DIVORCE LAW FORUM

    

TEXAS DIVORCE LAW

RESIDENCY REQUIREMENTS AND WHERE TO FILE:

In Texas, one of the spouses must have been a resident of the state for at least six months and have established residency in the county where the petition is filed for at least 90 days. The divorce petition must be filed with the District Court of the county where either has established the above-described residency.

[See Texas Statutes; Family Code, Chapter 6.301].

LEGAL GROUNDS FOR DIVORCE:
 

The court may grant a divorce without fault on the basis of irreconcilable differences.  Otherwise, the court may grand a divorce on one or more of the following fault basis:

            (1) Cruelty

            (2) Adultery

            (3) Conviction of a felony

            (4) Abandonment

            (5) Confinement in a mental hospital

            (6) Living apart without cohabitation for at least 3 years.

[See Texas Statutes; Family Code, Chapter 6.001 through 6.007]
 

LEGAL SEPARATION:

Texas does not have statutes that provide for legal separation, but temporary orders can be filed at the time the divorce is filed.

Once one of the parties has filed for divorce or annulment, they may enter into an agreement providing for the division of property and liabilities of each spouse and maintenance of either spouse. Any agreement of this type may be revised or rejected before the divorce or annulment is finalized unless the agreement is binding under another rule of law.

[See Texas Statutes; Family Code, Chapter 7.006]

 

PROPERTY DISTRIBUTION:

Texas is a community property state. In a proceeding for decree of divorce or annulment, a court shall order the division of the marital estate of the parties as it deems just and right, considering the rights of each party and any children born as issue of the marriage. Property that is considered marital property is subject to division. Property that is considered separate property is not subject to division.

In a proceeding for divorce or annulment, a court will determine the spouse’s rights in regard to pensions, retirement plans, annuities, individual retirement accounts, employee stock option plans, stock options, and any other form of savings, bonus, profit-sharing, or other employer plan or financial plan of an employee or a participant.  This is true even if the spouse is self-employed. In a separate proceeding the court shall divide or award the rights of each spouse in an insurance policy.

[See Texas Statutes; Family Code, Chapter 7.002, 7.003 and 7.004]
 

SPECIAL DIVORCE PROCEDURES:

If the parties enter into a written agreement, a court may refer a suit for dissolution of a marriage to arbitration (which can be binding or nonbinding depending on the agreement), mediation, or other collaborative law procedures.

A court can also make its own motion to refer a suit for dissolution of a marriage to mediation.

[See Texas Statutes; Family Code, Chapter 6.601, 6.602, 6.603]
 

MEDIATION OR COUNSELING:

During the pendency of a divorce, the court may order the parties to attend counseling. The counselor shall enter an opinion as to whether reconciliation of the parties is reasonably possible and, if it is possible, whether additional counseling would help. If reconciliation appears reasonable, the court may continue the proceedings and order the parties to an additional counselor for a fixed period, not to exceed 60 days, subject to any terms, conditions, and limitations the court considers desirable.

If counseling is ordered under this section and the parties have a minor child (under 18 years of age) born or adopted during the marriage, the counseling shall include counseling on issues that confront children who are the subject of a suit affecting the parent-child relationship.

[See Texas Statutes; Family Code, Chapter 6.505]

 

ALIMONY/SPOUSAL SUPPORT:

In Texas, court may order maintenance for either spouse only if:

1)       The spouse is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability.

2)       Is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home.

3)       Clearly lacks earning ability in the labor market adequate to provide support for the spouse's minimum reasonable needs.

Maintenance/Spousal Support is based on the following:

1)       The financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse's ability to meet the spouse's needs independently.

2)       The education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment, the availability of that education or training, and the feasibility of that education or training.

3)       The duration of the marriage.

4)       The age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance.

5)       The ability of the spouse from whom maintenance is requested to meet that spouse's personal needs and to provide periodic child support payments, if applicable, while meeting the personal needs of the spouse seeking maintenance.

6)       Acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common.

7)       The comparative financial resources of the spouses, including medical, retirement, insurance, or other benefits, and the separate property of each spouse.

8)       The contribution by one spouse to the education, training, or increased earning power of the other spouse.

9)       The property brought to the marriage by either spouse.

10)   The contribution of a spouse as homemaker.

11)   Marital misconduct of the spouse seeking maintenance.

12)   The efforts of the spouse seeking maintenance to pursue available employment counseling.

Generally, the duration of maintenance lasts three years or less.  This is true unless the person seeking support cannot obtain appropriate employment due to a physical or mental disability, duties as the custodian of an infant or young child, or other compelling impediments to gainful employment. A court may not order maintenance that requires an obligor to pay monthly more than the lesser of:

1)       $2,500 or,

2)       Twenty percent of the spouse's average monthly gross income. The obligation to pay future maintenance terminates on the death of either party or on the remarriage or cohabitation of the obligee with another person in a permanent place of abode on a continuing, conjugal basis (as determined by a court hearing).

      [See Texas Statutes; Family Code, Chapter 8.051 through 8.056]
 

SPOUSE'S NAME:

During the pendency of a divorce or annulment, the court will grant a change of name for a party if specifically requested by the party, to a name previously used by the party unless the court states in the decree a reason for denying the change of name.

 [See Texas Statutes; Family Code, Chapter 6.706]

 

CHILD CUSTODY:

In any proceeding for divorce, the best interest of the child shall be of the utmost importance in determining custody, without regard to the sex of the parent or child. Sole or joint custody can be awarded, but there is a presumption for joint parenting. If the family has a history of violence involving the parents of a child the presumption is removed. The following factors are used in determining custody:

1)       Whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators.

2)       The ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest.

3)       Whether each parent can encourage and accept a positive relationship between the child and the other parent.

4)       Whether both parents participated in child rearing before the filing of the suit.

5)       The geographical proximity of the parents' residences.

6)       If the child is 12 years of age or older, the child's preference, if any, regarding the person to have the exclusive right to designate the primary residence of the child.

7)       Any other relevant factor.

[See Texas Statutes; Family Code, Chapter 153]
 

CHILD SUPPORT:

Either parent can be ordered to pay child support:

1)       Until the child is 18 years of age or until graduation from high school, whichever occurs later.

2)       Until the child is emancipated through marriage, through removal of the disabilities of minority by court order, or by other operation of law.

3)       Until the death of the child.

4)       If the child is disabled as defined in this chapter, for an indefinite period.

Child support can be paid by periodic payments, a lump sum payment, and annuity purchase, the setting aside of property to be administered for the support of the child as specified in the order, or an combination of these methods, as ordered by the court. The court shall also order payment of medical insurance and support for the child, and if necessary, order income withholding to secure the payment of child support.
 

PREMARITAL AGREEMENTS:

In order to be valid and enforceable an agreement must be in writing and signed by both parties.  If it is valid and enforceable it will be implemented without consideration. The parties to a premarital agreement may contract with respect to any of the following:

1.       The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.

2.       The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.

3.       The disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.

4.       The modification or elimination of spousal support.

5.       The making of a will, trust, or other arrangement to carry out the provisions of the agreement.

6.       The ownership rights in and disposition of the death benefit from a life insurance policy.

7.       The choice of law governing the construction of the agreement.

8.       Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

The right of a child to support may not be adversely affected by a premarital agreement.

[See Texas Statutes; Family Code, Chapters 4.002 and 4.003].

 

Disclaimer

This site is not meant to provide legal representation or to be relied on in place of an attorney. We recommend that anyone serious about going forward with a Divorce or Child Custody claim seek the advice and counsel of a qualified attorney in their respective state.

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