State Of Texas Divorce Laws And Resources

Introduction

Texas has traditionally been considered family-friendly and boasts strong family values. This may be why Texas has one of the lowest divorce rates in the country.

According to the U.S. Census Bureau, the divorce rate in Texas per 1000 people is 1.9 compared to the divorce rate in the country, which is 3.2 per 1,000 people.

Notwithstanding, for those facing divorce, the experience can be both a stressful and confusing process. In fact, going through a divorce is considered one of the most life-changing events you will ever have to face.

The following summary provides the basic legal information you should know if you are considering ending your marriage. It also includes valuable tips on maintaining mental and emotional health while navigating the divorce process.

Texas Divorce Law Summary

Texas law has several features that distinguish it from the laws of other states, such as the fact that Texas is one of the few states that recognize common-law marriages.

Also, unlike most states that divide marital property based on equitable distribution, Texas divides marital property based on community property laws.

The difference between these two forms of property division will be explained later in this summary.

Let’s begin with the residency rules governing the filing for divorce.

Texas Residency Requirements

Either spouse must reside in Texas for at least six months and in the county where the petition is filed for at least 90 days. The divorce petition is filed with the county’s District Court, where either party lives.

Legal Separation

Texas does not have legal separation as it is traditionally understood and, therefore, has not enacted any substantive laws governing such a process.

Texas relies heavily on the Collaborative Divorce option (discussed later in the summary) to work out the marital issues that often occur when parties are no longer cohabitating.

While Texas does not recognize separation as a formal legal process, couples can file for temporary orders with the court.

These orders address issues such as:

• Child Custody and Visitation: This will determine where the children will live and how visitation will be managed between the spouses.
• Child Support: The court will determine and set temporary child support payments based on the child’s needs.
• Spousal Support: The court will determine if the requesting spouse is entitled to temporary financial support and the amount.
• Use of Property: The court will decide who will live in the family home and how other property will be used during the separation.

Grounds For Divorce

Fault and No-Fault Divorce

All states allow spouses to choose between “fault-based” and “no-fault” divorce. Texas is no exception.

In Texas, a no-fault divorce allows couples to dissolve their marriage without proving the other party’s wrongdoing or fault.

Instead, the couple can simply attest that their marriage has become “insupportable” due to discord or conflict that makes reconciliation impossible.

Under Texas no-fault law, child custody decisions are based on the child’s best interests. The court considers various factors to determine what arrangement best serves the child’s physical, emotional, and psychological needs.

Advantages of no-fault divorce

The major advantage of no-fault divorce is that the process is less contentious since neither party has to prove fault for their marriage breakdown. Also, parties will not have to publicly air their grievances in open or in public court records.

Fault-Based Divorce

While no-fault divorce is an option in Texas, parties can also choose to litigate their case based on fault.

Texas law recognizes the following fault-based grounds for divorce, including:

• Adultery
• Spousal Cruelty
• Abandonment
• Felony Conviction
• Confinement in a Mental Hospital:
• Living Apart For at Least Three Years

Legal Tip

Litigating Fault In Divorce Cases Complicates The Process: It leads to a more contentious, uncertain, and prolonged legal battle, impacting outcomes relating to property division, spousal support, and child custody.

Wellness Tip

Fault-Based Divorce Is Bad For Your Health: Litigating fault can negatively impact your mental and physical health. The uncertainty of the outcome can cause stress and anxiety. Not knowing how the court will rule on property division, spousal support, and child custody leads to constant worry. It also forces you to revisit painful memories that can result in insomnia and chronic fatigue. Selecting the no-fault option and resolving your divorce through mediation or collaborative divorce is often the healthier path for the parents and their children.

Collaborative Divorce Option

Collaborative divorce in Texas is an elective process that allows divorcing spouses to work with their attorneys and other professionals to reach a mutually agreeable divorce settlement agreement without going through the cost and expense of formal divorce court proceedings.

Collaborative divorce emphasizes open and respectful communication, flexible solutions, and a commitment to resolving issues amicably and cost-effectively.

Once an agreement is reached, the attorneys will draft a settlement agreement outlining the divorce terms. Once the agreement is finalized and signed off by both parties, the lawyers will submit the agreement to the court for final approval. Once approved, the court will turn the deal into an enforceable order.

Mediation (ADR)

Mediation is not universally mandated

In Texas, neither collaborative divorce nor mediation is judicially mandated for all divorce cases. However, it is strongly encouraged and can be required by the court in certain circumstances, such as contested matters involving child custody and support issues.

Alternative dispute resolution, such as mediation and collaborative divorce, is heavily relied upon. The court may even direct the parties to attend marriage counseling while the divorce action is pending if the court believes there is a reasonable expectation of the party’s reconciliation. t

Divorce Tips

Local Court Rules Can Require Mediation: Some counties in Texas have court-based local rules that may require mediation before a case can proceed to trial. For example, certain counties may mandate mediation for contested child custody cases. Mediation of custody issues is mandatory in Houston, Harris County, Texas, Fort Bend County, and other Texas courts before trial.

Domestic Violence Exception: In those Texas counties with local rules that mandate mediation, In divorce cases involving allegations of domestic violence, the court is likely to waive the mediation requirement in such situations to protect the safety of the parties

Financial Tip

Mediation Costs Less: Mediation is almost always less expensive than litigating and preparing your case for trial. Trials are expensive and require extensive attorney preparation, including increased use of discovery, taking depositions, and preparing and arguing motions for court appearances. Trials can consume enormous amounts of attorney time due to expert witness fees, trial delays, and preparing trial exhibits and motion work.

Division of Marital Property

Texas follows community property laws

Texas is a community property state, meaning that most property acquired during the marriage is considered jointly owned by both spouses and is subject to equal division upon divorce. In this regard, property is either considered separate or community property.

Community Property State

In a community property state, all property and income acquired during the marriage are considered jointly owned by both spouses, regardless of who earned it. Community property is typically divided equally (50/50) between the spouses.

Separate property is owned by either spouse before the marriage, as well as inheritances and gifts received by one spouse during the marriage, and are generally considered separate property and are not subject to division.

Equitable Distribution State

In an equitable distribution property state, income acquired during the marriage is divided in a manner that is considered fair, just, and equitable – but not necessarily equal.

Equitable distribution states will consider various factors to determine what is equitable, such as the length of the marriage, each spouse’s financial situation, economic and non-economic contributions to the marriage, and the parties’ future needs.

Video On How Property Divison Works In The State of Texas:

Alimony – Spousal Maintenance

In Texas, alimony is not as commonly awarded. Texas courts follow strict guidelines to determine eligibility and the amount of support. Here’s an overview of how Texas courts handle spousal maintenance:

Eligibility Criteria:

To be eligible for spousal maintenance in Texas, the requesting spouse must fit within a limited category or set of conditions, including:

• Marital Duration: The marriage must have lasted at least ten years, and the requesting spouse must lack sufficient property to provide for their minimum reasonable needs.
• Disability: The requesting spouse has a physical or mental disability that prevents them from earning sufficient income to meet their minimum reasonable needs.
• Custodial Parent: The requesting spouse is the custodian of a child of the marriage who requires substantial care and personal supervision due to a physical or mental disability, preventing the custodial parent from earning sufficient income.
• Victim of Domestic Violence: The spouse from whom maintenance is requested has been convicted of or received deferred adjudication for an act of family violence against the requesting spouse or the spouse’s child within two years before the divorce filing or while the divorce is pending. (Learn About Restraining Orders)

Determining Maintenance Amount – Factors Considered

If the court determines that a spouse is eligible for maintenance, it will consider several factors to decide the amount, duration, and terms of the support:

• Requesting Spouse’s Financial Resources 
• Requesting Spouse’s Education and Employment Skills
• The Length of Marriage
• Requesting Spouse’s Age and Health
• Requesting Spouse’s Marital Misconduct

Note: Courts Limit Duration of Support: The court generally limits the duration of maintenance to three years or less unless the spouse 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.

Legal Name Change of Spouse

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.

Learn more about the name change process.

Texas Child Custody Law

Texas child custody laws are designed to prioritize the child’s best interests while ensuring that both parents can maintain a meaningful relationship with their child. Here’s an overview of the key aspects of child custody laws in Texas:

Legal Tip

Difference In Family Law Terminology: Texas uses the term “conservatorship” rather than “child custody. Texas calls them Joint Managing Conservatorship and Sole Managing Conservatorship. Also, the schedule for when each parent has physical custody of the child is referred to as Possession and Access.

There are two types of conservatorship:

Joint Managing Conservatorship: This is where both parents share the rights and duties of raising their child. However, this does not necessarily mean equal time with the child.

Sole Managing Conservatorship: This is where one parent has the exclusive right to make major decisions about the child’s life, such as education, medical care, and residence.

Factors Determining Child Custody

Texas courts may consider any of the following factors in determining child custody:

• The ability of the parents to give 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 (Courts strongly discourage any form of parent alienation)
• 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

Child Support

Texas uses a model known as the “Percentage of Income Model” to calculate child support obligations. This model determines child support based on a fixed percentage of the non-custodial parent’s net resources, which include income from all sources minus certain allowable deductions.

While the Percentage of Income Model provides standard guidelines, the court has the discretion to make its own determination based on what is in the child’s best interests.

Factors influencing the court’s decision include the child’s needs, the parents’ financial resources, and any special circumstances. For example, in addition to child support, the non-custodial parent may be required to provide health insurance for the child or pay a larger portion of the child’s medical expenses.

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

Legal Tip

Modification To Child Support Orders: Child support orders can be modified after the divorce if there is a significant change in circumstances, such as a substantial increase or decrease in income, changes in the child’s needs, or changes in custody arrangements.

Video on what you need to know before filing for divorce by Austin divorce lawyer Samuel Bassett 

Maintaining Wellness During Divorce

Divorce can have a profound impact on mental health. It can lead to stress, anxiety, depression, and other emotional challenges. Moving forward often requires that we give ourselves room to practice self-compassion.

Consider contacting an online divorce counseling professional to support you through the different stages of the divorce process.

There are also excellent online divorce counseling options available.

Here are some other wellness strategies to consider:

• Build a Support Network: For emotional support, contact friends, family, and support groups. Sharing experiences and feelings with others who understand the divorce process can be comforting and help you heal from the divorce.
• Practice Self-Care: Engage in activities that promote physical and mental well-being, such as yoga, meditation, and movement therapy.
• Pet Therapy: You will be surprised how much having a pet can help you live among humans.

Finally, while this summary provides a general introduction to Texas divorce law, it is not intended to substitute for retaining a local divorce lawyer who will assist you in evaluating your case’s factual and legal issues and provide one-on-one advice related to the divorce process and your goals.

Fax: (512) 460-6628

Texas Divorce & Family Law Courts

In Texas, district courts have original jurisdiction in divorce cases, among others. In the more densely populated counties, however, the courts may specialize in family law matters, for example.

• Texas Courts
• Children’s Courts

References and Sources:

University of Texas – School of Law

Texas Constitution and Statutes

CDC Divorce Rates

Texas Health and Human Resources

State of Texas Official Website

TexasLawHelp.org

Texas Courts FAQ

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