Texas Divorce Frequently Asked Questions
- Does Texas grant divorces based on marital fault?
“Fault grounds” in Texas means there is the existence of certain facts and circumstances by which a court in Texas is authorized under the Texas Family Code to render a divorce.
In Texas, seven grounds for divorce are found in Chapter 6 of the Texas Family Code.
The most commonly used grounds for divorce in Texas is “insupportabilty”. In Texas, insupportabilty means the marriage is no longer supportable due to discord and conflict of personalities and there is no reasonable expectation of reconciliation between the spouses due to such discord and conflict. A divorce on grounds of insupportability requires no showing of “fault” by either spouse.
On the testimony of one of the spouses that the marriage is no longer supportable due to discord and conflict, the Court will grant a divorce to that spouse. There is no way to stop your spouse in Texas from successfully getting a divorce if they seek divorce on the grounds of insupportability.
Another ground for divorce, known as a “fault” ground in Texas is “cruelty”. Cruelty is where the court grants a divorce because one spouse is guilty of such cruel treatment toward the divorcing spouse it renders further living together insupportable.
While often elements of cruel behavior exist in a marriage and in divorce, typically there is no reason to seek divorce on the grounds of cruelty when the grounds of insupportability exist. If insupportability exists, the courts have the ability, to exercise their discretion in dividing the marital estate to compensate a spouse who has been a victim of cruel treatment.
If you believe grounds of insupportability exist, carefully discuss the grounds of cruelty and how such grounds would affect the overall division of your marital estate.
Texas has “adultery” as a fault grounds for divorce. Many clients confuse the definition of adultery and how it will impact a court in deciding the financial issues or in dividing the marital estate. Adultery is specifically defined as the voluntarily sexual intercourse with another who is not your spouse.
While often in a divorce there is adequate proof of inappropriate behavior by a spouse, the evidence rarely arises to the level necessary to prove adultery grounds exist.
The most common evidence is text messages, social media posting, email communications or the observations and report of a private investigator. It is very common to want to track the movements of your spouse utilizing GPS tracking. While there are ways to obtain audio recordings, track the movements of your spouse, and obtain text and email communications legally – it is easy to find yourself in violation of both state and federal law. If you believe that your spouse is engaging in an inappropriate relationship you should consult an experienced family law attorney prior to engaging in these activities as you may find your efforts are wasted, and unnecessary in the overall scheme of things, and could result in you facing either state or federal criminal charges.
Probably the single most misunderstood fault ground in Texas is this, “abandonment”. If I had a dollar for every time a client came to me believing that if they left the residence it would be abandonment, I’d have a million dollars.
In Texas, abandonment is defined as leaving your spouse with the intention of abandonment. In addition, not only does one have to leave with the intention of permanently abandoning your spouse, that spouse must have remained away for at least one year before the court may consider the circumstances as “abandonment”.
Our firm has completed over 1,000 divorces in Texas and I estimate that less than 5 were on the grounds of abandonment. It is rare and yet so feared by spouses in the real world.
Abandonment does not mean vacating your residence because things have become so toxic that you, your spouse, and the children can no longer tolerate the conflict. In Texas, most often, leaving the residence does not constitute abandonment. It’s often the right thing to do. However, while it may impact your case strategy and would not be abandonment, leaving the residence should be carefully analyzed with an experienced family law attorney prior to doing so as it can cause other very significant unintended consequences.
(5) Conviction of a Felony
Another fault grounds for divorce in Texas is when a spouse is convicted of a felony, is imprisoned for more than 1 year, and has not been pardoned.
(6) Living Apart
A court in Texas may grant a divorce if spouses have lived apart for at least three years. This ground is far more common than abandonment. Spouses often separate and find themselves several years later needing to finalize the divorce for various reasons.
(7) Confinement in a Mental Hospital
The last grounds in Chapter 6 of the Texas Family Code in which a Court in Texas may grant a divorce is when the other spouse has been confined in a private or state mental hospital for at least 3 years and the spouse’s mental disorder is not likely to be successfully managed or if so a relapse is probable.
While mental health issues are present in many divorce and custody matters, this ground is rarely used for divorce.
- Is there “No Fault” divorce in Texas?
While Texas courts grant divorce based on one of the fault grounds, it is simply not required. Texas is a “no-fault” divorce state and the Courts in Texas have much discretion and wide latitude in dividing a marital estate between spouses in divorce.
This wide latitude, governed by the standard known as “just and right” in Texas, is loosely defined and allows the court to consider many factors and circumstances of the parties, the estate, and that of the children in dividing the martial estate and in awarding custody.
While fault grounds exist for divorce, it is rare that such grounds are successfully prosecuted in a divorce action in Texas. And, because the courts can consider the bad behavior of a spouse during marriage in determining what is a “just and right division” of the marital estate, most often a divorce is prosecuted on grounds of insupportability where a spouse will present evidence of the offending spouse’s bad behavior.
While many spouses come to me very determined to prove the fault of the other spouse in a divorce, overall doing so may have significant unintended consequences. Proceeding with a divorce on fault grounds, especially from the beginning, should be carefully considered and thoroughly discussed with an experienced family law attorney.
- How Long Does it Take to Get a Divorce in Texas?
The best way to answer to this question is to tell you the minimum time in which a divorce may occur. 6.701 of the Texas Family Code require there be a minimum waiting period of 60 days after the date from which an Original Petition for Divorce is filed. A divorce may not be granted until at least 60 days have passed from the time in which a spouse filed for divorce.
One exception to this rule is when a spouse has been finally convicted of or received deferred adjudication for an offense involving family violence or an active protecting order is pending for the protection of the spouse who filed for divorce based on a finding of family violence. Without this exception, parties must wait at least 60 days before they can finalize their divorce.
While 60 days is the minimum time frame in which a divorce typically lasts, there truly is no maximum duration in which a divorce may be pending in the courts. The more contested issues are and the more conflict between spouses there is, the longer the divorce will last. While I have experienced divorces which lasted more than 1 year, the average time a divorce takes in my experience is between 6 to 8 months.
- Do I have to go to court?
In Texas, regardless whether or not everything is agreed to and signed off by both spouses, an old requirement still exists in the Texas Family Code that requires at least one of the spouses to appear before the Court and give some very basic testimony. This is a “prove up”, where the testimony is informing the court of the final terms of the divorce and requesting the court to grant the divorce on the basis of such terms as agreed upon by the spouses and as presented in the written form known as a Final Decree of Divorce.
Once everything is agreed between the parties, the questions are very simple. One of our attorneys will meet with you and review the questions prior to appearing before the court. While you will be sworn in to testify by the Judge, often a prove is very informal. At a prove up for an agreed divorce, Judges infrequently ask questions and it is rare that the Court does not accept the terms of the divorce as requested and presented at the prove up.
The questions at a prove up require a simple “yes” or “no” answer :
(1) What state and county you lived in prior to filing for divorce;
(2) Were children born or has an adoption occurred during the marriage;
(3) What are the grounds for divorce;
(4) Are the terms with regard to a parenting plan, if applicable, in the best interest of the children;
(5) Are the terms of the division of the marital estate and liabilities a just and right division;
(6) Are you or your spouse restoring their maiden name; and
(7) Are there other collateral matters which need to be covered with the Court.
With one of our attorneys, usually a prove up will take about 60 seconds. Often we will wait in line to appear in front of the judge longer than you will testify.
- What if my spouse does not want the divorce?
Provided that the parties and their property meet all the requirements to conduct a divorce in Texas, known as jurisdiction, as explained in the provision above related to divorcing on the grounds of insupportability, there is no way to stop your spouse from obtaining a divorce from you.
I have often had spouses offer to pay large retainers if I can come up with a way to stop their spouse from divorcing them. Typically, this is for reasons related to their personal faith. I usually explain to them that while a large retainer will allow me, as your attorney, the ability to slow down the process or create obstacles Texas is a “no fault” divorce state and there simply is no way to stop your spouse from divorcing you.
- How long do I have to live in Texas to obtain a divorce?
Under Texas Family Code chapter 6.301, a party or the parties must have been a residence of the State of Texas for at least six months and a resident of the county in which they filed the divorce, to meet the residence requirement to file for divorce.
Given our mobile society today and military service, whether or not a party meets the residence requirement can be complicated. Sometimes, whether or not this requirement is met can be the first battle in a divorce action. This can be expensive from the start and whether this is an issue should be carefully considered and evaluated with an experienced family law attorney.
- What if I am in the military and am only stationed in Texas?
For military personnel, if a party is stationed in Texas and has been stationed at one or more military installations in Texas for at least 6 months and in a military installation within a county for at least 90 days, that party serving in the military but not previously a resident of the State of Texas can meet the residence requirements to file for divorce in Texas. See Texas Family Code 6.304.
- What if I am in the military and out of state?
For military personnel who consider Texas their home state and are stationed outside of Texas at the time of filing for divorce, this consideration can be more complex especially if children are involved. It is strongly recommended that if you are a member of or married to a member of the military and stationed outside of Texas, that prior to filing for divorce either in Texas or the state in which you reside that you consult with an experienced family law attorney.
- How can you reduce the cost of divorce?
It is not necessarily the case that working out terms between you and your spouse privately saves on costs in divorce. I have found most often the opposite is true as spouses rarely understand the land of unintended consequences. I recently was hired on a matter in which the parties worked out a final agreement, wrote down the terms of their settlement, and then went to the court and proved up their divorce. All was good, except that the terms were not written into the Agreed Final Decree of Divorce. One spouse believed that they both had an agreement and then an argument ensued over property and the other spouse engaged an attorney. Because the terms were not properly incorporated into the Final Decree of Divorce, the other spouse had to spend significant legal fees to undo this colossal mistake.
While there are many ways reduce the cost of divorce, the best way is to avoid conflict and take the high road. I can’t tell you how often conflict over the smallest of issues drives up costs and expenses.
Hiring an experienced attorney who shares the philosophy of an agreed divorce, for parties who can avoid conflict and remain transparent, is often the best way to save on costs. Doing so avoids the fear and cost of litigation and each party achieves equity in the final result.
However, sometimes litigation is inevitable and required. And, when litigation is required, there are some practical ways to save on costs with your attorney:
(1) Anticipate Discovery and Organize the Information. Divorce often requires each party to exchange “discovery”, which is the process in which financial records such as banking, retirement, brokerage, stocks or stock options, tax returns, business records, credit cards and other records related to your marital assets and liabilities are exchanged. While a party may request records during the marriage, it is typically the case that at least 3 years of records must be produced. Undoubtedly the number one cost savings would be to anticipate this request and organize these records by the category in which they fall.
(2) Learning to Work Electronically. In combination with rule number 1 above, pay for or use a high end scanner and scan these documents into folders by category and then link them to drop box, google drive, one drive or other cloud based storage service that is secure. By category, I mean for example: a folder labeled “Tax Returns”, “Citibank Credit Card Account 0456”, “Amex Account 56789”, “Mortgage” and so on.
(3) Get Your Business Records Organized. I can’t tell you how much more it cost clients in divorce, with a small business, who do not have well organized records related to their cash flow and management of their business. Not only does it cost time and money on the litigation side, it can cost the client significantly in the valuation on their business. If you have a privately owned business or are a partner or shareholder in a private business, I would strongly suggest you consider hiring a CPA familiar with the Courts and the process of divorce to consult with you in getting your business records streamlined and organized. This will save you countless hours and expense.
(4) Write it down. I find when clients write down their story and put it in a word document or other electronic form I can link up to their file, this is extremely helpful.
(5) Don’t create conflict with your attorney. While this may sound self-serving, attorneys are human too. So infrequent do family law attorneys get “thank you” and kind encouraging comments from clients that we want to work harder for the clients who appreciate what we are doing. For the client constantly blaming the attorney and creating conflict with his or her counsel, that client will likely be billed for everything that is justified and typically no discounts are offered.
However, there is nothing wrong with being firm with your attorney and holding them accountable for strategy, the outcome of hearings, or case management as we are professionals and should be held accountable. I’m simply giving you a tip: be firm, but professional.
(6) Remember that emails add to your billing. When communicating with the office, try to avoid multiple emails per day for multiple days in a row. Often while it may seem that email is cheaper, it honestly can save time and misunderstanding by just making a phone call.
(7) Texting with Your Attorney. I am one who likes to text with clients. Texting can often be more reliable than email. However, remember that texting is usually billed as are email communications. Sometimes it’s easier to have a quick conversation by phone rather than exchange multiple text messages.
(8) Work with your paralegal, gain their confidence, and compliment them. In my office, the paralegals are board certified and are highly experienced in the practice of family law. The billing rate for a paralegal is far less than that of the rate of the attorney and the paralegal is immersed in your file and managing the file day to day. It is okay to communicate only with the attorney; however it may take longer to get return calls or emails, due to court schedules or other requirements in the office.
(9) Review billing statements with the attorney as they are issued. If you have questions about the billing, please ask them as the statements are issued. I, for one, am happy to discuss billing concerns or questions with a client
- Is there legal separation in Texas?
There really is no such thing as a “legal separation” in Texas. While I understand the question, the only way to create a separation where the terms of the separation are “legal” (meaning enforceable by the Courts or by law enforcement), is by entering into an agreed temporary order approved by a court.
If you are trying to achieve a separation and create an agreement with your spouse during that separation, consult with an experienced family law attorney.