Texas Divorce Laws

Texas Divorce Laws
Archive Photos/Transcendental Graphics

 

TEXAS RESIDENCY REQUIREMENTS AND WHERE TO FILE:

Either spouse must be a resident for at least six months and resided in the county where the petition is filed for at least 90 days. The divorce petition is filed with the District Court of the county where either party lives. [Based on Texas Statutes; Family Code, Chapter 6.301].

LEGAL GROUNDS FOR DIVORCE:

On the petition of either party to a marriage, the court may grant a divorce without regard to fault on the basis of irreconcilable differences.

A divorce may also be granted on the following fault basis: (1) Cruelty, (2) Adultery, (3) Conviction of a felony, (4) Abandonment, (5) Confinement in a mental hospital, (6) Living apart without cohabitation for at least 3 years. [Based on Texas Statutes; Family Code, Chapter 6.001 through 6.007]

LEGAL SEPARATION:

Texas does not have specific provisions for a legal separation, but allows for temporary orders to be filed at the time the divorce is filed. In cases where the parties have filed for a divorce or civil annulment, the spouses may enter into a written agreement concerning the division of the property and the liabilities of the spouses and maintenance of either spouse. This agreement may be revised or rejected before rendition of the divorce or annulment unless the agreement is binding under another rule of law. [Based on Texas Statutes; Family Code, Chapter 7.006]

SIMPLIFIED OR SPECIAL DIVORCE PROCEDURES:

On written agreement of the parties, the court may refer a suit for dissolution of a marriage to arbitration (the agreement must state whether the arbitration is binding or nonbinding), mediation, or conducted under collaborative law procedures.

On the written agreement of the parties or on the court's own motion, the court may refer a suit for dissolution of a marriage to mediation.

[Based on Texas Statutes; Family Code, Chapter 6.601, 6.602, 6.603].

MEDIATION OR COUNSELING REQUIREMENTS:

While a divorce suit is pending, the court may direct the parties to counseling. The counselor shall give only an opinion as to whether there exists a reasonable expectation of reconciliation of the parties and, if so, whether further counseling would be beneficial. If the court believes that there is a reasonable expectation of the parties' reconciliation, the court may by written order continue the proceedings and direct the parties to a person named by the court for further counseling for a period fixed by the court not to exceed 60 days, subject to any terms, conditions, and limitations the court considers desirable.

If the court orders counseling under this section and the parties to the marriage are the parents of a child under 18 years of age born or adopted during the marriage, the counseling shall include counseling on issues that confront children who are the subject of a suit affecting the parent-child relationship. [Based on Texas Statutes; Family Code, Chapter 6.505]

PROPERTY DISTRIBUTION:

Texas is a community property state. In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.

Property that would be considered marital property (whether acquired in the state or not) is subject to division. Property that would be considered separate property (whether acquired in the state or not) is not subject to division.

In a decree of divorce or annulment, the court shall determine the rights of both spouses in a pension, retirement plan, annuity, individual retirement account, employee stock option plan, stock option, or other form of savings, bonus, profit-sharing, or other employer plan or financial plan of an employee or a participant, regardless of whether the person is self-employed, in the nature of compensation or savings. In a decree of divorce or annulment, the court shall specifically divide or award the rights of each spouse in an insurance policy. [Based on Texas Statutes; Family Code, Chapter 7.002, 7.003 and 7.004]

ALIMONY/MAINTENANCE/SPOUSAL SUPPORT:

The court may order maintenance for either spouse only if:

  • The spouse is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability.
  • Is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home.
  • Clearly lacks earning ability in the labor market adequate to provide support for the spouse's minimum reasonable needs.

Maintenance/Spousal Support is based on:

  • The financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse's ability to meet the spouse's needs independently.
  • The education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment, the availability of that education or training, and the feasibility of that education or training.
  • The duration of the marriage.
  • The age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance.
  • The ability of the spouse from whom maintenance is requested to meet that spouse's personal needs and to provide periodic child support payments, if applicable, while meeting the personal needs of the spouse seeking maintenance.
  • Acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common.
  • The comparative financial resources of the spouses, including medical, retirement, insurance, or other benefits, and the separate property of each spouse.
  • The contribution by one spouse to the education, training, or increased earning power of the other spouse.
  • The property brought to the marriage by either spouse.
  • The contribution of a spouse as homemaker.
  • Marital misconduct of the spouse seeking maintenance.
  • The efforts of the spouse seeking maintenance to pursue available employment counseling.

The court generally limits the duration of maintenance to three years or less, unless the person seeking support cannot obtain appropriate employment due to a physical or mental disability, duties as the custodian of an infant or young child, or other compelling impediments to gainful employment. A court may not order maintenance that requires an obligor to pay monthly more than the lesser of:

  • $2,500
  • Twenty percent of the spouse's average monthly gross income. The obligation to pay future maintenance terminates on the death of either party or on the remarriage or cohabitation of the obligee with another person in a permanent place of abode on a continuing, conjugal basis (as determined by a court hearing). [Based on Texas Statutes; Family Code, Chapter 8.051 through 8.056]
SPOUSE'S NAME:

In a decree of divorce or annulment, the court shall change the name of a party specifically requesting the change to a name previously used by the party unless the court states in the decree a reason for denying the change of name. [Based on Texas Statutes; Family Code, Chapter 6.706]

CHILD CUSTODY:

The best interest of the child shall always be the primary consideration in determining custody, without regard to the sex of the parent or child. Sole or joint custody may be awarded, but presumption shall be for joint managing conservators.

A finding of a history of family violence involving the parents of a child removes the presumption under this subsection. The court shall use the following factors in determining custody:

  • Whether the physical, psychological, or emotional needs and development of the child will benefit from the appointment of joint managing conservators.
  • The ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest.
  • Whether each parent can encourage and accept a positive relationship between the child and the other parent.
  • whether both parents participated in child rearing before the filing of the suit.
  • The geographical proximity of the parents' residences.
  • If the child is 12 years of age or older, the child's preference, if any, regarding the person to have the exclusive right to designate the primary residence of the child.
  • Any other relevant factor.

[Based on Texas Statutes; Family Code, Chapter 153]

CHILD SUPPORT:

The court may order either or both parents to support a child in the manner specified by the order:

  • Until the child is 18 years of age or until graduation from high school, whichever occurs later.
  • Until the child is emancipated through marriage, through removal of the disabilities of minority by court order, or by other operation of law.
  • Until the death of the child.
  • If the child is disabled as defined in this chapter, for an indefinite period.

The court may order that child support be paid by periodic payments, a lump sum payment, and annuity purchase, the setting aside of property to be administered for the support of the child as specified in the order, or an combination of these methods.

The court shall also order medical support for the child, as well as order income withholding to secure the payment of child support.

PREMARITAL AGREEMENTS:

An agreement must be in writing and signed by both parties and is enforceable without consideration. The parties to a premarital agreement may contract with respect to:

  • The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located.
  • The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property.
  • The disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event.
  • The modification or elimination of spousal support.
  • The making of a will, trust, or other arrangement to carry out the provisions of the agreement.
  • The ownership rights in and disposition of the death benefit from a life insurance policy.
  • The choice of law governing the construction of the agreement.
  • Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

The right of a child to support may not be adversely affected by a premarital agreement. After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties. The amended agreement or the revocation is enforceable without consideration. [Based on Texas Statutes; Family Code, Chapters 4.002 and 4.003].