Contemplating Divorce? | Advice from a Fort Worth Divorce Lawyer
It’s almost impossible to fully prepare for the emotional, financial, and physical toll a divorce can take on you and your family. Whether you’ve been contemplating your options for months or are just recently exploring the legal avenues available to you, understanding the basics of a divorce in Texas is the first step in finding the path that is best for you. Here’s some information that our Fort Worth Divorce Lawyers believe will help you understand the divorce process in Texas.
What is Divorce in Texas?
Divorce is the dissolution of a marriage, meaning a valid marriage is ended through a legal process.
Read More: What is a Valid Marriage in Texas?
In Texas, a marriage is presumed valid so long as there is no fraud, mistake, or illegality. There are also rules prohibiting minors from getting married and some offenses in the Penal Code that would prevent the formation of a valid marriage. A marriage is even considered valid if the officiant did not have the authority to perform the marriage ceremony but there was a reasonable belief that the officiant was authorized and at least one party thought the marriage was valid.
Termination of a Marriage in Texas
If you have a valid marriage, there are two ways the marriage can be ended: death or divorce. While Texas does recognize annulments, an annulment is granted when the marriage should not have occurred in the first place, such as when the marriage was not legal (i.e. in cases of bigamy) or some legal impediment to marriage that may have been concealed initially is revealed (i.e. one spouse concealed their previous divorce which occurred within the month prior to the new marriage). Texas divorce can get really complicated and the grounds, process, and cost are entirely dependent on your specific situation.
Grounds for Divorce in Texas
The Texas Family Code, beginning at Section 6.001, sets out a number of grounds for divorce:
- The marriage has become insupportable because of discord or conflict (“No Fault Divorce”)
- Conviction of a Felony
- Living Apart
- Confinement in a Mental Hospital
Insupportability is defined in the Texas Family Code. Basically, it means that you and your spouse will not reconcile in the future because there is too much conflict within the marriage to maintain a marital relationship. For this basis, it must be clear that there is no reasonable expectation that the parties will be able to reconcile.
Cruelty may be the reason for a divorce in favor of one spouse if the other spouse is cruel in a manner that renders living together insupportable.
Adultery may be grounds for divorce if one spouse has committed adultery. There used to be a rule that if both spouses have committed adultery, it cannot be used as grounds for divorce by one spouse, but that is no longer the case.
Felony conviction includes few different nuances. A court can grant a divorce in favor of one spouse if the other spouse has been convicted of a felony, has been imprisoned for more than one year in a federal jail, another state jail, or with the Texas Department of Criminal Justice, and has not been granted a pardon. If the conviction of the other spouse was based on the testimony of the petitioning spouse, the divorce cannot be granted on this ground.
Abandonment may be the basis for divorce if one spouse left the petitioning (i.e. filing suit) spouse with the intention to abandon them and remained away for a year or more.
Living apart for at least three years allows the court to grant the divorce in favor of either spouse.
Confinement in a mental hospital allows the court to grant a divorce if, when the petition for divorce is filed, the other spouse has been in a mental hospital (public or private), as defined by the Health and Safety Code, in Texas or another state for more than three years and the disorder for which the spouse is hospitalized is of such a degree and nature that it is unlikely the spouse will adjust or if adjustment is possible, that relapse is likely.
Texas is a “no fault divorce state,” which means one spouse does not have to show the other did anything wrong in order to get a divorce. Similarly, one spouse cannot hold another spouse hostage by refusing to participate in the divorce proceeding.
Domicile Requirements for a Divorce in Texas
Generally, a person must be domiciled, or live, in Texas for the six-month period before the divorce suit is filed, and a resident of the county for the 90 days leading up to the suit. – Family Code Section 6.301. Only one party needs jurisdiction in the state to bring suit.
What if you do not live in Texas but your spouse does?
If you are domiciled in another state but your spouse is domiciled in Texas, you may still file suit for divorce in Texas so long as the Texas spouse has been domiciled in Texas for at least six months.
What if your spouse is not a resident of Texas but you want to get a divorce?
The court may acquire jurisdiction over the nonresident spouse if:
• Texas was the last residence of the spouses while they were married and the suit for divorce is filed within two years of the time when the spouses stopped sharing a marital residence; or
• There is a basis allowed by the U.S. Constitution for the exercise of personal jurisdiction; or
• The court gets jurisdiction through a SAPCR proceeding over the nonresident party
In other words, you can still serve a spouse that is not a resident if Texas was the last marital residence so long as it is filed before the second anniversary of the date on which marital residence ended, a SAPCR is filed, or, for example, you serve the spouse while they are visiting Texas.
However, Texas can grant a divorce having personal jurisdiction over one party only if there are no kids involved AND no property to divide.
Divorce, Dissolution…To-may-to, To-mah-to?
A divorce is a civil lawsuit between two married individuals. In Texas, the legal concept for a divorce is a “dissolution of marriage.” You may hear your lawyer use this term or see it included in various pleadings your lawyer prepares for you. Whatever the circumstance, “dissolution” and “divorce” are often interchangeable. Because of the technical language divorce pleadings often use, if you ever see or hear unfamiliar terminology, ask your attorney to clarify so that you are fully informed when making decisions.
To begin the legal process of dissolution, one party files a petition for divorce. This party – the “Petitioner” – must serve the petition on their spouse, who is referred to as the “Respondent.” Once served, the Respondent has 20 days to file an answer and, if they choose to do so, a counter-petition with the court. In many situations, a Respondent may be caught off-guard when served with divorce documents. The most important thing you can do for yourself is to file your answer on time. If you do not file a timely answer after being properly served, the judge could enter a default judgment against you.
Many individuals contemplating divorce feel that they will get the upper-hand if they file first. In most cases, being the first to file has no overall bearing on the case. However, if you have concerns that your spouse may try and alter the marital estate, your attorney may recommend that you file first, so as to preserve the community estate at that date and time.
What goes into a divorce petition?
You must state the basis for divorce in the divorce petition using specific language in the Texas divorce statute. If you use language that is not within the statute, the court will likely strike it from the petition. You no longer need reasons like cruelty, adultery, felony conviction, abandonment, etc. to get a divorce, but if the court does find fault, the other spouse may get a disproportionate share of community property because one spouse committed a statutory wrong while married. Even if the wrong is not plead, the court can use information about it to divide assets.
How Long Does a Divorce Take in Texas?
My spouse and I have been separated for over a year, and now I’ve met someone new. How quickly can I be divorced?
All divorces, regardless of the time a couple has been separated, take a minimum of 60 days to finalize once filed. This 60-day period is referred to as a “cooling off” period, where both parties are given the opportunity to reflect on their decision to end the marriage before it is finalized by a judge.
In Texas, there is no recognized “legal separation.” You are either married or divorced. If you have been living apart from your spouse for an extended period of time and have decided it is time to legally end the marriage, you may wonder if you can expedite the divorce process.
Can you get legally separated in Texas?
No. Texas does not recognize separation as a way to end a marriage. If you and your spouse wish to separate, keep in mind that if you do not get a divorce, any property you obtain while separated is still considered community property. The same rule applies to debt. Any debt accrued by your spouse (or by you) is community property until you get divorced.
Do I have to go to Court for an Uncontested Divorce?
Yes. When spouses agree on the terms of a divorce, it is called an “uncontested divorce.” This essentially means all issues regarding the dissolution are agreed upon by both parties. These types of divorces are not unheard of – in fact, there are many couples who reach a mutual agreement to part ways. As amicable as your split from your spouse may be, you must still go before the judge with a written agreement in order to legally end the marriage.
How will Assets be Divided in a Divorce?
Every divorce is different, just as every estate is different. In most cases, the goal of the court is to provide an equitable division of the community estate, including both the assets and debts between spouses. There are extenuating circumstances which can result in a disproportionate division of the marital estate, but these cases are often few and far between. By understanding that the court’s default position is focused on an equal division, you will be able to tailor your arguments for an exception accordingly.
What if there are mutual children or there is shared property?
A divorce proceeding that involves children and property is really like several cases. If there are children involved, a Suit Affecting Parent-Child Relationship (SAPCR) is filed. A SAPCR is a legal proceeding that determines child support, custody, visitation, and other rights in order to establish what is in the best interest of the child. Even if one spouse is pregnant at the time a divorce petition is filed, a SAPCR must also be filed and you must wait until after the child is born to get a divorce.
How does property get divided in a divorce proceeding?
Property must be divided in a just and right manner, meaning the court evaluates many factors to determine who gets what and how much of the property is given to each spouse. The value of the property is the fair market value based on the date of the couple’s separation.
Some of the factors the court can use to determine a just and right property division are:
• Spouses’ capacities and abilities
• Benefits which the party not at fault would have derived from continuation of the marriage
• Business opportunities
• Relative physical conditions
• Relative financial conditions and obligations
• Disparity of ages
• Size of separate estates
• Nature of the property
In a property division case, the court must first identify all the property involved and distinguish between separate and community property. At the time of divorce, property is presumed to be community property. If you have property that is not community property, you must present clear and convincing evidence that the property was a gift, bequeathed in a will, or inherited. In other words, the property is separate property. Some forms of personal injury recovery and gifts after marriage may be separate property as well. Just FYI, clear and convincing evidence is a burden of proof you must meet. It is not as high of a standard as beyond a reasonable doubt, but there needs to be a firm belief in the mind of the trier of fact (i.e. the judge) that the set of facts you are presenting is more believable than the other side.
If you have kids, the court may use separate property that produces income to pay for child support.
Planning for Divorce? Read this list of Do’s and Don’ts
Divorce is seldom easy. Ending a relationship is difficult even when a couple is not married. If you are married and are considering a divorce or your spouse is considering a divorce, there are many things you should know and start thinking about. Asset and property division, child custody and child support, and business-related concerns are just some of the issues that can come up during divorce proceedings. Historically, women do not do as well financially in divorce proceedings (most of the time), so proper planning is especially important and can help mitigate financial worries.
No matter what you do, remember that you deserve to feel emotionally fulfilled and valued in life. Getting a divorce is not abnormal. It does not mean you failed, and it does not mean you should feel shame. Sure, you may be upset or disappointed, that is only human. But don’t forget that a marriage normally ends because there are many reasons it is not working out.
Keeping those things in mind, while it may not make ending the relationship easier, by evaluating and planning for divorce, you can make the process go much more smoothly and probably save yourself unneeded costs and stress.
What are some do’s and don’ts of planning for divorce?
Let’s start with the do’s. These are not in any particular order, nor is this an exclusive list, but consider this as a type of checklist if you are considering divorce.
Evaluate your assets. Organize documents about any property you own, including bank accounts, investments, real property, and personal property. Consider what property you received before marriage and during marriage. Property you receive during marriage is more than likely considered community property and is divided differently than separate property. Note: community property is not necessarily split 50-50!
- Talk to your spouse. Think about whether the marriage is over and whether you think there is any chance for reconciliation. Some couples try counseling first, others may try to communicate on their own, but be sure you actually talk to your spouse even if you know it’s over. If nothing else, the people that benefit the most from your ability to communicate calmly during divorce are your kids.
- If you are not working, consider getting a job, if possible. You are not guaranteed money from your spouse, even if you are not working. By the same token, if you are not working, you may still have to pay child support. If you do not have a job and your spouse does, and your spouse gets the kids, you probably will need to get a job to pay child support. Whether you are employed or not, make a budget and figure out what your expenses are, what the cost of renting an apartment or other place to stay is, any financial obligations you have, and don’t forget to factor in potential child support.
- Make a plan for your children. Think about who they would live with, where they would go to school, and other things you believe are in their best interest. Think about how a divorce will impact your kids. What custody arrangement do you think will be in their best interest? If you think the best thing for the kids is staying with you most of the time, think about specific examples as to why that is.
- Think about hiring an attorney, particularly if your spouse already has. You want your interests to be represented fairly.
- Consider mediation, collaborative divorce, and other methods of obtaining a divorce other than going to court.
- Think about the various types of divorce, for example contested versus uncontested, as well as the grounds for divorce that apply to you. Texas has a range of grounds, including: insupportability, cruelty, adultery, felony conviction, abandonment, living apart, or confinement to a mental hospital. If any of these apply, think about whether you want to assert them in the divorce petition. Speaking of the divorce petition, think about who is going to file for divorce and where they will file.
- Discuss what you are experiencing with your support system. There is no reason to handle your divorce alone. If you find your support system is not being particularly supportive or understanding, think about seeking counseling. A divorce can be an incredibly emotional experience and discussing your concerns with a professional can help you cope and keep emotions out of the divorce proceedings.
- Think about estate planning or medical planning that you need to do. If you have a will and are getting divorced, did you name your spouse as an executor or beneficiary? If yes, you probably will want to change your will. The same goes for documents like a medical or financial power of attorney (giving someone power to make healthcare or financial decisions for you, respectively), and/or a HIPAA release (which allows someone access to your medical records), etc. Getting divorced does not automatically remove your spouse from any of these documents.
- If you need an exit strategy because your physical safety is at risk, meticulous planning goes a long way. Evaluate safety concerns for yourself and your kids. Police officers will escort you if needed and discussing this plan with an attorney can also be helpful.
- If you have insurance policies payable to your spouse, think about whether you want to change those or designate new beneficiaries.
Document everything. Think about keeping a set of records about your property, assets, accounts, etc. in a place your spouse does not have access to. Taking photos of property, whether real property or personal property, that is important to you is also a good idea.
To recap, you should create a plan dependent on your needs. Anything from a physical exit plan to a general plan involving financial assets, children, and other logistics can be included.
Now, let’s think about some don’ts.
- Do not begin a new relationship while your divorce is going on. If you do, don’t force the issue with your spouse. If your new relationship is the reason for the divorce, it is better to attempt to keep parties separate. For example, do not bring your new partner to divorce proceedings. If it hurts your new partners feelings, talk it out, but do not create situations that develop animosity from your soon-to-be former spouse. You do not want the divorce to get more contentious because of fired up feelings about new relationships if you can avoid it.
- Do not take extreme measures like moving everything out of the house or leaving the state. When physical safety is involved, the measures you take may be more extreme, but if you are merely trying to shock your spouse, that is not a game worth playing.
- Do not abandon your kids. Even if you think your spouse will win custody, be sure to stay in your children’s lives. Supporting your kids is incredibly important to prevent trauma during a divorce and it can also work in your favor for custody reasons.
- Do not quit your job to avoid paying child or spousal support. Chances are, you will have to pay anyway.
- Do not hide away your assets or walk out the door with no records of your property, accounts, etc.
- Do not underestimate your assets or ask for less money than you need to look money savvy.
- Do not file for divorce without planning. Divorce proceedings alone can get expensive, not to mention living expenses. Think about how much money you need and save it (or at least some of it) before you walk out.
- Do not post about your divorce on social media while proceedings are underway. If you really want to play it safe, do not post on social media about the divorce after either. Why? Because everything you post is potential fuel for your spouse in future proceedings, particularly if you have kids and may end up back in court.
- Do not say or do anything that you think would look bad if it came up in court. This is a good way to evaluate whether decisions you are making are worth doing in the moment.
What signs should you look for if you think your spouse is considering a divorce?
- ” Your spouse hired an attorney but will not tell you what he or she is for.
- ” Your spouse is transferring assets without conferring with you or without sharing any details with you.
- ” Your spouse is traveling a lot more than usual, not communicating with you, and/or nonresponsive to your attempts to communicate.
- ” Your spouse is discussing a fresh start that is not work related or is not sharing details about it with you.
Most of these issues fundamentally break down into a “gut-check” for you. If things feel weird to you and your repeated attempts to communicate with your spouse are going unreciprocated, it may be time to consider evaluating what is happening within the marriage.
Should you hire a private investigator?
Maybe. If you think your spouse is hiding something, talk to an attorney about the best practices for finding out what is going on.
How does divorce actually happen?
Generally, one spouse files for divorce with a document called an Original Petition for Divorce. You then have to serve this petition to your spouse according to Texas law. Your spouse then has the option to file an answer or waive service. If you have kids, there are additional forms you need to file that help the court establish information, custody and obligations, and other related issues. Once everything is decided, the judge holds a hearing for a “prove up” of the divorce where a spouse needs to be present to allow the judge to certify everything is in order and finalize the divorce.
Can’t a couple just separate?
Not in Texas. Texas does not recognize legal separation. Does that make a difference? Yes. For example, any property you acquire while separated is still community property. If you get a divorce, property you acquire is yours alone after the divorce is finalized.
Do you need fault grounds in Texas to file for divorce?
No! You can have a no-fault divorce or allege fault grounds in Texas.
What should you remember?
You should keep in mind that divorce happens and blaming each other will only cost time and money. Keep the interests of your kids in mind, even if you have kids from before the marriage. Talk to your spouse and consider getting help if you need it. Keep a copy of all your records and keep them organized in a place your spouse does not have access. It is a good idea to keep at least three copies of everything: one for you, one for your lawyer, and one for the court. Consider hiring an attorney, especially if your spouse already has, to ensure your interests are represented. To sum up: the most important thing in considering a divorce is that you plan ahead.
What is a no-fault divorce and how do you get a no-fault divorce?
No fault means you are not alleging a historical ground for divorce and are communicating the marriage broke down without presenting evidence that the other spouse engaged in wrongdoing against you.
In Texas, for a no-fault divorce, one spouse has to testify and sign that they want the divorce granted. You do not need to prove the other party did something wrong. However, if there are kids from the marriage or there is property involved, it is unlikely a no fault-divorce is the route you can go.
A no-fault divorce can be a good option if you want to save some time and money as divorce proceedings can get lengthy and incredibly expensive. If you want to push for an unequal division of property in your favor, and the other spouse has done something to qualify for the previously mentioned grounds, alleging fault may be one way to get a division of property in your favor. But remember, the court decides how to divide the property.
There may also be some complicating issues that prevent a no-fault divorce from being granted. Children and property are two of the main complicating factors in a divorce proceeding. If there are children involved, the court must act in the best interest of the child, so a divorce proceeding will get more complicated as the court must determine things like child support and child custody. With property, the court must divide the property in an equitable way, meaning that the parties must be treated fairly, though this does not mean the property is simply divided in half.
There is some legislation being pushed forward that seeks to end the no-fault grounds, but none has become law in Texas at this time.
What is an annulment?
An annulment is a way to end a marriage. In an annulment, a court confirms that at the time of marriage, the marriage was invalid. In other words, it is like the marriage never existed.
In Texas, an annulment may be granted to invalidate 2 different types of marriage: void and voidable marriages.
Void marriages are those that were not legal from the start. Bigamy is an example of a void marriage. In such cases, one spouse was already married to someone else and the prior marriage was not dissolved by divorce or death of the first spouse at the time of the new marriage. An annulment may be granted if your spouse was still married to someone else at the time of your marriage.
A voidable marriage is one that was legal, but there was some impediment to the marriage. For example, one party was impotent at the time of marriage and concealed this fact from the other party. For voidable marriages, there are generally steps that need to be undertaken by the unknowing spouse once they discover the issue to be eligible for an annulment.
How is annulment different from divorce?
In a divorce, the marriage is considered legally valid. In an annulment, there is some legal reason why the marriage was not valid from the start. Annulments have special exceptions to let someone out of a marriage. Some exceptions are:
- Underage marriage
- Marriage was performed while one or both parties were heavily under the influence of drugs or alcohol
- Impotency that was hidden from the partner prior to the marriage
- Mental incapacity
- One party concealed their previous divorce (which occurred within a 30-day window before the current marriage) from the new spouse
- The parties did not wait 72 hours after the issuance of the marriage license to get married
Some of these exceptions have caveats. For example:
- If the exception where parties did not wait 72 hours before marriage applies to you, know that you have to bring an annulment suit within 30 days of the marriage.
- If at the time of marriage either or both parties were intoxicated (beyond just a few drinks) or under the influence of drugs, but then the couple continued to live together (cohabitated) after getting sober, no annulment can be granted.
Generally, if any of these exceptions apply to you, but then you voluntarily consent to keep living with your spouse as if you are married, an annulment may not be granted.
What is a collaborative divorce?
A collaborative divorce is a process where the spouses, and their attorneys, resolve divorce-related issues without going to trial. You do not have a public hearing, and you may keep costs down by avoiding litigation. You can create a plan of action that both parties are satisfied with and experts, including a neutral financial consultant and mental health professionals or counselors, help facilitate discussions until you and your spouse reach an agreement.
This may sound like mediation, but mediation is a different process. There, spouses work with one mediator who acts as a neutral party. Often, people do not hire attorneys for mediation, but work together with the mediator to come to an agreement.
In a collaborative divorce, both spouses have attorneys and the attorneys are paid equal amounts, so the plus side is that you avoid one spouse hiring a more expensive lawyer to get ahead. This process can be a good option for spouses who want to work together to create a child custody plan and want to cooperate.
If collaboration does not work, mediation or litigation are alternative options but typically your attorney, if used in a collaboration, must withdraw if the parties decide to go through with mediation or divorce.
You should not seek a collaborative divorce is there is domestic violence or abuse in the relationship, one party is financially disadvantaged, one party has a drug or alcohol abuse problem, or there is any mental illness affecting the parties.
How soon can you remarry after a divorce is granted?
You must wait 31 days to get remarried, unless you are marrying the person you divorced. The reason for the 31 days is to allow 30 days for a party to appeal, should they not agree with the outcome of the divorce proceeding. If you are marrying the person you divorced, the court may grant you a waiver of the waiting period.
In Texas, a party must wait 30 days after getting a divorce to marry someone new. If your spouse got a divorce within 30 days of your marriage ceremony and you did not know about it, you may be eligible for an annulment. In addition to not knowing about the divorce, you must have moved out of your shared home once you found out. If you continued living with your spouse once you found out about the previous divorce, you may not be eligible for an annulment. But, you can still obtain a divorce.
No. In Texas, you cannot get an annulment once either spouse has passed away.
Maybe. For example, if at the time of marriage, either spouse was mentally incapacitated, but then regained capacity and voluntarily cohabitated with the other spouse as if the parties were married, no annulment can be granted.
Yes. As discussed above, if one spouse is married to someone else at the time of marriage, a marriage is considered void in Texas. However, to declare a marriage void, the party seeking to declare the marriage void must do so before the other spouse files for divorce from their first spouse. Consanguinity (incest) is another reason why parties may declare a marriage void in Texas.
For a court to be able to annul a marriage, it must have jurisdiction. For annulments, this means that parties have to live in Texas or have been married in Texas. The court only need jurisdiction over one party, but that party needs to have been domiciled in Texas. Domicile means physical presence in the state and intent to remain. If you currently live in Texas and do not plan on moving, your domicile is Texas. In an annulment, you have to give notice to the other party and serve them if they are not going to appear in court. However, unlike a divorce where you must wait 60 days before the court can grant your request, there is no waiting period for an annulment.
Yes. However, if both parties are unable to appear in court, there are some steps you may take to be eligible for an annulment.
Yes. However, if both parties are unable to appear in court, there are some steps you may take to be eligible for an annulment.
Yes. Even if the marriage is considered invalid from the start, child support, child custody (as well as property issues) will be evaluated by the court.
Information needed for the document includes the names of the parties, names of children if any, the marriage date, the date the couple stopped cohabitating, etc. Among other things, the document needs to list requests for relief and child custody information.
Once you file suit, the other party (your spouse) must be served or a waiver must be obtained. The judge will then decide whether your marriage may be annulled or if you need to seek other options. The judge reviews your case and, if he or she grants your annulment, your Decree of Annulment will be signed.
You may file for divorce if you wish to dissolve the marriage.
Fort Worth Divorce Lawyers
Are you contemplating a divorce? Together our attorneys have over three decades of experience handling complex family law disputes in North Texas. Put their experience to work for you. Give us a call at (817) 900 3220.