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Texas Divorce Laws
Residency and Filing Requirements:In order to file for a divorce in Texas, residency requirements must be met for the court to accept the case. If the court discovers it does not have jurisdictional rights to hear the case it will not be accepted or it will eventually be dismissed. The requirements are as follows:
A suit for divorce may not be maintained in this state unless at the time the suit is filed either the petitioner or the respondent has been: (1) a domiciliary of this state for the preceding six-month period; and (2) a resident of the county in which the suit is filed for the preceding 90-day period. If one spouse has been a domiciliary of this state for at least the last six months, a spouse domiciled in another state or nation may file a suit for divorce in the county in which the domiciliary spouse resides at the time the petition is filed.
A person not previously a resident of this state who is serving in the armed forces of the United States and has been stationed at one or more military installations in this state for at least the last six months and at a military installation in a county of this state for at least the last 90 days is considered to be a Texas domiciliary and a resident of that county for those periods for the purpose of filing suit for dissolution of a marriage. (Texas Code - Family Code - Chapters: 6.301)
Grounds for Filing:The Petition for Divorce must declare the appropriate Texas grounds upon which the divorce is being sought. The appropriate lawful ground will be that which the parties agree upon and can substantiate, or that which the filing spouse desires to prove to the court. The divorce grounds are as follows:
NO FAULT. on the petition of either party to a marriage, the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.
CRUELTY. the court may grant a divorce in favor of one spouse if the other spouse is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable.
ADULTERY. the court may grant a divorce in favor of one spouse if the other spouse has committed adultery.
CONVICTION OF FELONY. the court may grant a divorce in favor of one spouse if during the marriage the other spouse: (1) has been convicted of a felony; (2) has been imprisoned for at least one year in the State Penitentiary, a Federal Penitentiary, or the penitentiary of another state; and (3) has not been pardoned. (b) The court may not grant a divorce under this section against a spouse who was convicted on the testimony of the other spouse.
ABANDONMENT. the court may grant a divorce in favor of one spouse if the other spouse: (1) left the complaining spouse with the intention of abandonment; and (2) remained away for at least one year.
LIVING APART. the court may grant a divorce in favor of either spouse if the spouses have lived apart without cohabitation for at least three years.
CONFINEMENT IN MENTAL HOSPITAL. the court may grant a divorce in favor of one spouse if at the time the suit isfiled: (1) The other spouse has been confined in a state mental hospital or private mental hospital, as defined in Section 571.003, Health and Safety Code, in this state or another state for at least three years; and (2) it appears that the hospitalized spouse's mental disorder is of such a degree and nature that adjustment is unlikely or that, if adjustment occurs, a relapse is probable. (Texas Code - Family Code - Chapters: 6.001-6.007)
Restoration or Name Change:In a decree of divorce or annulment, the court shall change the name of a party specifically requesting the change to a name previously used by the party unless the court states in the decree a reason for denying the change of name. The court may not deny a change of name solely to keep the last name of family members the same. A change of name does not release a person from liability incurred by the person under a previous name or defeat a right the person held under a previous name. (Texas Code - Family Code - Chapters: 45.105, 45.106)
Filing Spouse Title:Petitioner. The Petitioner is the spouse who initiates the filing procedure with the family law or domestic relations court.
Non-Filing Spouse Title:Respondent. The Respondent is the spouse who does not file the initial divorce papers, but rather receives them by service.
Court Name:In the District Court of __________ County, Texas, __________ Judicial District. This is the Texas court where the divorce will be filed. The court will assign a case number and have jurisdictional rights to facilitate and grant the orders concerning, but not limited to: property and debt division, support, custody, and visitation. The name of the court is clearly represented at the top of all documents that are filed.
Primary Documents:Petition for Divorce and Decree of Divorce. These are the essential documents needed to start and finalize a divorce according to Texas law. There are anywhere from ten to twenty other documents that may be required throughout the filing process. A few other documents that are typically filed during the process are: Verification, Marital Settlement Agreement, and Financial Affidavit and Child Support Worksheet.
Court Clerk's Title:District Clerk's Office. The clerk or the clerk's assistants will be the people managing your paperwork with the court. The clerk's office will keep the parties and the lawyers informed throughout the process in regards to additional paperwork that is needed, further requirements, and hearing dates and times.
Property Distribution:Texas is a "Community Property" state. Community property is all property that was acquired during the marriage. This property will be divided equally (50-50) by the court if the parties are not able to come to an agreement.
In a decree of divorce or annulment, the court shall order a division of the estate of the parties 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.
(a) in addition to the division of the estate of the parties required by Section 7.001, in a decree of divorce or annulment the court shall order a division of the following real and personal property, wherever situated, 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:
(1) property that was acquired by either spouse while domiciled in another state and that would have been community property if the spouse who acquired the property had been domiciled in this state at the time of the acquisition; or
(2) property that was acquired by either spouse in exchange for real or personal property and that would have been community property if the spouse who acquired the property so exchanged had been domiciled in this state at the time of its acquisition.
(b) in a decree of divorce or annulment, the court shall award to a spouse the following real and personal property, wherever situated, as the separate property of the spouse:
(1) property that was acquired by the spouse while domiciled in another state and that would have been the spouse's separate property if the spouse had been domiciled in this state at the time of acquisition; or
(2) property that was acquired by the spouse in exchange for real or personal property and that would have been the spouse's separate property if the spouse had been domiciled in this state at the time of acquisition.
(c) in a decree of divorce or annulment, the court shall confirm the following as the separate property of a spouse if partitioned or exchanged by written agreement of the spouses:
(1) income and earnings from the spouses' property, wages, salaries, and other forms of compensation received on or after January 1 of the year in which the suit for dissolution of marriage was filed; or
(2) income and earnings from the spouses' property, wages, salaries, and other forms of compensation received in another year during which the spouses were married for any part of the year. (Texas Code - Family Code - Chapters: 7.001-7.006)
Pension and Retirement Accounts:In a decree of divorce or annulment, the court shall determine the rights of both spouses in a pension, retirement plan, annuity, individual retirement account, employee stock option plan, stock option, or other form of savings, bonus, profit-sharing, or other employer plan or financial plan of an employee or a participant, regardless of whether the person is self-employed, in the nature of compensation or savings.
Spousal Support:Not all cases involve support from one spouse to the other. The obligation of one spouse to support the other financially for a temporary or permanent basis is decided on a case-by-case basis as agreed to by the parties or at the court's discretion.
In a suit for dissolution of a marriage or in a proceeding for maintenance in a court with personal jurisdiction over both former spouses following the dissolution of their marriage by a court that lacked personal jurisdiction over an absent spouse, the court may order maintenance for either spouse only if:
(1) the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence under Title 4 and the offense occurred: (A) within two years before the date on which a suit for dissolution of the marriage is filed; or (B) while the suit is pending; or
(2) the duration of the marriage was 10 years or longer, the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under this code, to provide for the spouse's minimum reasonable needs, as limited by Section 8.054, and the spouse seeking maintenance: (A) is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability; (B) is the custodian of a child who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home; or (C) clearly lacks earning ability in the labor market adequate to provide support for the spouse's minimum reasonable needs, as limited by Section 8.054.
A court that determines that a spouse is eligible to receive maintenance under this chapter shall determine the nature, amount, duration, and manner of periodic payments by considering all relevant factors, including:
(1) the financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse's ability to meet the spouse's needs independently;
(2) the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment, the availability of that education or training, and the feasibility of that education or training;
(3) the duration of the marriage;
(4) the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;
(5) the ability of the spouse from whom maintenance is requested to meet that spouse's personal needs and to provide periodic child support payments, if applicable, while meeting the personal needs of the spouse seeking maintenance;
(6) acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;
(7) the comparative financial resources of the spouses, including medical, retirement, insurance, or other benefits, and the separate property of each spouse;
(8) the contribution by one spouse to the education, training, or increased earning power of the other spouse;
(9) the property brought to the marriage by either spouse;
(10) the contribution of a spouse as homemaker;
(11) marital misconduct of the spouse seeking maintenance; and
(12) the efforts of the spouse seeking maintenance to pursue available employment counseling as provided by Chapter 304, Labor Code. (Texas Code - Family Code - Chapters: 8.001-8.055)
Child Custody:When minor children are involved in a divorce, the Texas courts will do everything possible to help lessen the emotional trauma the children may be experiencing. If the parents cannot come to an agreement regarding the issues involving the children, the court will establish the custody order at its discretion.
(a) the court will strive to promote the amicable settlement of disputes between the parties to a suit, the parties may enter into a written agreement containing provisions for conservatorship and possession of the child and for modification of the agreement, including variations from the standard possession order.
(b) if the court finds that the agreement is in the child's best interest, the court shall render an order in accordance with the agreement.
(c) terms of the agreement contained in the order or incorporated by reference regarding conservatorship or support of or access to a child in an order may be enforced by all remedies available for enforcement of a judgment, including contempt, but are not enforceable as a contract.
(d) if the court finds the agreement is not in the child's best interest, the court may request the parties to submit a revised agreement or the court may render an order for the conservatorship and possession of the child.
If a written agreement of the parents is filed with the court, the court shall render an order appointing the parents as joint managing conservators only if the agreement:
(1) designates the conservator who has the exclusive right to designate the primary residence of the child and: (A) establishes, until modified by further order, the geographic area within which the conservator shall maintain the child's primary residence; or (B) specifies that the conservator may designate the child's primary residence without regard to geographic location;
(2) specifies the rights and duties of each parent regarding the child's physical care, support, and education;
(3) includes provisions to minimize disruption of the child's education, daily routine, and association with friends;
(4) allocates between the parents, independently, jointly, or exclusively, all of the remaining rights and duties of a parent provided by Chapter 151;
(5) is voluntarily and knowingly made by each parent and has not been repudiated by either parent at the time the order is rendered; and
(6) is in the best interest of the child.
A child 12 years of age or older may file with the court in writing the name of the person who is the child's preference to have the exclusive right to designate the primary residence of the child, subject to the approval of the court. (Texas Code - Family Code - Chapters: 5-153.004-153.434)
Child Support:Texas child support guidelines uses the Percentage of Income Formula which calculates the support obligation as a percentage of the income of the non-custodial parent who is obligated to support the child. This method simply applies a percentage to the income of the parent according to the number of children requiring support.
The court may order either or both parents to support a child in the manner specified by the order:
(1) until the child is 18 years of age or until graduation from high school, whichever occurs later;
(2) until the child is emancipated through marriage, through removal of the disabilities of minority by court order, or by other operation of law;
(3) until the death of the child; or
(4) if the child is disabled as defined in this chapter, for an indefinite period.
The court may order either or both parents to make periodic payments for the support of a child in a proceeding in which the Department of Protective and Regulatory Services is named temporary managing conservator. In a proceeding in which the Department of Protective and Regulatory Services is named permanent managing conservator of a child whose parents' rights have not been terminated, the court shall order each parent that is financially able to make periodic payments for the support of the child.
In a Title IV-D Case, if neither parent has physical possession or conservatorship of the child, the court may render an order providing that a nonparent or agency having physical possession may receive, hold, or disburse child support payments for the benefit of the child. (Texas Code - Family Code - Chapters: 154.001-154.309)
Copyright Notice: The above synopsis of Texas divorce laws is original material which is owned and copyrighted by Divorce Source, Inc. This material has been adapted from applicable state laws and unauthorized reproduction is prohibited. Violation of this notice will result in immediate legal action.
Texas refers to custody as conservatorship and possession of a child. Texas law assumes that awarding joint conservatorship is in the best interests of the child. This would pertain to joint legal conservatorship, not necessarily physical conservatorship. The court defines the rights and obligations of each parent. Living arrangements are often designated to the parent that has been the primary caretaker of the child.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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