The decision to get a divorce can leave you with several difficult questions.
“Have I done everything I can to save my marriage?”
“How will this decision impact my children?”
“Will I be able to support my children and myself alone?”
These are all important questions to ask yourself when you are contemplating divorce. If you do think that a divorce is the best decision, it’s essential to understand the laws for getting a Texas divorce. Becoming familiar with this information can help you anticipate what to expect in your divorce and make decisions that are in your family’s best interest.
The Divorce Process
The divorce process in Texas can be complicated. Before filing, one spouse must have been a resident of the state for at least six months. They must also have lived in the county that they plan on filing in for at least 90 days. If one of the spouses meets this requirement, they can file for divorce. After this, the typical divorce will require the following steps:
- One spouse, or the Petitioner, files the Petition for Divorce with the court.
- Then the Petitioner must give legal notice of the divorce to the other spouse, or the Respondent.
- The Respondent must file an Answer letting the court know they received the notice within 20 days of initially receiving the divorce papers.
- If the Respondent doesn’t file the Answer, the Petitioner can request a default judgment and be awarded a divorce without needing the other’s signature.
- A temporary order may be issued that states how the couple will operate during their separation. Usually, the order will make temporary decisions about issues like child custody, living situations, and finances while the divorce process takes place.
- At this point, the couple will need to gather information regarding their assets, property, debts, and paperwork.
- The couple will then discuss how to settle their case.
- If they agree on the terms of the divorce, they will negotiate a settlement
- If they cannot agree on all the terms, the case will likely go to court.
- Before the trial, the couple will need to go to mediation, if they haven’t already. They will work with a neutral third party to help them resolve any conflicts and come to an agreement. If mediation doesn’t work, then the case goes to trial.
- During the trial, the court will make its rulings and resolve any issues pertaining to the divorce.
- Finally, a Final Decree of Divorce will be drafted and presented to the judge, who will then sign it, making the divorce official.
Grounds for Divorce
Texas allows for “no-fault” divorces, which means that neither spouse did anything to cause the divorce. This is commonly known as irreconcilable differences. However, if one spouse did cause the dissolution of the marriage, it will be considered a fault-based divorce. The following are grounds for a divorce in Texas:
- Confinement for incurable insanity for three years
- Conviction of a felony and imprisonment for over one year
- Cruel and inhumane treatment
- Living apart for at least three years
- Insupportability (the only no-fault ground for divorce)
Division of Assets
One of the more complicated parts of the divorce process is when the couple has to decide how they will divide their assets. The division of assets in a divorce is called property division.
There are two types of property in Texas — community and separate. Texas is a community property state. This means that all the assets that either spouse acquired during their marriage are shared and considered “community property.” Assets that fall under this category can include:
- Real estate
- Pension plans
- Debts owed
Assets that either spouse had before they were married, or that were acquired after they permanently separated are considered “separate property.” This can also include gifts or inheritances that were received during the marriage. Spouses will typically get to keep these assets during their divorce, and they will not be subject to division.
If the couple cannot come to an agreement on how to divide their assets, the court will have to make the decision. Texas laws do not require that assets be evenly split. Instead, the court can divide them in a way they think is fair and just to each party.
Child Custody & Child Support
If the divorcing couple has children, they will also have to make decisions regarding child custody. There are several types of custody including physical custody and legal custody. Physical custody refers to who the child lives with, and legal custody refers to who has the legal right to make decisions about the child’s welfare and education.
Additionally, custody includes sole and joint custody. Sole custody means that one parent has legal and physical custody of the child, while the other parent usually has visitation rights. Joint custody means both parents share legal and physical custody.
Parents should try to agree on the terms of their custody arrangement for the sake of their child. Fights over custody can be harmful to the child. However, if the court does end up deciding custody, they will choose an arrangement that is in the best interest of the child. During this time, parents will have to make several decisions about custody, including:
- Whether or not custody will be shared equally or if one parent will be the primary custodial parent
- Whether or not the parent without custody will have visitation rights
- Which spouse will pay child support
Typically, the non-custodial parent will have to pay child support. The non-custodial parent spends the least amount of time with the child. The amount of support that they will pay is based on the state’s child support guidelines. Depending on how many children the non-custodial parent has will determine how much they will pay a month in child support:
- 1 child = 20% of the non-custodial parent’s average monthly net resources
- 2 children = 25% of the non-custodial parent’s average monthly net resources
- 3 children = 30% of the non-custodial parent’s average monthly net resources
- 4 children = 35% of the non-custodial parent’s average monthly net resources
- 5 children = 40% of the non-custodial parent’s average monthly net resources
- 6+ children = not less than 40% of the non-custodial parent’s average monthly net resources
Spousal support, otherwise known as spousal maintenance, may be required if the receiving spouse does not have a sufficient income to support themselves. Additionally, it may be required if the receiving spouse has a physical or mental disability that denies them from earning an income, or if they cannot earn their own income because they are caring for a child that requires special attention or supervision due to a physical or mental disability.
In Texas, the maximum amount a spouse will pay in support is $5,000 a month or 20% of a spouse’s average monthly income if the amount is less than $5,000. Spousal support does not last forever. Texas limits the duration of maintenance to the shortest amount of time that it would realistically take for the spouse getting support to make enough income to cover their basic needs. Additionally, the amount of time a couple spent married can determine how long a spouse will receive support. When the couple is married for:
- 0-10 years = No support is awarded
- 10-20 years = Up to 5 years of support
- 20-30 years = Up to 7 years of support
- 30 or more years = Up to 10 years of support
An Expert Attorney Can Help
There is a lot to consider when you get divorced, and an Austin divorce attorney can help you navigate the process. Benouis Law can provide you advice to make sure you and your family’s rights are protected. If you are ready to start the divorce process or have any questions about getting a divorce in Texas, don’t hesitate to contact us.
Call Benouis Law at 512-764-3932 today to schedule your appointment.