In Texas, courts must split all marital property equally between divorcing spouses. Likewise, all debts that either spouse incurs during the marriage are considered community debts and belong to both spouses equally. … However, the court may order an unequal division if there are “just and right” reasons.
Texas grants divorces based on the following fault grounds: adultery, cruelty, felony conviction and abandonment. Adultery means one spouse has committed adultery. Cruelty means that one spouse treated the other in such a way that the marriage and living together was insupportable.
What are the grounds for divorce in Texas?
In Texas, there are seven grounds for divorce spelled out in the family code. These include both fault grounds and no-fault grounds. That’s right – you don’t have to prove fault grounds in order to get a divorce in Texas. However, the grounds on which you base your request for divorce may affect the outcome of your divorce settlement.
Sound confusing? Let’s break it down, starting with the three no-fault grounds, where neither party is at fault for the marriage breaking down, but circumstances exist where the marriage is no longer viable for one or both parties. Texas no-fault grounds include:
These grounds are commonly referred to as irreconcilable differences. To prove insupportability, you have to show that the marriage is insupportable because of a discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.
Insupportability is one of the most common grounds people use to file for divorce in Texas. In layman’s terms, the person has filed because they no longer see eye-to-eye with their spouse or living with the spouse has become intolerable for some reason.
If two spouses have lived apart without cohabitating for three years or more – at the time of the trial – that could support living apart grounds for divorce. In these types of cases, the court typically views the arrangement as something both parties agreed to, based on the fact that they have lived apart for so long.
Living apart grounds can play a role in the just and right division of the estate. For example, say one party claims she hasn’t seen her spouse in over five years, and she doesn’t know where to find him. The court might award her everything in her possession, provided she meets certain conditions, such as taking steps to serve him papers, even if that means serving a notice in the newspaper.
Confinement to a mental hospital.
People become mentally incompetent for a variety of reasons, whether due to mental illness, as the result of an accident or another cause. What’s key here is that the party must have been confined for at least three years and the severity of their mental disorder is to the degree that it’s unlikely to improve and, if it does, relapse of the disorder is very likely.
While confinement may be grounds for divorce, the statute was also put in place to help protect the confined person’s interests and the just and right division of property. The court will likely appoint a guardian ad litem to represent the person who is confined. If you say, “Oh well, they’re confined, so I should get everything in the estate,” you probably won’t be granted the divorce!
The role of fault-grounds in Texas divorce
The difference between no-fault grounds and fault grounds is pretty straightforward. With fault grounds, someone is actually found at fault for the divorce.
Again, you don’t have to prove fault grounds to get a divorce in Texas. However, if you claim certain fault grounds – like adultery – and the judge doesn’t buy your argument, he or she could still grant your divorce based on other no-fault grounds, like insupportability. Conversely, the judge could grant the divorce based on fault grounds that surface during the case – say cruelty – even if you filed on no-fault grounds of insupportability.
There are four different fault grounds in Texas. Let’s break them down, starting with:
In Texas, the grounds for cruelty are simply defined as cruel treatment of the spouse that was of such a nature that it renders further living together insupportable. The vagueness of this definition certainly leaves it wide open for interpretation, which it has been. Cruelty is a relative term that is determined based on case-specific facts, so it’s not going to be the same for everybody. For example, a devout Christian may find some form of behavior cruel that another person may not.
Cruelty typically needs to be willful, persistent infliction of suffering and can be mental or physical. However, there are some cases where one incident is so egregious – say a severe beating – or there is an accumulation of smaller, cruel acts over time that could support cruelty grounds. An unsuccessful attempt to reconcile doesn’t bar a spouse from asserting cruelty.
Simply put, if you can prove your spouse cheated on you, then you may have grounds fault grounds for divorce in Texas. You don’t have to show a videotape of your spouse cheating, but you do need to provide positive proof. Adultery can be proven in a lot of circumstantial ways.
It’s also important to keep in mind that acts of adultery that occur after you file your petition and are no longer cohabitating CAN support a fault-based judgment against the adulterer. You are considered married until divorced, there is no legal separation in Texas!
It is typically best to stay celibate and not get into relationship during a divorce. Otherwise, questions could be raised about how community funds are being used – i.e., gifts, jewelry, loans and trips for a lover – which could be subject to a reimbursement claim for fraud. This all goes to the just and right division of the marital estate, where one party may get a larger portion of the estate, a home or other assets to compensate for the other party’s misuse of community monies.
A felony conviction can serve as fault grounds for divorce if the spouse is convicted of a felony during the marriage and in prison for at least 2 years in a department of criminal justice or a state or federal penitentiary and they haven’t been pardoned.
However, if the state’s entire case against the convicted felon was based on his or her spouse’s testimony, a divorce cannot be granted on felony conviction grounds. The court may still grant the divorce based on insupportability or cruelty but not due to the conviction. Family violence is another factor, and in some cases, it may be possible to get spousal maintenance due to abuse that has occurred.
To prove abandonment, two things need to have occurred. One, the spouse must have left voluntarily, and two, they must have had the intent to abandon the spouse who filed. Intent to abandon typically means a spouse has an intention not to return to live with their spouse.
The abandonment must also be continuous for a one-year period. So, say your spouse abandons you and comes back home for a few nights, that could disqualify the one-year period. However, if the returning spouse has no intent to continue living together with you after the brief stay, that could still be enough to support abandonment.
Additional thoughts about divorce grounds in Texas
With so many options for grounds for divorce, you may be wondering how often fault grounds come into play in Texas. The majority of cases in Texas are no-fault-divorces. While the reasons for this vary, one reason may be that people don’t want their dirty laundry aired in a public forum, especially in their legal paperwork.
For people who don’t want to get divorced, it’s important for Texans know that no-fault grounds are an option and there’s not much you can do to stop a divorce if your spouse is determined to get one. Instead of fighting, it’s usually better to participate in the process to help ensure the divorce and property settlement works out more favorably for you.
How Long Does a Divorce Take in Texas?
If you want to end your marriage, you may be wondering: How long does a divorce take in Texas?
Due to the Texas mandatory 60 day waiting period, the absolute quickest that a divorce can be finalized is 61 days. Realistically, however, it will take a bit longer for most couples to be granted a divorce in Texas; typically anywhere from 6 months to a year and a half or longer. And the more assets you have and the more lives affected by the divorce, the longer it will take.
The Bowen Law Firm, PLLC are dedicated to not only moving the divorce process along but also fighting to get you the best resolution possible.
Learn more about and what an “average” divorce timeline looks like, what factors may complicate and draw the divorce process, and how The Bowen family law team can help.
HOW LONG DOES IT TAKE TO GET A DIVORCE IN TEXAS IF BOTH PARTIES AGREE?
Before we get into the nitty gritty of answering, “How long does a divorce take in Texas?” we want to clarify something about how long a divorce takes if absolutely everything runs as smoothly as possible.
If both parties agree to the divorce, distribution of assets, and custody arrangements, then the filing process and waiting period are the only steps before the final divorce hearing and the marriage could potentially be dissolved after 60 days. However, most courts have full dockets, so even an uncontested divorce hearing will usually be scheduled well beyond the 61st day.
So when making your post-divorce plans, keep in mind that even if you and your spouse have an extremely amicable divorce, you may still be legally attached longer than the minimum 60 days due to court delays.
AN AVERAGE TEXAS DIVORCE PROCESS TIMELINE
Just like every marriage is different, so is every divorce. However, the average divorce process goes as follows:
1. Pre-filing (a few weeks)
Pre-filing for a divorce involves two main steps: deciding whether you actually want a divorce and working with a lawyer to prepare to file.
The former is not technically part of the legal process but, often, a natural part of the divorce process is deciding whether or not a marriage can be repaired through marriage counseling or some other form of mediation. In situations where there’s abuse directed towards you or your children, call the police and get help immediately. Otherwise, take some time to ensure this is what you truly want.
When you’re ready, the next step is to retain the services of an experienced divorce attorney, like The Bowen Law Firm, PLLC. A family lawyer will advise you on how to get your finances in order and protect yourself and any kids before serving your partner with divorce papers. This is also the time when you determine what you’re requesting in terms of assets and custody.
2. Filing (a few days)
Once you are ready to file, you and your divorce lawyer will begin the marriage dissolution by filing a petition with the court requesting that their marriage to their spouse be dissolved. This petition also lists your requests for the division of property, child support, and alimony, if applicable.
Either spouse can be the Petitioner as long as they have lived in Texas for at least 6 months and been a resident of the county where they filed for the previous 90 days.
3. Waiting period (60 days)
Texas has a mandatory waiting period of 60 days, starting from the moment the petition is filed. A 60-day waiver may be granted in cases of family violence, but most couples will have to wait it out. During this waiting period, a divorce will not be granted, but the other party still needs to respond, and the case can still move forward.
FAQ: How long do you have to be separated before you can file a divorce in Texas? Texas does not require parties to be physically or legally separated before filing for divorce. The only thing required is a 60 day waiting period to give couples a chance to cool off. Our law offices recommend not moving out or separating immediately but rather continue living in the house and spending time with your kids to maintain your position in the household, especially if you have children.
4. Responding to a petition (roughly 20-28 days)
Once a petition has been filed with the court, it must be served to the Respondent to let them know the case exists. Petitions can be served via delivery service, publication, certified mail, or left in a location where it will be found, depending on what is allowed in your county.
If your spouse’s whereabouts are unknown, the service of process may add some time to your case. Once the petition has arrived, the respondent has between 20-28 days to respond to the petition by accepting demands, contesting, or asking for an extension to try and reach an agreement.
5. Contesting a divorce (a few months to years)
If a divorce is being contested, the two parties will participate in discovery to collect evidence that supports their claims and reasoning. Oftentimes, lawyers from both parties will sit down and battle it out to come up with an agreement before trial. If an agreement can’t be reached, it is common for one lawyer to keep pushing back the court date as an intimidation practice. Grimes & Fertitta will fight to keep your case moving forward so you can move on with your life quicker.
6. Temporary orders (a few weeks)
While more complicated divorces are underway, the judge may also grant temporary orders detailing who will remain in the family home, who the children will spend time with, and how often as well as the payment of temporary child, spousal support or community debts.
7. Final divorce hearing (a few days)
The final divorce hearing is where a judgment is declared. This hearing could take a few days depending on how much evidence is presented and is often scheduled out well in advance.
WHAT MAKES A DIVORCE LAST LONGER THAN THE MINIMUM TIME?
If you’re wondering, “How long does a divorce take in Texas?” because you want a quick divorce but aren’t sure whether that’s feasible for you, ask yourself the following questions:
- Do you have children?
- Is this a high-asset divorce?
- Do you think your partner will contest the divorce?
- Has your partner hired a lawyer?
- Are the courts backed up?
- Did you skip out on working with a pre-nup attorney,?
If you answered yes to any of the above questions, then you are likely not going to be able to finalize your divorce in the “record” 61 days. For example, A high net worth divorce in Houston is a prime example of a type of divorce where some lawyers will drag their feet and potentially stall for years claiming it’s impossible to identify every asset and future earnings.
Meanwhile, complex child custody arrangements can also make it take exponentially longer to reach a resolution, specifically in instances where a child has special needs.
If you answered yes to any of the above questions, you are almost certainly going to be in a better position if you hire a qualified lawyer. Our team will not let you make any high asset divorce mistakes, will teach you how to fight for custody of a child, and will fight for your family’s best interests while keeping in mind your desires for a swift resolution.
In a legal separation, the marriage remains legally intact, whereas in a divorce or dissolution, the marriage is ended.” In a legal separation, the marriage remains legally intact, whereas in a divorce or dissolution, the marriage is ended. … The legal separation order can be modified in certain circumstances.
FYI: There is no legal separation in Texas, You are married until divorced!
- Under Texas State law, uncontested divorces typically move through the system rather quickly. Most of the actual work required for both spouses to reach an agreement on their divorce terms takes place outside of the courtroom.
- Usually, at least one spouse will have to go in front of the judge to answer questions. This is known as a “prove up” hearing. The judge will want to know that both parties truly and fully understand the consequences of their actions.
- Divorce is a serious legal decision, with lasting consequences. Even in uncontested cases, it is up to the judge to grant the divorce, and ensure that both parties are confident in their decision. The judge will also seek to confirm that both parties are signing the agreement voluntarily, under their own free will.
- However, this hearing is mostly a formality and usually does not make or break the case. There is no need for a formal trial in an uncontested divorce.
- Most of the time, the judge will go ahead and grant the divorce under the agreed terms.
- In Texas, there is a mandatory waiting period until the divorce becomes law. This period is 60 days in most cases.
- It’s important to note that since the COVID pandemic began, there is a possibility that the proven hearing may be virtual, involving the use of a computer or phone video. Harris County, Fort Bend County, Brazoria County, and other Texas counties each establish its own regulations. Note that mediations and arbitrations are also done virtually.
In Texas, child custody is decided based on the best interests of the child. In determining the custody of a child, Texas courts encourage mediation as a first step. If the parties are unable to resolve custody issues on their own, then child custody will be decided by a court (usually a family court judge) based on the best interests of the child.
Texas Child Custody: Court Decisions
In determining the custody of a child, Texas courts may presume that parents will share parental rights and duties. The duties do not need to be shared equally. If the divorcing parents cannot agree on custody themselves or through mediation, a Texas court will make a determination.
A Texas court may use social studies or psychological evaluations to help it make a custody decision. A child who is 12 years old or older can sign an affidavit if he or she would prefer living with one parent although the judge is not obligated to follow the child’s wishes.
Best Interests of the Child
In Texas, child custody decisions will be made by a court based on the best interest of the child. A Texas court will presume that joint legal custody will be best unless one parent can prove otherwise. A court will consider many factors in deciding primary physical custody, including:
- The history of contact between the parent and child
- The relationship between each parent and the child
- The health, safety, and welfare of the child
- The health of the parents
- Where the parents live
- How close the parents live to each other
- Each parents finances
- Any child abuse
A court may take steps to ensure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child, even if that parent does not have custody. After awarding custody of a child, Texas divorce courts encourage parents to share in the rights and duties of raising their child.
After finalization of a Texas child custody order (and divorce order, if applicable), both parents are bound by the court order. If a parent is denied court-ordered access to his or her child, he or she may bring the issue back before the Texas court.
HOW IS CHILD SUPPORT CALCULATED IN TEXAS?
To calculate your net income for child support purposes and to calculate the child support percentage, Texas law provides a number of guidelines.
IDENTIFY SOURCES OF INCOME
If you have multiple sources of income, you may need to combine these to figure out your income for child support purposes.
All income you actually receive counts toward this calculation, including:
- All salary and wage income, tips, overtime, bonuses, and commissions;
- Self-employment and business income;
- Royalty income, interest, and dividends;
- Retirement benefits, social security, and pensions;
- Disability, unemployment, and workers compensation benefits;
- Annuities, trust income, and capital gains;
- Gifts and prizes;
- Net rental income;
- Alimony; and
- Child support paid for children from another marriage.
However, you don’t count the following items as income for child support purposes:
- Any income or resources of a new spouse;
- Accounts receivable;
- Return of capital or principal;
- Benefits paid from federal assistance programs; and
- Foster care payments.
If the court decides that you are intentionally unemployed or underemployed, the court can impute a higher income to you for child support purposes. This means that the court will calculate your income based on your earning potential rather than your actual earnings.
Once the court adds all sources of income together, it will subtract the following items to calculate your net income:
- Federal and state income taxes;
- Social security taxes or non-discretionary retirement plan contributions;
- Union dues; and
- The amount you spend on health and dental insurance and uninsured medical expenses for the children.
Once it calculates your yearly net income, the court divides that number by 12 to get your monthly net income.
To illustrate, let’s say you earn $50,000 per year, pay 20% of that amount in taxes, and spend $3,000 per year on your children’s medical and dental insurance and expenses. Your net income for child support purposes will be $37,000 per year or $3,083 per month.
CALCULATE YOUR SUPPORT OBLIGATION
There are two ways the court may calculate child support under the guidelines, depending on whether your net income is above a certain amount. This amount changes every six years based on inflation, but it is currently $9,200 per month.
If your income is $9,200 or less, the guidelines require you to pay a percentage of your total net income based on the number of children you have:
- 1 child = 20% of net resources
- 2 children = 25% of net resources
- 3 children = 30% of net resources
- 4 children = 35% of net resources
- 5 children = 40% of net resources
- 6+ children = at least 40% of net resources
So in our example above, someone with $3,083 per month in net income who has two children will pay $771 per month in child support.
If your income is more than $9,200, then your child support will be the greater of:
- The same percentage you would pay above, but applied to only your first $9,200 of net income or
- Up to 100% of your children’s actual needs.
For example, if you have two children and you earn $20,000 per month, you would pay at least $2,300 per month (20% of $9,200). However, if your children’s actual monthly needs are $5,000 per month, the court may instead require you to pay up to $5,000 per month.
OTHER WAYS TO CALCULATE SUPPORT
The guidelines are presumed to calculate a child support amount that is in the children’s best interests. However, it is possible for a court to order more or less support than provided in the guidelines.
This happens only if the court finds that the amount prescribed by the guidelines is “unjust or inappropriate under the circumstances.”
To deviate from the guidelines, the court must consider a long list of factors listed in the Texas Family Code. These factors consider whether there are unusual circumstances relating to a parent’s earning capacity, a parent’s monthly expenses, or a child’s needs.
TALK TO A DIVORCE ATTORNEY ABOUT CHILD SUPPORT IN TEXAS
Child support is just one of the many issues you will need to resolve when you get a divorce. The knowledgeable and compassionate Houston Texas Divorce attorneys at The Bowen Law Firm, PLLC can help.
We will negotiate and advocate on your behalf to help you get the outcome you want. Call us at 713-574-7777 or email us at BowenLawFirm@BowenLF.com to schedule a consultation.
It is possible for parents to have different ideas on what it means to protect their child during their divorce. Though every family’s situation is unique, the ways that parents can keep their kids healthy and protected during this process often look similar across the board. Get a clearer picture of what it means to protect your child during divorce by considering these tips.
Encourage time spent with each parent. When one parent leaves the picture entirely, it can lead a child to feel extremely troubled. As long as no issues are surrounding your child’s safety, children deserve to spend quality time with each of their parents and continue cultivating a close relationship with them individually.
Never use your child as a messenger. The responsibility of having to send messages between homes for their parents puts a lot of pressure on a child. They can experience anxiety and stress by having to bear the burden of the messages as well as the responses to them. Find an effective way to manage your shared parenting communication between one another, without putting your child in the middle of it.
Manage your shared expenses and child support payments responsibly. This may not seem evident at first, but children do suffer consequences when one or both parents are not providing them with adequate financial support. Even though your family situation has changed, it’s essential to work as a team to protect your child’s financial standing and maintain a lifestyle for them that is similar to how it was before your divorce. Be smart about how you handle shared finances, including child support payments.
Keep up with a routine. Many kids can quickly adapt to change, but it’s not always so easy when the changes carry substantial emotional weight. Preserve as much of your old routine as you possibly can, and stick to new parts of your routine as soon as you fall into them. A sense of normalcy is likely to help your child maintain a healthier emotional state throughout this process.
Bring new significant others into the picture slowly. Entering a relationship right after ending another can seem exciting but can also be so emotionally draining, both on your and your children. As new individuals enter your life, be slow to let them into your child’s life. Don’t rush a meeting or expect your child to fall in love with this new person right away.
Talk to your child. Regularly checking in with your child about the changes going on in your family might not always be easy to face, and there might be times where they don’t want to say much. As difficult as it might sometimes be, letting your child express their feelings to you can be a positive step for them towards moving forward. Listen attentively and respond lovingly, even if what they say feels hurtful.
Work to end conflict in your co-parenting. At the onset of your divorce, the thought of having to interact with the other parent of your children can seem daunting and tiresome. This isn’t abnormal, and things can evolve. At the onset, find a way to communicate effectively, sharing the most important details related to your child’s schedule, health, schooling, etc. When parents are on the same page about the essential information about their children’s lives, they are better equipped to each offer the best support possible to their kids.
Look after yourself. As many times as you may have heard it, it’s true that you can’t always provide the best degree of love and support to someone else if you can’t find a way to love and support yourself. Take care of yourself to uphold your emotional and mental well-being. Spend time with loved ones and friends, and spend time doing things you like to do. If you feel you need extra support, don’t hesitate to reach out to a therapist or other mental health practitioner. They can offer professional guidance to help you move forward and care for yourself.
Protecting your children through a divorce may look a bit different for every family, but at its heart, it means that both parents are always looking out for their child’s emotional and mental health. With your co-parent, work as a team to help your whole family move forward positively into this new life chapter.
When you or your ex-spouse remarry, some of the agreements from your divorce may change. After a divorce, especially one involving children, one party may have a financial duty to the other through court-ordered payments of child support or spousal maintenance. When your financial situation changes, as it does in remarriage, this could justify a modification to your divorce settlements, or the remarriage itself could stop payments altogether.
If the attorney who has been hired knows how to address the disputed issue and by doing so will benefit one spouse over the other, this would place the attorney in an ethical dilemma. To avoid these ethical dilemmas, Texas law does not allow divorce attorneys to represent both spouses in a divorce.
The big reason a Texas divorce attorney can only represent one spouse is that there is a conflict of interest. What is best for one spouse is not necessarily best for the other spouse.
For example, what happens if a disagreement were to arise which neither spouse contemplated but which must be resolved? If the attorney who has been hired knows how to address the disputed issue and by doing so will benefit one spouse over the other, this would place the attorney in an ethical dilemma.
To avoid these ethical dilemmas, Texas law does not allow attorneys to represent both spouses in a divorce.
Child support payments, on the other hand, will likely be unaffected by the remarriage of either parent. While spousal support payments are paid for the benefit of the divorced individual, child support payments paid purely for the benefit of the child, not the parent who receives the support. For this reason, a remarriage does not often alter the responsibility either parent has to their child.
However, if the remarriage also comes with serious financial changes, the court may consider a modification to the support payments. For example, if the paying parent is now responsible for supporting other children from another relationship his or her financial situation may require an adjustment to the child support payments. A parent who makes child support payments may also wonder why payments are still necessary when the custodial parent and his or her new spouse are financially well-off. Even if the custodial parent is capable of taking on full financial responsibility for the child, the point of child support is to ensure that both parents take equal financial responsibility for their child. Therefore, it is in both parents’ best interest to continue making payments.
In some cases, when a divorced parent remarries they may wish to make adjustments to child custody. If they wish to relocate, for example, they may need to agree to a change in custody or seek permission from the child’s other parent. In other instances, the parent’s new spouse may wish to adopt the children from a previous marriage. This is not typically doable unless the non-custodial parent has relinquished all parental rights.
It is important to remember, however, that every situation is different. If you are remarrying, or your ex-spouse has remarried, it is important that you seek the professional advice of a family law attorney, especially if you have any concerns about your divorce settlements. Our firm can go over your settlements and help you determine your next step.
What use is a prenuptial agreement if we never get divorced?
It will have an affect upon death and the distribution of the estate.
What happens if you have a prenup and your spouse dies?
Due to the way Prenuptial Agreements are written, they will often be the overriding document upon death. The main reason for this is that the Prenuptial Agreement has been made as a legal contract between partners, and the contract is still binding if one party of the agreement is still alive.