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State Bar of Texas

An Overview of Texas Family Law

Jerry W. Tidwell, Jr.
Texas family law

If you are considering or are in the process of a divorce, you may have questions and need an overview of Texas family law.

Here, we’ll take a look at what you can expect from the court process, how lawyers help mediate the process, and what the specific Texas laws are that govern the process of divorce.

In addition, we’ll talk about what your options are for filing divorce, child custody arrangements, and division of property.

The process of divorce is not an easy one. It means massive changes to everyone’s lives and extremely important decisions. Emotions are strong, and the gravity of the decisions are such that the process can become extremely contentious.

If you have any questions about your particular divorce, please do not hesitate to contact Tidwell Law Firm either by phone or online.

Fault vs. No-Fault Divorce

This is likely one of the first choices you’ll have to make: whether to pursue a fault-based or a no-fault divorce. Texas residents can choose to pursue either. In addition, if you and your spouse have been living separately for more than three years, you can use that as grounds for a divorce.

When filing a no-fault divorce, couples do not have to give the courts a reason for dissolving their marriage. They simply tell the judge that their marriage is damaged beyond the point of repair and courts begin the process of dissolving the marriage. The grounds for a no-fault divorce are known as “insupportability”.

It’s important to realize that just because one party is not “blaming” the other for the breakdown of the marriage, doesn’t mean no-fault divorces aren’t contentious. They can get ugly once it comes to custody and money.

Understanding Fault-Based Divorces

In a fault-based divorce, one or the other party must establish grounds. Instead of saying the marriage has broken down and is past the point of repair, one party says that the other party caused the breakdown of the marriage. If the spouse can prove the grounds for filing a fault-based divorce, it could give them a substantial advantage when it comes to awarding property and custody.

It’s also important to realize that any allegation that you bring against your spouse must be provable. If the courts find that there is insufficient evidence to support the grounds for a fault-based divorce, they will convert the case into a no-fault divorce.

Grounds for a Fault-Based Divorce in Texas

As discussed earlier, the grounds for all no-fault divorces is “insupportability”. Fault-based divorces, however, have various grounds. Those grounds include:

  • Cruelty or abuse
  • Commission of adultery
  • Commission of a felony
  • Abandonment for a period of more than a year
  • Separation for a period of three years
  • Confinement of one spouse to a mental hospital

When you file for a divorce based on any of the aforementioned grounds, you are claiming that your spouse’s actions were the direct cause of the breakdown of the marriage. Your spouse will likely contest that. You will need to provide the court with proof of any charge you make against your spouse in court. If the court finds your evidence lacking, they will convert the divorce into a no-fault divorce.

Defending against a Fault-Based Divorce

If you’re on the opposite side of a spouse that is attempting to leverage fault-based grounds, there are a number of defenses. One of the most popular and effective defenses is known as condonation.

What is condonation?

Let’s say a wife catches her husband committing adultery. The husband pleads for forgiveness and ensures wife that it will never happen again. The wife accepts his apology, but over the course of their marriage, she realizes that she really doesn’t want to be with him anymore. Feeling a cold distance between them, the husband and wife get in a major fight. The wife files for a fault-based divorce on the grounds of adultery.

In this scenario, the husband can say that since his wife forgave his adultery (ie: condoned it) that she does not have grounds for a fault-based divorce. He can then petition the court to convert the divorce into a no-fault divorce.

The aforementioned situation is complicated by a number of factors. Generally speaking, however, if the individual did commit adultery, then they must prove condonation. In order to prove condonation, the individual has to show:

  • The condoning spouse was aware of the offending behavior
  • The condoning spouse forgave the offending spouse
  • That the offending spouse was truly remorseful and did not repeat the offending behavior

In our scenario, the husband keeps his word and does not commit a second adultery. His wife would then have a hard time arguing that the grounds for their marriage’s breakdown was her husband’s infidelity.

If the husband cheats a second time, then the wife might have a case for grounds.

Options for Dissolving a Marriage

  • Mediation. Mediation is a settlement process during which two parties meet with a neutral third party to formally dissolve their marriage, separate their assets, and arrange custody. Each party discusses their goals with the mediator who then tries to find some resolution that satisfies both parties.
  • Collaborative divorce. Somewhere between litigation and mediation lies collaborative divorce. Collaborative divorce is when two spouses come together in principle to dissolve their marriage as amicably as possible. Each signs an agreement saying that they will commit to the collaborative process and not go to trial. If one party threatens to go to trial, that dissolves the collaborative process and litigation ensues.
  • Litigation. Litigation is when spouses sue each other over property, custody, and other issues related to their divorce. Generally speaking, these are the sorts of cases that are dramatized in T.V. and movies.

Pros and Cons of Mediation

The biggest pro of mediation is that it takes all of the decisions out of the court’s hands. If the former husband and wife can resolve all of their conflicts themselves, then they can keep the courts out of the process of deciding for them.

Mediation is generally less expensive than litigation. Litigation requires extensive court and legal fees, and beyond that, it takes longer. Mediation does not necessarily mean that you don’t have a lawyer helping you through the process. It’s simply a less contentious way of resolving a divorce that allows you and your former spouse to control the process.

The process may not go as easily as either party plans. Divorces tend to be emotional affairs that usher in major changes to all involved parties. Many divorces that begin in mediation end up in litigation. In addition, there will be certain divorces for which mediation is not appropriate.

Pros and Cons of Collaborative Divorce

Collaborative divorces are contentious divorces in which both parties agree in principle to dissolve the marriage collaboratively. Specially trained attorneys familiar with collaborative law facilitate the process along with financial planners, childcare specialists, and other experts to hammer out an arrangement that is in the best interests of all parties. This includes the children.

The major benefit of collaborative divorce is that it manages contentious issues such as custody and property division in a non-contentious way. It does, however, require a commitment to the process. Both spouses will be required to sign an agreement of commitment. If one party violates that agreement by hiding assets or otherwise being dishonest, they run the risk of voiding the collaborative contract. In that case, the divorce would end up in litigation.

Pros and Cons of Litigation

Litigation is appropriate to a number of divorces.

When two spouses cannot see eye-to-eye, allegations of physical or emotional abuse are present, or there is simply bad blood between the couple, litigation is the only option that makes sense. In this case, coming to an agreement is not in the cards. The couple will need the courts to resolve the dispute and their lawyer will aggressively advocate for their client’s interests against one another.

The major con to litigation is that it is costly and time-consuming. In instances where children are involved, they are ultimately caught in the middle of a power struggle. Sometimes, though, that struggle is justified. Each of these options has their own place and time.

Property Division in Texas Divorce Law

Texas is considered a community property state. In other words, each spouse, regardless of their contribution in terms of finances and property own half of everything. Generally, property will be divided evenly upon divorce. In instances where one party is at-fault, property division favors the aggrieved party.

Custody Decisions in Texas Divorce Law

In terms of custody, Texas courts make decisions in the best interest of the children. Generally, that will translate to both parents having an active role in their child’s life. In some cases, this will mean cutting off one parent completely.

The extent of each parent’s role will either be determined by the court or mutually agreed upon by the parents themselves. Once a schedule is set, however, both parents are expected to abide by it.

Divorce Strategy

Pursuing a fault/no-fault divorce is not an either-or—a sound legal strategy is to pursue both at same time. The realistic outcome is that the “fault” can be leveraged for a better outcome while settling on no-fault.

Likewise, mediation is used in conjunction with active litigation. Mediation can be thought of as “party-driven” settlement in a structured manner before resulting in final trial. But the strategies for building a litigation position can be used, and are used, for establishing position in mediation. Collaborative law is an independent track from active litigation and has to be chosen at the beginning of the divorce process.

Contact a Texas Divorce Attorney

The family law attorneys at Tidwell Law Firm can help you through what is likely going to be one of the most stressful events in your life.

If you need representation in your divorce, give us a call or contact us online and we can begin discussing your options.

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