How to file a divorce in Texas

In Texas or elsewhere, divorce for any married couple accomplishes two things: (1) severing the marital relationship, and (2) dividing assets and debts. If they have been married for a significant length of time and one of them will be unable to be self-supporting, the issue of alimony may arise. If there are minor children, they will need to resolve child custody and support issues.

Residency and where to file

To file for divorce in Texas, one party must be domiciled in Texas for at least 6 months. Your domicile is your primary residence. You may be a resident of more than one state, but may only have one domicile (where you have your driver’s license, car and voter registration, etc.).You may file in the District Court of the county where one party has resided for at least 90 days.

Procedures

The simplest procedure is an uncontested divorce where you and your spouse can reach an agreement about all issues. You begin by filing an Original Petition for Divorce, along with various supporting documents. For an uncontested divorce, one of these will be a marital settlement agreement outlining the division of assets, and your agreement regarding any children. If there are minor children, you must include a “suit affecting the parent-child relationship” in the Petition. These documents are filed with the court, and copies of them are provided to your spouse. You will attend a court hearing, at which time the judge will make sure that all of your paperwork is in order, perhaps ask you a few questions, and enter your Decree of Divorce.   

Collaborative Divorce. Texas offers this process where each party hires a lawyer to assist them in trying to reach an agreement on all issues. There may also be a facilitator to focus the discussion. It is similar to mediation. Both parties must agree to the process, and either may stop it at any time. Any agreement will be incorporated into the Decree of Divorce. 

Grounds for divorce

Grounds for divorce are legally recognized reasons to get a divorce. This is the justification for severing the marital relationship. Texas, like most states, has what are commonly called no-fault grounds for divorce, and several traditional fault-based grounds. To get a no-fault divorce in Texas you need to state in the Original Petition for Divorce that either “the marriage of the parties 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,” or “the parties have lived apart without cohabitation for at least three years.”

The fault-based grounds for divorce are: cruel treatment of a nature that renders further living together insupportable, adultery, conviction of a felony and imprisonment for at least 1 year (unless there has been a pardon, or the conviction was based on the testimony of the spouse), abandonment for 1 year, and confinement to a mental hospital for at least 3 years with no likelihood of permanent “adjustment.” However, in most cases, there is no reason to use any of these, since they add complexity to the process by requiring proof.

Property division

A divorce involves dividing property and debts between you and your spouse. Generally, each party will keep his or her separate property, which is property acquired before marriage, or during the marriage by gift or inheritance, or received as recovery for personal injuries (other than for loss of earning capacity). If there is a dispute, the party claiming separate property will need to offer clear and convincing evidence of its separate nature. All other property acquired during the marriage is community property. Absent an agreement of the parties, Texas divorce law directs the judge to divide the community property “in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.”

Alimony in Texas

Alimony is referred to as maintenance in Texas. Maintenance may be ordered if:

• the marriage was for at least 10 years; and the party seeking maintenance lacks sufficient property, income, or earning ability to provide for his or her minimum needs, or should not be required to seek employment due to being the custodian of a child requiring substantial care due to a physical or mental disability, or
• the party paying maintenance was convicted of, or received deferred adjudication for, a criminal offense constituting an act of family violence, and the offense occurred within two years before the date of filing or while the divorce case is pending

The party seeking maintenance must exercise diligence to seek employment, or develop skills to become self-supporting; unless the party should not work outside the home due to a physical or mental disability, or due to being the custodian of a child with a physical or mental disability. Absent an agreement of the parties, the judge will determine the nature, amount, duration, and manner of payment of maintenance, after considering all relevant factors, including:

• the financial resources of the party seeking maintenance, including the community and separate property and liabilities apportioned to that party in the divorce proceeding, and that party’s ability to meet his or her needs independently
• each party’s education and employment skills, the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment, and the availability and feasibility of that education or training,
• the duration of the marriage
• the age, employment history, earning ability, and physical and emotional condition of the party seeking maintenance
• the ability of the party from whom maintenance is sought to meet his or her needs, and to provide child support payments, if applicable, while paying maintenance
• any act by either party resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property
• the comparative financial resources of the parties, including medical, retirement, insurance, or other benefits, and the separate property of each party
• any party’s contribution to the education, training, or increased earnings of the other
• the property brought to the marriage by either party
• the contribution of a party as homemaker
• marital misconduct of the party seeking maintenance, and
• the efforts of the party seeking maintenance to pursue employment counseling

Maintenance is only awarded for up to three years, unless the party seeking it has a physical or mental disability, or has duties as “the custodian of an infant of young child.” Payment is limited to the lesser of $2,500 or 20 percent of the paying party’s average monthly gross income. Maintenance terminates upon the death of either party, the remarriage of the party receiving maintenance, or upon court order after a further court hearing if the party receiving maintenance “cohabits with another person in a permanent place of abode on a continuing, conjugal basis.”

Child custody in Texas

Custody in Texas is called managing conservatorship. Texas child custody law favors “frequent and continuing contact” between the parents and child, a “safe, stable, and nonviolent environment for the child,” and parents sharing “in the rights and duties of raising their child.” If you and your spouse agree on a parenting plan, it will be accepted by the judge unless it is determined not to be in the child’s best interest. Otherwise, Texas law leaves it up to the discretion of the judge, with the only factors mentioned in the law being the wishes of the child, if at least age 12 (the child must file a request in writing); and any evidence of false child abuse reports by a party. If the parties agree, the court may refer the matter to binding or non-binding arbitration. The court may also refer the matter to mediation, on its own or upon request.

Child support in Texas is determined by the Texas Child Support Guidelines. The Texas Attorney General offers a child support calculator.

Miscellaneous matters

A divorce may not be granted until at least 60 days after the Petition is filed. Either party’s previously used name may be restored. Neither party may remarry until 31 days after the Decree of Divorce is entered, except to each other or upon a court order.

Filing a divorce can be a complex process, but if you and your spouse can agree on the terms of the divorce you may be able to save time. Following these steps will help you get started with your divorce.

LegalZoom’s uncontested online divorce service is an inexpensive way to file for divorce if you and your spouse agree on most major issues. Otherwise, you can talk to an attorney for advice or help filing for divorce through the LegalZoom personal legal plan.