Family Law: Getting Divorced In Texas

Factors to Consider When Getting Divorced in Texas

If you need to seek a divorce in the state of Texas, there are some particular laws and regulations that you should become familiar with so you can make educated decisions in your own best interests throughout divorce proceedings. The specific factors of each divorce will vary to some degree depending on who is seeking the separation, what kind of property the couple has, and whether or not there are children involved. Divorce is a major legal decision that should not be attempted without appropriate legal counsel. Let’s take a more detailed look at factors that may impact divorce proceedings in Texas.

Residency Requirements
It only makes sense that in order to get divorced in Texas, you have to live here. That means no matter how mad you might get at your spouse while here on vacation, you’ll need to return home to seek your divorce elsewhere if you are not a Texas resident. Residency in this state is very specifically defined and these requirements must be met in order to be eligible to obtain a divorce here. First, one member of the couple must have lived in the state for a period of at least 6 months continuously at the time of filing. Secondly, that same person has to have lived in the county where the divorce is being filed, for at least 90 days. It doesn’t really matter which person, the petitioner or respondent, meets this requirement just as long as it is met.

No Fault Divorce in Texas
Most divorces in Texas are filed under “no-fault” provisions. What this means is that neither party has to prove that the other party has done something wrong or has violated the marital contract. One must simply say that the divorce is necessary because of “irreconcilable differences” or some other similar reason. The benefit of this approach is that you don’t have to point fingers or place blame on one another. You just want to get a divorce and that’s the end of it. Some research has indicated that in states that allow a no fault divorce, suicide rates and domestic violence rates are lower. It certainly helps eliminate the need for further argument for all parties involved.

Another way that a couple can obtain a no fault divorce in Texas is to live completely apart for a period of three years. By proving that you and your spouse have maintained this lengthy separation, you are indicating that the marriage has ended and there is no hope for reconciliation. The court can grant your divorce on those grounds alone.

Community Property State
Texas is also one of nine “community property” states in the U.S. This means that following the divorce, each member of the couple retains the separate property they had at the time they entered into the marriage. Anything acquired during the course of the marriage, however, is considered community property. It will simply be equally divided by each member of the couple. The only real exception to this rule is gifts or inheritance. Those items are considered to be separate and the receiving individual is the sole owner.

All of this sounds much more simple than it is in real life. Here are some additional factors to consider:

  • One member of the couple may have had a pension plan or IRA prior to the marriage, yet made significant contributions to this plan during the marriage. In this situation, a good portion of that asset may be considered community property. Further consideration will be given to this matter after both sides review the pension plans or retirements available for each member of the couple.
  • If one member of the couple has received a settlement for personal injuries sustained in an automobile accident, medical malpractice, or similar incident, that settlement usually belongs only to the recipient. Any portion of the settlement, however, that is intended to compensate for lost wages would be considered community property.

Debts are usually shared just like assets. Both are owned by the couple as a whole and are separated appropriately in the divorce. It’s important that you have appropriate legal representation in a divorce so that you can adequately prove the factors necessary to support your stake in all of these issues.

Spousal Support
In many divorces, both parties are often curious to know whether or not spousal support will be required during or after the divorce proceedings. The legal term for spousal support is “spousal maintenance”, though it’s often called alimony as well.

Determining whether or not spousal support will be required is based on a two-step process.

  • First, the spouse requesting support must be eligible to receive it. What this means is that the spouse requesting support must not have sufficient property/resources following the divorce to meet basic needs.
  • Once eligibility for the support is determined, the next step is to determine how much support is needed and how the period for which it should be paid, if at all.

Factors such as educational background, length of the marriage, spousal age, work history, fault/no fault divorce, familial contributions, and attempts for seeking employment.

Once all of these issues are reviewed, the court can rule regarding the spousal support. They can either grant no support at all, the maximum allowable, or some other amount in between.

  • Just because a person is eligible for support does not guarantee that it will be paid.
  • Factors such as educational background, length of the marriage, spousal age, work history, fault/no fault divorce, familial contributions, and attempts for seeking employment.
  • Once all of these issues are reviewed, the court can rule regarding the spousal support. They can either grant no support at all, the maximum allowable, or some other amount in between.

The length of time that spousal support can be paid is also determined by the court. It can range for a period of:

  • Up to five years following divorce
  • Up to seven years following divorce if the marriage lasted more than 20 years, but less than 30 years
  • Up to ten years following divorce if the marriage lasted 30 years or more
  • In the situation where the spouse has a mental or physical disability or is caring for a child with a significant disability, spousal support can continue indefinitely as long as the eligibility criteria are still in place (i.e.- the impairment doesn’t improve)

The amount of spousal support following a divorce in Texas is limited to monthly payments of $5,000 per month or 20% of the payer’s income, whichever is less.

Divorce when Children are involved
When children are involved, a divorce is naturally quite a bit more complicated. The court is always going to try and seek what is in the best interest of the child/children involved. If the parents are working together to see that there is as little negative impact on the children as possible, then the court will likely support the decisions that the parents are making. That said, if the parents cannot come to an agreement that is in the best interest of the children, then the court will make sure it is done for them.

While the parents and court will make most of the decisions regarding child custody arrangements, a child who is at least 12 can submit their written preferences to the court. Those wishes regarding custody and living arrangements will definitely be taken into consideration, but there is no guarantee that those wishes will be fully granted.

A divorce with children involved will spell out very specific responsibilities for each parent. This will include ensuring that the children’s health, education, and other needs are fully met. The court will strive to see that the child’s life is disrupted as little as possible. Depending on if one parent has primary custody or if there is a shared custody arrangement, details such as who can claim the child for tax purposes, as well as visitation for holidays, school breaks, and regular day to day life of the child.

Cases with children usually result in a “parenting plan” following this divorce. This spells out those specific duties of both parents regarding the child/children involved. Some items often included in this plan include:

  • Designation of primary residence of the child
  • Who can make health decisions for the child
  • Who can make decisions about the child’s education
  • Which parent (or both) has a responsibility to provide health insurance for the child
  • Which parent (or both ) has to pay medical expenses not covered by said health insurance

Once a divorce is final and all factors regarding the child’s custody and living arrangements have been determined, it is possible to have these factors amended at a later date if necessary. These changes can only be done if they are in the best interest of the child and the following criteria are in place:

  • One or both parents agree to the change (this requirement will vary depending on the situation).
  • The child is 12 or older and expresses his or her own wishes to the court.
  • A parent with primary custody gives up the child to someone else’s care for a period of six months, or there has been a dramatic change in the living situation or circumstances of one parent.

If the agreement cannot be determined by the parents, then the court will step in to make a determination or request that the parties seek mediation to find an agreement.

Child Support
Depending on custody arrangements, it is possible that one parent may have to pay child support for the child/children’s maintenance and well-being. This requirement will be very detailed and spelled out in the final divorce decree. Child support comes in a variety of forms and isn’t always a check paid to the other spouse on a regular basis. It can include things like health insurance, medical insurance, or Social Security auxiliary child benefits paid in lieu of child support.

If one parent does have to pay monetary support to the other parent for the care of the child, there are some general criteria in place to determine how much must be paid. This amount will vary depending on how many children are being supported. For only one child, the paying parent will have to pay approximately 20% of his or her net income. In families with multiple children, the amount will vary between 25% up to 40%. If children are in multiple households, the calculation is done a bit differently.

In families with higher income, the court may make a determination that circumstances support a higher child support award. This payment will be limited to the “proven needs of the child”. If at any time one parent feels that the support payment is too high or too low, one simply needs to ask the court to review the situation and consider making an adjustment if necessary.

Grandparents Rights in a Divorce
Depending on the circumstances surrounding a divorce, it is not uncommon to see a grandparent petition the court or request an attorney for visitation or custody rights regarding minor children. Grandparents have very limited rights in these situations.

There are endless factors that may influence the circumstances of a divorce. If you find yourself in a situation where you may be obtaining a divorce for yourself, it is imperative that you seek legal counsel for advice. The decisions you make in this important process may have a negative impact on your future in terms of your property ownership and retirement benefits if they are not done wisely. Good luck!