Filing for Divorce in Texas
Are you thinking about filing for divorce, but you don’t know what your next steps are? Are you unsure of the key issues that might emerge during your divorce, or do you want to explore out-of-court options to resolve the key concerns like child custody and division of property?
Contemplating divorce means that you have plenty on your mind. Finding the right TX divorce attorney could be your first step to figuring out what is in your best interests. Knowing the legal requirements to file as well as what you’re likely to encounter in the courts could be one way to reduce your stress and to rely on an experienced attorney who knows how these cases work.
Residency Requirements For Divorce In Texas
In order to file for a divorce in Texas, you must be aware of the resident’s eligibility requirements. At least one of the spouses must have been a resident of the state for at least a six-month period.
Furthermore, at least one of the spouses must already have resided in the filing county for a minimum of 90 days prior to submitting the paperwork.
The Procedure for a Texas Divorce
Although specific steps of any Texas divorce will be directly related to the factors involved in the case and the unique situations of the individual parties, there are several common stages in the process. The first of these involves one spouse filing an original petition for divorce directly with the court.
This person is known as the petitioner. This party then has the paper served or delivered to the other spouse who is therefore referred to as the respondent. In the event that the spouses have worked together and decided to file for divorce, the respondent is then eligible to sign a waiver, which gives up the right to be formally served with those papers.
At the time that the petitioner files the official paperwork for a divorce, that same person could ask that the court issue a TRO, or temporary restraining order. This order could require that the spouses act civilly to one another and not harass or threaten one another and mandate that no funds or money disappear after the filing in an attempt to hide or spend them.
Temporary Restraining Order
A temporary restraining order might not be required or of interest in every single case. If no TRO is issued, then the respondent has a maximum of 20 days and the next Monday to initiate the final document known as an answer. The court might also issue some temporary orders to address some of the key issues in the divorce, such as visitation, temporary custody, and support of the children as well as the servicing of debt and short-term use of the property.
Additionally, other issues can be raised in this, such as the payment of attorney’s fees and temporary child support.
What Happens After I File for TX Divorce?
In the event that the spouses believe they have not obtained all necessary information from one another, they then begin the process of discovery which is the formal exchange of documents and information. From this stage, the spouses will then discuss settlement of the case. Sometimes this can be done without the mediator and a neutral third party who helps to guide both of these parties through conversations.
Mediation is not always successful at resolving divorce-related issues and therefore, attorneys might become involved. Attorneys can also be a crucial component of the mediation sessions. If the parties are able to come to their own terms of the agreement, this can help to speed up the processing of the divorce and enable a quicker solution for everyone involved.
In some situations, mediation will not be possible or recommended, such as situations in which one party alleges that the other is responsible for domestic violence. A trial date will be set for those cases in which the spouses cannot agree on each of the issues in the case. Spouses are required to attempt mediation prior to going through formal litigation. During this informal process of mediation, a form of alternative dispute resolution, the mediator will assist with guiding conversations about settling all terms of the conflict. If the mediation fails, the case then goes to court.
Do I Need Specific Grounds for Divorce?
Texas recognizes no-fault divorces which means that one party does not have to be held legally responsible for a reason for ending the marriage. In the event that one spouse is allegedly responsible for the end of the marriage, however, the court could take this into consideration in identifying a fair division of the couple’s property.
Therefore, you might wish to speak with your Texas divorce lawyer about including fault grounds in your petition for divorce since it could influence things, such as spousal support.
The statutory grounds for a fault divorce are cruel treatment, abandonment, adultery, long term incarceration or confinement to a mental hospital for a minimum of three years or living apart for a minimum of three years. If you intend to move forward with a Texas no-fault divorce, this means that the legitimate ends of the marriage have been destroyed by arguments or conflict of personalities.
How Long Does It Take to Finalize a Texas Divorce?
A divorce cannot be final in the state of Texas for at least 60 days after the petition has been filed. The divorce will then be classified as final as soon as the judge determines that it is an open court and formally signs the decree of divorce. If the spouses are not in agreement with one another, it can take up to a year or longer to finalize the divorce, depending on the complexity of the issues involved.
You can ask more of these questions during your initial chat with a TX divorce lawyer.
What Happens with Property Division in Texas?
At the beginning of a Texas divorce, the court begins with a presumption that all property received or obtained by either spouse is community property. This means that it is equally owned by both parties. In the event that separate property is involved, the party owning it must illustrate this with evidence.
Separate property includes property that is acquired through inheritance or by just one spouse as a gift. The court divides community property between spouses in what is known as a just and right manner. In certain cases, this will mean a 50/50 split but a division of property is not always entirely equal. Unequal distribution of earning power or fault through the marital relationship can also affect property division.
Will I Be Able to Receive Permanent Alimony in My Case?
The requesting spouse must meet numerous requirements in order to receive permanent alimony. Many people are under the impression that they are entitled to getting alimony. The courts consider numerous factors in determining whether or not an alimony award is appropriate.
The four requirements that a Texas spouse must meet include:
- The paying spouse is convicted of family violence within two years of the date of the divorce filing.
- The marriage was ten years or longer and the requesting spouse does not have an appropriate property to provide for basic needs and will also be the custodian of a child who needs personal supervision and substantial care.
- The marriage was ten years or longer and the requesting spouse lacks appropriate property to provide for minimal needs and is unable to support himself or herself.
- The marriage was ten years or longer and the requesting spouse does not have an appropriate property to provide for minimal needs and does not have earning ability in the Labor Department which would be adequate for paying for those minimal needs.
In the event that a spouse qualifies for maintenance under some of these requirements, maintenance would not last any longer than three years and the amount that is ordered in the case cannot exceed 20% of the paying spouse’s gross income. This term can be indefinite if the spouse qualifies for maintenance under certain requirements.
What Does Divorce Mean in Terms of the Marriage Contract?
Divorce is the formal method of terminating a marriage contract between two individual and thus otherwise ends a valid marriage. This legal procedure means that both parties return to single status with the ability to get remarried. A Texas divorce must take care of at least three issues:
- Formalizing the end of the marriage such that each party is able to marry someone new if they wished.
- Division of property in a just and right manner.
- Both spouses have the right to determine future care and conservatorship of their children through child custody.
What Role Does Legal Separation Play in a Texas Divorce Case?
Certain spouses might decide that continuing to live together in a marital home is possible but are not prepared to dissolve their marriage formally. Instead, these parties might wish to legally separate. Legal separation is a concept that is somewhere between marriage and divorce in terms of legal grounds. Texas does not recognize legal separation.
This means that people living in Texas are either married or divorced.
While there are no specific statutes about legal separation when parties have minor children in Texas, the state does have laws about enabling people to seek court orders regarding those children when the couple is still together. These can involve concerns such as child visitation, child support and rights, and duties. It is important to remember that even with a legal separation that is not recognized by the courts, living apart does not mean that the parents are free to marry other people. This also means that none of the couple’s property or debt issues will have been addressed.
Differences Between Contested and Uncontested Divorce in Texas
Before a divorce could be granted in Texas, there must be a clean slate from which to begin. Assignment of separate assets,
matters of spousal maintenance, division of community property and pensions, parenting plans, legal decision making over custody and child support obligations must all be addressed.
In an uncontested divorce in Texas, this means that both spouses have reached an agreement on all key issues in the management of the divorce. These issues can include the division of property and debts, the amount and duration of child support, the amount and duration of spousal support, parental visitation, parental decision making and both parties agreeing to be divorced.
If both parties choose to move forward with an uncontested divorce and the parties are able to reach an agreement of all of these issues with the necessary paperwork, the only stipulation is waiting a required time period. If the spouses cannot reach an agreement on all of the basic issues to terminate the marriage then this means the divorce is contested and therefore must go to mediation or to litigation.
Basics of Military Divorce in Texas
A Texas divorce could be described as a military divorce when one or both parties was a member of the uniformed services. This is not a legal term and rather a descriptive one. There are many different unique factors that could apply to family and property issues in a military divorce. These include:
- Creating a parenting plan.
- Long distance visitation issues during deployment.
- Health insurance for civilian dependents and spouses.
- Division of military pensions.
- Scheduling court appearances when a party is stationed overseas.
Dividing Property in Texas
One of the most important components of managing your Texas divorce is understanding some of the key issues involved in the division of property. Most people have a vested interest in the division of property since it could be the only way for them to determine their financial assets to move on after the marriage and to understand how to prepare for their financial situation.
Texas is what is known as a community property state. The presumption of community property means that all property in the marriage is presumed to be community property until proven otherwise. The most common types of property divided during Texas divorce are real property such as jewelry and clothing and the family home or intangible property, such as dividends, income, and benefits. All community property has to be divided between the spouses when the marriage terminates as well as marital debts.
What Does it Mean to Distribute Property Fairly?
The court has the discretion to determine how community property should be distributed in a manner that is deemed fair. There must be reasonable support for any distribution that is not equal. Divorcing spouses will also have opportunities to agree on their own about how to split community property.
One common way that this often comes up in a Texas divorce is by deciding to sell the family home and splitting the proceeds. Furthermore, maybe allowing the wife to keep some of the retirement benefits from the husband while also giving the second home to the husband could be another way to resolve things.
Understanding Spousal Maintenance
Courts are typically reluctant to make maintenance awards unless one party has been convicted of family violence against the children or the spouse. In other cases, the spouse must be unable to support themselves due to a disability in a marriage that lasted 10 years or more or is the custodian of a disabled child. Furthermore, the spouse that is seeking support also has to make an effort and prove it to secure income and become self-supporting. Otherwise, there is a presumption in the courts that no maintenance is due. After the spouse overcomes this presumption, the court will then evaluate the spouse’s ability to pay support, the skills and education of both parties and whether one party contributed more to the education of another.
If you find yourself in this situation, you should be prepared to hire an experienced Texas divorce attorney as soon as possible. If you are thinking about filing for divorce in Aransas County, Bee County, San Patricio County, Kleberg County, Jim Wells County or Nueces County, you need the support of an experienced divorce lawyer as soon as possible. No one wants to find themselves in the position of dealing with a legal case such as a divorce but knowing where and how to file and get the support of an attorney who has been there before could be instrumental in helping your next steps.
What Happens During the Trial Phase of a Case?
After the divorce is filed and the other party has been served, it is the time to begin discovery. During many Texas divorce cases, it is not unusual for clients to complain about problems with answering discovery requests.
Discovery is a strategy your Texas divorce attorney can use to identify evidence to show during your trial and hearing. The tools of discovery include written and oral discovery. There are five primary types of written discovery which include:
- Sworn inventory.
- Request for admission.
- Request for production.
- Request for disclosure.
Request for disclosure includes standard questions that are used in all civil lawsuits. Spouses are required to identify:
- Expert witnesses, they intend to use.
- People with details relevant to the case.
- Details in economic damages.
- Legal contentions.
Interrogatories are one of the most powerful pretrial discovery methods because these are written questions distributed to the opposing party about items such as balances in bank accounts, location of accounts and signatory privileges on those accounts.
Requests for production might be another tool that your Texas divorce attorney uses during discovery to request certain copies of documents related to income, stock options, bank accounts, credit card statements, insurance plans, telephone records, and safe deposit boxes.
Depositions are a popular form of oral discovery and these include witness examinations that are taken under oath in front of a court reporter.
Any person who has information that could affect the outcome of the case could be deposed and this deposition testimony can be presented to the court as if the witness were live testifying in the court.
Some issues might need to be resolved temporarily which can occur during hearings and temporary orders section of the case. If spouses are unable to agree on issues between themselves through mediation, then the court will be responsible for deciding contested issues and during this time parties will put on witnesses, friends, testimony, financial experts, psychologist and other types of evidence associated with the financial records of their case.
Preparation for a Texas divorce trial is one of the most important aspects of preparing for a divorce. It is important to have all of your documents appropriately organized so that they can be found quickly.
Other tips for preparing for trial include:
- Knowing the local rules of your court.
- Understanding the judge’s preferences.
- Having exhibits and exhibit lists ready.
- Issuing necessary subpoenas.
- Supplementing responses for discovery.
- Preparing witnesses.
- Identifying witness lists.
After you leave the courthouse with a final divorce decree, your case might be over for the time being but not necessarily finished. This is because certain closing documents might be necessary to carry out the divorce process, such as stock transfer documents, deeds to divide real property, a child support withholding order, QDROs to divide retirement accounts, and powers of attorney to transfer vehicles. You should also be prepared with the possibility that you could be asked in the future to modify an existing divorce order or have a consultation with your own divorce attorney about the possibility of doing this on your own. Scheduling a consultation with an experienced Texas divorce lawyer is the first step in protecting your interests. You need to be able to prepare for each stage of your case with confidence and clarity.