Texas Divorce Information and 22 Frequently Asked Questions
We provide you with answers
This page provides general information about divorce in Texas and lists the answers to questions that are commonly asked by clients during our many years of Texas family law practice. Be warned, however, that these general answers might not apply to your unique situation. To learn about the legal options best suited to your particular case, please contact the knowledgeable attorneys at Whisenant & Associates.
Texas divorce information
Divorce — Divorce is the legal dissolution of a marriage.
Residency requirements — To file for divorce in a Texas county, either spouse must have lived in Texas for the prior six months and lived in the county for the preceding 90-days. If one spouse lived in Texas for the prior six months, a spouse living in another state or nation may file for divorce in the county in which the Texas spouse resides.
Grounds for divorce — The grounds for divorce in Texas include:
- No-fault grounds — Divorce may be granted without any proof of fault or wrongdoing by either spouse upon these grounds:
- Insupportable marriage — Commonly, Texas divorces are based on proof that the marriage is insupportable due to discord or conflict of personalities that destroys the marriage relationship and prevents any reasonable expectation of reconciliation.
- Living apart — Divorce is granted to couples who have lived apart for at least three years without cohabitation.
- Mental hospital confinement — When a spouse has been confined in a mental hospital for at least three years, and an adjustment is unlikely or a relapse is probable, the other spouse may be granted a divorce.
- Fault grounds — Divorce may also be granted based upon proof of wrongdoing by a spouse that includes:
- Cruelty, including both physical and mental abuse
- Imprisonment of a spouse for at least a year on a felony conviction
- Abandonment by a spouse who remains away for at least a year
Annulment — In addition to divorce, another option available to dissolve a marriage is an annulment. An annulment treats the marriage as if it never existed. The grounds for annulment in Texas include:
- Underage — A court may annul the marriage of a person who is 16 or 17 years old if the marriage occurred without parental consent or a court order.
- Under the influence of alcohol or narcotics — The marriage may be annulled by a spouse who was under the influence of alcoholic beverages or narcotics at the time of the marriage and who did not voluntarily live with the other spouse after the effects of the alcohol or narcotics ended.
- Impotency — A marriage is subject to annulment if one party was permanently impotent at the time of the marriage and the other party was unaware of the impotency at the time of the marriage.
- Fraud, duress or force — A party induced into marriage by fraud, duress or force may have the marriage annulled if they did not voluntarily cohabitate with the other party after learning of the fraud or after being released from the duress or force.
- Mental incapacity — A marriage may be annulled if either party lacked the capacity to understand or agree to the marriage due to a mental illness or defect.
- Concealed divorce — A marriage may be annulled by a party who did not know that the other spouse was divorced from someone else in the 30 days that preceded their marriage.
- Marriage within 72 hours after license is issued — marriage may be annulled if the marriage ceremony took place during the 72-hour waiting period immediately following the issuance of the marriage license.
Property division — When couples get a divorce in Texas, the court divides all of the assets and debts that they accumulated during their marriage (community property). This does not include property that one spouse acquired prior to marriage with his or her own funds, inheritances, certain portions of personal injury awards, or businesses owned by the spouse before marriage (separate property). The court divides the community property in a just and right manner, meaning that the court strives for a fair and equitable distribution of the property. Factors considered by the court in dividing the couple’s assets and debts include their earning capacity, fault in the breakup of the marriage and relative education, among others.
Frequently asked questions about Texas divorce
- May I withhold visitation because my spouse does not pay child support?
- May I stop paying child support because my spouse does not give me my visitation and access?
- What are the mechanics of an action for divorce?
- Does it matter who brings the divorce action?
- What percentage of cases is settled versus tried to the court?
- What is collaborative law?
- What is an uncontested divorce?
- If the case is settled out of court, must I still go before a judge?
- How long does a divorce take?
- Does a spouse have to prove fault on the part of the other spouse to obtain a divorce?
- How is property divided in Texas?
- Can I get alimony?
- What does a divorce cost?
- Can the court make my spouse a better person?
- Can I do the divorce myself?
- Why do lawyers require retainer fees?
- At what age can a child decide with whom they want to live?
- What is common law marriage?
- What are the Texas residency requirements for divorce?
- Can I give up my parental rights?
- Can my spouse move out of the county or out of the state?
- What if I have more questions about divorce in Texas?
1. May I withhold visitation because my spouse does not pay child support?
No. Not ever. If you withhold visitation because a spouse does not pay his or her child support, you are taking the law into your own hands and may be held in contempt of court.
2. May I stop paying child support because my spouse does not give me my visitation and access?
No. Not ever. For the same reasons as in question one above, if you withhold child support because a spouse does not allow you to exercise your visitation, you are taking the law into your own hands and may be held in contempt of court.
3. What are the mechanics of an action for divorce?
An action for dissolution of marriage, or a divorce, is a lawsuit brought by one spouse against the other. It starts by filing an Original Petition for Divorce. A petition is nothing more than a letter drafted and couched in legal terms written to the court telling the court what that person wants. A petition is answered by either Original Answer or Answer and Counter-Petition. Similar to the Original Petition, the Answer or Counter-Petition is a document that tells the court what that person wants.
4. Does it matter who brings the divorce action?
The person who brings the case first gets to talk first. Some lawyers swear that there is an advantage to being first. Others say it does not really matter. There is no negative connotation attributable to the spouse who brings the action or to the person who responds to the action. However, as one lawyer said, “The first impression is the lasting impression." If family violence has been a part of your life, you need to take action. It is more credible for a victim of family violence to bring the action first.
5. What percentage of cases is settled versus tried to the court?
Nearly all of them. It is the policy of the state of Texas that parties try and resolve their conflicts without court intervention. The problem with settlement is that it usually takes significant legal action to bring the parties to a mutually agreeable resolution. It is like two boys in the schoolyard: after they both knock each other down, one says to the other, “Have you had enough?” The other replies, “If you have.” It is unfortunate that it has to be this way, but it is very often true. There is a better way, and it is referred to as collaborative law.
6. What is collaborative law?
Collaborative law is a solution-oriented alternative to traditional divorce. Instead of focusing on getting the largest financial reward no matter the human or financial cost, the parties try to find win-win solutions that meet the needs of both sides. All participants agree to work together respectfully, honestly and in good faith. No one may go to court, or even threaten to do so, as long as they are in the collaborative process. In the unlikely event that a party feels that court is a better alternative, the collaborative law process terminates and both spouses must hire new lawyers to take their case to court. For more information, please refer to www.collablawtexas.com.
7. What is an uncontested divorce?
An uncontested divorce, also known as an agreed divorce, means that the parties resolve all issues between them without significant court or lawyer participation. The lawyer’s role in this type of case is limited to filing the petition and drafting a final decree of divorce. In the most basic of divorces (no property and no children), the following documents are required: Original Petition for Divorce, Waiver of Citation, Final Decree of Divorce and State Information Sheet. If you own a home, add Special Warranty Deed to the list. If you have IRAs or 401(k)s, add Qualified Domestic Relationship Order for each retirement account to the list. If you have children, add visitation provisions, insurance provisions and child support provisions to the divorce decree. In addition, with children, add a Wage Withholding Order and Medical Support Order to the document list.
8. If the case is settled out of court, must I still go before a judge?
Yes. Only a judge can grant a divorce. Once all the documents are in order, one of the parties signs off on the divorce decree and the other party goes before the judge to prove up the divorce. The lawyer asks you a number of questions, which mostly require only a yes or no answer. The actual hearing takes only about four minutes. The time spent waiting for your turn, however, can be as long as two hours, though usually the wait time is about an hour.
9. How long does a divorce take?
A divorce takes a minimum of 61 days. Texas law requires that the couple wait 60 days before the court can grant a divorce. This is known as the cooling off period. It is the policy of the state of Texas that parties are to remain married. The 60-day period provides them with an opportunity to reconcile.
10. Does a spouse have to prove fault on the part of the other spouse to obtain a divorce?
No. Texas is a no-fault divorce state. We simply plead “conflict of personalities that destroys the legitimate ends of the marital relationship.” No spouse has to give the other spouse a divorce anymore. There is some discussion in the legislature about doing away with the no-fault divorce.
11. How is property divided in Texas?
All property is community property unless proven to be separate property by clear and convincing evidence. The division is that which is just and right in accordance with the court’s ruling. Generally, you are looking at one-half of the property going to each spouse, absent some circumstance that indicates otherwise. For example, a number of different factors, such as unequal earning power, extent of separate property and fault in the breakup of the marital relationship, can affect the property division. There is a reported case where a 90/10 percent split was deemed a just and right division. This case was upheld at the appellate level.
12. Can I get alimony?
Texas disapproves of alimony, but it is possible to get alimony if you qualify. There are a number of factors involved and it is only awarded for a limited amount of time.
13. What does a divorce cost?
Rule 1.04 of the Texas Rules of Lawyer Discipline outlines the factors involved with attorney's fees. Fees are based upon the time and labor expended, the complexities of the issues involved, the degree of difficulty of the matter, the results achieved, the county of venue for the divorce and any extraordinary time or demands placed upon an attorney that would prevent an attorney from representing other clients. Since each matter is different, fee determinations are done on an individual basis.
14. Can the court make my spouse a better person?
Not a chance. Frankly, the question seems silly at first glance. However, our clients often insinuate the question in a roundabout manner. They ask questions or take actions that indicate that they want the court to make their spouse a better person. The only thing a court can do is enforce its orders. The court is not going to change your spouse.
15. Can I do the divorce myself?
Yes. Quite frankly, however, it is bad advice. In the first instance, divorce decrees and closing documents are complex documents. Unless you are familiar and have worked extensively with them, a nonprofessional’s chances of successfully drafting such documents are low. We have had a number of clients who started out doing their own divorce in order to save money. After spending a lot of time in the library finding out how to do it, and even more time typing in what they believed to be a correct divorce decree, they requested our assistance after having their divorce decree disapproved by the court. The court said to them, "This divorce decree is insufficient. Go back and try again ... and no, I can't give you advice."
Secondly, the prove-up of the divorce requires that one of the spouses put on testimony that addresses specific evidentiary issues. If you fail to testify to a specific requirement, the divorce is disapproved. We have seen judges send pro se (by yourself) litigants home because they failed to prove up their divorce properly. On another occasion, one judge said, "Go stand at the back of the room and see if you can learn to do it."
Thirdly, the courts and court staff have great difficulty with pro se litigants. It is just a fact that pro se litigants do not know the procedures and requirements of the law. They slow down the court process, and courts are already overbooked with cases vying for their attention. Any slowdown of the process is disfavored by the court. In short, pro se litigants do not know the ropes and the courts can't teach it to them.
16. Why do lawyers require retainer fees?
The short answer is to make sure they get paid. Rhetorically, why do doctors have a nurse at the door? Why do mechanics require payment before giving you the keys to your car? Why do contractors, painters and plumbers place materialmen’s liens on your property for the work that they do? They do this to make sure that they are paid. Lawyers practice law because they enjoy it, because they like the challenge and to make their living. Like you, they have bills to pay. They have office overhead, dreams to fulfill and little ones at home with their needs. Like you, they go to work to trade their time and expertise for compensation. The retainer ensures that the attorney is compensated for his or her efforts.
17. At what age can a child decide with whom they want to live?
At age 12, a child has the right to express a preference to the court regarding with whom they wish to live. It is mandatory for the court to interview the child if they are 12 years of age or older. The court may interview a child younger than 12 but is not required to do so. The interview takes place in the judge's office. During the interview, the child will be asked to express their choice of primary conservator (the person with whom they will live). It is very persuasive but not binding on the court. In order to actually change the person with whom the child lives after either a divorce or paternity case has been finalized, a Motion to Modify with a request for the court to interview the child must be filed with the court so that the court can modify its prior order. A child's expression of preference is not an absolute. The court always considers what is in the best interests of the child. This is the overriding concern of the court.
18. What is common law marriage?
A common law marriage, in Texas, is formed by one of two methods:
- If the parties have signed a Declaration of Marriage pursuant to Section 2.402 of the Texas Family Code, the parties are married.
- Pursuant to § 2.401(a)(2) of the Texas Family Code, a man and woman are married if they agreed to be married, they then lived together as husband and wife and held themselves out to the public as being married.
This second test is the most common cause for concern between parties. Just because you lived with a significant other for a period of years does not make you married. You have to have fulfilled all three requirements above in order to be married. Even if you had a child together, it does not matter: a child is an issue of paternity in this case, not about being married. Having a child is not one of the elements of common law marriages.
If a court proceeding in which a marriage is to be proved by §2.401(a)(2) of the Texas Family Code is not commenced by the second anniversary of the date on which the parties separated and ceased to live together, it is a rebuttable presumption that the parties did not enter into an agreement to be married. In other words, there is a statute of limitations for a divorce proceeding as to common law marriages, albeit, an informal and not absolute deadline.
A person under 18 may not be a party to a common law marriage or execute a declaration of informal marriage.
19. What are the Texas residency requirements for divorce?
A suit for divorce may not be maintained in this state unless at the time the suit is filed, either the petitioner or the respondent (one of the parties) has been domiciled in the state of Texas for the preceding six-month period and is a resident of the county in which the suit is filed for the preceding 90-day period.
20. Can I give up my parental rights?
Yes. A parent may voluntarily file suit for termination of their parent-child relationship, and a court may grant the order of termination if it is in the best interests of the child. It is not in the child’s best interests to terminate the parent-child relationship in order for the parent to avoid paying child support.
21. Can my spouse move out of the county or out of the state?
Yes, but not with your child if there is a geographic restriction in the Divorce Decree. A spouse granted primary custody has the right to determine the domicile of the child, and that spouse can choose where the child will live within the scope of the geographic restriction placed upon the child's residence by the court at the time of the granting of the divorce. For example, a divorce is granted in Montgomery County and the mother is granted primary custody with a geographic restriction of the child's residence to Montgomery County or any contiguous counties (Harris, Grimes, etc.). If the mother decides that she wants to move to Travis County or out of the state, she has to go back to court and get the judge's permission to move, which is not easily granted in most cases. If the divorce decree does not have a geographic restriction, then the non-primary parent must file a Motion to Modify and Temporary Restraining Order to prevent the primary-custody spouse from moving. Ultimately, the mother has an absolute right to move to any county, state or country that she chooses. However, she may or may not be able to take the child with her in this situation. This scenario is not necessarily true if the non-primary parent has already moved out of the county at the time the primary-custody parent wishes to move.
22. What if I have more questions about divorce in Texas?
Please contact the knowledgeable family law attorneys at Whisenant & Associates to find out how we can help with your divorce issues.