Divorce & Family Law Summary
U.S. Divorce Laws are enacted by each state using their respective legislative process. Once legislation is enacted into law, the divorce courts in Texas have the authority to manage the divorce proceedings, including spousal support and child support payments, custodial rights of parents, and the division of property.
Since state laws are repealed and amended frequently, it is always advisable to consult with an experienced divorce lawyer before making important decisions about your marriage.
All states allow for “no-fault” divorce. Yet many courts still factor in the respective parties’ past behavior when determining the division of community property, debts, custody, support, and related issues.
Read our expanded article on the divorce process for a deeper and more realistic understanding of the challenges you’re likely to face.
RESIDENCY REQUIREMENTS
Either spouse must be a resident of Texas for at least six months and reside 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.
COLLABORATIVE DIVORCE OPTION
The spouses seeking dissolution of their marriage may stipulate in writing and, with the support and assistance of their respective attorneys, engage in excellent faith-best efforts to resolve all marital disputes without having to go through the cost and expense of formal divorce court proceedings. Once finalized and agreed to, the court will approve the settlement agreement and issue the final order.
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 above, to work out the marital issues that often occur when parties are no longer cohabitating.
GROUNDS FOR DIVORCE – NO FAULT OR FAULT
On the petition of either party to a marriage, the court may grant a divorce without regard to fault based on 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 three years.
ALTERNATIVE DISPUTE RESOLUTION
On written agreement of the parties, the court may refer a suit for dissolution of a marriage to arbitration, mediation, or conducted under collaborative law procedures as described above. On the parties’ written agreement or the court’s motion, the court may refer a suit for dissolution of a marriage to mediation.
Counseling and alternative dispute resolution are heavily relied upon, and the court may direct the parties to counseling while a divorce action is pending. 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 there is a reasonable expectation of the parties reconciliation, the court may direct by written order.
ALIMONY-SPOUSAL SUPPORT
The court may order maintenance for either spouse only if:
(1) the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of domestic-family violence, and the offense occurred:
(A) within two years before the date on which a suit for dissolution of the marriage is filed; or
(B) while the suit is pending; or
(2) the duration of the marriage was ten years or longer, or the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under this code, to provide for the spouse’s minimum reasonable needs and the spouse seeking care.
NOTE: 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.
Maintenance 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 care;
- 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 a homemaker;
- The marital misconduct of the spouse seeking maintenance; and
- The efforts of the spouse seeking maintenance to pursue available employment counseling.
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.
TEXAS CHILD CUSTODY LAWS
Child custody is treated differently than in most states. Child custody is managed through a Conservatorship process. Joint legal custody within the Conservatorship context means that both parents share the major decision-making rights, privileges, duties, and powers held by parents.
The child’s best interest 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 will use and consider any of the following factors in determining child 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 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; and
- Any other relevant factor.
CHILD SUPPORT
Texas uses the Varying Percentage of Income Model to calculate child support obligations.
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 the removal of the disabilities of minority by court order, or by other operation of law; until the death of the child; or 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, an annuity purchase, the setting aside of property to be administered for the child’s support as specified in the order, or a combination of these methods.
The court shall also order medical support for the child and income withholding to secure the payment of child support
SAME-SEX DIVORCE
On June 26, 2015, the U.S. Supreme Court ruled that gay marriage is a right protected by the U.S. Constitution in all 50 states. It follows, therefore, that the rights and obligations between same-sex divorcing parties are subject to the same dissolution laws of that state. Reference: U.S. Supreme Court Opinion: Obergefell v. Hodges.
