FAQ

Getting Divorced In Texas? Frequently Asked Questions

The decision to file for divorce can be one of the most difficult and emotionally challenging decisions you may ever have to make. Many clients have questions about what to expect from the divorce process. Below is a list of frequently asked questions about divorce in Texas. If you have questions that aren’t answered here, or wish to speak with an experienced Texas divorce attorney, contact the attorneys of Scott M. Brown & Associates today.

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1. How does the divorce process begin?

A divorce begins with the filing of a document called the Original Petition for Divorce with the court of proper jurisdiction. The person who files for divorce is called the Petitioner; his or her spouse is called the Respondent. Once a Petitioner has filed for divorce, notice must be given to the Respondent. This can be accomplished several ways, but is most often accomplished by having the Respondent served with a copy of the Original Petition for Divorce or having the Respondent sign a Waiver of Service.

2. How long does it take to get divorced?

In Texas, a divorce cannot be granted until the Original Petition for Divorce has been on file with the court for at least sixty (60) days. If the Petitioner and Respondent agree to all issues in the divorce (child support, custody and visitation, division of property and debts, etc.), a divorce in Texas can be granted on the 61st day after the Petition is filed. The process can be much longer if the parties cannot reach an agreement with respect to all the issues. In this case, the divorce may take several months to be finalized. In certain situations, the 60-day waiting period can be waived.

3. Where do I file for divorce?

To file a suit for divorce in Texas, either the Petitioner or Respondent must have been a resident of the State of Texas for six months before he or she files for divorce. Further, the suit must be filed in the Texas county in which either the Petitioner or Respondent has lived for the 90-day period preceding the filing of the Petition.

4. Do I have to prove fault to get a divorce in Texas?

Texas is a no-fault state; Thus, it is not necessary to prove fault to get divorced in Texas. Divorces in Texas can simply be granted on the grounds of insupportability, meaning that there is marital discord or conflict of personalities for which no reasonable expectation of reconciliation exists. However, fault grounds may also be pled. Adultery and cruel treatment are some examples of a fault ground for a Texas divorce.

5. What if my spouse doesn’t want to get divorced or feels we will reconcile?

In Texas, all it takes is for one spouse to feel that there is no reasonable expectation of reconciliation. If one spouse provides testimony that a reconciliation is not reasonably expected, a court has the power to grant the divorce.

6. What can I expect from the divorce process?

The more agreements you can reach with your spouse, the faster your divorce will be. If you and your spouse reach an agreement on all the issues in the case, you both will sign an Agreed Final Decree of Divorce. This document is an order from the court detailing the rights and duties of the Petitioner and Respondent, divides any property and debts, and may provide for child support and visitation if children are involved. At least one party will then be required to appear in Court to answer a series of questions under oath. The judge will review the decree. If children are involved, make a determination that the provisions of the Decree are in the best interest of the children. If property is involved, the judge will review the terms of the decree to ensure that the property is divided in a just and equitable manner. Once the judge approves the final decree, the divorce is granted and finalized. When an agreement cannot be reached between the parties, the divorce process may be significantly longer. In this case, the parties will appear before a judge, give testimony and often have witnesses give testimony. The judge will then decide all remaining issues based on the testimony given and evidence presented, and issue a final order.

7. How is property divided in a Texas divorce?

Texas is a community property state. Texas classifies property as either community property or separate property. Community property is defined as all property that was acquired during the marriage, including income from employment earned during the marriage. Separate property is all property that was owned prior to marriage or that was acquired during the marriage by gift or inheritance. In a Texas divorce, only the community property is subject to division. Many clients mistakenly believe that community property must be divided 50-50. However, Texas law only requires that the community property be divided in a way that is “just and equitable.” Therefore, a 50-50 division of community property is neither guaranteed nor required.

8. How much child support will I receive or be required to pay?

The amount of child support a court will order depends on a number of factors including the needs of the children, the payor’s net resources/income and the number of children the payor has a duty to support. In most cases, child support is calculated using a formula contained in the Texas Family Code. Under the Family Code, the following amounts are considered in the best interest of the child/children:

• One child: 20 percent of the payor’s net resources
• Two children: 25 percent of the payor’s net resources
• Three children: 30 percent of the payor’s net resources
• Four children: 35 percent of the payor’s net resources
• Five children: 40 percent of the payor’s net resources
• Six or more children: Not less than 40 percent of the payor’s net resources

9. When is my divorce final?

The divorce is finalized when the judge approves and signs a document called the Final Decree of Divorce.

10. Do I have to wait to get married again?

Texas requires a person wait at least thirty (30) days after the divorce is granted before he or she can marry.

11. If my divorce is not yet finalized, can I move my children to another state?

While judges typically will order a geographic restriction during a divorce, it may be allowable if a separation agreement, or temporary order, is in place. If the separation includes provisions that allow for moving the child’s residence, you may be free to do so without causing problems with your divorce case.

12. If my spouse files for divorce, can I keep my home, car and personal property?

In Texas, spouses are typically entitled to an “equitable” share of any community and marital assets like real estate, cars, and other property obtained during the marriage. Property that was owned prior to the couple’s marriage may be exempt from divorce proceedings in certain cases, but if the property is considered to be a “shared asset,” it may be included in the divorce settlement.

13. What is paternity testing and what is its purpose?

Paternity testing is a medical procedure that is used to identify the parents of a child, usually the father. Where there is some question regarding the identity of the child’s father, DNA testing will prove parentage with 99.99 percent accuracy. This is more than sufficient for the court to make a finding of paternity.

The procedure is simple and inexpensive. The parties appear at the testing facility with photo identification and some cells are gathered from the inside of each person’s cheek with a cotton swab. This material is then sent off to a laboratory and results are usually available within a few days.

14. Can the Court deny a motion for genetic testing to determine the parentage of a child?

Yes. The Texas Family Code grants the trial judge the authority to do so under certain circumstances. You should consult with a competent family law attorney on this complicated issue.

15. If there is no presumed, acknowledged or adjudicated father, is there a time limit to bring an action to adjudicate parentage?

No. The action may be brought after the child becomes an adult or even after a prior proceeding has been dismissed based on the application of a statue of limitation.

16. Is there a time period within which a presumed father must bring an action to disprove that he is the child’s father?

Such a proceeding must be commenced no later than the fourth anniversary of the child’s birth. However, an action may be brought at any time if the presumed father and mother of the child did not live together or engage in sexual intercourse during the probable time of conception and the presumed father never represented to others that the child was his own.

17. If a man’s name appears on the child’s birth certificate, does that conclusively establish him as a child’s father?

No. He is presumed to be the child’s father but the presumption may be rebutted if genetic testing proves that he is not. Also, if the presumed father files a denial of paternity in conjunction with the filing by another person of an acknowledgment of paternity, that will destroy the presumption

18. If the alleged father is not available for testing, how can paternity be established?

The court may order the parents, the brothers or sisters of the man, any other children of the man and their mother and any other relatives of the man necessary to complete testing. The court may even order genetic testing on a deceased individual

19. How much DNA evidence is required to prove paternity?

A man is reputably identified as the father of a child if the results of the testing disclose that he has at least a 99 per cent probability of paternity. A man so identified may request further testing if he pays for it in advance.

Ninety-nine per cent is well above the usual civil evidentiary standard of a preponderance of the evidence.

20. If the court orders mediation but one party refuses to go, can the court order them in spite of their objections?

If a party objects to mediation, they must file a written objection within ten days of receiving notice from the court. Upon hearing, if the court determines that there is a reasonable basis for the objection, it may not order the party to mediation. The court may not force a party to mediation without giving them the ten day period in which to file written objections. Where a party does not file written objections but refuses to mediate in good faith, the court may assess costs against the party acting in bad faith.

21. If one party decides to renege on the mediated settlement agreement, what action can the court take?

If the mediated settlement agreement is properly drafted, it will provide that it is irrevocable. In other words, once a party signs the agreement, they cannot unilaterally withdraw their consent. If the parties agree to modify the terms of the agreement, there is no reason that it cannot be done unless it concerns the children and the court finds that the proposed changes are not in the best interest of the child.

22. How can a mediated settlement agreement be enforced?

Depending on the type of settlement, there are many ways to enforce a mediated settlement agreement. If the issue is child support, it can be enforced by a petition for enforcement which could mean jail time for the respondent if the court finds him in contempt. If the issue is property, a similar enforcement action may be appropriate although without the remedy of incarceration. Each case should be evaluated on its merits to determine the proper procedure.

23. Is mediation confidential?

The mediator cannot be subpoenaed nor compelled by court order to appear and testify at any trial or hearing. While evidence is not put on at mediation, it may be helpful for a party to disclose to the other side certain information that it deems advantageous for them to know. This is particularly true if that information is embarrassing to that party. Nothing that is said at mediation can be admitted in trial without the consent of the parties. If the mediator is asked not to disclose certain information to the other party, he will not do so.

24. Does a court have the authority to order a person to undergo DNA testing?

Yes. The court has the authority and failure to comply may result in a finding of contempt. Typically, the court will conduct a hearing and order the testing at that time. If a party fails to appear at the hearing, the court will probably order it anyway.

25. Is a child born during the marriage automatically assumed to be the child of the parents?

There is a rebuttable presumption that children born during the marriage are the biological children of the parents. This presumption may be rebutted by DNA testing.

26. Will I still have to go to court if the case settles in mediation?

It depends on the type of case. In divorce cases, normally at least one party has to attend a hearing and have the court render and sign the Final Decree of Divorce. The mediator will prepare a mediated settlement agreement that outlines the terms of the settlement. This is filed with the court but a formal order for the judge’s signature must also be prepared, signed by both parties and their counsel and submitted to the court. If no testimony is and if no testimony is required, the signed order can simply be filed with the court and signed at the judge’s convenience.

27. Is mediation expensive?

This depends on the issues involved, the length of the mediation and the hourly rate charged by the mediator. The costs for the mediator can range from $450.00-$500.00 for a half day of mediation to $900.00-$1000.00 or more for a full day of mediation. Mediators who are retired or former judges tend to charge more and their insights from years on the bench may validate the additional cost. A typical divorce without a custody dispute can usually be resolved in one eight hour session or less. The costs may seem high but the cost of a trial coupled with the uncertainty of the outcome mitigate in favor of mediation.

28. How is mediation conducted?

Typically in a family law case, there is not a joint session with both parties present at the same table. Normally the parties and their attorneys will be in separate rooms and the mediator will go back and forth from one party to another, trying to assist the parties in resolving their issues. Most are scheduled for half day sessions but if the issues are strongly contested or there are complex property issues, it may take longer.

29. How is the divorce mediator chosen?

Normally, the parties agree on a mediator relying on their attorney’s recommendation. The court will appoint a mediator if the parties cannot agree. The person chosen must have completed specialized training both as a mediator and in family law to be qualified as a mediator. Some counties have Dispute Resolution Centers that offer mediations at rates below those charged by private mediators but some of these mediators are not attorneys which may be problematical.

30. In a common law marriage, if one spouse receives an inheritance or gift, does the other spouse have any claim or right to a share of the inheritance or gift?

No. Property received by gift, devise or descent is that person’s separate property as a matter of law. Property owned by a party prior to marriage is also separate property as is compensation for personal injuries, other than lost earnings. However, any income produced by that separate property is considered community property. Any increase in the value of the separate property is an inherent part of that property and remains separate. If the separate property is in the form of cash, it should be segregated in a separate account and not commingled with community funds to avoid tracing problems in the event of a divorce.

31. If a common law husband leaves his wife, is she entitled to receive support from him?

Yes. The Texas Family Code places a duty on each spouse to support the other. If one spouse leaves and refuses to provide support, he or she is liable to any person who provides necessaries to the remaining spouse. Necessaries are such things as food, clothing and shelter. In a divorce action, this duty may extend to paying the other spouse’s attorney’s fees which Texas case law defines as necessaries.

Generally, one person cannot be held liable for the debts of another person unless there is a written agreement to that effect. However, the courts have held that the support obligation is not a debt but an obligation that arises out of the status of the parties. While the marriage relationship alone does not make one spouse the general agent of the other , it does give an unsupported spouse the agency to purchase and contract for necessaries for which the other spouse will be liable.

32. If one spouse in a common law or informal marriage leaves Texas, can the other spouse file for divorce in Texas?

Yes. The Texas court does not lose jurisdiction simply because one party has departed the state. An Original Petition for Divorce is filed in the county of the remaining spouse’s residence and a citation is prepared by the district clerk’s office. A copy of the Original Petition with the citation attached is sent to the sheriff or constable in the county of the state where the departed spouse can be found. They are served with the Original Petition and citation and must file a written answer. The serving officer will forward a return of proof of service to either the attorney requesting service of to the court directly.

However, the suit must be commenced within two years of the parties ceasing to live together or a rebuttable presumption arises that the parties did not intend to be married which is one of the three elements required to prove a common law marriage.

33. Does Texas recognize same sex marriages from other states as valid?

Generally, matrimonial proceedings conducted in other states such as divorces, child support orders, adoptions, etc are recognized in Texas due to the full faith and credit clause in the United States Constitution. These orders can be registered in the district clerk’s office and enforce or modified just as any Texas order.

34. Can two people of the same sex enter into a common law or informal marriage in Texas?

The Texas Family Code expressly states that same sex marriages or civil unions are contrary to the public policy of the State and are not recognized as valid marriages. The counties are not permitted to issue marriage licenses to persons of the same sex. Even if one of the parties has undergone surgical procedures to acquire the physical characteristics of the opposite sex, i.e. a transsexual, the courts have held that such persons are not legally entitled to marry. Therefore, any such marriage is invalid as a matter of law.

35. Is there any documentation required for a common law marriage?

Persons desiring to give their relationship some official status without a traditional marriage may wish to file a declaration of informal marriage with the county clerk. Both parties must appear in the office of the county clerk and complete a Declaration of Informal Marriage. The form must be completed in the presence of the county clerk and signed under oath.

Both persons must be over eighteen years of age and proof of identity and age is required at the time that the declaration is filed. The parties must provide proof of identity and age such as a birth certificate, voter’s registration card or driver’s license. It is a criminal offense to provide false or inaccurate information concerning age or identity. The county clerk will execute the clerk’s certificate and record the Declaration in the county records. The original Declaration is returned to the parties and a copy sent to the bureau of vital statistics. This is sufficient to place the public on notice that the parties are married.

36. What is a common law marriage?

A common law marriage is accomplished when the couple meets three criteria; first, they must cohabitate in Texas, secondly, they must hold themselves out, or represent to the public that they consider themselves married and finally, they must have an agreement between themselves that they are husband and wife. There is no time limit to establish a common law marriage-it can be established in just a few minutes, much like a ceremonial marriage performed at the justice of the peace.

Persons under the age of eighteen cannot enter into a valid common law marriage without the consent of a parent, guardian or managing conservator. An exception to this would be where the minor has had a prior marriage dissolved by divorce, death or annulment since the prior marriage emancipated them.

Common law marriage is just as legally binding as a ceremonial marriage. It does not require the purchase of a marriage license. While some states do not recognize common law marriage, Texas does. It can only be terminated by death, divorce or annulment.

37. How can I enforce the final decree of divorce?

The remedy is to file a motion to enforce the division of property and seek to have the non-complying spouse held in contempt or obtain a money judgment against them equal to the amount of the unpaid debt plus attorney’s fees and court costs.

38. If my children want to live with me, does the court take their wishes into consideration?

If the child is twelve or older, one of the parties may elect to ask the judge to interview the child in his or her chambers. If the child is under the age of twelve, an amicus attorney may be appointed to represent the child and the amicus attorney may relay the child’s wishes to the court.

39. Do divorce cases have to be tried like other lawsuits?

Usually not. Since alternative dispute resolution became widely used, very few divorce cases go to trial. The overwhelming majority are resolved through mediation or other methods. Occasionally, the parties agree without outside help to settle their disputes. Most Texas courts require mediation before trial. Some counties require mediation before even hearing temporary orders.

40. Can my attorney accept service on my behalf?

Yes. With our client’s permission, we will accept service by mail or fax and file the appropriate responses with the court and copy the opposing counsel.

41. Must a party be served with divorce papers by a process server or constable?

No. A party can sign a written Waiver of Service which eliminates the need for formal service of the documents. The Waiver can provide that the party does not waive their rights regarding division of property, child custody or other matters. In most cases, it simply eliminates the need for formal service.

42. What must be done to begin the divorce process?

In Texas, the procedure begins with the filing of an Original Petition for Divorce. Depending on the circumstances, it may be advisable to file a Temporary Restraining Order or TRO also. The purpose of the TRO is to maintain the status quo regarding property, custody of the children, child support, etc. This prevents the parties from making large purchases, selling or otherwise disposing of community assets. The TRO along with the Original Petition for Divorce is served on the other spouse either by a process server or a constable.

The TRO is effective for fourteen days and may be extended for an additional fourteen days. Usually a hearing is held after the initial fourteen day period and the TRO becomes a Temporary Injunction which is effective until the Final Decree of Divorce is agreed upon.

43. How long is the waiting period before the divorce is finalized?

The court will not enter a final decree of divorce until the Original Petition for Divorce is on file for at least sixty days.

44. What are the residency requirements to file for divorce in Texas?

A person must reside in Texas for six months prior to filing and ninety days in the county of suit before suit is filed.