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State Bar of Texas

What You Need to Know About Getting a Divorce in Texas

Jerry W. Tidwell, Jr.

Divorce is a confusing time for many of our clients.

Divorce in Texas

In addition to dealing with the emotional fallout of separation, many couples feel overwhelmed by the complexity of divorce laws in Texas.

In this article, we highlight the key facts divorcing couples need to know as they head toward divorce court.

You Can File for “No Fault” Divorce

Once upon a time, Texas divorce laws limited divorce to a few situations, such as adultery or abandonment.

Today, you can file for divorce simply because you think the marriage is no longer worth saving due to personality conflicts (called “insupportability”).

However, fault grounds are still available and can affect how the judge divides property. Fault grounds include adultery, abandonment, and cruel treatment.

You Must Meet the Residency Requirement to Divorce in Texas

Not anyone can get divorced in a Texas court.

Instead, one spouse must have been a resident of Texas for at least six months before the divorce is filed. One spouse also must be a resident in the county where the divorce is filed for at least 90 days.

These rules prevent people from skipping into Texas and getting divorced before heading back home.

You Should Seek Temporary Orders

A divorce will determine the following:

  • Child custody
  • Child support
  • Whether one spouse must pay spousal maintenance (alimony) to the other
  • Division of community property
  • Division of community debt

However, a divorce can take months to complete, and contested divorces could take even longer. During that time, you will need temporary orders to decide where the children will live and whether one spouse must pay support to the other. A judge might also need to decide who can stay in the family home or use the family car.

There is also a strategic advantage to seeking temporary orders. Many judges try to maintain the status quo, especially when it comes to children. If you can obtain a temporary order granting you custody of the children, then it is more likely that you can get custody in the final order.

You and Your Spouse Can Reach an Agreement on Key Issues

Divorce in Texas does not need to be contentious.

Instead, couples can reach an agreement on child custody, support, alimony, and other issues. A judge will review your agreement to determine whether it is in the best interests of the children, but typically they will sign off on it.

In fact, Texas divorce laws so favor agreement that a judge might order you and your spouse to attend mediation soon after filing. In mediation, a divorcing couple meets with a neutral third party who can facilitate discussion and identify areas of agreement. Mediation is voluntary, and you do not have to agree to anything in mediation. However, many couples find that mediation helps reduce conflict and stress, which can make the divorce easier on children.

Texas Does Not Require a 50/50 Division of Community Property

Texas is a community property state.

Generally, community property is any property you acquired while married. It typically excludes property you brought into the marriage or gifts or inheritances received while married. You and your spouse both own community property while married, regardless of whose name is on the title or deed. However, most community property divides during a divorce.

A common misconception is that community property states always divide property 50/50.

Actually, Texas divorce law requires that the division be “just and right.” In other words, “fair.” There are many reasons why a judge might divide property 60/40 or 55/45, such as:

  • Fault on the part of one spouse, such as adultery
  • Other bad behavior, even if the couple seeks a no-fault divorce
  • Disparity in earnings capacity

If you have questions about the division of community property, you should speak with an attorney who understands the divorce laws in Texas.

Texas Law Determines Child Support

Child support is one area where divorcing couples do not have a lot of leeway to reach their own agreement. Instead, child support belongs to the child, so parents can’t negotiate it away or agree to a reduced amount.

Texas divorce law clearly identifies how much the parent who must pay child support will need to contribute:

  • 20% of net income if supporting one child
  • 25% of net income if supporting two children
  • 30% of net income if supporting three children

These amounts increase by 5% per child until a maximum of 40%.

If you have a disabled child or your child has extraordinary needs, then you should consult with a Texas divorce attorney. A judge might order additional child support to pay for the child’s expenses.

Contested Divorces Can Get Messy

Ideally, parents can reach an agreement on child custody and other issues to avoid a protracted divorce.

However, agreement sometimes is not possible. If you and your spouse argue over custody, you should expect anything in your life to be fair game.

For example:

  • Your health might be relevant to determining child custody.
  • New romantic relationships might also fall under the microscope, especially if your spouse is claiming fault.
  • Your criminal history can come to light in a child custody dispute.
  • Opposing counsel might scour your social media accounts for information, which they will then make public in court.

Alimony is Hard to Obtain

Alimony is another area of law where there has been a quiet revolution over the past 50 years.

Today, it is called “spousal maintenance” and it is no longer common for judges to always award maintenance.

Instead, judges start from the presumption that no spousal maintenance should be awarded. However, a judge can award it in a few situations, such as:

  • A disabled spouse cannot support him or herself.
  • A spouse will take care of a disabled child and be unable to work.
  • A spouse has insufficient assets and the other spouse has been convicted of family violence during the marriage.

Judges will also closely look at the circumstances to determine the amount of alimony and its duration. For example, it is not unusual for a judge to make only short-term awards of alimony so that a person can get more education and support themselves independently.

The Same Rules Apply to Same-Sex Couples

Along with the legalization of same-sex marriage comes same-sex divorce. Divorcing couples should know that the same laws apply to every divorce in Texas. There is no different set of rules for same-sex divorce.

Contact a Texas Divorce Attorney with Questions

It is vital that you properly plan for your divorce.

At the Tidwell Law Firm, PLLC we represent people going through the divorce process, and we are happy to answer any questions that you have.

To schedule your free consultation, contact us today.

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