Facing a divorce is hard. Whether you have decided to file for divorce or you were served with divorce papers after your spouse filed, there is nothing easy about it. Understanding the basics of divorce in Texas and what to expect throughout the legal process can help.
This blog is aimed to do just that as a part of our Texas Divorce 101 series. The more you know about Texas divorce law as you are getting started, the easier the divorce proceedings may be for you.
While you may have many questions about divorce, it’s important to first understand some of the terms and processes pertinent to divorce procedures. This brief terminology section outlines some key terms to understand.
The terms “uncontested” and “contested” divorce are often misunderstood.
An uncontested divorce is one where both parties agree to all issues and there are no unresolved matters at the start of the divorce process. While hurt feelings over the marriage ending often make this type of cooperation unattainable, an uncontested divorce is typically resolved comparatively quickly. Also, the cost of divorce is usually lower.
A contested divorce, which describes most cases, is where the parties have not agreed to the issues that must be settled in a divorce case. If some issues are agreed to at the start of the process but at least one issue remains unresolved, then the case is considered contested.
Texas allows parties to get divorced on “no fault” grounds. The exact language the law uses to describe “no fault” divorce grounds is as follows:
“The marriage has become insupportable because of a discord or conflict of personalities between the parties that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.” Tex. Fam. Code § 6.001
The Texas Family Code also provides a list of “fault grounds” which, if applicable, may also be included at the parties’ election (Tex. Fam. Code §§ 6.002-6.007).
Those include:
Some grounds for divorce, like abandonment and conviction of a felony, have specific requirements in order to be met. Others, like cruelty, are more discretionary and will depend on the specific facts and evidence thereof to show the Court that the cruelty has, in fact, occurred.
The spouse filing for divorce is referred to as the “Petitioner,” or the person who files the petition that initiates the case. The other spouse is referred to as the “Respondent,” or the party who responds to the divorce petition.
There is no overt benefit to being the person who files the case. A minor benefit from petitioning is being able to offensively plan your case strategy on your own timetable, having the benefit of surprise if the divorce is unexpected.
There is no additional benefit in the final outcome of the divorce proceedings, though, for either party specifically based on which spouse is the Petitioner and which is the Respondent.
Depending on the unique facts and complexity of issues involved in your case, there are myriad possibilities of the path your case could take. Although, there are some documents and divorce papers that are required and are a part of all cases.
The document that starts the whole case is called a Petition. When an Original Petition for Divorce is filed, your divorce case is initiated in Court. From the date the Petition is filed, there is a “cooling off period” (or waiting period) of 60 days before which the divorce cannot be completed (Tex. Fam. Code § 6.702). The case and period for divorce may take longer than sixty days, but it cannot be finalized before that time, save for a few very specific circumstances.
After the petition is filed, the Respondent must be served with the petition and an accompanying citation. This process gives the Respondent notice of the case and informs him or her of the deadline to respond. The Respondent then must file a response “on or before 10:00am on the Monday next after expiration of twenty days after the date of service thereof.” (Tex. R. Civ. P. 99.b.)
In practical terms, this is calculated by counting twenty days from the day the citation is served, including weekends and holidays. If the twentieth day lands on any day of the week other than a Monday, the response is due at 10:00am on the first Monday that follows the twentieth day. If the twentieth day lands on a Monday, then the response is due on the following Monday at 10:00am.
Now that the deadline to respond has been laid out, the response itself garners some attention. An Answer is the required responsive document by the deadline, although that can be included in or accompanied with a Counterpetition if the Respondent has some issues to bring into the case that the Petition omitted.
Once the Answer is filed, Texas requires that both parties have thirty days from the date the Answer was filed for both parties to exchange and file “Required Disclosures” that include witness’ names and contact information, and an exchange of financial information that will be required in determining assets for any relevant support obligations (Tex. R. Civ. P. 194.2).
Following the Required Disclosures, most cases will proceed either through temporary orders, discovery, or both. These processes may require motions to be filed, hearings held in Court (or virtually, if applicable), and other possible challenges.
Discovery is the process by which the parties and/or their divorce attorneys gather evidence pertaining to the issues in the case. Discovery pertaining to divorce can be done in many different ways, but the most common include:
All of the listed formal discovery channels all have prescribed formats, deadlines and requirements outlined in the Family Code or the Texas Rules of Civil Procedure. In some cases that are not highly contested or complex, informal discovery may be an option. This is done by the parties agreeing to exchange documents with a completed “Inventory & Appraisement” that will list all sufficient property and assets.
All divorces must address and decide a division of real property and personal property acquired during the marriage. In instances where there are children involved, the Court must also make orders regarding conservatorship, child custody, visitation, and child support, including medical and dental insurance, for the child.
Divorce in Texas follows the community property model for property division in a divorce. This means that all assets acquired by either party during the marriage are considered owned equally by the parties and, therefore, must be divided in a just and equitable manner between the two spouses upon divorce (Tex. Fam. Code § 3.002).
It does not matter if the marital property is held in only one spouse’s name — if it was acquired during the marriage, it is presumed to be community property (Tex. Fam. Code § 3.003(a)). This includes bank accounts and all income earned during the marriage.
While all community property is subject to a just and right division, there is one exception: separate property. Separate property is property that was owned by one spouse prior to the marriage or acquired by only one of the spouses during the marriage by gift, inheritance, or personal injury settlement (except for any recovery for loss of earning capacity during the marriage) (Tex. Fam. Code § 3.001).
Any asset that can be proven to be separate property by clear and convincing evidence will remain the separate property of the owner spouse and is not subject to division in a divorce (Tex. Fam. Code § 3.003(b)).
When there are children involved in a divorce, the three required determinations involve conservatorship, possession and access, and support. In deciding these matters, the best interest of the child shall always be the primary consideration of the court (Tex. Fam. Code § 153.002).
Oftentimes the term “custody” is used to describe a combination of conservatorship and possession and access, but Texas law separates the two for a clear breakdown of all child-related matters, leaving little room for misunderstandings in the future.
Conservatorship relates to the rights and duties of each parent in relation to their child. The court will always presume that the parents being named as joint managing conservators is in the best interest of the child. Tex. Fam Code. §153.131(b).
One may overcome this presumption by showing evidence that such a designation is not in the child’s best interest, but it is important to understand that, absent such a showing, the court will default to joint managing conservatorship for the parents. Even when parents are named as joint managing conservators, though, one parent is typically named as the one with the right to designate the child’s primary residence.
Possession and access refers to the child’s visitation schedule and time spent with each parent. The Texas Family Code outlines a model standard possession order, which can easily be expanded into extra time for the parent who does not maintain the child’s primary residence (Tex. Fam Code §§ 153.311-153.31). Parents are always welcome to agree to a schedule different from the standard possession order, including various different options for a more equal 50/50 possession schedule.
Similar to the standard possession order, the Texas Family Code also lays out strict guidelines and equations for calculating child support (Texas Family Code Ch. 154). Either parent, or both, may be ordered to pay child support payments in one form or another. The most standard form is in monthly payments of child support, paid to the Office of the Attorney General, who records the payment and then pays it out to the receiving parent.
As a general rule, child support payments will be equivalent to 20% of the paying parent’s monthly net resources for one child, and increase by 5% for each additional child, with a maximum cap set at 40% of the monthly net resources for five or more children (Tex. Fam. Code § 154.125). This amount may vary depending on if the paying parent earns $1,000.00 or less per month net or owes child support for other children outside of the marriage.
It is important to understand that child support is separate and independent from conservatorship and possession and access determinations, although those designations may have a bearing on which parent is ordered to pay child support.
The Texas Family Code also requires that health insurance and dental insurance obligations are ordered as child support (Tex. Fam. Code § 154.183).
Depending on the circumstances, there are additional matters that can be requested in a divorce matter. While alimony is not provided for under Texas law, certain situations are eligible to request spousal support (or spousal maintenance) as additional support. There are specific requirements that must be met to request spousal maintenance, and even if met, there is a limit to the amount and time one can receive such support.
If the parties have separate property, then reimbursement claims may be appropriate. A divorce case can also include tort actions, injunctions, restraining orders, and if the proper foundation or fault grounds are met, then it is possible for one party to seek a disproportionate share of the community assets.
While there are many different paths that a divorce procedure may take, it can be finalized only one of two ways: by agreement of the parties or by trial.
Agreement of the parties can be done informally between the parties themselves or through their divorce lawyers, or more formally through the mediation process. Ultimately, this includes the parties’ agreement to all terms. That agreement is drafted into a Final Decree of Divorce that all parties and their divorce attorneys sign before presenting it to the Judge for his or her signature. Once the Decree is signed by the Judge it becomes a court order that is enforceable, and the divorce is complete. By reaching an agreement, the cost of divorce is lower.
If the parties are unable to agree to any terms, even if most other terms are agreed to, then any unresolved matters will go to trial. Going to trial requires full discovery and extensive preparation of arguments, witness testimony, and exhibits, among other court requirements. A case that goes to trial is lengthy and expensive due to the large amount of time required to prepare. At the end of the trial, or shortly thereafter, the judge will make his or her ruling on all matters. That ruling is drafted into a Final Decree for the Judge to sign.
The court will retain power for thirty days after the judge signs the divorce decree in case either party wants to challenge, change, or clarify anything in the Decree. Additionally, those thirty days are when all ancillary documents regarding the transfer of property including vehicles or real estate should be signed and filed, as well. After those thirty days expire, the orders in the Final Decree become final and unchangeable.
After plenary power expires, either party can request the court to modify portions of the divorce decree only as they relate to domestic support obligations, such as spousal maintenance or child support payments, or any matters relating to the child. This request can only be made if there has been a material change in circumstance with one of the parties involved since the time the Decree was signed (Tex. Fam. Code §§ 156.101 & 156.401).
All matters in the Decree that relate to the property division or any other matters outside of the domestic support obligations and child-related matters are not modifiable.
Finally, if one party does not follow the orders of the court as they are prescribed in the Decree, then the other party may seek to enforce the Decree by holding the non-following spouse in contempt of Court.
The goal of this blog was to give you an overview of the basics of divorce in Texas. Please see the other blogs in the Texas Divorce 101 series covering child visitation, child support, common law marriage, and more to learn about the topics touched upon herein more in depth.
When filing for divorce, sending or receiving divorce papers, and navigating divorce in Texas, it’s critical to have the right divorce attorney on your side. At Ball Morse Lowe, PLLC, our divorce lawyers possess both the knowledge and compassion needed to help guide you through a difficult time. Let us help find solutions and manage your divorce to ensure the best outcomes for everyone.
The information and material in this blog is for informational purposes only and is not intended as a substitute for legal advice.