and is binding on the parties going forward.
Child Custody And Visitation
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, there is a rebuttable presumption that parents should serve as the Joint Managing Conservators of their children. In Texas, “conservatorship” includes “custody” of the children, meaning which parent’s residence is the legal residence of the children. Joint Managing Conservatorship does not mean that each party will have the children one-half of the time. It also does not mean that child support will not be awarded to one parent. Joint Managing Conservatorship does mean that the parents will either share, allocate or apportion parental rights and duties. In most cases, it also means that the child’s domicile must be established in the final court orders.
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, in most instances, is based on the Texas child support guidelines . To put it simply, child support usually ends up being 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, up to a maximum of 40 percent. In Texas, the courts most often require the obligor to also pay for the children’s health insurance. If support has already been ordered, sometimes a modification of the amount of support is necessary. Either the paying parent changes jobs and the pay decreases or the receiving parent desires an increase in support due to various reasons. Once three years have passed since the signing of the last order, a party seeking a change need to only show that the support obligation is not within the Texas guidelines. Prior to the passage of three years, that party must also show that there has been a change in circumstances that warrants an increase or decrease in support. 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, child support orders continue until the child reaches age 18. If the child is in high school at age 18, support continues until high school graduation. If the child is disabled, it may be possible to continue child support for an indefinite period. Texas law makes no provision for support during college or the payment of college expenses. However, this can be done by a contract between the parties if an agreement can be reached on this issue.
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 if one spouse is unemployed or earning significantly less than the other. There are no guidelines for temporary spousal support, so if you’re seeking support, you should be prepared to show what your needs are and what resources your spouse has 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 usually established by 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. 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. 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 marriage is community property, owned equally by the spouses. If you have separate property you may have to prove it by tracing it with “clear and convincing evidence.” Separate property includes property acquired by just one spouse by gift or inheritance. 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. The court divides community property between the spouses in a “just and right manner.” In most cases, that means a 50-50 split. In some cases, however, factors such as unequal earning power and fault in the marital relationship can affect the division of property.
Q: Is the “separate property” of one spouse subject to being divided up?
A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate.
Q: What if the parties occasionally use an item of separate property for the benefit of both parties?
A: The property may be subject to division depending on the circumstances.
Q: Can I get medical insurance benefits through my ex-spouse’s employer after the divorce?
A: Under federal law, you might be entitled to keep your medical insurance benefits under your former spouse’s group plan. The Consolidated Omnibus Budget Reconciliation Act of 1985 created what are commonly known as COBRA benefits, which are available to the former spouses of people who work for employers who have 20 or more employees. In general, this law provides that employers must offer “continuation coverage” for the first three years after the termination of the 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 the termination of your marriage. If you miss that deadline, you will not be able to get 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