Time To Obtain A Divorce
A married couple in Texas seeking a divorce cannot finalize the divorce until at least 60 days from when the documents are officially filed. However, as soon as a Judge, who reviews the divorce, approves the divorce now officially valid. Should there be any disagreement (see below) over any of a myriad of issues (from alimony to custody) then expect the proceedings to take at least 6 months?
Types of Divorces
We’re going to avoid too much terminology but note that there’s a couple major types of divorce in the lone-star state and that’s going to be pretty obvious:
Both parties agree on literally everything. Though it might seem rare (after all the parties are getting divorced) this is the best-case scenario in terms of the best outcome for everyone. As you’ll see, the divorce process can get very messy. This is by far the preferred option as it bypasses much of the nasty, potentially life-ruining elements of divorce.
A default divorce occurs when one party files for divorce and the other just does nothing. Note if you are not the one that filed for the divorce, the process will move forward without you. You can protect yourself by filling out forms (see below) such as an Answer when the process comes.
An uncontested divorce is a combination of the above two. It refers to a divorce that is either an agreed divorce or a default divorce. Though it used to be highly controversial in the states (and elsewhere), Texas now allows for an uncontested divorce. Here’s the catch, several aspects of your divorce must have these aspects of the relationship agreed to and finalized by both parties before this can move forward. Once again, it might sound hard to pull off but this is greatly preferred over continuing down to a trial divorce.
Divorce With A Disabled Spouse
If you’re seeking a divorce with a disabled spouse, then there are many factors that you need to be aware of that will complicate the proceedings. The court will consider disability benefits and income of the spouse in question (including social security disability insurance). You may also be required to pay alimony as the court will consider the needs, education, and employment history of your spouse. Given the complexity and delicate nature of the issue, we’ve created an entire page with information on how to navigate divorce with a disabled spouse.
Is Mediation Required?
In Texas, it is required mediation is, at the very least, attempted before any separation proceedings go to trial. There are a lot of reasons for this but courts are always in the business of avoiding trials where possible. They are expensive for both parties (plus the state) and tie up resources that could be used to give inmates an expedient trial (a constitutional right).
The Divorce Process In Texas
The only key terminology here is the Petitioner vs the Respondent. The petitioner is the one who originally filed for the divorce (i.e. the one that wants the divorce) and the respondent is the other party of the marriage. There are five major parts to the process if the divorce is contested and things can get quite messy.
Filing For Divorce
The spouse that wants the divorce (called the petitioner), files a document with the court known as the Original Petition for Divorce. Already we have our first potential conflict as the respondent has to be “served” with the official papers that notify them of the spouse filing. If both parties are willing to work together, the respondent can find a waiver and forego being officially served with the papers.
At this point in the process, if needed, the spouse filing for a divorce is also allowed to request a temporary restraining order be issued. This temporary restraining order will require that none of the marital assets suddenly disappear before the divorce is finalized. Note that this temporary restraining order will not go into effect immediately. By law, the court has 14 days from this moment to schedule a hearing.
Now that the divorce is underway, the spouse who did not file for the Divorce has a 20 day period to file a document called an Answer. The document guarantees to the respondent that the separation proceedings will not move forward without them.
This is where matters can continue to get ugly if both parties are not in agreement. If either side believes more information should be presented to the court that one of the spouses has not provided, the divorce enters a period known as discovery. This is a good article about the discovery process and its importance to the process. In short, any information that might be pertinent to the proceedings is going to be put on the table. If you or your spouse has a good attorney, they will press for any evidence that could hurt them in the eyes of the court (infidelity, risky behavior..etc).
Divorce Courts in Texas, as well as in every other U.S. state, make attempts to prevent cases from reaching trial. Not only is the cost of trials expensive to the state, but the system is already badly behind in regards to its ability to handle the number of inmates awaiting trial. If mandatory mediation fails, the proceedings go to a pre-trial process and then ultimately to trial.
Custody in the case must be agreed to by both parties (assuming there are children) before an uncontested divorce can be finalized. Should divorce in Texas get to this stage, this will be its messiest and most potentially destructive emotional stage (whether children are involved or not). Both sides will vehemently claim that the other is the less qualified parent of the two.
Even if children are not in the picture, there are concerns about property and financial obligations that may be owed to a spouse.
One of the frustrating things about Texas State Law is they often use words differently, or different words entirely, like other states. In the lone star state custody (as it’s referred to in other states) is a ‘conservator’–a term that has a different meaning in other states. Custody is going to depend on different factors with the primary factor in which one parent is awarded sole custody after a divorce being whether one parent engaged in behavior that would endanger the child’s life (or is engaging in risky behavior that could lead to a dangerous outcome down the road).
The courts have the power to award custody to one parent if the judge is convinced one way or another. However, by official state law, the penal code tries its best to award shared custody between the parents. For more information and education about the issue, check out our full article on the page regarding updated custody laws in Texas.
Is Alimony Guaranteed In Texas?
We’ll almost certainly have a standalone post soon regarding alimony but the answer is it depends. This is an area that has been in the cross-hairs of many men’s rights groups across the country and has received increasing media attention as the shift in employment status by gender has shifted radically in recent decades. Currently, alimony is only in play under two general conditions.
One Spouse Was Convicted of Family Violence
This one is fairly straightforward. If the marriage is less than 10 years old then alimony is not awarded in Texas except under this specific circumstance: the paying spouse is convicted (not just accused) of family violence.
The Marriage Is 10 Years or More At The Time of Divorce
Ok let’s say the marriage did last at least ten years, now alimony is in play if one spouse cannot support themselves financially due to one of the following three criteria:
- The spouse seeking alimony is unable to support themselves due to some type of handicap relating to debilitating physical limitations or mental ability.
- The spouse seeking alimony has a requirement to look after children (or others in need of care) that requires them to stay home (and thus unable to work).
- Perhaps the most controversial, especially in Texas, the spouse simply lacks the requisite skills to be able to earn enough to provide themselves with minimal needs. However this also includes assets, such as property, that might have been gained/lost during the divorce process. Considering Texas’ costly property tax, it’s certainly something to consider.
Marital property concerns the question of which spouse owns what. Every state has to view ownership of goods, in general, as owned by the couple and not any individual within the marriage. However, Texas is one of nine states that utilize a “Community Property Jurisdiction” standard. This standard means that shared assets are only counted as shared if they are accrued during the marriage. For example, if one has a large family inheritance that is still the owner of the one with the inheritance. However, from the moment the two are married any assets acquired by the couple are now going to be counted as being mutually owned.
Another point of clarification is that property in the term ‘Marital Property’ doesn’t mean just real estate but all assets owned by the couple. This includes furniture, cars, and even retirement benefits earned during the marriage. There are some exceptions so read our full article on Marital Property in Texas for a full deep dive on the subject.
Recent Divorce Laws
In the most recent session 87(R), or spring of 2021, only a couple of bills concerning divorce were proposed. One bill HB 3005 sought to alter how annulment is dealt with under a concealed divorce. However, that bill failed to make it out of the Senate Committee. Meanwhile, H.B. 1013, sought to make sure that the state verified the date of a marriage on the decree of divorce (see above). This bill passed the house and made it out of the Senate committee, however, the bill was never voted on by the Senate.