When you don’t know what to expect in a certain situation, it’s very likely you will experience at least some level of anxiety. And when you don’t know what to expect during something so emotional and difficult as a divorce, your anxiety can go through the roof.
A divorce is hard for anyone to go through. It can affect every aspect of your life. The best thing you can do is find a good divorce lawyer who can confidently walk you through the divorce process with your best interests in mind. Because this is one of the most emotionally charged experiences you’ll go through, you need a divorce lawyer who will approach your divorce objectively and who will fight to ensure the best possible outcome for you.
The next best thing you can do after hiring a good divorce lawyer is to educate yourself on Texas divorce laws. Here are some important things you need to understand about divorce in Texas.
Grounds for Divorce in Texas
In Texas, there are seven statutory grounds for divorce. Six of them require you to find fault on your spouse if you are the one filing for divorce. The seventh, insupportability, is a no-fault grounds for divorce, and this is the grounds for divorce that is used most often.
The seven statutory grounds for divorce in Texas include the following.
- The marriage is insupportable because of conflict or discord between personalities that destroys the marital relationship. There is no reasonable expectation of reconciliation
- One spouse is cruel to the other in a nature that makes living together unsupportable
- One spouse commits has commited a felony and is imprisoned for at least one year in the Texas Department of Criminal Justice, the penitentiary of another state, or a federal penitentiary — and has not been pardoned
- Abandonment for at least one year
- The couple has lived apart for at least three years
- One of the spouses has been confined in a mental hospital for at least three years, and it doesn’t look likely a change will occur
If a no-fault divorce is possible, why would anyone want to worry about the other six reasons for divorce that places the fault on one party? Some people want to place the fault on the other party because if the court agrees, a bigger share of the property may be awarded to the person who was not at fault.
File a Divorce Petition
An “original petition for divorce” must be filed in a state district court. Residency matters. One of the spouses needs to have been a resident of the state for at least the past six months. That same spouse also must have been a resident of the county in which the suit is being filed for at least 90 days.
The respondent must file an answer within 21 days after being served, or the case will be considered defaulted. At this point, the divorce process could complete without the respondent.
The petition for divorce will likely include a request for a two week temporary restraining order (TRO), which will protect both spouses. The TRO freezes everything so neither spouse can harm the other. A TRO protects a spouse from having money hidden by the other spouse, and it prevents one spouse from excluding the other from the marital home (without special circumstances). For example, the locks cannot be changed during this time.
Once the TRO is in place, a temporary order hearing will be scheduled where a judge will decide if these conditions need to remain in place as the divorce continues. The judge will also address temporary custody, temporary possession arrangements, temporary spousal support, temporary child support, temporary use of property and payment of debts, and payment of interim divorce attorney fees.
During discovery, both parties can finalize the size of the community estate and determine what position each person is going to take.
In written discovery, both parties to the divorce answer written questions about things like bank accounts and income. You may be required to provide documentation, including telephone records, bank accounts, 401(k) plans, and more. You’ll also be required to list every asset you are aware of and place a value on it.
In oral discovery, witnesses with information that will affect the divorce case will be examined under oath.
Divorce Trial or Settlement
The movies make it seem like every divorce goes to trial. This isn’t always the case, however. Many divorcing couples choose to go to divorce mediation where both parties and their divorce attorneys meet with a neutral third party to negotiate a divorce settlement. This is a less expensive, and often easier, process than trial.
However, if both parties can’t reach a settlement, the divorce will go before a judge or jury. Texas is the only state that allows jury trials to make decisions regarding child custody. One of the parties in the divorce can request a jury. Otherwise, a judge will make the decision.
Property Division in a Texas Divorce
When it comes to property division, Texas is one of only a few states that uses a “community property” system. This means the court has the right to divide the community property between the spouses. However, it does not have the right to divide separate property. Separate property is defined as something one person owned before the marriage, individually received during the marriage by gift or inheritance, or money received in a personal injuries lawsuit during the marriage. If you believe you have separate property, it will be your responsibility to prove that claim in court. Otherwise, all property is considered to be community property.
Spouses can decide to split their property however they choose. However, if they can’t agree on how to split the property, a judge will decide for them in a manner the court deems just and right.
Alimony/maintenance is awarded only under two specific conditions.
- One spouse is convicted of a crime involving family violence within the two years before the divorce suit was filed.
- After 10 years of marriage, the spouse seeking maintenance doesn’t have sufficient property to provide for his or her minimum reasonable needs.
Judges can only award maintenance for no longer than necessary to provide for the spouse’s needs. The spouse receiving maintenance must attempt to obtain gainful employment, except in special circumstances regarding disabilities.
Parents have the option of agreeing on child custody matters and can file a written parenting plan with the court. However, if they can’t agree on a child custody arrangement, the issue will go to the judge.
In matters of child custody, the best interest of the child is always the primary consideration. Courts want children to continue to have frequent contact with parents who have shown they act in the children’s best interests in regards to safety, environments, and more. The courts often encourage both parents to share in the rights and duties of raising their children.
When making child custody decisions, a judge will consider several items, including the physical, psychological, and emotional needs of the child. The judge will also consider how the parents have participated in rearing the child prior to the divorce. The location of the parents’ homes along with several other factors will come into consideration as well.
However, if the child is under 3, the Tender Age Doctrine applies. This states a child under the age of 3 is best served by living full-time with the primary parent. The noncustodial parent will often be awarded short regular visits.
Navigate the Difficult Road of Divorce with a Family Law Attorney
Too much is at stake in a divorce. Make sure you have a good divorce lawyer on your side to advocate for your needs and rights. Contact experienced Austin family law attorney Ben Carrasco for the best possible outcome in your divorce.