the basics of a Texas divorce

As you contemplate whether to seek a divorce from your spouse, you no doubt have a lot of questions about the process. Below are answers to some of the most frequently asked questions related to the procedure for getting divorced in Texas.

What does it mean to “file” for divorce?

A divorce is a civil lawsuit between spouses. When you “file” for divorce, you are filing a lawsuit against your spouse. The process begins with the filing of an original petition for divorce in the district court in the county where you reside. After your spouse has been served with the divorce petition, he/she will have approximately twenty days to file an answer. Generally, your spouse will file a counter-petition for divorce in addition to an answer. The spouse filing for divorce is designated as the “petitioner” and the other spouse is the “respondent.”

What is in a divorce petition?

The divorce petition includes general information about the parties and their minor children (names, address, birthdate information for the children, etc.) and the grounds for divorce. Most divorces are sought on the ground of insupportability (no fault), but if you are seeking divorce based on fault, such as adultery, then that needs to be included in the divorce petition. If you are seeking specific relief such as spousal maintenance, sole managing conservatorship of your children, or an unequal division of the community estate, that information will also be included in your petition. A petition can be amended multiple times before trial. As new facts emerge during discovery, amending the divorce petition is often appropriate.

When can I file for divorce?

To file for divorce in Texas, either you or your spouse must have lived in Texas for at least six continuous months prior to when you file for divorce and been a resident of the county in which you file (Travis, Williamson, etc.) for the preceding 90 day period.

Is it better to file for divorce first?

In most cases, it doesn’t matter who files first. However, if you suspect your spouse is hiding assets, spending recklessly, or engaging in other misconduct that could deplete the community estate, then you should file for divorce to preserve the community estate. In most counties, including Travis County, filing for divorce activates a standing order governing the parties’ conduct with regard to children and property. This standing order is attached to the divorce petition that is served on your spouse. Among other things, the standing order prohibits the parties from removing children from the state, selling and/or transferring assets, cancelling credit cards, and communicating with each other in a threatening or vulgar manner.

What if I don’t have access to funds to pay my lawyer?

It is not uncommon for one spouse to control the parties’ financial assets. For example, a wife may lack access to bank accounts in her husband’s name and therefore cannot pay her attorney. In this instance, the wife can petition the court for interim attorney’s fees (fees incurred during the divorce case). If the wife’s request is granted, the court will order her husband to make funds available to the wife to pay her lawyer during the case. To receive interim attorney’s fees, the spouse seeking such relief must prove the following: (1) need for the funds (i.e. demonstrate that the spouse lacks access to available funds to pay legal fees) and (2) that the other spouse has the ability to pay the fees. This can be proven with bank statements, pay stubs, tax returns or other financial information demonstrating that funds are available to pay lawyers and experts. However, if both you and your spouse lack funds to pay lawyers, then you will need to rely on credit cards or loans from family or friends.

Should I move out of the house?

It depends. If you are in a volatile or dangerous situation—especially if children are involved—then you should immediately file for divorce and set a temporary orders hearing. At the temporary orders hearing, you should request that the judge award you exclusive occupancy of the house. If you have children, you should also seek to be appointed the temporary joint managing conservator with the exclusive right to designate the primary residence of the children. Essentially, this is asking the court to make you the children’s primary custodial parent while the divorce case is pending. Because courts generally strive to keep children in the marital residence to promote stability, the primary custodial parent will be granted exclusive occupancy of the marital residence. The court will also make orders regarding visitation of the children, payment of temporary child support and/or spousal support, if appropriate, and payment of bills and other household expenses.

I have seen couples attempt to “stick it out” and remain together in the marital residence with disastrous consequences. Most commonly, a fight occurs and the police are called. One spouse alleges he/she was struck by the other. If there is any evidence of abuse—even a minor scratch—the alleged abuser will be arrested. If you are arrested, you can expect your spouse to seek a protective order that will exclude you from the house and prohibit you from going near your spouse and, potentially, your children. Sometimes spouses will deliberately provoke an incident and call the police to gain leverage in the divorce. All of this could have been avoided if the parties either mutually agreed to live apart or set a temporary orders hearing and let a judge decide who will stay in the house.

How will filing for divorce impact my right to see my children?

In the absence of a court order, both parents have equal rights to their children. This means one parent can take the children out of the house and exclude the other parent from having any access to the child. Most divorcing parents are mature and sensible enough not to play such games. If they continue to live together during the divorce, then there isn’t a need for court ordered visitation—the parties will maintain the status quo with respect to the children’s routine until the divorce is finalized. However, if one spouse moves out of the house—whether voluntarily or pursuant to a court order—then a judge will need to make temporary orders regarding conservatorship, visitation, and child support while the divorce is pending. These temporary orders are important because they often mirror the final orders that are entered at the conclusion of the case. Typically, one spouse will be the primary custodial parent (the parent with greater possession time) and the other spouse (the noncustodial parent) will pay temporary child support while the divorce is pending. Visitation schedules vary but generally the noncustodial parent will have visitation in accordance with the standard possession schedule—first, third and fifth weekends of the month and every Thursday from 6-8pm.

How quickly after filing for divorce can my divorce be finalized?

The earliest your divorce can be finalized is 60 days after the divorce petition is filed. Generally, only uncontested divorces—where the parties agree on all issues at the outset of the case—are resolved this quickly. Divorce cases involving disputed issues typically last six months to a year.

Need to Find a Local Divorce Attorney?

Ben Carrasco is an experienced, talented Austin divorce attorney who will fight to win your legal case. Call Ben today at (512) 320-9126 or request a consultation online!

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