Divorce – State FAQ – Texas
Residency requirements, venue and procedures
Q: How long must I have lived in Texas prior to filing for divorce in an Texas court?
A: A suit for divorce may not be maintained in this state unless at the time the suit is filed either the petitioner or the respondent has been:
1. a domiciliary of this state for the preceding six-month period; and
2. a resident of the county in which the suit is filed for the preceding 90-day period.
Q: What are the terms used to identify the parties in a divorce proceeding?
A: The party filing the action is called the Petitioner, while the other party to the divorce is referred to as the Respondent.
Q: What is “venue,” and what is the proper venue for a divorce case?
A: “Venue” refers to which type of court and in what locality the case is filed. In Texas, proper venue for the divorce action is the District Court, which may assign your case to a subsidiary Family Law District Court if one is available.
Q: What is the title of the document initiating the action for divorce? The order granting the divorce?
A: The title of the document initiating the divorce proceeding is a Original Petition for Divorce, while the title of the order granting the divorce is referred to as the Decree of Divorce.
Q: Are there any waiting periods associated with a divorce action?
a. The court may not grant a divorce before the 60th day after the date the suit was filed. A decree rendered in violation of this subsection is not subject to collateral attack.
b. A waiting period is not required before a court may grant an annulment or declare a marriage void other than as required in civil cases generally.
Q: Is there a waiting period associated with a divorce proceeding?
A: Yes. After the divorce is filed, there is a minimum 60-day waiting period before the divorce can be granted. Most cases take more than sixty days, to find out what there is and to finalize the agreed documents.
Grounds for Divorce
Q: What is meant by “grounds for divorce”?
A: A “ground” for divorce is a “reason” for divorce. A set of judicially recognized reasons for divorce exist in Texas. You must use one or more of these reasons to justify your divorce.
Q: What are the recognized grounds for divorce in Texas?
A: On the petition of either party to a marriage, the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation. There are also fault grounds for divorce. These are grounds for which one of the parties is at fault for the divorce proceeding. The fault grounds are as follows:
c. CONVICTION OF FELONY (at least 1 year in prison)
e. LIVING APART (for at least 3 years)
f. CONFINEMENT IN MENTAL HOSPITAL (for at least 3 years)
Q: What does the term “spousal support” (or, “alimony”) mean?
A: “Spousal support” (sometimes called “alimony”) is money paid by one spouse to the other due to the payee spouse’s loss of the benefit of the payor spouse’s income due to the divorce.
Q: Is spousal support available while the divorce is pending in court, or only after the divorce has become final?
A: The court may order that one spouse support the other during the pendancy of the divorce action and/or after the divorce has become final. Support awarded pending the final decree of divorce is not to extend beyond the period of time necessary for the prosecution of the divorce action.
Q: What is the duration of alimony payments?
A: To receive alimony after divorce, generally you must have been married for a period exceeding 10 years, and in certain situations, you may be qualified to receive up to $2,500 per month for a maximum of three years.
Q: What factors will the court consider when determining how much alimony to award to a party?
A: The Court will consider the needs of the requesting spouse and the ability of the other spouse to pay. The Court will additionally consider the health and age of the parties, ability to work, responsibility for children, availability of funds, and the length of the marriage.
Q: On what basis does the court decide how marital property is divided?
A: Texas is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. The court has wide discretion in dividing property.
Q: Is the “separate property” of one spouse subject to being divided up?
A: The question here is whether property “belonging to” one of the parties should be included in the marital estate for purposes of an equitable division. Generally, separate property acquired before the marriage or by gift or inheritance during the marriage may be excluded from the marital estate if neither the property nor its income has been used for the common benefit of the parties during their marriage.
Q: What if the parties occasionally use an item of separate property (for example, silver table utensils inherited by the wife) for the benefit of both parties?
A: The property may be subject to division. Where the parties regularly use property acquired by one party before marriage for the common benefit of the parties, it is more likely to be available for consideration in dividing property. The frequency of use may be considered by the court in making the decision.
Child custody and visitation
Q: What is child custody and visitation?
A: “Child custody” refers to which parent will have legal custody of the child(ren), i.e. with whom the child(ren) will live. “Visitation” is the topic of the non-custodial parent’s ability to visit/spend time with the child(ren).
Q: If the parents cannot agree on child custody and visitation issues, on what basis will the court decide?
A: In Texas, there is a rebuttable presumption that parents should serve as the Joint Managing Conservators of their children. In Texas, “Conservatorship” is “Custody” of the children. Joint Managing Conservatorship does not mean that each party will have the children one-half of the time. It also does not mean that child support will not be awarded to one parent. Joint Managing Conservatorship does mean that the parents will either share, allocate, or apportion parental rights and duties. In most cases, it also means that the child’s domicile must be established in the final Court orders.
Q: What is “child support”?
A: Child support is money paid by the non-custodial parent to the custodial parent in order to meet the needs of the child(ren).
Q: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?
A: The Texas Family Code contains guidelines for the computation of child support. A full discussion regarding the amount of child support required can be found on the Texas Divorce Main Page.
Q: When does the duty to pay child support end?
A: Absent marriage or other acts which would emancipate the child, child support orders continue until the child reaches age 18. If the child is in high school at age 18, support continues until high school graduation. If the child is disabled, it may be possible to continue child support for an indefinite period. Texas law makes no provision for support during college, or the payment of college expenses. However, this can be done by a contract between the parties if an agreement can be reached on this issue.