To file for divorce in Texas, either spouse must have been a resident of the state for at least six months prior to filing, and must have resided in the county where the Petition is filed for the prior 90 days.
For the court to exercise personal jurisdiction over a non-resident Respondent the couple's last marital residence must have been in Texas, and the suit must be filed before the second anniversary of the date on which marital residence ended.
If one spouse has resided in Texas for the past six months and the other spouse lives in a different state or country, the spouse residing outside of Texas is permitted to file for divorce in the county in which the other spouse lives.
Texas residents serving in the armed forces and stationed outside of Texas or the U.S. may still be considered a resident of Texas. Military personnel, who have not been previous residents of Texas, but have been stationed at one or more military installations in Texas for at least the past six months, and at a military installation in a county of Texas for the prior 90 days, are considered to be Texas residents and residents of that county for the purposes of filing for divorce.
If one party is married, it is best to wait until the baby is born to seek a divorce. Most Texas courts will not finalize a divorce if the wife is pregnant, even if the baby is not the husband's. The court will typically wait until after the birth of the baby so that orders regarding the child can be included in the final decree.
The Petition for Divorce may be filed with the District Court of the county where either party lives. The Petitioner must give legal notice to the Respondent, other spouse.
If the Respondent does not file an Answer within 21 days from being officially served, the case is default and it may be possible to finish the divorce process without the Respondent.
There is usually a 60-day waiting period from the date the Petition is filed before a judge will grant a final divorce decree. The waiting period is not required if the court finds that the Respondent has been convicted of domestic violence offense against the Petitioner or a member of the Petitioner's household, or if the Petitioner has an active protection order or an active magistrate's order for emergency protection against the Respondent due to domestic violence committed during the marriage.
Neither party to a divorce may marry again, except each other, before the 31st day after the divorce is decreed, unless good cause is shown to the court.
Upon written agreement of the parties and their attorneys, a dissolution of marriage proceeding may be conducted under collaborative law procedures.
Collaborative law is a procedure where the parties and their attorneys agree in writing to use their best efforts and make a good faith attempt to resolve their dissolution of marriage dispute on an agreed basis without resorting to judicial intervention, except to have the court approve the settlement agreement, make the legal pronouncements, and sign the orders required by law.
If the collaborative law procedure fails to result in settlement of the dissolution dispute, the parties' counsel must withdraw and may not represent the parties for divorce court proceedings.
Upon the specific request of a party to change his/her name to the one used prior to the marriage, the court may change the name of the party in a decree of Divorce or Annulment, unless the court states a reason for denying the name change in the decree.
The court may not deny a change of name simply to keep the last name of family members the same.
There are seven statutory grounds for divorce in Texas, most of which require a finding of fault on the part of one of the spouses. However, one grounds, insupportability, is considered no-fault and is used most often.
A divorce may be granted for any of the following grounds.
In Texas, there are void marriages and voidable marriages. A voidable marriage is a marriage that should not have occurred, typically due to some sort of trick or deception at the time of the marriage. Parties to a voidable marriage may seek an annulment, declaring the marriage was not valid.
A void marriage, simple could never have been valid and cannot exist and so may be legally declared void by a court.
To file for annulment, the couple must have married in Texas or one of the parties lives in the state.
A court may grant an annulment when one of the parties is 16 or older, but under the age of 18 and entered into the marriage without parental consent or a court order. A petition for annulment for this reason may be filed by any to the following parties.
The judge may use its discretion when granting an annulment for this reason, while considering the pertinent facts concerning the welfare of the parties to the marriage, including whether the wife is pregnant. Once the formerly underage party reaches the age of 18 years, a suit for annulment may no longer be filed.
Other grounds for annulment include the following:
For any of these grounds to be valid, the petitioner must not have voluntarily cohabitated with the other spouse after learning of the issue at hand or after the petitioner is no longer under the influence of the issue. An annulment may not be granted after the death of either party to the marriage.
Declaring a Marriage Void:
To sue to have a marriage declared void, the alleged marriage must have been entered into in Texas or one of the parties lives in the state.
The following conditions render a marriage void.
A marriage that is void due to bigamy may become valid when the prior marriage is dissolved if, after the date of the dissolution, the parties have lived together as husband and wife and represented themselves to others as being married.
Neither same-sex marriages, nor civil unions are valid or recognized in Texas.
Texas is a community property state. Statute allows the court to divide marital property in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.
Property acquired by either spouse outside of Texas shall be deemed community property if the property would have been considered community property if it had been acquired in Texas.
Property that was acquired by a spouse while living in another state that would have been the spouse's separate property if he/she were living in Texas; and property acquired by a spouse in exchange for real or personal property that would have been the spouse's separate property if he/she were living in Texas is considered separate property of the spouse and shall be awarded to him/her.
In a decree of divorce or annulment, in addition to all other community property, the court shall determine the rights of both spouses in the disposition of the following property.
The court may consider whether a specific asset will be subject to taxation and if so, when the tax will be required to be paid when ordering the division of the marital estate.
In Texas, maintenance refers to an award of periodic payments from the future income of one spouse for the support of the other spouse, in a suit for Dissolution of Marriage. The oblige is the person entitled to receive the maintenance payments, and the obligor is the person required to make the maintenance payments.
The court must have personal jurisdiction over both parties to order maintenance.
For an award of maintenance, one of the following circumstances must be true.
When a court determines that a spouse is eligible to receive maintenance, it then determines the nature, amount, duration and manner by reviewing the following criteria.
Unless the obligee is physically or mentally incapacitated or is the custodian of a child of the marriage who is physically or mentally disabled, in order to be awarded maintenance, he/she must exercise diligence in seeking suitable employment or developing the necessary skills to become self-supporting while separated and the dissolution case is pending.
Length of Maintenance Order:
If the obligee is unable to support him/herself due to physical or mental incapacity, or because he/she is the custodian of a child of the marriage who is physically or mentally disabled, the court may order maintenance for as long as the disability continues.
In this instance, the court may order periodic review of its order to determine whether the disability continues to render the obligee unable to support him/herself through appropriate employment.
If there is no physical or mental incapacitation affecting employability, a court may not order maintenance for longer than three years after the date of the order; and shall limit the duration of the order to the shortest reasonable time period that allows the obligee to meet his/her minimum reasonable needs by obtaining appropriate employment or developing an appropriate skill.
Amount of Maintenance Payments:
A court may not order the obligor to make monthly payments of more than $2,500 or 20% of his/her average monthly gross income, whichever amount is smaller. The payment amounts should be set at no more than sufficient to provide for the minimum reasonable needs of the obligee.
Department of Veterans Affairs service-connected disability compensation, social security benefits and disability benefits, and workers' compensation benefits are excluded from maintenance.
Maintenance payments end at the death of either party or if/when the obligee remarries. If the oblige cohabits with another person in a permanent place of abode on a continuing, conjugal basis, a hearing may be requested to terminate the maintenance order.
In Texas, custody is referred to as conservatorship. Joint legal custody is referred to as Joint Managing Conservatorship and means that both parents share in the major decision making rights, privileges, duties and powers held by parents.
If the court doesn't choose Joint Managing Conservatorship, instead it will appoint one spouse as the Sole Managing Conservator of the child(ren); this is the parent who is awarded custody. And the other party is the Possessory Conservator of the child(ren); which means the parent with visitation.
The best interest of the child is the primary consideration in determining custody. It is Texas public policy to assure that children have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; provide children with safe, stable and nonviolent environments; and encourage parents to share in the rights and duties of raising their children after parents have separated or divorced.
If the parents cannot come to an agreement regarding custody and don't file a written parenting plan with the court, the Judge (or jury, if requested) may award joint legal custody based upon the following factors.
Joint legal custody does not require equal or nearly equal parenting time with each of the parents.
Texas employs the Tender Age Doctrine which believes that the interests of a child under the age of three years are best served by living full-time with the primary parent, with short regular visits from the noncustodial parent. Therefore, standard custody and visitation policy does not apply until the age of three.
Domestic Violence and Child Custody:
When determining custody and visitation, the court takes into consideration evidence of physical abuse and/or family violence by one spouse against the other spouse, a parent of the child, or any person younger than 18 years of age, committed within a two-year period of the filing of the suit or during pendency of the suit.
The court will not award joint custody if there is credible evidence of past or present child neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a child. Nor will the court award sole custody in this situation.
If there is evidence of a history or pattern of family violence during the two year period prior to filing suit, or during its pendency, the court may not allow a parent to have access to a child unless it determines that access to the child would not endanger the child's physical health or emotional welfare, would be in the best interest of the child, and the court issues a possession order designed to protect the safety and well-being of the child and any other person who has been a victim of family violence. The order may include the following requirements:
Texas uses the Varying Percentage of Income Model to calculate child support obligations. It is based on the obligor's net income and the number of children the couple has. When the obligor's monthly net income/resources are $6,000 or less, the following schedule applies.
If the obligor's net income/resources are greater than $6,000 per month, the court applies the percentage guidelines to the first $6,000 and may recommend additional amounts as deemed appropriate, depending on the income of the parties and the proven needs of the child(ren).
The obligor's net income is determined by adding his/her gross income, which includes commissions, overtime pay, tips, bonuses, interest, dividends, rental income, royalty income, trust income, retirement income, disability income, self-employment income, etc., and subtracting social security taxes, federal income tax, state income tax, union dues and health insurance premiums for the child(ren).
The obligor is typically required to pay for medical insurance and/or health care in addition to the ordered child support payments.
The court may order either or both parents to support a child per court order:
Deviation from Guidelines:
A court may determine that the application of the established child support guidelines would be unjust or inappropriate in some cases. In making this determination, the court will consider the following factors.
The parties may also enter into a written agreement they have negotiated containing provisions for child support and modification of the agreement. If the court finds the agreement is in the child(ren)'s best interest, the court will issue an order in compliance with the submitted agreement.
Texas does not recognize legal separations and has no provisions for court actions regarding legal separations.
It does allow for spouses to enter into a written agreement concerning the division of property and debt and payment of spousal support while a suit for dissolution is pending. If the court decides that the terms of the written agreement are just and right, those terms are binding on the court.
If the court approves the agreement, it may set forth the agreement in full and incorporate the agreement by reference in the final divorce decree.
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