In Texas, the divorce process can be complicated, and everyone has questions. In Texas, the most frequently asked questions concern the law and actual procedures. All divorces in Texas are filed and finalized in the appropriate district court.
Uncontested Divorce Process
During a Texas divorce, the court will issue a final order (decree) that divide’s the couples’ property, debt, and issue orders for spousal maintenance if warranted.
Likewise, if there are minor children, the court will determine custody (conservatorship), visitation, and child support.
The articles that follow explain the relevant laws and processes in Texas. The articles are organized by category so that you can read multiple articles on a single topic. All articles are written by experienced Texas divorce attorneys.
Petition for Divorce
In Texas a Petition for Divorce is a legal document that when filed with the appropriate district court initiates a dissolution of marriage proceeding with the court.
The petition must be filed with the district court in the County where either spouse has resided for at least 90 days. In order to file a petition for divorce in Texas either spouse must have been a resident of Texas for at least six months.
A petition for divorce does not in the marriage. In order to finalize and complete a divorce a judge must sign a final divorce decree. A petition for divorce may be withdrawn by the spouse who filed the petition at any time before the judge signs the final decree. Except in cases of domestic violence, no judge can sign a final divorce decree until at least 60 days has passed from the time the petition was filed with the court.
Forms for a Divorce Without Children
As a general rule, an uncontested divorce in Texas usually contains the following documents, but again the following list may not be complete for your personal situation and circumstances.
The common documents are:
Original Petition for Divorce
Waiver of Service
Affidavit of Name Change (if applicable)
County Court Specific Cover Sheet and related documents/forms
Suit Affecting Family Relationship Form
Final Decree of Divorce
Final Hearing Testimony / Prove Up
If the case involves the division of certain retirement accounts, the court may require a Qualified Domestic Relations Order (QDRO). In addition, there may be additional documents that are wise to complete as part of the “divorce process”. A common example is a warranty deed or special warranty deed since in Texas a quitclaim may not be enough. This is needed if one spouse is awarded any real property (house/land) as part of the divorce. A warranty deed / quitclaim deed simply transfers the other spouse’s interests in the property to the spouse awarded the property.
Forms for a Divorce With Children
If you have children and are divorcing, you will need documents and/or legal language to address child custody, parental visitation, and child support. Under Texas law a “Parenting Plan” must be included with the Final Decree of Divorce. The Parenting Plan includes the conservatorship (custody) rights of the parents, the visitation schedule, the child support, and also provides for other issues that may affect the child.
As a general rule, an uncontested divorce case with children usually contains the following documents, but again the following list may not be complete for your personal situation and set of circumstances.
The common documents are:
Original Petition for Divorce
Waiver of Service
Affidavit of Name Change (if applicable)
County Court Specific Cover Sheet and related documents/forms
Suit Affecting Family Relationship Form
Standing Order
Final Decree of Divorce
Final Hearing Testimony / Prove Up
In cases involving the division of certain retirement accounts the court may require a Qualified Domestic Relations Order (QDRO). There could also be additional documents that are wise to complete as part of the divorce process but not required by or submitted to the court. One common example is a warranty deed since in Texas a quitclaim may not be enough. This document is used when one spouse is awarded real property (house/land) and it transfers the other spouse’s interests in the property to the spouse awarded the real property.
The bottom line is that there are number of factors that determine what documents are needed in any divorce case as well as what language should or shouldn’t be contained in the required documents.
Get help with divorce: Texas Uncontested Divorce
Alimony in Texas
In Texas, alimony is referred to as "Spousal Maintenance." Spousal Maintenance is a monthly payment made by one spouse to another as a means of financial support. Texas law presumes that spousal maintenance should not be ordered in a divorce. There are a couple of ways to overcome this presumption and have a spouse pay spousal maintenance, but neither is easy to prove.
In both situations, the court must find that the spouse, upon the divorce, will lack sufficient property to provide for his or her own minimum needs.
Additionally, the court must find at least one of the following:
The other spouse was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence against the spouse or the spouse's child within two years of the divorce being filed or while the divorce is pending; or
The spouse seeking spousal maintenance has a incapacitating physical or mental disability that does not allow that spouse to earn a sufficient income to meet his or her reasonable minimum needs; or
The spouse seeking spousal maintenance is the custodian of a disabled child of the marriage who requires substantial care and personal supervision; or
The spouses were married for at least 10 years and the spouse seeking spousal maintenance lacks the ability to earn sufficient income to provide for the spouse’s minimum reasonable needs.
However, if the reason above is because the marriage exceeds 10 years, it is presumed that the request for maintenance is not warranted unless the spouse seeking maintenance has exercised due diligence in trying to earn sufficient income or developing skills necessary to provide for him or herself financially.
Amount and Length of Spousal Maintenance
If Spousal Maintenance is ordered, the judge may only order what is necessary to meet the non-paying spouse’s minimum needs. This may not be more than 20% of the paying spouse’s gross monthly income or $5,000 per month, whichever is less.
Spousal Maintenance may be ordered for a maximum period of five years for those spouses married over ten years but less than twenty years; up to seven years for marriages lasting longer than twenty years but less than thirty years; and it may be ordered for a maximum of ten years for those spouses who were married over thirty years. The court will only order the length of time that is necessary to meet the non-paying spouse’s minimum needs.
Community Property Division
Laws regarding property division upon divorce vary greatly from state to state. The following information is intended to provide you with a basic understanding of property division in a Texas divorce case.
Texas is a Community Property State
Texas is a community property state. This means that in the state of Texas, generally speaking, property acquired by either spouse during the course of a marriage is considered to belong to both spouses jointly. Property acquired during marriage is presumed under Texas law to belong to each spouse equally.
There are some exceptions to this general rule. Property acquired by either spouse by gift, inheritance, or recoveries from personal injuries sustained by the spouse is not community property.
When dividing property and assets in a divorce case, Texas places the property in to two different categories: community property and separate property.
Community Property
Community property consists of property, other than one spouse’s separate property, acquired during the marriage including:
Real property: homes, land, vacation homes, etc.
Businesses and business interests.
Cars, boats, and other vehicles.
Retirement accounts and investment accounts including IRA’s, pensions, annuities, etc.
Bank accounts.
Generally speaking, anything acquired during the marriage that has value (other than the exceptions listed) is considered community property.
Separate Property
Separate property consists of all property acquired by a spouse before the date of the marriage. Additionally, property acquired during the marriage by gift, inheritance, or money received for personal injuries sustained by a spouse is also considered that spouse’s separate property.
Simply because one spouse is named on the title, deed, or account alone does not make the property personal property.
A spouse must prove by clear and convincing evidence that the property is separate property. If the court is not shown enough evidence to prove that the property is one spouse’s separate property, then it will be considered community property.
Once a court determines a specific piece of property to be separate property, then the court cannot take that piece of property away from the separate property owner. The court will essentially set that individual piece of property aside for the spouse to whom it belongs when determining how to divide the remaining property in a divorce.
Community Property Division in a Texas Divorce
Once the separate property has been "set aside" for the separate property owners, then the court will look at the remaining community property of the marriage and determine how to divide that property. Many individuals believe that because it is community property, then that means the spouses should be awarded the community property 50/50. This is a common misconception.
The court must divide the community property from the marriage in a manner that the court deems to be a "just and right" division of the property. In determining what is a just and right division of the community property in a divorce, the court will take into account several factors including but not limited to:
Any children of the marriage and with whom the children will be primarily residing.
Fault in the breakup of the marriage.
The earnings of each spouse and ability for future earnings.
The education of the parties.
The specific nature of the piece of property.
The separate property the parties are being awarded.
The debts each party is awarded in the divorce.
Any fraud a party has committed against the other spouse.
Any inheritance a spouse is likely to receive in the future.
As a general rule, if each spouse has the same educational background, makes the same amount of money, has the same amount of personal property, and there are no children of the marriage, then typically the community property will be awarded to each spouse 50/50. However, if considering the above factors, there is a significant difference in the spouses’ financial situation, then the court will divide out the community property accordingly, keeping those factors in mind. The court will divide the estate in a manner it deems just and right, considering those factors and others.
Essentially, the court is given a wide array of discretion in determining the best way to divide community assets and property in a divorce.
Get help with divorce: Texas Uncontested Divorce
Child Custody in Texas Divorce
In Texas courts and in the laws regarding children, the term "custody" is not used. Instead, issues regarding custody are referred to as "conservatorship." Conservatorship is the term used to define all of the legal rights and responsibilities of a parent.
There are two types of conservatorships: Managing Conservatorship and Possessory Conservatorship.
A Managing Conservator has all of the rights and duties a person would typically associate with the rights and duties of a parent including the right to make decisions regarding the child’s education, medical care, religious upbringing, involvement in activities, etc. and the duty to support the child and provide for the welfare of the child.
A Possessory Conservator has the right to visitation with the child, the duty to provide support for the child, and the duty and responsibility to provide for the child’s welfare while the child is in that person’s possession.
All parents have a duty to support the child, to provide food, shelter, clothing, education, and medical/dental care for the child, regardless of whether or not the parent is a managing conservator or possessory conservator.
In Texas, the law says that both parents should be appointed Joint Managing Conservators with equal rights and duties. A parent is typically only appointed as a possessory conservator of the child in instances of family violence, child abuse, or other extreme circumstances. In order for a parent to be named a possessory conservator instead of a managing conservator, the court must find that appointing that parent as a managing conservator would "significantly impair the physical health and emotional development" of the child. Therefore, in most cases, both the mother and the father are appointed Joint Managing Conservators.
Although the parents are appointed Joint Managing Conservators, Texas law requires that one parent be appointed as the "primary" conservator, with the exclusive right to establish the residence of the child. This means that one parent must be named in the divorce as the parent with whom the child will primarily live.
Residency Restriction
Although the court will appoint one parent as the primary conservator, the parent with whom the child will live primarily, the court will almost always impose a “residency restriction.” This prevents parents from moving the child far away from the other parent and ensures the other parent will continue to have frequent contact with the child.
Generally, the court will say that the primary conservator must live either within the current county of residence or the county of residence and contiguous counties. This means the parent could move to any other county that touches the current county where the child and parent live.
Visitation
The primary factor a court must look at in determining the visitation schedule for a parent is what is in the best interest of the child.
Depending on the circumstances of the children and the parents, as well as the distance between the parents, visitation arrangements can vary. However, generally speaking, most courts will order the visitation schedule called the "Standard Possession Order," or SPO, as outlined in the Texas Family Code.
Essentially, the SPO allows for visitation between the child and non-primary conservator every other weekend, every Thursday night, and alternating holidays. There is also an extended summer visitation for the non-primary parent in the SPO. This schedule is very specific and detailed and will be clearly written in all divorce decrees. However, the Standard Possession Schedule also typically allows for both parents to agree to any other days/times not outlined in the SPO. The divorce decree will usually state that the non-primary parent will have visitation with the child at times and days as “mutually arranged and agreed” between the parents. If there is no agreement to have a different visitation schedule, then the Standard Possession Order as outlined in your divorce decree will become your scheduled visitation.
Texas law promotes frequent contact between children and their parents and encourages both parents to work together for the best interest of the child or children, so most divorce decrees allow the parents to have the flexibility to change their schedule as needed to accommodate a child’s schedule for extra-curricular activities such as sports, dance, etc. So, the main thing to keep in mind is that both the mother and father need to work together to make a schedule that is in the best interest of each individual child.
Child Support Texas
In Texas, the parent who is the non-primary conservator will almost always be ordered to pay child support. The parent who does not have primary managing conservatorship will be ordered to pay a monthly child support amount to the parent who has primary managing conservatorship. The person who pays support is called the "Obligor." The person who receives child support is called the "Obligee."
Most parents mistakenly believe that they can agree that no child support will be paid in your case. The court must look at what is in the best interest of the child when making all orders, including child support. This means that even if the parents agree that there will be no child support paid, the court usually will reject that agreement. There are rare circumstances in which a court will not order child support. If a parent is legally disabled and legally unable to earn an income, the court may not order support. Another example of a situation where a court may not order support is if the child spends an equal amount of time with each parent, and the parents each earn the same amount of money. Even in circumstances where the child spends the same amount of time with each parent, the court will often order the parent who earns more to pay support to the parent who does not earn as much.
Calculating Child Support
The court will typically order a monthly child support amount that is in accordance with the statutory guidelines listed in the Texas Family Code. This is essentially 20% of the net income of the non-primary parent if there is one child, 25% for two children, 30% for three children, and so on and so forth. If the parent has another child or children that he/she is supporting outside of the marriage, then the percentages will decrease a bit.
The child support ordered to be paid cannot be over 50% of the net earnings of that parent, and child support is only calculated on the first $8550 of the parent’s monthly net income.
In addition to the monthly child support amount, the non-primary parent will usually be ordered to pay for the health insurance for the child and will also be ordered to pay half of the medical expenses not covered by insurance.
A court must find the child support amount ordered to be in the best interest of the child. If the child support amount is not in accordance with the guideline percentages listed above, then there must be a specific reasons listed in the divorce decree as to why the standard guideline child support is not ordered and why the amount ordered instead is in the best interest of the child. If parents reach an agreement for child support that is lower than the statutory guideline amount, then the court is likely to reject that agreement unless it finds compelling reasons to warrant the parent to pay a different amount.
Wage Withholding Order
When calculating the monthly amount of child support to be paid, the court will take the percentage of the net monthly income of the parent. The net income is the bring home pay of the parent after taxes and cost for the child’s insurance are taken out.
Wage Withholding
Most Texas courts require that a Wage Withholding Order be signed by the judge in a divorce where child support is ordered. This is an order by the court that the employer of the parent who is ordered to pay support must take the child support out of the employee’s paycheck and mail it into the state for payment of support.
All payments for child support will generally be paid through the “Texas Child Disbursement Unit” in San Antonio, so the parent will typically not pay child support directly to the other parent.
Failure to Pay Child Support
Texas courts do not look kindly at those parents who fail to pay court-ordered child support. If a parent fails to pay child support, that parent could be held in contempt of court, have their driver’s license suspended, have their IRS refunds seized, and/or can go to jail.
Common-law Marriages in Texas
In Texas, common-law marriage is referred to as an “Informal Marriage.” In order to obtain divorce for an Informal Marriage in Texas, the person who files for divorce must first prove that the spouses are actually informally married.
There are two ways to prove an informal marriage:
By providing a certified copy of a Declaration and Registration of Informal Marriage: If you have officially filed this document with the county clerk, with both spouses agreeing that you are informally married, a copy of this document is sufficient to get a divorce in Texas.
By proving you have lived together, agreed to be married, and have held yourselves out to others as being married: It is much more difficult to prove an informal marriage by these means. You must provide the court physical proof that you have been living together. Additionally, you must provide physical proof that you have agreed to be married and that you have held yourself out to others as married. This would be documentation such as leases, contracts, testimony of witnesses, etc. that show that you have called each other husband and wife, signed your name as Mr. and Mrs., referred to each other as “my husband,” and “my wife,” etc.
Additionally, Texas does not recognize an informal marriage if either spouse is under the age of 18.
Same Sex Divorce in Texas
Texas laws and courts are currently “in limbo” regarding same sex divorce. As more and more states begin recognizing same sex marriages, legislatures will need to catch up to put more laws on the books to address issues of divorcing same sex couples.
In October of 2009, a Dallas County judge ordered the divorce of a same sex couple, sparking ongoing debate and further legal battles over the issue. Her ruling has been overturned by an appellate court in Texas. However, a separate appellate court in Texas upheld a divorce of a same sex couple in another county. Essentially, until the Texas Supreme Court and/or the United States Supreme Court makes an ultimate decision on this issue, there is no law that allows for the divorce of same sex couples in Texas. It is expected that the Texas Supreme Court will make a ruling on matter in the near future.