Each state has unique attitudes and attributes that residents believe make it a great place to live. While some appreciate four distinct seasons, others like warm weather. Some people like mountains, others the seashore. Still others are drawn to the prairies.
Marriage and divorce also vary per state. For example, some states have passed state constitutional bans on same-sex marriage, or defined marriage as only existing between a man and a woman while the residents of other states have voted to make same-sex marriage legal. Some states, including Texas, have laws which are in flux. Although Texas voted not to permit same-sex marriage, the issue of same-sex divorce is less clear.
- ADR Available: Yes
- Fault or No Fault: Both
- Parenting Plan Required: Yes
- Property Distribution: Community
Grounds For Divorce In Texas
In many states there is a so-called “no-fault” divorce law. Essentially this means that if one person wants a divorce, the judge will grant a divorce pending the waiting period and other factors. According to Texas Family Code, no-fault divorce is called “insupportability” and it can be granted to either party if the marriage has become “insupportable because of discord or conflict of personalities.”
In addition, the court will grant a divorce in Texas in favor of one spouse if the other spouse has:
- Acted with cruel treatment
- Committed adultery
- Abandoned the other spouse for at least one year
- Lived apart without cohabitation for at least three years
- Been confined to a mental hospital
- Been imprisoned or convicted of a felony
It’s important to obtain legal counsel during divorce. For example, if a spouse is convicted of felony drunk driving for having a child under the age of 15 in the car, the other spouse could sue for divorce (the felony conviction becomes the fault) and be required to pay alimony as a result. This means that if you were a parent driving your child to soccer practice and tested at .08 percent blood alcohol concentration, you could be divorced and pay alimony for years as a consequence.
Divorce Waiting Periods
Texas divorce law has state residency requirements for divorce that either the petitioner or respondent must meet to file for divorce. The Texas divorce court will not accept a divorce petition unless either the petitioner or respondent has been:
- A resident of the state for the past six months AND
- A resident of the county where the divorce is filed for the past 90 days
When Can A Marriage Be Annulled In Texas?
One option to end a marriage is to have it annulled. An annulment is a way of voiding the marriage, or saying that it was never legal in the first place. Texas residents can seek an annulment for the following reasons:
- Bigamy. One spouse was still married at the time of your marriage.
- Duress or force. Your spouse coerced, threatened or forced you to get married.
- Fraud. Your spouse lied about the reasons for marrying you.
- Impotence. Your spouse cannot have sexual intercourse.
- Incest. You and your spouse are closely related.
- Intoxication. You or your spouse was drunk when taking the marriage vows.
- Underage. You or your spouse was not 18 at the time of the marriage.
Alternative Dispute Resolution (ADR)
One option some couples use to end the marriage is alternative dispute resolution (ADR). There are several types of ADR.
- Arbitration. You and your spouse agree, in writing, to abide by the decisions of a neutral third party, usually a retired judge. The arbitration can be either binding (final) or non-binding.
- Mediation. You and your spouse work with a neutral third party to come to an agreed-upon divorce settlement, which is then submitted to a judge for approval.
- Collaborative divorce. You and your spouse, each with an attorney, work together to come to an agreement. When agreed upon, your lawyers will ask the divorce court to approve the settlement.
When spouses are also parents, the custody of the children must be decided. The custody applies to either biological or adopted children. Couples are encouraged to come to an agreement on a child custody arrangement. If they do not, the court will make the decision, which could be to neither parent’s liking.
Child Custody Determinations
There are two types of child custody. Legal custody is the ability of the parent to take part in important decisions regarding the child. Those decisions include religious upbringing, medical care or treatment and certain decisions regarding schooling.
The second type of child custody is physical custody. This can be thought of as where the child lives. If one parent has the child most of the time, he or she would be considered the primary custodial parent. The other parent would be the noncustodial parent and would have visitation rights. Shared physical custody is when both parents have the children living with them roughly half the time.
Visitation Or Parenting Plans
Most legal custody is joint or shared. A common primary custody arrangement is for the visitation parent to care for the children every other weekend, with visitation one weeknight per week. A common joint custody arrangement is to spend every other week with each parent.
Texas parents are required to support their child until the child turns 18 or graduates from high school, whichever occurs first. There is a court guideline for how much each parent should contribute to the welfare of the child. The child support guidelines begin with each parent’s monthly net income after mandatory deductions such as taxes and retirement contributions.
That figure is used to determine the amount the noncustodial parent would need to pay to the custodial parent. The general amount is:
- 20 percent of net income for one child
- 25 percent of net income for two children
- 30 percent of net income for three children
- 35 percent of net income for four children
- 40 percent of net income for five or more children
Child Support Enforcement
If a parent is required to pay child support, and does not pay it, the custodial parent can go to the court and ask that the payment be enforced. Those measures include:
- Wage garnishment (deducting from a paycheck before the paycheck is issued)
- Seizure of lottery winnings or tax refunds
- Suspension of driver’s license or hunting license
Assets and debts acquired during a marriage are considered community property in Texas. This means everything belongs to both spouses, with the exception of premarital assets. A pre-marital asset is anything the spouse owned prior to the marriage. It could be valuable jewelry, a boat or retirement savings, provided the assets weren’t mingled with marital retirement savings.
If the couple agrees upon how the property will be divided, the court may agree with them. In cases where the income is unequal, or where one spouse claims the other was at fault for the divorce, the property could be divided in a way that is “fair and just.”
To use round numbers, if both spouses earn $50,000 per year and have the same or similar education level, the property may be divided 50/50. Conversely, if one spouse earns $80,000 and the other spouse earns $20,000, the lower-income spouse could be awarded 70% of the joint property. Or, if the spouses each earn $50,000, and one of them was found at fault, the spouse not at fault could be awarded 70% of the assets.
Alimony Or Spousal Support
Texas in general is not a state which awards significant alimony or spousal support. In general, alimony is awarded as compensation if a spouse’s income-earning ability has eroded during the marriage due to taking care of the household or other factors.
Texas awards alimony if one of these conditions is met:
- The spouse being asked to pay alimony has committed acts of domestic violence within two years of the divorce.
- The couple has been married for at least 10 years and one spouse cannot earn enough to cover basic expenses.
- The spouse seeking alimony has a physical or mental disability that prevents earning enough income to cover basic expenses.
Temporary Restraining Order
When one thinks of a restraining order, one might think of domestic violence. In Texas, however, a temporary restraining order (TRO) is frequently used to make sure that no assets disappear before they are subjected to the division of property. The restraining order can also be used to require that the spouses act civilly and do not threaten or harass each other.
Prenuptial And Postnuptial Agreements
In today’s world, many marriages are re-marriages. Each spouse may bring not only assets to the marriage, but children from a previous marriage. When a family will be blended, or when significant assets are involved, a couple may choose to have a prenuptial agreement.
A prenup is essentially an agreement for how the property will be divided and child custody situations will be handled, should the couple divorce. It is a binding agreement.
There are instances in which a prenuptial agreement cannot be enforced, including if one spouse was not a willing signer of the agreement, or one party withheld information about assets or debts from the other before signing the agreement.
A postnuptial agreement covers the same basic information as a prenuptial agreement, although it is signed after the marriage.