General Divorce Questions
At the outset, you should be absolutely sure that your marriage is beyond saving. If you are uncertain or if there is any chance you and your spouse may get back together, go see a marriage counselor – not a lawyer.
A counselor can help you and your spouse work through emotional and marital issues. That is not the role of your divorce lawyer. I’ve heard that if your marriage is genuinely ended, you’ll know. Then, and only then, contact a divorce lawyer.
Many divorcees often feel trapped by their spouses who want to remain in marriage. Decades ago, the State of Texas only granted divorces when “grounds” for divorce could be proven (adultery, cruelty, a felony charge, abandonment, living apart, mental instability, etc.) This approach to divorce still exists as a “fault” divorce.
However, fault is no longer needed for a divorce. All your spouse needs to prove is that they no longer love you or can’t live with you. The courts do not want to force someone to be in a marriage they no longer want to be in. If your spouse files for a divorce based on fault, you can dispute the reasons you are at fault. Still, this will not stop the divorce. Instead, it will convert the divorce to a “no fault” divorce.
Texas requires a 60-day “cooling off” period after filing a petition for divorce. No final order for divorce may be entered into the court record before this 60-day period has expired. Some divorces may be granted as soon as the 60-day period passes; however, other divorces may take much longer.
Contested divorces, in which the parties do not agree as to how the issues in their case should be handled, take much longer than uncontested divorces. The parties must think about how they will divide their property, as well as time with their children. Certain types of evidence must be obtained, which may take several months or longer.
Settlement negotiations on the issues in a divorce may take many months, and in some cases, the parties simply cannot agree on a settlement and must go to trial. Therefore, as with many legal questions, the answer is, “It depends.”
If the parties have reached a full agreement on the matters that need to be resolved in their divorce, a divorce could be granted in as little as 60 days. Texas requires a 60-day “cooling off” period once a petition for divorce has been filed. See Texas Family Code – FAM § 6.702. Once the 60-day period has passed, a divorce order may be entered. Therefore, if the parties have come to a full agreement, they could be divorced in as little as two months. Typically, even uncontested cases take 90 to 120 days.
Every divorce is different, and some are more expensive than others. Some divorces may be resolved in just a few months and cost the parties a few thousand dollars at most. Other divorces may drag on for much longer and cost each party five figures. See what the Average Attorney Fees are.
In general, the more contested the issues are, the more expensive the divorce will be. It is difficult to give a precise dollar amount on how much a divorce will cost, because the answer largely depends on how long it takes to finalize the case. If several hearings, mediation, and a trial are necessary, it is much more expensive than a divorce in which the parties agree on all of the issues in their case.
Texas does not recognize legal separation. However, separation for a period of at least three years is one of the grounds for divorce in Texas. Living separately and apart means living in different residences. For example, if one spouse moves into a guest room in the marital residence, this likely would not meet the requirements for a divorce based on separation.
Although divorce and annulment both end a relationship, these two processes have significant differences.
With a divorce, the couple’s marriage was valid. The couple may seek a divorce on no-fault or fault-based grounds. Fault-based grounds for divorce in Texas are:
• Adultery
• Cruelty
• One spouse’s commission of a felony that requires imprisonment of at least one year.
• Abandonment by one spouse for a period of at least one year.
• Admission of one spouse to a mental hospital.
• Living separately and apart for three years.
In an annulment, the argument is that the marriage was never valid in the first place–it is null and void. Grounds for annulment in Texas include:
• One party was intoxicated at the time of the marriage and could not consent to the marriage.
• Duress, fraud, or force was used to induce one party into getting married.
• One of the parties was already married at the time of the marriage.
• The parties are related.
• One of the parties did not disclose that a divorce had been granted in the 30 days prior to the marriage.
• The marriage took place less than 72 hours after a marriage license was issued.
• One of the parties did not have the mental capacity to get married.
• One of the parties is impotent and did not disclose this fact to the other party.
• One of the parties was underage at the time of the marriage.
After both a divorce and an annulment, a judge may order child support and child custody. Parents are still under an obligation to support their children, even if the marriage was never valid in the first place.
Texas is strict when it comes to awarding spousal support. In a divorce in which one party is seeking spousal support, the requesting party must show:
• The spouse seeking spousal support will not have enough assets to provide for basic necessities and
• The spouse requesting spousal support cannot earn enough money to meet basic needs because of a mental or physical disability.
• The couple was married for at least ten years and the spouse requesting spousal support cannot earn enough income to meet basic needs.
• One spouse has been convicted of family violence against the other spouse or children during the marriage (the violence must have taken place either during the divorce or two years prior to the filing of the divorce); or
• The spouse requesting spousal support has custody of a child or children (of the marriage) who need special supervision and care because of mental or physical disabilities, which hinders the requesting spouse’s ability to earn an income.
The spouse requesting spousal support must provide proof of the above elements to prevail.
Of course, the parties may also agree to a spousal support arrangement, regardless of whether any of the above factors are present.
Child custody is one of the most hotly contested issues in a divorce. There are a few different child custody arrangements in Texas.
Child custody is referred to as conservatorship in Texas. With a joint managing conservatorship, the children primarily reside with one parent, but both parents have a say in the children’s upbringing.
With a sole managing conservatorship, the children live with one parent, and the visitation rights of the other parent may be the same as joint custody arrangement. The visitation arrangement will change depending upon the facts of each case. A sole managing conservatorship is generally awarded if the parents cannot get along or if there has been a pattern of violence.
Texas divorce records are public. Anyone can visit a clerk’s office in the county in which the divorce was handled and request a copy of the divorce filings and other records. Texas clerk of court websites in all counties also provide many divorce records online.