& Courtroom Experience
Divorce 101: Part A — General
What is No-Fault Divorce?
Texas is a no-fault divorce state which basically means that a divorce will be granted without any requirement that a “fault” ground be asserted or proven. Usually, a Petition for Divorce will state that the reason for the divorce is that the “marriage has become insupportable due to discord or conflict of personalities that destroys the legitimate ends of the marriage relationship”, or just simply “insupportability”. Insupportability does not need to be proven, only asserted in the petition for divorce or counter-petition for divorce and confirmed when the divorce is finalized. Often, even if there are “fault” grounds in a divorce, insupportability is the ground asserted in an attempt to keep the divorce cooperative and/or uncontested.
Are there fault grounds in Texas?
Yes. Along with the general ground of insupportabilty, there are a number of “fault” grounds under Texas law such as cruelty, adultery, abandonment, conviction of a felony, confinement in a mental hospital. The reasons for alleging fault grounds vary by case facts and strategy.
What is the difference between a divorce and an annulment?
In the case of a lawful/valid marriage, a divorce is the dissolution of a marital partnership. An annulment is a proceeding whereby the court invalidates a marriage. Under Texas public policy, every marriage is presumed valid, therefore, annulments are not very common and the grounds for annulment are fairly limited in Texas. Marriage of a person under the age of 18 years, marriage while under the influence of alcohol or drugs, entering into a marriage as the result of fraud, duress, or force, and a spouse’s mental incapacity are some of the grounds for annulment.
What is Common Law Marriage?
Common Law Marriage (also called “informal marriage”) can be established if a signed declaration of informal marriage has been filed with the Clerk of the County where the spouses reside. Or, during a legal proceeding, an informal marriage can be proven by evidence that: (1) a man and woman agreed to be married (not agreed to be married at later date), (2) after the agreement to be presently married, the man and woman lived together in Texas as husband and wife, and (3) the man and woman hold themselves out to others that they are married. There is no specific time period of living together with regard to a common law marriage. The time period can be as little as a few days to as long as 20+ years. A court can consider various facts when determining if the parties are informally married. The filing of joint tax returns, using the other person’s last name, or carrying the other person as a “spouse” on a health insurance policy can all be considered in the determination of an informal marriage by the court.
If I am common law married, is there a common law divorce?
No. Even though a common law marriage is a marriage without an official marriage license, an informal marriage can only be dissolved by a legal proceeding (annulment or divorce) or by the death of one spouse. However, the Texas Family Code does provide that if a divorce is not filed within two years of the date the parties separated or ceased to live together, the presumption is that the parties did not intend to be informally married.
Who can I talk to about divorce?
First, do not take legal advice from friends, family members, or anyone who just want to “help”. You can certainly talk to any of those people for spiritual guidance, emotional support, or just to vent. However, the obvious answer is to talk to an attorney. Attorneys are also “counselors at law” in Texas. This means that an attorney has a duty to counsel her/his clients as well as advocate for them. Talking to an attorney to discuss your rights, various courses of action, concerns, and questions will not commit you to filing for divorce. Contrary to some public opinion, attorneys are not taught to encourage divorce, but to counsel their clients as to what options may exist under each unique set of circumstances. If you meet with an attorney to just explore divorce as a possibility, your communications with that attorney are considered privileged and the attorney cannot disclose the communications.
What should I do to prepare for a divorce?
From a practical perspective, information is power. Take all the steps you can to have a working understanding of the marital property, bills, and finances. Gather copies of tax returns, bank statements, car titles, mortgage documents, credit card statements, retirement account information, etc. Unless you know the assets and debts of the marriage, you nor your attorney will be in a good position to determine what is a reasonable division of the marital property and debts.
What is an Uncontested Divorce?
An uncontested divorce is generally one where the spouses are in agreement on all matters and have worked out the terms of their divorce. An uncontested divorce can occur in a simple divorce with no property to divide or children to consider, a complex divorce with various forms of property to divide and child-related issues, or anything within the scale of simple to complex. The key to an uncontested divorce is the agreement of the spouses. Some cases start out as uncontested and become contested later. Other high-conflict cases end up uncontested with the assistance of counselors, attorneys, mediators, or other experts.
What are the basic procedures for a divorce?
A divorce is a lawsuit. Therefore, one spouse starts the lawsuit by filing a Petition for Divorce (that spouse called the “Petitioner”). The other spouse has to be notified of the filing of the divorce either by (1) being personally “served” with the Petition for Divorce (usually by a constable or private process server), (2) signing a Waiver of Service (basically stating that he/she received the Petition for Divorce and don’t want to be officially “served”), or (3) filing a document in response to the Petition for Divorce – called an Original Answer (that spouse called “Respondent”). The divorce cannot move forward if the court does not have proof that the Respondent spouse received notice of the filing of the Petition for Divorce, whether by the return of service being filed with the Clerk of the Court, the filing of the Waiver, or the filing of the Original Answer. Generally, a divorce cannot be finished/finalized until 60 days have passed from the date the Petition for Divorce was filed. A divorce can be done quickly or it can take many months, even years. The duration of the divorce usually depends upon whether there are complex property or child-related issues and/or if the spouses need the court to order certain items completed under “Temporary Orders” in order for the divorce to be finalized. Such items can include investigation of property interests/ownership, psychological testing of a spouse, the sale of property, the completion of a social study regarding the best interest of a child, or the spouses’ agreement to go to counseling and/or attempt reconciliation. Regardless of whether an agreement is reached by the spouses or a trial is conducted to determine the issues in dispute, a divorce is “finalized” when a Final Decree of Divorce is signed by a judge.
What is my spouse wants a divorce and I don’t?
The short answer is that the spouse wanting the divorce will be entitled to obtain the divorce. Under certain circumstances, the court can order the spouses to attend counseling for the limited purpose of determining if the marriage can be reconciled. However, if a spouse wants a divorce, it will eventually be granted.
What is the 60-day waiting period and can it be waived?
The 60-day waiting period is the time required to have passed between the date the Petition for Divorce is filed and the first day that a divorce can be granted. It is sometimes considered a “cooling off” period. There are limited reasons that the court will waive the 60-day waiting period such as family violence situations.
What is mediation and will it be required in my divorce?
Mediation is a settlement procedure where the spouses and their attorneys meet with a neutral, third-party person called a Mediator who is trained/skilled in negotiation. The goal of mediation is for the spouses to reach an agreement on all or some of the disputed issues in the divorce. The Mediator does not act as a judge, does not make the decisions, and cannot give either spouse legal advice. The Mediator works with the spouses and their attorneys to come to a resolution where both spouses have had input and control in the outcome of the divorce. If the spouses reach agreement, a document that states the details of the spouses’ agreements (“Mediated Settlement Agreement”) is prepared and signed by the spouses and attorneys. A Mediated Settlement Agreement is binding on the spouses and generally, cannot be set aside if one spouse decides that they no longer agree. Many courts require mediation when children are involved and/or in complex property cases. Mediation also gives the spouses the opportunity to create solutions that are crafted to fit their specific circumstances, while a judge is fairly limited in her/his ability to “think outside the box” (the box being the Texas Family Code) and will have limited information presented to make the most important decisions of the divorcing spouses’ lives.
If my spouse and I agree on all the details of the divorce, will the Court have to approve the agreement?
Yes and no. A judge will have to “approve” the agreement by signing the Final Decree of Divorce. However, the judge will not usually go over each section of the Final Decree of Divorce to “approve” the sections as acceptable to the judge. If the spouses have agreed that the sections of the Decree are just, right, fair, equitable, and in the best interests of the child(ren), if applicable, a judge will generally not disturb the spouses’ agreements and will sign the Decree.
Do I have to wait to get re-married after my divorce is granted?
Yes. Unless you are marrying the person you just divorced, there is a 30-day waiting period before a person can re-marry. A judge can waive the 30-day waiting period for “good cause shown.” What that means depends on the reason for the requested waiver, and quite frankly, the judge’s opinion of whether or not the reason given is good enough. Some judges are more lenient than others – it is totally within the judge’s discretion.
What is the best way to keep the cost of divorce down?
Keeping in mind the big picture and understanding that rarely does anyone get everything they want, if the spouses can cooperate, the financial cost of the divorce is greatly diminished. However, having a world war in front of a judge or jury will not only cost you your privacy when all the “dirty laundry” is aired in open public (yes, courtrooms are open to the public), it may also cost you your children’s college tuition and/or your nest egg. Of course, sometimes a battle cannot be avoided.