Texas Divorce Laws & FAQs By Jeffery O. Anderson Board Certified in Family Law
If you are considering filing for divorce, your spouse is threatening to file for divorce, or you were served divorce papers, it’s probably time to contact an attorney – one who is experienced in family law – one you have confidence in.
Regardless of the scenarios you find yourself in, an experienced divorce lawyer should help protect your interests and strategize a plan of action for you each step of the way. Call (214) 273-2448 to speak with a member of our award winning legal team at our Frisco and Dallas office.
Nobody starts a marriage thinking they’re going to get a divorce, but it happens. One day you’re planning your retirement together, the next you are looking for a lawyer. I’m here to help. Divorce is not easy, and it is often one of the most emotionally and financially draining events one will endure in their lifetime. I’m not going to lie and say I can make it easy, but I can help you through the process and help you get what you want in the divorce.
I have created this article to answer the most common questions I am asked regarding divorce in the state of Texas.
Phases & Types of Divorce in Texas
- Contested Divorce
- Uncontested, or Amicable Divorce
- Collaborative Law Divorce
- Divorce Mediation
- Divorce Arbitration
- Divorce Process
- Divorce Settlement
The divorce process differs from case to case, but it almost always involves at least one of these things:
- Custody of Children
- Dividing Property & Assets
- Divorce Mediation
- Child Support
- Spousal Support
- Marital Agreements
What Are Grounds for Divorce in Texas?
Texas is a no-fault state regarding grounds for divorce. That means that nobody needs to be at fault for a divorce to be granted. Instead, the divorce may be based on “insupportability” when there is no “reasonable expectation of reconciliation.” Many people think of this as “irreconcilable differences.” Texas just calls it something else. The bottom line is that if you want a divorce, even if there’s no fault on your spouse’s part, you can get one. However, if there is fault, like adultery or cruelty, the divorce can also be granted on those grounds.
WHAT DOES INSUPPORTABILITY MEAN IN A DIVORCE?
Insupportability in a divorce refers to irreconcilable differences, or incompatibility between a couple that is allegedly the cause for divorce. The Family Code describes it as:
“discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.”
A common misconception among people is that insupportability means the ability of one spouse to “support” the other financially or otherwise. That’s not the case. The concept of insupportability plays a key role in no-fault divorce.
With no-fault divorce in Texas, it’s not necessary to establish wrongdoing or blame. Courts may grant a divorce after finding that spouses can no longer live together based on personality conflicts and a failure to get along. It’s important to note that there is no realistic defense to a petition for divorce based on insupportability under Texas law, and there is no legal duty to reconcile. Decades ago, there were a few cases in which one spouse, who didn’t want the divorce, tried to convince a jury that the marriage could be saved. Rarely, they were successful and the divorce wasn’t granted, but in those instances, the spouse who wanted out simply filed for divorce again and got it. I haven’t seen cases like that since I was in grade school. So, as a practical matter, if you want a divorce (even if your spouse doesn’t), you’ll get one.
In addition to establishing insupportability as grounds for no-fault divorce, Texas law includes six “fault” grounds for divorce:
- cruel treatment
- incarceration of more than a year
- confinement to a mental hospital for at least three years
- living apart for at least three years
Cruelty and Adultery use standard definitions to define the terms in the statute. Abandonment is defined by the Texas Family Code as one spouse leaving the other “with the intention of abandonment” and remaining away for at least one year.
Other grounds for divorce include:
- One spouse has been incarcerated for at least one year due to the commission of a felony.
- The couple has been living apart for at least three years (no fault).
- One spouse has been confirmed to a mental health hospital for at least three years and is not expected to recover or the chances of relapse are great.
While Texas divorce law makes no-fault divorce an easy choice for many, there are times when it’s necessary to establish fault. In cases where a divorce petition involves fault grounds, they are routinely included along with no-fault grounds based on insupportability. In such cases, a divorce may be granted based on the no-fault grounds, but the fault issues can influence the division of the marital estate, potentially granting a larger share of the couple’s community estate to the spouse deemed not at fault.
An annulment is a proceeding to declare that a marriage never legally existed. These are rare and will only be granted in the very specific and uncommon circumstances below
First, if at the time of the marriage at least one spouse was under the influence of drugs or alcohol and did not have the capacity to consent to the marriage, and the spouses have not voluntarily cohabited after the effects of the alcohol or drugs ended, an annulment may be granted.
The second ground for an annulment applies where either party, for physical or mental reasons, was permanently impotent at the time of the marriage. This is assuming the impotency was not known at the time of the marriage and there has been no voluntary cohabitation since learning of the impotency.
Third, a court may grant an annulment if one spouse did not have the mental capacity to consent to or to understand the marriage ceremony, the other spouse did not know or should not have known about the mental disease or defect, and no voluntary cohabitation has occurred after the mental disease or defect was discovered.
Fourth, where the marriage occurs within 30 days of the dissolution of a prior marriage, the spouse did not know about the other’s divorce, and no voluntary cohabitation occurred after learning of the concealed divorce, an annulment may be granted.
Finally, a court may grant an annulment if the marriage took place during the mandated 72-hour waiting period after the issuance of the marriage license.
An uncontested divorce is an amicable divorce, where both spouses agree on terms. If the spouses agree on every aspect of the divorce and there are no issues in contention, they can put their agreements into a Final Decree and the process becomes much easier. By agreeing, you can avoid hearings, expensive discovery, mediation and a great deal of worry, fear, and frustration.
Divorces are contested when the parties disagree about the resolution of any or all of the terms and issues that arise during the divorce process. Contested divorces can be very costly because of the legal fees required, and may drag on for years in some cases. In cases like this, both sides present evidence to the family law court, and the court resolves the issues in a way that it deems is just and fair.
Mediation is an alternative dispute resolution method wherein a third-party mediator tries to help both parties find a compromise, or middle ground to settle as many of the contentious terms as possible. On average, cases that go to mediation settle more than 80% of the time. With court dockets filled to over-capacity already, it is little wonder that most courts will order nearly all of their family law cases to go to mediation before a trial may be held.
What Happens During Mediation?
Mechanically, mediation is a confidential procedure where the spouses’ issues are negotiated by a neutral third party. Most of the time, you will not see your spouse the day of mediation – you will be kept in separate rooms, along with your respective attorneys. The mediator will go back and forth between the rooms, trying to close the gap between each side. Mediators do not give legal advice and their role is to guide, not instruct. If the process fails, with only a few exceptions, mediators cannot be called to court to testify and nothing that is said during mediation may be brought up in Court.
Property & Assets During A Divorce in Texas
Texas is a community property state with all assets accumulated during the course of the marriage presumed to belong to the community estate. The court has discretion to divide the assets in an unequal manner depending on whether one party was at fault or whether an exact equal division would result in unfairness to a party. We call it a just and right division. What is considered a just and right (fair) division will depend on virtually anything the court believes should go into the equation.
The relative age, health, earning capacity, or future earning capacity of the parties could, for instance, be considered. Fault in the break-up of the marriage may be a factor in determining what is fair. Separate property remains separate. This includes property owned by one spouse prior to the marriage, gifts and inheritances to one party and part of a personal injury award received by an injured spouse. Debts are also evaluated as separate or community and divided accordingly.
How are Assets Divided in a Divorce?
The division of marital estate, or asset division in Texas, is the first part of a divorce. I’ve included a short explanation of alimony, since it is often based on the property to be divided. There are three estates that exist when a couple divorces; the separate estates for each of the two spouses and the community estate. The community estate is the only one that gets divided. Separate estates are . . . well . . . separate.
The law in Texas favors the community estate. That means that a spouse who wants to prove that something is his or her separate estate has the burden of proving it. In fact, they have to prove it by a standard of clear and convincing evidence. That’s more than just the normal preponderance of the evidence required in most civil cases.
Is Community Property Divided Equally in a Divorce in Texas?
No, in Texas property is not necessarily divided up 50/50. It’s divided in a just and right (or fair) manner. Almost anything you can think of can go into the idea of what is fair in the division of property and debts. Relative ages, relative health, the earning capacities of each spouse, their likely earning capacities of the future, the fault in the breakup of the marriage, etc.
Does Infidelity Affect How Much a Spouse Gets in a Divorce?
Yes. A cheating spouse may get the short end of the stick financially if the infidelity caused the divorce.
Example: Both spouses make about the same amount of money, they are about the same age and are both in good health. All things being equal, an equal property division is possible and even likely. But, what if one of the spouses has been unfaithful and that infidelity has resulted in the breakup of the relationship? In that circumstance, the spouse who did not cheat is more likely to get a greater share of the marital estate. That usually does not mean a 90/10 split, but it is often not unrealistic to think toward a 55/45 or a 60/40 split.
When thinking about what needs to be decided with children in a divorce, there are three main concerns: custody, visitation and child support.
Custody of children involves the legal parental rights that may be exercised by each parent. Texas law favors Joint Managing Conservatorship (JCM), or joint custody. That means that most, though not necessarily all, of the parental rights are shared. For instance, the right to make educational decisions, medical decisions or psychological decisions for the children.
If the Court finds that it is in the child’s best interest for one parent to have Sole Managing Conservatorship (SMC) , then the parent with sole custody will have the exclusive right to make most of the major day-to-day decisions for the children. The other parent (non-custodial parent) will have rights he or she needs to be able to visit with the children, like the right to take them to the emergency room if there is a medical emergency.
The term Joint Custody has little to do with the amount of time either parent spends with the children. Periods of possession (visitation) describes those times that the children will spend with each parent. You could be Joint Managing Conservators and one parent might have visitation rights pursuant to the guidelines found in the Texas Family Code or might have the children less or more than that. It all depends on the circumstances of the children and the parents. The same visitation could be ordered for parents who don’t share joint custody. In the end, visitation, like almost everything else regarding the children, is decided on their best interest.
This is just a primer course on divorce. Each of these areas can be complex and each is driven by the facts of your individual case. A confidential consultation is time well spent to go over the facts of your case and develop a strategy that works for you.
Texas encourages parents to create their own parenting plan with both parents having as much time with the children as possible. When one party is given physical custody, called conservatorship, liberal visitation (also called possession), with the other parent is encouraged. If the parents cannot agree on a plan, the court receives evidence and makes a decision based on what it considers to be in the best interest of the children. Learn more about child visitation and grandparents rights here.
The state has guidelines it uses to establish a formula for child support depending on the income of each parent, the number of children from the marriage, and the needs of the children. The court may deviate from the guidelines when it finds special circumstances to do so.
The guidelines for child support are based on the gross income of the parent, less income tax withholding and social security. We’ll call that the net income. The percentage applied to the net income depends on the number of children before the Court and also the number of children the obligor must support from other relationships. For instance, if there is one child before the Court and no others outside of Court, then it’s 20% of the net income. If there are two before the Court and no others, it’s 25% (and keeps going up 5% for each child until you get to 50%). But if there are other children whom the obligor has outside of the relationship we’re dealing with in Court, those percentages change. For instance, if there is one child before the Court and one child the obligor has from a different relationship, instead of the amount being 20% of net income, it’s 17.5%.
There is usually a cap to the amount of child support ordered in Texas. The cap is based on $9,200 per month net income (after taxes and social security are taken out). So if there is one child before the court and no other children the payor is obligated to support, then the child support is 20% of the net income or $1,840 per month (20% of $9,200). $9,200 per month net income is roughly $150,000 per year gross income. If the paying parent makes more than that – for instance, $250,000 per year – the Court will limit the child support to being based on that same $9,200 per month. That doesn’t mean the Court can’t go over the cap, but it’s fairly rare. Generally, to go above the $9,200 cap, there must be needs of the children which go beyond the regular child support. That might mean a child with learning disabilities or a child who is a piano prodigy and needs special training for that talent. It is not likely going to be granted based on a standard of living or if your child wants a pony.
Spousal Maintenance or Alimony
Alimony is based, in part, on the community estate. More specifically, one of the tests for determining whether alimony will be paid is if community assets are insufficient to provide for a spouse’s minimum reasonable needs. That, combined with a marriage of at least ten years and an inability of that spouse to provide for his or her own reasonable minimum needs, guides the court to decide whether alimony should be paid at all. Read Alimony in Texas for more information.
Contact Attorney Jeff Anderson for a Consultation
Call today to schedule a consultation with a lawyer in Dallas or Frisco, Texas, or request an evaluation here. Whether the decision to file for divorce is mutual and uncontested, or you and the other party do not agree and are facing a contested divorce battle, Jeff Anderson can help. He has extensive knowledge of family courts in Texas including Tarrant, Dallas, and Collin counties and is ready to start building your case today.
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