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Texas Divorce Law

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Texas divorce laws cover alimony, property distribution, child support, child custody, state requirements and more. Texas divorce laws are complex. With the help of a local Texas divorce lawyer, get legal divorce advice about the Texas divorce process.

For your convenience, the chart below summarizes a few of the key concepts of Texas's divorce laws:

Texas State Laws

  • Fault/No-Fault: Both
  • Property Distribution: Community
  • ADR Available: Yes
  • Parenting Plan Required: Yes

Texas Grounds for Divorce

Texas divorce courts accept both no fault and fault grounds for divorce.

When filing for divorce under no fault grounds, the petition must state that the marriage is insupportable due to discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation. Typically in no fault divorce, couples must recognize Texas divorce waiting periods before the divorce can become final.

In fault divorce, Texas divorce courts accept a number of grounds for divorce, including:

  • Mental cruelty
  • Adultery
  • Imprisonment or conviction of a felony
  • Abandonment
  • Living separate and apart for at least three years
  • Insanity and confinement to a state mental hospital

When filing for no fault or fault divorce, one spouse will need to meet the Texas residency requirement.

Texas Residency Requirement

Texas divorce law has state residency requirements for divorce that either the petitioner or respondent must meet to file for divorce. The Texas divorce court will not accept a divorce petition unless either the petitioner or respondent has been both:

  • A domiciliary of the state for last six months and
  • A resident of the county where the divorce is filed for the last 90 days

Typically, the divorce petition is filed in the county where the petitioner lives.

A person who has not been a resident of Texas but is serving in the armed forced of the United States can be considered a Texas domiciliary if he or she has been stationed at one or more military installations in the state for at least the last six months. The person will also be considered a resident of the county if he or she has been at a military installation in a county of the state for at least 90 days to file for divorce.

Texas Divorce Waiting Periods

The state of Texas doesn't require a waiting period before filing for divorce. As long as the couple meets the Texas residency requirement, either spouse can file for divorce at any time. Once the divorce petition has been filed, Texas divorce law requires the couple to wait 60 days before the divorce process continues.

Texas is one of the few states that has a remarriage waiting period. After the divorce petition is finalized, both spouses must wait 30 days before remarrying, unless the Texas divorce court feels the circumstances of the divorce call for a different remarriage waiting period.

Texas Annulment

Under certain circumstances, an annulment may be possible for some couples. If a marriage is annulled, it's as if the marriage didn't exist because it was illegal under state law. Texas divorce courts may declare a marriage void and automatically annulled if:

  • The spouses are related
  • One spouse was still legally married
  • The marriage was between a stepparent and stepchild
  • One party was under 16 and didn't have a court order

A marriage is voidable and the Texas divorce court may grant an annulment if:

  • One spouse was 16 or 17 and the marriage occurred without parental consent or court order, but the annulment can't be filed after the person's 18th birthday
  • One of the parties lacked capacity to consent to the marriage because he or she was under the influence of drugs or alcohol and the other party hasn't voluntarily cohabited with the party lacking the capacity since the effects of the alcohol or drugs ended
  • Either party was permanently impotent at the time of the marriage and the other party hasn't voluntarily cohabited with the other party since learning of the impotency
  • Fraud, duress or force was used to induce one of the spouses into the marriage and there hasn't been voluntary cohabitation since learning of the fraud, duress or force
  • One party was unable to consent to the marriage because of a mental disease or defect
  • The marriage occurred within the 30 day Texas divorce waiting periods and one party didn't know and shouldn't have known of the divorce and hasn't voluntarily cohabited with the divorced party since learning of the divorce - suit must be brought within one year of the marriage
  • The marriage happened 72 hours of the issuance of the license - suit must be brought within 30 days after the marriage

Texas Alternative Dispute Resolution

The divorce process can be expensive and complicated, which is why most state laws provide for alternative to divorce court. Many states encourage couples try an alternative dispute resolution to work through divorce if the spouses are able to get along to a certain degree.

One type of alternative dispute resolution is divorce arbitration. With written agreement from both spouses, the Texas divorce court may refer a divorce for arbitration. In the written agreement, the couple must specify whether the divorce arbitration will be binding or nonbinding. If the agreement developed in arbitration is binding, the Texas divorce court will follow the arbitrator's award.

Texas divorce law encourages couples to attempt divorce mediation, which can be initiated by either the divorcing parties or a Texas divorce court. If the couple comes up with a divorce settlement in mediation, the agreement is binding where both parties and divorce attorneys have signed the agreement and the agreement states the terms are irrevocable. The Texas divorce court may extend the divorce proceedings for an additional 60 days for proper marital counseling if it seems that reconciliation between the couple is possible.

Collaborative divorce is a process where the spouses and divorce attorneys make a written agreement to each use the best efforts and make a good faith attempt to resolve the divorce on an agreed basis. During the collaborative divorce process, the couple will not resort to judicial intervention unless to approve the divorce settlement, make legal pronouncements and sign orders that the Texas divorce court consider appropriate. The divorce attorneys representing the spouses can't serve as litigation counsel excepts to ask the divorce court to approve the settlement. The divorce agreement must also include how each party will exchange information, hire experts and other provisions.

Texas divorce courts allow alternative dispute resolution methods to be used in Texas child custody matters.

Texas Property Division

Under Texas divorce law, Texas is a community property state. All property and debt acquired from the start of the marriage until the end is considered community property. The Texas divorce court splits community assets during divorce equally between the two spouses if the couple is unable to reach a divorce settlement or if there isn't a prenuptial agreement or postnuptial agreement.

Texas divorce courts will order a division of property that is deemed just and right. The divorce court will consider the rights of each party when assigning the following real and personal property acquired:

  • By either spouse while domiciled in another state that would have been community property if the spouse who acquired the property had been domiciled in Texas at the time of acquisition
  • In exchange for real or personal property by either spouse and that would have been community property if the spouse who acquired the exchanged property had been domiciled in Texas at the time of its acquisition

Texas divorce court will award the real and personal property to a spouse as separate property when the property was acquired by:

  • The spouse while domiciled in another state and that would have been the spouse's separate property if the spouse had been domiciled in this state at the time of acquisition
  • A spouse in exchange for real and personal property that would have been the spouse's separate property if the spouse had been domiciled in this state at the time of acquisition

The following property is considered separate property of a spouse if partitioned or exchanged by written agreement of the spouses:

  • Income and earnings from the spouses' property, wages, salaries and other forms of compensation received on or after January 1 of the year when the divorce petition is filed
  • Property received in another year during which the spouses were married for any part of the year, including income and earnings from the spouses' property, wages, salaries and other forms of compensation

Texas property distribution depends on the circumstances of your divorce.

Texas Alimony

Alimony may also be called spousal support or maintenance. Under Texas divorce law, alimony is referred to as maintenance. The Texas divorce court may order maintenance for either spouse if the marriage lasted 10 years or longer.

Alimony is awarded based on the length of the marriage coupled with the fact that the spouse seeking maintenance lacks sufficient property even after Texas property division to provide for his or her minimum reasonable needs and the spouse seeking maintenance:

  • is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability
  • is the custodial parent for a child from the marriage that requires substantial care and personal supervision because of a physical or mental disability that won't all the spouse to be employed outside the home
  • clearly lacks the earning necessary to provide support for the spouse's minimum reasonable needs

If the Texas divorce court determines that a spouse is eligible to receive alimony, the court will determine the nature, amount, duration and manner of periodic payments by considering factors like:

  • Financial resources of the spouse seeking maintenance
  • Education and employment skill of the spouses
  • Length of the marriage
  • Age, employment history, earning ability and physical and emotional condition of the spouse seeking maintenance
  • Ability of the spouse from whom maintenance is requested to meet both parties' personal needs and provide periodic
  • If either spouse acted to cause excessive or abnormal expenses or destruction, concealment or fraudulent disposition of marital property
  • Comparative financial resources of the spouses, including medical, retirement, insurance or other benefits
  • Separate properties of each spouse
  • Contribution of one spouse to the other's education, training or increased earning power
  • Property brought to the marriage by each spouse
  • Contribution of a spouse as a homemaker
  • Marital misconduct of the spouse seeking maintenance
  • Efforts of the spouse seeking maintenance to pursue available employment counseling

Texas divorce courts will limit the length of the maintenance payments to the shortest reasonable period that allows the spouse seeking maintenance to meet the spouse's minimum reasonable needs by obtaining appropriate employment or developing an appropriate skill.

Exceptions are possible if the ability of the receiving spouse's ability to provide for his or her needs through employment is substantially or totally diminished because of:

  • Physical or mental disability
  • Duties as the custodial parent of an infant or young child
  • Another compelling impediment to gaining employment

Under Texas divorce law, a divorce court may not order alimony that requires a spouse to pay monthly more than $2,500 or 20% of the spouse's average monthly gross income, whichever is the lesser of the two values. Texas alimony is terminated if the receiving spouse dies or remarries, and alimony may be modified if it can be proved there's a material and substantial change in the circumstances of either party.

Texas Child Custody

When Texas divorce courts are deciding child custody, decisions are based on the key standard of what's in the best interest of the child. Under Texas divorce law, it's assumed that joint legal child custody, or conservatorship, is best for the child unless it's proven otherwise. To determine which parent has primary physical child custody, the Texas divorce court considers the following factors:

  • History of contact between the parents and child
  • Health, safety and welfare of the child
  • Mental and physical health of the parents
  • How close the parents live to each other
  • Preference of the child - if 12 or older
  • Evidence of child abuse

Texas divorce law will allow the parents to enter into a parenting plan to determine child custody. The divorce court will enforce the parenting plan as long as it's in the best interest of the child.

Texas Grandparent Visitation

State divorce laws don't automatically grant visitation rights for grandparents, but most states allow grandparents to petition for child visitation rights. If a grandparents chooses to petition the court, a set of grandparent visitation and custody guidelines will be considered to determine what's in the best interest of the child.

If both parents of the child have died, the court may appoint grandparents or other family members as legal guardians or conservators of the child. A grandparent may request child custody or child visitation by filing a petition with the court. The court will order Texas child custody or child visitation rights to a grandparent if:

  • At least one biological or adoptive parent hasn't had that parent's parental rights terminated
  • The grandparent can show that a parent is not acting in the best interest of the child by denying grandparent visitation or custody
  • The grandparent requesting custody or visitation rights is an actual parent of the child's parent and that parent of the child:
    • has been incarcerated during three months before filing the petition
    • has been found incompetent by a court
    • is dead
    • doesn't have actual or court-ordered custody or visitation to the child

A biological or adoptive grandparent may not request child custody or visitation rights to a grandchild if:

  • The grandchild has been adopted, or is the subject of a pending suit for adoption, by a person other than the child's stepparent
  • Each of the biological parents of the grandchild has:
    • died
    • had the person's parental rights terminated or
    • relinquished parental rights and designated an authorized agency, licensed child-placing agency or person other than the child's stepparent as the managing conservator of the child

Texas Child Support

To determine child support, Texas divorce courts use the percentage of income formula. The amount of child support is calculated as a percentage of the parent's income who is ordered to pay child support. To determine the percent of income the parent should pay in child support, the Texas divorce court factors in the number of children requiring support.

Under Texas divorce law, either or both parents may be ordered to pay child support - whether periodic, lump-sum or both. Specific official child support guidelines are outlined in Texas divorce law and are presumed reasonable and in the best interest of the child. The child support factors taken into consideration include:

  • Age and needs of the child
  • Each parent's ability to contribute to supporting the child
  • Financial resources available for supporting the child
  • How much child custody was assigned and access given to each parent
  • Parents' net resources to pay child support, including earning potential if the actual income is significantly less than what a parent could earn, if intentionally unemployed or underemployed
  • Childcare expenses
  • Health care or insurance provisions
  • If a parent has custody or paying child support expenses for other children from previous relationships
  • Amount of Texas alimony being paid or received
  • Education or health care needs of the child, including college child support
  • Any benefits a parent received from an employer
  • A parent's debts or obligations
  • Cost of traveling to visit the child
  • Positive or negative cash flow from any assets, including a business or investments
  • Any wage or salary deductions of a parent
  • Special or extraordinary educational, health care or other expenses of the parents or child
  • Whether either parents has a car or housing furnished by an employer or other person or business
  • Other relevant factors to determining child support

The Texas divorce court may order either parent provide health insurance coverage for the child, as well as income withholding to help with Texas child support enforcement.

To modify child support in Texas, there must be a material and substantial change in the circumstances of a person affected by the order. It may also be able to petition for child support modification if it has been three years since the last child support order and a difference in monthly payment by either 20% or $100 from the child support guidelines.

Texas Child Support Enforcement

Child support enforcement is a problem for most states trying to secure the financial future of children. To help collect unpaid child support, most states have set up child support enforcement agencies that have developed different enforcement techniques.

Under Texas divorce law if you haven't paid child support you could be facing a number of penalties, including:

  • Wage garnishment
  • Interception of tax refunds, lottery winnings or other money due from state or federal sources
  • Liens filed against property or assets
  • Driver's, professional and hunting and fishing licenses suspended
  • Lawsuit filed against the noncustodial parent asking the court to enforce the order
  • Jail sentence

Please understand that this information is provided for illustration purposes only and is not legal advice. Speak to a local divorce lawyer for more information about Texas divorce law and divorce process. Connect today by calling 877-349-1310 or filling out the divorce case review form below.

The above synopsis of Texas divorce laws is by no means all-inclusive and has been adapted from applicable state laws. These laws may have changed since our last update and there may be additional laws that apply in your situation. For the latest information on these divorce laws, please contact a local Texas divorce lawyer in your area.

This "Texas Divorce Laws" page was last updated May 2009.

Note: Keep in mind that all divorce laws are complex. If you need legal divorce advice or want to fully understand how these laws affect you, please speak with a local divorce attorney.