Divorce Law in Texas
1. Law and Procedure
Residence & Domicile
In order to file for divorce in Texas, you or your spouse must have lived in Texas for at least 6 months. In addition, you must have lived in the county where you file for at least 90 days. (An exception may apply if Texas is your home of record and you are absent due to military orders.)
If your spouse will not contest any portion of the divorce and will sign all the necessary papers, we can usually obtain the divorce for you without the necessity of your returning here to appear in court.
The suit is started by filing a "Petition" with the Clerk of the court. You are not normally required to sign the Petition, although you may be required to sign certain documents which will be attached to it. Depending on where the suit is filed, there may be more than one court that hears family law cases. The Clerk assigns a case to a particular court when the Petition is filed; a lawyer cannot select the court or the judge. There is a mandatory 60-day waiting period for the divorce. This waiting period cannot be waived, and it does not begin to run until the Petition is filed with the Clerk.
Normally before the judge may enter any orders in your case the Petition must be delivered to your spouse. If the suit is uncontested we will mail the Petition to your spouse with a Waiver of Citation, which is a sworn statement by your spouse that he or she does not contest the suit. (You may deliver these documents personally if you wish.) If the case is contested, however, we must normally have a Sheriff, Constable, or private process server deliver the Petition to your spouse.
It may be necessary to obtain court orders after the suit is filed but before it is finalized. Such orders can be used to obtain possession of property, to set custody or visitation of children, to determine who has the use of the home or vehicle, to obtain interim support or attorney's fees, to prevent the transfer property, to determine who pays certain bills, to obtain necessary documents from your spouse, to prevent harassment, and the like. In some cases these orders can be obtained on an emergency basis without notice to your spouse, but in such cases a hearing must normally be held within fourteen days after the orders are signed. You must appear in court and testify at any hearing on temporary orders. It is not unusual for temporary orders to be entered against both parties.
If the Court finds that family violence has occurred and is likely to occur in the future, the Court may render a protective order. Unlike temporary orders, protective orders can be enforced by law enforcement officials. Protective orders typically prohibit the commission of family violence, prohibit a person from threatening or harassing others, prohibit a person from going to certain locations (such as a home, school, or place of employment), and require the person to obtain therapy or counseling. Please notify us immediately if you believe family violence may be an issue in your case.
Discovery is the process where each party to the lawsuit obtains relevant information from the other side. Discovery can take several forms, including depositions (oral testimony before a court reporter); interrogatories (written questions); requests for production of documents (such as tax returns, bank records, deeds, etc.); or requests for admissions (written statements which you must admit or deny). Whether any discovery is conducted, and the extent of that discovery, is determined largely by the complexity of the case.
Alternative Dispute Resolution
In the event you and the opposing party are unable to agree on one or more issues, it may be appropriate to consider alternative dispute resolution ("ADR") as an alternative to trial. ADR may avoid or reduce the expenses and delays associated with a contested trial, and often produces more satisfactory results. ADR can take many forms, but the most common are arbitration (in which an impartial third party renders a binding decision) or mediation (in which an impartial third party attempts to assist the parties in negotiating an agreed settlement.) Most family law cases are submitted to ADR if they cannot be settled informally.
The judge is required to divide your community property as part of the divorce. If you and your spouse can agree on a division, the judge will normally approve that agreement. The judge has the power to divide only "community property," and not your "separate property." Your separate property consists of any property that you owned before the marriage, or that you acquired during the marriage by gift or inheritance. Money recovered for personal injuries is also separate property, but an asset is not necessarily your separate property just because your spouse's name is not on the deed, title or signature card. Everything which cannot be proven to be separate property is community property, and is thus subject to division by the court.
The judge will also allocate the debts incurred during the marriage, but the rights of your creditors will not be affected by the judge's order since creditors are not usually parties to the lawsuit. Normally you and your spouse are both liable to your creditors for any debt incurred during the marriage, and this will be true after the divorce even if the judge orders your spouse to pay certain debts. It may be that after the divorce you must pay a creditor to protect your credit even if your spouse was ordered to pay that debt. In such a case, you will usually have the right to sue your spouse to try to get your money back.
If a child was born to the wife during the marriage but the husband is not the father, or if the husband denies being the father of a child born during the marriage, paternity must be legally established. Where the mother, father and husband are all in agreement as to the father's paternity, formal testing will not normally be required. However, if there is any disagreement, the Court must order the parties to submit to scientific paternity tests. In addition, it may be necessary to retain an independent attorney, called an "attorney ad litem," to represent the child's legal interests in the suit. The Court will determine which party should pay the attorney ad litem's fees.
Children of the Marriage
The judge will enter orders for conservatorship ("custody"), visitation and child support as part of the divorce. The court's primary concern will always be to act in the best interest of the child, and we insist that our clients share this same concern at all times. For this reason we recommend that you attend a class or obtain counseling on the effect of divorce on children. (In fact, the judge will order both parties to attend such a class before any case filed in Bell or Lampasas County can be finalized.)
With regard to custody, the judge will usually order a joint managing conservatorship unless there is a good reason not to enter such an order. A "joint managing conservatorship" means "the sharing of the rights and duties of a parent by two parties, ordinarily the parents, even if the exclusive right to make certain decisions may be awarded to one party." One parent is usually given slightly greater powers than the other parent. In particular, one parent will be given the exclusive right to designate the child's primary physical residence.
The parent without the power to designate the child's primary residence is entitled to have possession ("visitation") of the child as specified in the Standard Possession Order [PDF form] unless that order is shown to be inappropriate or unworkable. (We will work with you to devise an alternate visitation schedule if necessary.) Equal time between parents is neither recommended nor prohibited by the Family Code.
The parent without the power to designate the child's primary residence is normally ordered to pay child support to the other parent. Texas has adopted guidelines for child support that are based on a percentage of the paying party's income. The exact percentage depends on how many children the paying party has a duty to support. In addition, the party who pays child support will usually be required to provide health care insurance for the child.
Continuation of Health Insurance
Under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), any person who would lose employer-based health insurance coverage because of divorce can choose to purchase continued coverage for up to 36 months. The act applies to employers with 20 or more employees, but the coverage is not automatic; you must take certain steps to preserve your right to coverage. Please let us know if you wish to extend coverage under COBRA after the divorce is finalized.
Depending on the relative financial condition of the parties, the Court may enter temporary orders for spousal support while the divorce is pending. Usually such support will be limited to an amount needed to cover basic necessities, such as food, clothing, transportation, and a place to live. After the divorce is finalized the judge can award alimony in certain circumstances, but only if (1) a party has been convicted of (or received deferred adjudication for) a crime of family violence within the past two years, or (2) the parties have been married at least ten years.
Attorney's Fees and Court Costs
Each party must pay his or her own attorney's fees and court costs. The Court has the power to order one side to pay all or part of other's the attorney's fees and costs, but this is the exception rather than the rule.
Name changes are routinely granted as part of a divorce. If you would like to change your name you should do so as part of your divorce. After the divorce is completed you must file a new lawsuit in order to change your name, which adds considerably to the expense.
There is a 30-day prohibition against remarriage after the divorce is granted, although this waiting period may be waived in some cases. You must tell us before the suit is filed if you wish to request a waiver of this waiting period.
2. Preparing for the Divorce
Even before the divorce is filed there are some things you can do to protect yourself and to simplify the divorce process. We recommend that you consider the following:
- Inform yourself about your family's financial situation if you haven't been actively involved with it during the marriage.
- Make sure you have access to savings of your own. Having your own source of ready cash is important if you must suddenly rely on your own resources.
- Make sure you have credit in your own name. Apply for and use your own credit cards. If needed, have a friend or relative other than your spouse co-sign a small loan.
- Begin an inventory of all separately and jointly owned assets, including investments, cars and furniture. Make a list of all outstanding debts. Together, these two listings will later help determine a division of property. Verify the contents of any joint safe-deposit box.
- Contact banks, investment companies and brokerages where you and your spouse have joint accounts. Ask what you can do to protect your interest in those accounts.
- Contact creditors with whom you and your spouse have joint accounts. You should pay off and close the accounts. Be aware that you cannot simply dismiss your obligation to repay an existing balance just because you no longer use the account.
- Contact your insurance provider to review automobile and homeowners/renters policies. Changes because of new living arrangements will probably be necessary.
- Review health, life and disability insurance coverage. Change the beneficiaries on policies you own unless your settlement agreement requires you to continue to protect your former spouse. Replace any needed protection you have lost.
- You may find that you need a new will, power of attorney, health care power of attorney, declaration of guardian, or living will. In particular, you should be aware that in Texas beneficiary designations in favor of a spouse under wills and life insurance are automatically voided by a divorce. Also, some powers of attorney are automatically terminated by divorce. Please let us know if you have an estate planning lawyer. If you do not have one, we will be happy to either help you or provide a referral.
We are not currently accepting any new family law cases. However, we hope you find this information helpful.