General Divorce FAQ’s

Under the Texas Family Code, joint managing conservators share the parental rights and responsibilities of their children. This type of conservatorship can either be agreed upon by both parties or be put in place by a court order.

In general, the law presumes that it is in the best interest of the children to have an ongoing relationship with both parents. Due to this, it is often the opinion of a Texas judge to lean towards ordering a joint managing conservatorship.

Once a joint managing conservatorship has been granted, it doesn’t mean the children will divide equal time with each parent. While the rights and responsibilities are shared, it may not necessarily mean that it is practical or best for the children to split equal time with both parents. For example, the responsible parties may decide to have the children spend most of their time in one household as transitioning back and forth causes too much instability and stress in the children’s lives.

In some instances, a judge may decide that it isn’t in the children’s best interest for both parents to share conservatorship. When this scenario arises, the judge will name one of the parents, or if both parents are deemed unfit a non-parent, as the sole managing conservator.

Read Texas Family Code 153.074 for all of a parent’s rights and duties during their possession time. 

There are several are several reasons that may be present in a family that could lead to a sole managing conservator. When a sole managing conservator has been appointed that individual obtains the exclusive right to make most decisions about the children involved.

Reasons a judge might name a parent (or nonparent) sole managing conservator include:

• family violence by the other parent,
• child abuse or neglect by the other parent,
• alcohol or drug abuse by the other parent, or
• absence of the other parent in the child’s life.

Read Texas Family Code 153.132 for a list of the rights and duties of a sole managing conservator.

If one parent is named the sole managing conservator, the other parent is usually named the possessory conservator. If a nonparent is named the sole managing conservator, both parents will usually be named possessory conservators. A possessory conservator still has the rights of a parent but will not have the final say on most decisions.

The Court is prohibited from making an order restricting possession of or access to a child based on the payment or nonpayment of child support.

Read Texas Family Code 153, subchapters D and E to learn the rights, duties, and guidelines for a possessory conservator.

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.

A Standard Possession Order (SPO) is a visitation schedule developed by the Texas legislature. It contains a standard schedule for when a non-custodial parent can have possession of a child. The SPO is the default visitation schedule in Texas, but it can be modified by agreement of the parents or by court order.

The Standard Possession Order generally gives the non-custodial parent possession of the child every first, third, and fifth Friday weekend of the month. The non-custodial parent can ask for an extended version where visitation lasts from the time school dismisses on Friday to Monday morning.

The non-custodial parent also has access to the child every Thursday evening from 6 p.m. to 8 p.m. It can be extended from when school dismisses on Thursday to Friday morning.

During the holidays, each parent alternates yearly between Thanksgiving and Christmas breaks. In summer, the child spends 30 days or 42 days with the possessory parent. If the possessory parent lives more than a hundred miles away, they spend the entire spring break every year with the child.

A modified possession order is a visitation arrangement that is different than the Standard Possession Order. A modified order can be created by agreement of the parents or ordered by the court. There are many different types of modified visitation schedules, but some common examples include:

• one parent has weekends with the child while the other has weekday visits.
• possession is split equally between both parents.
• the non-custodial parent has longer visits during the summer or holidays.

A modified possession order is generally based on the best interest of the child and what will work best for the family’s schedule.

In Texas, medical support is health insurance for a child. The non-custodial parent is usually responsible for providing medical support. If the non-custodial parent does not have health insurance available through their job, they may be required to purchase a separate policy for the child. If the non-custodial parent is unemployed or cannot afford a health insurance policy, the custodial parent may be responsible for providing medical support.

The parties can agree that neither party will have to pay child support. However, the court must go along with it. If the judge doesn’t believe that agreement is in the best interest of the child, child support could still be ordered.

Supervised visitation is when a child visits with a parent or other family member under the supervision of another adult. The supervisor can be someone agreed upon by both parents, such as a grandparent, or someone appointed by the court, such as a professional supervisor.

Supervised visitation is often ordered when there are concerns about the safety of the child or if the parent has a physical or mental illness.

You can file for divorce in Texas if you or your spouse has lived:

• in Texas for at least the last 6 months, and in the county where you file for divorce for at least the last 90 days.

If you happen to be serving in the military or other government service outside of Texas, you may still file for divorce in Texas if:

• Texas has been the home state of either you or your spouse for at least 6 months and the county where you plan to file the divorce has been the home county of either spouse for at least 90 days.
• The identical rule applies if you accompanied your spouse the one is serving in the military or other government service outside of Texas. If Texas is your home state, time spent outside of Texas with your military spouse counts as time spent in Texas.

Divorce can be a very complicated process, especially if there are minor children involved or if the parties cannot agree on major issues like child custody, support, and property division. In Texas, divorce proceedings begin with the filing of a divorce petition by one spouse and end with a final divorce decree. In contested cases, there are many other steps in between. Below is an overview of the Texas divorce process in contested cases:

• Filing the Divorce Petition
• Providing Your Spouse with Notice
• Respondent’s Answer and Counter-petition
• Temporary Orders
• Discovery
• Negotiations/Mediation
• Trial
• Divorce Decree

As long as you meet the residency requirements for divorce, you can get divorced in Texas even if your spouse lives in another state.

Your spouse cannot stop you from getting a divorce. Texas is a “no-fault” divorce state. This means that a divorce maybe granted without either spouse being at fault. As long as one spouse believes that the relationship cannot be fixed, the judge may grant the divorce.

No. You don’t have to be separated to get a divorce.

You must still provide notice to your spouse about the divorce if he or she is in jail or prison.

If your divorce is agreed, your spouse can sign the necessary court forms in jail or prison and return them to you.

If your divorce is not agreed (or you don’t want to have contact with your spouse), you must have a constable or sheriff serve your spouse with the initial divorce papers in jail or prison.

If you cannot find your spouse (after looking really hard) you may serve your spouse by publication in a local newspaper or posting by constable.

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.

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 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.

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.

A no-fault divorce in Texas can be faster and less expensive than a “fault” divorce because there are no allegations of marital wrongdoing to resolve. In Texas, there are two types of no-fault divorce:

1. a divorce based on insupportability and
2. a divorce based on living apart for at least three years.

Texas allows you or your spouse to file a divorce if the wife is pregnant. However, the divorce will not be completed until the baby is born. This is because the court will not have jurisdiction over a child until it is born and cannot make final decisions on issues such as child support, custody or paternity.

In principle on all cases, you must wait at least 60 days before finishing your divorce.

When counting the 60 days, find the day you filed your Original Petition for Divorce on a calendar, and then count out 60 more days (including weekends and holidays). If the 60th day falls on a weekend or holiday, go to the next business day.

Note: The 60-day waiting period begins the day after filing the Original Petition for Divorce.

There are two exceptions to the 60 day waiting period.

If your spouse has been convicted of or received deferred adjudication for a crime involving family violence against you or a member of your household, the 60 day waiting period is waived.

If you have an active protective order or an active magistrate’s order for emergency protection against your spouse because of family violence during your marriage, the 60 day waiting period is waived.

If you have been served with divorce papers, you should seek the advice of an experienced divorce attorney as soon as possible. Once you have been served, you only have 20 days to respond. Filing an answer or counter-petition for divorce ensures you will have a voice in the matter. If you do not respond within that time frame, your spouse can proceed with the divorce without your input and you will likely end up with a divorce decree that is not in your best interests.

You do not have to have a lawyer to file or respond to a divorce case. However, divorce cases can be difficult and your rights as a parent, your property and your money may be at risk.

• See what the average divorce fees might cost when hiring a lawyer.

You must wait 30 days from the date of divorce before you can marry someone else. This 30 day waiting period may be waived by the judge only if there is good reason to do so.

Divorce can be a very complicated process, especially if there are minor children involved or if the parties cannot agree on major issues like child custody, support, and property division. In Texas, divorce proceedings begin with the filing of a divorce petition by one spouse and end with a final divorce decree. In contested cases, there are many other steps in between. Below is an overview of the Texas divorce process in contested cases:

• Filing the Divorce Petition
• Providing Your Spouse with Notice
• Respondent’s Answer and Counter-petition
• Temporary Orders
• Discovery
• Negotiations/Mediation
• Trial
• Divorce Decree

An uncontested divorce is one in which the parties have no disagreements about the logistics of their divorce, including child custody, child support, property division, and so on. In these cases, the divorce process is amicable, quicker and less expensive.

A contested divorce is one in which the parties cannot agree on one or more aspects of their divorce, such as child custody, child support, property division, etc. These cases can be much more complicated and often require the help of a mediator and may even need to go to trial. Contested cases are usually much more expensive and time-consuming.

No, you cannot refuse to get a divorce in Texas. If your spouse files for divorce, he or she can proceed with the divorce even if you do not want one. In other words, a divorce can and will be granted even if you don’t agree to it.

Yes, you must get a legal divorce if you want to end a common-law marriage in Texas when property, children and assets are involved. A family court must divide marital property and decide child custody, visitation and support, as well as other divorce-related issues. In some cases, the parties in a common-law marriage simply go their separate ways without any involvement from the court. They just proceed as if the common law marriage never existed. This is fine as a practical matter, but problems often arise down the road.

Yes, you can get a divorce in Texas if you were married in another state. You will need to meet the residency requirements for divorce in Texas, which require that either you or your spouse have lived in Texas for the past six months and be a resident of the county where you are filing for divorce for the past 90 days.

Yes, you can get a divorce in Texas even if you are not a U.S. citizen. You just have to meet the same requirements as anyone else getting a divorce in Texas:

• At least one party to the divorce must be a Texas resident for at least six months prior to the filing of the petition for divorce,
• At least one party to the divorce must have lived in the county where the divorce was filed for at least 90 days prior to the filing the petition for divorce.

In Texas, any property that was owned by one spouse prior to the marriage or that was inherited or gifted to one spouse during the marriage is considered separate property. This can include jewelry, vehicles, clothing, houses, etc. Separate property is not subject to division in a divorce and will remain with the owner.

In Texas, debts are usually divided between the spouses in a divorce in the same way that community property is divided – fairly and equitably. However, there are some exceptions to this rule. For example, if one spouse incurred a debt without the knowledge or consent of the other spouse, that debt may be awarded to the spouse who incurred it.

A family business would likely be considered community property and, therefore, divided fairly and equitably between the spouses in a divorce. One spouse could continue to own the business after buying out the other spouse or the judge could order them to sell the business and split the profits.

However, there could be some exceptions to the community property rule depending on the specific circumstances of the case. For example, if one spouse owned the business prior to the marriage or inherited it during the marriage, it would likely be considered separate property. In that case, the business would not be subject to division in a divorce.

When it comes to businesses and divorce, it can get complicated quickly. That’s why it’s important to seek the advice of an experienced family law attorney.

Who gets the house depends on whether the house is community or separate property. If the house was acquired during the marriage and used by both spouses, it is community property and will be subject to division in a divorce. Since tangible property cannot be divided, there are a number of possible scenarios:

• The house can be sold, and the proceeds divided between spouses.
• One spouse may remain in the house and buy out the other.
• One spouse may remain in the house and give the other spouse assets that offset the home’s value, so the property division is equal.

If the house was acquired by one of the parties before the marriage or after the divorce petition was filed, it is considered separate property and will not be divided in a divorce. That house will likely be awarded back to the original owner.

A divorce is final in Texas when the divorce decree is signed by a judge and filed with the county clerk’s office. Once the divorce decree is final, it is considered a public record.

An absolute divorce is when a marriage legally ends, thus, legally freeing both the parties to remarry.

The custodial parent is the one that has physical custody of the child, whereas the non-custodial parent does not have such custody.

Discovery is a way of obtaining valuable information that is pertinent to a divorce case, such as on the children, assets, and debts, through depositions, written discovery, Subpoenas, and Inventory and Appraisements.

In Texas, both spouses must provide discovery within 30 days of entering into divorce proceedings.

A prenuptial agreement is a ‘before-marriage contract or agreement’ that is signed by both partners concerning the ownership of their assets and financial rights in the event their marriage fails.

It is temporary financial support given by one spouse to the other while the divorce action is pending.

In a “no-fault” divorce, neither spouse has to prove that the other spouse did something wrong to cause the breakup. State of Texas offers a no-fault divorce option, though the exact “grounds” (reasons) for the divorce vary state-to-state. For example, no-fault grounds for divorce might be called:

• insupportability
• irreconcilable differences, or
• irretrievable breakdown of the marriage.

In Texas divorce cases, one spouse is the petitioner, and the other is the respondent. The petitioner is the spouse who initiates the divorce by filing a petition for divorce. The respondent is the spouse who receives divorce papers from the petitioner and must then file an answer. The benefit to being the petitioner is that you get to go first in family court, which could set the tone for the case.

Temporary orders are made by a judge to prohibit or enforce certain actions until a divorce is finalized. It is a way to maintain the status quo and protect both parties during the divorce process. Simply put, it lays out the rules to live by which to live while the divorce process is pending. For example, a judge may issue temporary orders regarding child custody, visitation, support, or the use of joint property. These orders are typically made at the beginning of the divorce process and remain in effect until the divorce is finalized.

A QRDO is a Qualified Domestic Relations Order. This is a court order that tells a retirement plan administrator how to distribute retirement accounts to each spouse. A QRDO can be used to divide 401Ks, pensions, profit-sharing plans, annuities and other types of retirement accounts. Simply put, a QRDO is a divorce court’s way of telling a retirement plan administrator how to divide the retirement account in a divorce.

Not all divorces and family disputes go through contested litigation in a courtroom. It is often easier for both parties to go through something called “mediation” to avoid the emotional and financial stress of going to trial.

During mediation, both parties meet with a neutral third party – a family law mediator – who helps facilitate communication between the two sides. The mediator does not make decisions for the parties; rather, he or she helps them come to a mutual agreement.

The spouses meet in separate rooms with the mediator and try to settle their differences around issues like property division and child custody. After both parties agree, the parties sign a “Mediated Settlement Agreement” that resolves all issues between the parties.
In Texas, some judges order couples to see a mediator before going to trial in court.

A prove-up hearing occurs in front of a judge at an uncontested divorce proceeding. Both parties, through their attorneys, simply confirm – or prove – to the judge that the divorce is uncontested and both parties agree to the terms. The hearing usually takes less than 10 minutes, and the divorce is usually granted without testimony or argument.

An attorney ad litem is a lawyer appointed by the court to represent your child. The attorney’s job is to advocate for the child and express the child’s wishes to the court.

In a divorce or other family law proceeding, an attorney ad litem may be appointed if there are issues of child custody and visitation at stake. The attorney will interview the child, review any relevant documents, and speak with the child’s parents, teachers, and any other important adults in the child’s life. The attorney will represent the child in court or in legal proceedings, express his or her wishes and advise the child on possible outcomes.

An amicus attorney is a lawyer appointed by the court to provide information to the court that may be helpful in making a decision, usually in child custody or visitation matters. An amicus attorney does not represent any of the parties or the child. The attorney is purely an arm of the court who advocates for the best interests of the child.

An amicus attorney is appointed by the judge, who will issue an order outlining their duties in the case. This could include interviewing the child and parents, conducting home visits, and requesting and reviewing documents. The purpose is to get an intimate view of the parenting styles and living conditions of both parents.

The judge determines which parent pays the amicus attorney’s fees or if both parties do.

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.

Spousal maintenance, also known as alimony, is a form of financial support paid by one spouse to the other after a divorce. In Texas, spousal maintenance is not automatic, and eligibility for it depends on several factors. This article will provide an overview of Texas spousal maintenance law and help you determine whether you are eligible for it.

Under Texas law, a spouse may be eligible for spousal maintenance if they can demonstrate that they lack sufficient property, including separate property, to provide for their minimum reasonable needs. Additionally, the spouse must meet one of the following eligibility criteria:

1. The spouse seeking maintenance must have been married to the other spouse for at least ten years and lack the ability to earn sufficient income to provide for their minimum reasonable needs; or
2. The spouse seeking maintenance must be unable to earn sufficient income due to a physical or mental disability; or
3. The spouse seeking maintenance must be caring for a child of the marriage who requires substantial care and personal supervision because of a physical or mental disability, making it impossible for the spouse to work outside the home and provide for their minimum reasonable needs.

Spousal support is usually for a limited amount of time. The court will determine the shortest amount of time necessary for the requesting spouse to get back on his or her feet. Texas sets the maximum period for support as:

• 5 years if there was a conviction or deferred adjudication for family violence.
• 5 years if the parties were married at least 10 years.
• 7 years if the parties were married between at least 20 years.
• 10 years if the parties were married at least 30 years.

Indefinitely if the spouse is severely disabled or caring for a disabled child.

Yes. Marrying again is one of the conditions that can terminate an award of spousal support in Texas. If you remarry, you will no longer be eligible to receive spousal support from your ex-spouse. Likewise, if you enter into a romantic relationship and live with that person, spousal support may also be terminated by the state of Texas.