Residency Requirements and Grounds for Divorce
You must be a Texas resident for six months and a county resident for 90 days to file for a divorce.
Either spouse can get a divorce simply by stating in divorce papers that the marriage has become "insupportable." This means you and your spouse have conflicts and there's no reasonable expectation for reconciling. If both spouses are in agreement that there should be a divorce, they can agree in writing (called a "stipulation") that the marriage can be ended.
Other grounds for divorce are: adultery, cruelty, abandonment for one year, felony conviction and imprisonment for one year, living apart for three years, and confinement due to mental illness for three years.
A divorce case begins when one spouse spouses files a "Original Petition for Divorce" with the Family Law District Court. The other spouse is then served with the paperwork and has time to respond. If you and your spouse agree on key issues including property and debt division, support and child custody, the divorce can be finalized without a trial. If the parties can't come to an agreement, the court will set a time for a hearing, usually some time in the future.
After your case is filed, either party can request temporary assistance from the court in the form of temporary custody and child support orders, and orders to determine who pays community debts on a temporary basis.
Dividing the Property
Texas is a "community property" state, which means that assets and debts acquired during your marriage are divided in a roughly equal way when you divorce.
You and your spouse keep your separate property. This can include property you acquired before marriage, income and increases in value to separate property, and gifts and inheritances. There may be an issue in classifying property if you mixed or "commingled" separate property with marital property.
Be prepared with information on your property, including when you purchased it, an estimate of value, and details such as account numbers, serial numbers and so forth. You'll be ready to meet with a Texas divorce lawyer and it can save you a lot of time and money.
A court can order alimony, called "spousal support" in Texas. A court will generally consider such factors as:
- The duration of the marriage
- The needs of each party
- The financial resources and liabilities of each party
- The responsibility of either spouse for children
- All sources of income available to either spouse
- Efforts of the recipient spouse to work and be self-supporting
Support is generally limited to three years. There are exceptions for situations such as a spouse's disability or caring for a disabled child. Support payments are limited to the lesser of $2500 per month or 20 percent of the paying spouse's average income per month.
Child Custody and Visitation
In Texas, the court will make child custody decisions based on what is in the "best interest" of the child if the parents can't come to an agreement. Courts accept the parents' parenting plan as the basis for the custody order in your case unless it finds your plan isn't the child's best interest.
In deciding custody issues, courts presume joint legal custody- called "conservatorship" is best, unless you can prove otherwise. In deciding which parent should have primary physical custody, the court will consider:
- The history of contact between the parents and the child
- The health, safety and welfare of the child
- The mental and physical health of the parents, and how close they live to each other
- The preference of a child age 12 or older
- Evidence of child abuse
After the custody order is signed by the judge and filed with the court clerk, both parents are bound by it. If you're denied court-ordered access to your child, you can seek the court's help. The judge may decide to modify the visitation order and order makeup visitation for the time missed.
In Texas, child support is based on state guidelines. The guidelines factor in the paying parent's net income and other resources, as follows:
- 20 percent of net resources for one child
- 25 percent of net resources for two children
- 30 percent of net resources for three children
- 35 percent of net resources for four children
- 40 percent of net resources for five children
A child support order can be modified if there has been a change in circumstances, such as a big increase or decrease in the paying parent's income or the child's graduation from high school.
Questions for Your Attorney