If you ever find yourself a party to a divorce you will need to be familiar with some of the basics in Texas divorce law. Here are TEN of the most common questions:
ANSWER: At the time a suit for divorce is filed you as the petitioner must have been a resident of the state for six months and resident of the county in which the suit is filed for a 90-day period preceding the lawsuit. The law has some other twists if you base the petition on the other party’s (respondent’s) residence.
ANSWER: A judge has the power to order such things as temporary child support, temporary visitation guidelines and temporary alimony during the divorce action, after a “temporary orders” hearing in which either party may ask for temporary orders.
ANSWER: The Texas Family Code contains child support guidelines. Use two years-worth of federal income tax returns and year-to-date pay records in order to calculate the amount of child support from the guidelines. By the way, the judge will sign a mandatory wage withhold order at the time of the final decree to provide an additional tool to assure that child support gets paid. The order may or may not be sent to the employer, based upon child support payment history.
ANSWER: Health insurance can be awarded as additional child support and enforced as such.
ANSWER: A judge has wide discretion to award temporary alimony during a divorce. However, after-divorce alimony is not automatic, but is subject to certain limitations.
ANSWER: In the Texas Family Code there is a presumption that it is in the best interests of a child that the parents be named as Joint Managing Conservators. That means both parents get almost the same rights and duties. One parent will normally determine where the child lives.
ANSWER: No, managing conservators can agree on all aspects of possession or visitation. However, if the parents cannot agree then the final decree normally has a Standard Possession Order that will control visitation.
ANSWER: Consider the following principle: Community property consists of the property, other than separate property, acquired by either spouse during marriage. Separate property consists of property owned or claimed by the spouse before marriage and property acquired by the spouse during marriage by gift or inheritance. Recovery for personal injuries sustained by a spouse during marriage is separate property, except any recovery for loss of earning capacity during marriage. A judge has wide jurisdiction over community property, but almost no authority over separate property.
ANSWER: The Texas Family Code has instituted a program for appointing Associate Judges who hear all family law matters. They are chosen for their experience in family law and hear all matters, unless either party objects to their participation in the case. Associate judges have proven to be able administrators who can draw upon years of personal family law experience. In addition, all parties must agree to mediate their differences if they are ordered by the court to do so.
ANSWER: A judge has contempt powers in matters involving alimony, child support, visitation, and the turning over of certain property incident to a divorce decree. A party found in contempt could be facing such things as jail time and an order to pay the attorneys fees to the lawyer who brought the contempt action against him or her.
Q: What is a legal divorce?
A: A divorce is a method of terminating a marriage contract between two individuals. From a legal standpoint, divorce will give each party the legal right to marry someone else, to divide and share marital assets and debts and to determine matters related to the care and custody of their children. In Texas, divorces are either fault-based or no fault.
Q: What is a no-fault divorce?
A: Traditionally, divorce was granted only in cases of marital misconduct such as adultery or physical abuse. In these cases, the “guilty” spouse was punished by getting a smaller share of the couple’s property, being denied custody of their children, or both. In a no-fault divorce, however, both parties agree that there are no “fault” grounds for the divorce. In Texas, married couples can get no-fault divorces if the marriage has become “insupportable” because conflict has destroyed the legitimate ends of the relationship. No-fault divorces can also be granted if a couple has been living separately (without any cohabitation) for three years.
Q: What is a fault-based divorce?
A: A “fault” divorce is a divorce in which one party blames the other for the failure of the marriage by citing a legal wrong as “grounds” for the divorce. In Texas, fault-based grounds for divorce include adultery, abandonment, confinement for incurable insanity for three years, felony conviction and imprisonment for over one year, or cruel and inhuman treatment. The spouse against whom the divorce is sought can use as a defense that the divorcing spouse condoned the behavior, but the court will only allow that defense if there appears to be a good chance of reconciliation between the parties.
Q: What are the requirements for filing a petition for divorce?
A:In Texas, one of the parties must have resided in the state for at least six months and in the county where the divorce is filed for 90 days prior to commencing the action. Tex. Fam. Code § 6.301.
Q: What is a legal separation?
A: A legal separation deals with property distribution and child support and custody issues without ending the marriage. While most states have some form of legal separation, Texas does not. In Texas, temporary orders concerning marital issues can be granted while a divorce is pending, but there is no provision for an indefinite legal separation.
Q: What is an agreed divorce?
A: In Texas, if the couple agrees on the terms of the divorce, they can document the terms of that agreement and take it to a judge. The judge will ask the parties questions about the agreement, and if the terms are fair, the judge will grant the divorce according to the terms of the agreement.
Q: How is property divided in a divorce?
A: Texas is a community property state, which means that all the property owned by a married couple is categorized as either community property or separate property. Community property is owned equally by the spouses and divided at divorce. On the other hand, separate property is kept by the spouse who owns it. Most property acquired during the marriage will be considered community property, even if it was acquired in another state.
Q: What is the difference between maintenance and alimony?
A: Each word refers to the same concept — one spouse providing funds to the other. The legal term in Texas is “maintenance,” which are regular, court-awarded payments from the future income of one ex-spouse to support the other. Such payments are not often awarded, and when they are, they typically end after three years. The court will consider a range of factors when determining maintenance.
Q: Do I need to hire an attorney?
A: It is not mandatory that you hire an attorney and you may represent yourself. However, you may be putting yourself at a serious disadvantage. Most divorces are not straightforward unless there are no marital assets, children or other joint issues. Given the complexity of the issues, it is beneficial to employ the services of a professional who is knowledgeable of Texas law and experienced in the field.