Texas Divorce Laws

Residency Requirements for Divorce in Texas
One of the spouses must have resided in Texas for 6 months prior to filing and 90 days prior to filing in the county where the divorce is filed. In addition, there is a 60-day waiting period after filing before a divorce will be granted.

Legal Grounds for Divorce in Texas

1. No Fault Divorce:
   1. The marriage has become insupportable because of discord or conflict of personalities that has destroyed the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation (or)
   2. living separate and apart without cohabitation for 3 years
2. General divorce:
   1. Adultery
   2. abandonment
   3. confinement for incurable insanity for 3 years
   4. conviction of a felony and imprisonment for over 1 year
   5. cruel and inhuman treatment

Legal Separation in Texas
Separation agreements are expressly authorized by statute.

Simplified/Special Divorce Procedures in Texas
Separation agreements and property settlements are expressly authorized, including agreements regarding conservatorship and child support provisions.

Divorce Mediation in Texas
It is the official policy of the state of Texas to promote amicable and non-judicial settlements of issues regarding children and families. Upon written agreement of the spouses or the court's own decision, the court may refer the divorce proceeding to mediation. The mediated settlement of the case is binding if it is signed by the spouses, any attorneys of the spouses, and provides that the agreement is not subject to revocation. In addition, upon request, the court can order both spouses to consult a marriage counselor. If the counselor's report indicates a reasonable expectation of reconciliation, the court can order further counseling for up to 60 additional days. Upon every filing for divorce, the court clerk is required to furnish a statement to the person filing regarding the availability of marital counseling services. In addition, if there has been a history of conflict and difficulties in resolving questions of access to any children, the court may order either parent to participate in counseling.

Divorce Property Distribution
Texas is a "community property" state. The spouse's separate property, consisting of:

1. any property owned prior to the marriage
2. any property acquired during the marriage by gift or inheritance
3. any recovery for personal injuries which occurred during the marriage, will be retained by the spouse who owns it

The "community" property, consisting of any other property acquired by either spouse during the marriage, will be divided equally, unless the court finds that equal division would be unjust. In addition, the court may divide property acquired by either spouse while residing outside of Texas which would have been community property if they had acquired it while residing in Texas. The only factors for consideration specified in the statute are a due regard for the rights of each party and any children. Any property possessed by either spouse during the marriage is presumed to be community property unless it can be shown that the property is actually separate property. A court can determine the rights of the spouses in any pension or retirement plan or their rights under any insurance policy.

Alimony and Spousal Support
The court may award maintenance for a spouse only if:

1. the spouse from whom maintenance is requested has been convicted of family violence within 2 years before the suit for dissolution or
2. the duration of the marriage was 10 years or longer and the spouse seeking maintenance:
   • lacks sufficient property to provide for his or her reasonable minimum needs
   • is unable to support himself or herself through employment because of an incapacitating physical or mental disability
   • is the custodian of a child who requires substantial care and supervision because of a physical or mental disability which makes it necessary that the spouse not be employed outside the home
   • clearly lacks earning ability in the labor market adequate to provide for the spouse's minimum reasonable needs

If the court determines that a spouse is eligible for maintenance, the following factors are then considered in the award:

1. the financial resources of the spouse seeking maintenance, including both separate and community property and liabilities
2. the spouse's ability to meet his or her needs independently
3. the education and employment skills of the spouses
4. the time necessary for the supported spouse to acquire sufficient training or education to enable him or her to find employment
5. the availability and feasibility of that training
6. the duration of the marriage
7. the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance
8. the ability of the supporting spouse to meet their own needs and make any child support payments
9. excessive or abnormal expenditures, concealment, or destruction of any property by either spouse
10. the comparative financial resources of the spouses, including medical, retirement, insurance, or other benefits, and any separate property
11. the contribution of 1 spouse to the education, training, or increased earning power of the other spouse
12. the contribution of either spouse as homemaker
13. any marital misconduct of the spouse seeking maintenance
14. the efforts of the spouse seeking maintenance to seek employment counseling
15. any property brought to the marriage

The amount of monthly maintenance can be no more than the lower of $2,500.00 or 20% of the paying spouse's monthly gross income.

Spouse's Name After Divorce
Upon request, the name of either spouse may be changed.

Child Custody After Divorce
Joint or sole managing conservatorship (custody) is determined according to the best interests of the child. The sex of the parents is not a factor for consideration. The wishes of the child may be considered. The factors to be considered in determining the terms and conditions for possession of a child by the possessory conservator (parent with visitation) are as follows:

1. the age, circumstances, needs, and best interests of the child
2. the circumstances of the parents
3. evidence of any spouse or child abuse
4. any other relevant factor

The factors specified in the statute for consideration in decisions regarding joint managing conservatorship are:

1. whether the physical, psychological, or emotional needs and development of the child will benefit
2. the ability of the parents to give first priority to the welfare of the child and reach shared decisions in the child's best interest
3. whether each parent can encourage and accept a positive relationship between the child and the other parent
4. whether both parents participated in child rearing before the filing of the suit
5. the geographical proximity of the homes of the parents
6. if the child is 14 years old or older, the preference of the child
7. any other relevant factor

The court may not award joint managing conservatorship is there is any credible evidence of spousal or child abuse or neglect. Parents may file a written agreement with the court regarding joint managing conservatorship. The court will award joint managing conservatorship based on an agreement between the parents if the agreement: (1) establishes the county of residence of the child; (2) states the rights and duties of each parent regarding the child's present and future care, support, and education; (3) includes provisions to minimize disruption of the child's schooling, daily routine, and association with friends; (4) was entered into voluntarily and knowingly; and (5) is in the best interests of the child. In addition, there are standard terms for a court's order on a child's conservatorship set out in the statute that are presumed to be the minimum allowable time that the parent who is not awarded the primary physical residence of the child is to have the child.

Child Support After Divorce
Either or both parents may be ordered to make periodic, lump-sum, or both types of child support payments. There are official child support guidelines set out in the statute and these are presumed to be reasonable and in the best interests of the child. The factors for consideration are:

1. the age and needs of the child
2. the ability of the parents to contribute to the support of the child
3. any financial resources available for the support of the child
4. the amount of possession and access to the child
5. the net resources of the parent to pay support, including the earning potential of the parent to pay support if the actual income of that parent is significantly less than what that parent could earn, if intentionally unemployed or underemployed
6. any childcare expenses necessary for the employment of either parent
7. whether a parent has custody of another child and any child support expenses being paid or received for the care of another child
8. the amount of alimony being currently paid or received
9. provisions for health care
10. any educational or health care needs of the child, including college expenses
11. any benefits a parent receives from an employer
12. any debts or obligations of a parent
13. any wage or salary deductions of the parents
14. the cost of traveling to visit the child
15. any positive or negative cash flow from any assets, including a business or investments
16. any provisions for health care or insurance
17. any special or extraordinary educational, health care, or other expenses of the parents or the child
18. whether either parent has a car or housing furnished by an employer or other person or business
19. any other relevant factor

The court may order health insurance coverage to be provided for the child. In addition, the court may order income withholding to secure the payment of child support.