In Texas family law, filing for divorce requires six months' residency in the state and 90 days' residency in the county of filing. There are other requirements if the parties have minor children, if one lives out of state, or if there are allegations of family violence.
This article provides an overview and explanation of divorce laws in the state of Texas.
Summary of Texas Divorce Laws
|Section 6.001 et seq. of the Texas Family Code
|Must be a resident of the state for six months before filing, and a resident in the county where filed for at least 90 days before filing
|60 days from when the suit was filed. Neither party may remarry before the 31st day after the decree is signed (may be waived by the court)
'No-Fault' Grounds for Divorce
- Separation ("insupportability" or living apart for at least three years). Marriage is insupportable due to discord.
Defenses to a Divorce Filing
|Condonation when reasonable expectation of reconciliation (and then it is the court's discretion)
Other Grounds for Divorce
- Cruelty or violence
- Abandonment/desertion (one year)
- Insanity (confined for at least three years)
- Conviction of felony
- Imprisonment for at least one year (unless spouse testifies against convicted spouse)
Note: State laws are always subject to change through the passage of new legislation, rulings in the higher courts (including federal decisions), ballot initiatives, and other court rulings. While we strive to provide the most current information available, always consult an attorney or conduct your own legal research to verify the state law(s) you are researching.
Each state has its own divorce laws. These laws cover issues such as property division, child custody, and spousal support. FindLaw has a general explanation of divorce rules in An Overview of No-Fault and Fault Divorce Law. Since every state's rules are slightly different, this overview gives you an idea of the terms and types of divorce laws.
Divorce in Texas: Fault and No-Fault
Like most states, Texas does not require parties to prove "fault" when granting a divorce. The parties in a no-fault divorce need only state that the marriage is "insupportable" due to "discord or conflict of personalities," and there is no hope of reconciliation. This language does not blame either party.
Divorces used to require proof that one party had done something to irretrievably harm the marriage. In times past, private detectives would hide outside seedy motels to catch erring husbands or wanton wives with their lovers to provide evidence for the divorce courts. Today, at-fault evidence is unnecessary for a divorce, but it affects alimony, property division, and child support.
The party claiming fault must prove one or more of these factors:
- Insupportability. Also known as "irreconcilable differences," this is the no-fault formula for divorce. It simply means the parties can no longer live together.
- Separation. Separation means living apart and not cohabiting for more than three years.
- Institutionalization. Placement in a mental hospital or other facility is grounds for divorce. The patient may receive guardianship to protect their property rights.
- Cruelty. Proving cruel treatment can be difficult because it is very subjective. The statute is much broader than domestic violence. It must be intentional, continuous behavior intended to cause physical or emotional suffering.
- Adultery. A spouse no longer needs a private detective's videotape to prove adultery, but they will need some positive proof of the behavior. Adultery can impact the division of property and child custody.
- Felony conviction. Felony conviction and incarceration for more than one year during the marriage may be grounds for a fault-based divorce. Domestic violence may come into play here. There must be proof for conviction of a felony and incarceration, not merely the spouse's allegation.
- Abandonment. If a spouse leaves intentionally and does not return, the other spouse may file a fault-based divorce after one year. This differs from separation, where the parties are simply not living together, or a legal separation, in which the spouses have divided their property and live apart. In an abandonment, one party has left with no intention of returning.
Texas courts allow defenses to divorce only where there is a "reasonable expectation of reconciliation." In most contested divorces, there is almost no expectation of the couple reconciling.
Property and Support
Texas is one of nine community property states. In community property states, the court divides the couple's marital property evenly between the parties during the divorce. Each party keeps their own separate property.
Community property is all property acquired during marriage. This includes joint bank accounts and anything purchased to improve the marital home. For instance, if one partner paid for the new roof on the couple's house, it is community property.
Wages earned during the marriage may also be community property. The spouse may be the beneficiary of any insurance policies or retirement plans their partner acquires during the marriage. The divorce papers describe these financial plans in detail.
Separate property is everything owned by each person before marriage and obtained after the couple separates before divorce. Gifts, inheritances, and some personal injury awards are also separate property. Prenuptial agreements keep community property separate from marital property during a divorce.
Spousal Maintenance (Alimony)
Alimony, called spousal maintenance in Texas, was formerly awarded to wives who had never worked and had no other means of support. Like many states today, Texas rarely awards alimony. The petitioner must show they cannot earn sufficient income to meet their "minimum reasonable needs."
Courts may grant spousal support when:
- The requesting spouse has a physical or mental disability that prevents them from working;
- The requesting spouse is the primary caregiver of a special-needs child;
- The marriage was more than 10 years duration; or
- The paying spouse was convicted of domestic violence within two years of the divorce petition.
Spousal maintenance terminates after a certain amount of time, depending on the length of the marriage. The paying spouse must petition the court for any change in the amount.
Child support comes from the child custody order and the best interest of the child. The parents report their net monthly income as a starting point. The amount of time the child spends with each parent is part of the calculations. Family courts work with both parents to ensure that child support court orders are reasonable for all parties.
Research the Law
Texas Divorce Laws: Related Resources
Get Professional Legal Help With Your Texas Divorce Case
If you need legal advice on your divorce, you want divorce lawyers in your state and your county. Divorce is hard on everyone, and both parties should have legal counsel. From the petition to the final decree of divorce, you need an attorney who can explain the divorce proceedings and ensure all documents are in order.
Get started now by contacting a Texas divorce attorney near you.