Divorce is a matter of law reserved to the States. In other words, the U.S. Constitution does not give the Federal Legislature the power to establish divorce rules. Accordingly, each state has it’s own set of rules and requirements for divorce. The following is a synopsis of the rules and requirements for divorce in Texas.
Residency and Filing Requirements
(Texas Family Code – Chapters: 6.301)
Residency requirements are jurisdictional in nature. The Courts in Texas do not have jurisdiction to grant a divorce unless at least one party meets the residency requirements. If the court does not have jurisdiction to hear the case it cannot grant the divorce and may dismiss your case for want of jurisdiction or abate the proceedings until at least one party meets the residency requirements. Generally, a suit for divorce may not be maintained in this state unless at least one of the spouses involved has been:
1. a domiciliary of this state for the six-month period preceding the filing
2. has been a resident of the county in which the suit is filed for at least 90-days (again, prior to the date the petition for divorce is filed).
Note, either spouse can meet this requirement, the party filing does not have to meet the residency requirements as long as the responding spouse meets the requirements. In other words if one spouse has lived in Texas for at least the last six months, the party who lives in another state or nation may file a suit for divorce in the county in which the Texas domiciliary spouse resides.
Grounds for Filing
(Texas Family Code – Chapters: 6.001-6.007)
A Petition for Divorce must state the grounds or reason the divorce is sought. Generally, most petitions plead for dissolution based on irreconcilable differences but there are other reasons for divorce that may be used.
NO FAULT a/k/a IRRECONCILABLE DIFFERENCES – It has been said that it takes two to be married and only one to quit because marriage is more work than one person can do alone. In Texas Family Code parlance, there is discord and conflict that disrupts the legitimate purposes of the marriage. In other words, there is a problem and at least one party to the marriage is not willing to work on that problem (which prevents any reasonable expectation of reconciliation). Keep in mind, this is the most common ground for divorce in Texas because the only proof required is for at least one spouse to say he or she does not want to be married any longer.
NO FAULT differs from the remaining grounds in that if you want a divorce for a cause, the party seeking the divorce for cause must plead and prove facts sufficient to establish the cause occurred or exists. Divorce for cause grounds include abandonment, adultery, conviction of a felony, living apart, mental/physical cruelty, and mental illness.
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
2. remained away for at least one year.
ADULTERY – Adultery is often the cause of divorce and a Court may grant a divorce based on adultery of one spouse. Keep in mind however, it is not a simple matter to prove. Often there is circumstantial evidence, strong beliefs, and quite often “that feeling” that it has occurred. However, as a cause for divorce, the party seeking to establish adultery must plead and prove the fact. Just “knowing” it has occurred is not enough – you have to establish the other spouse has committed adultery.
CONVICTION OF FELONY – In Texas a divorce may be granted 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
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
LIVING APART – Courts may grant a divorce in favor of either spouse if the spouses have lived apart without cohabitation for at least three years.
MENTAL/PHYSICAL 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. The cruel treatment must be of such a nature that it renders further living together insupportable – which is in and of itself an irreconcilable difference. The distinction being in this case that the blame is laid upon only one spouse.
MENTAL ILLNESS – Texas Courts may grant a divorce in favor of one spouse if at the time the suit is filed:
Restoration or Name Change
(Texas Family Code – Chapters: 45.105-106)
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 Family Code – Chapters: 7.001-7.006)
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. The law requires the Court to divide both 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.
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. Note however, the Court may exercise it’s discretion to vary from the 50-50 split. Common reasons to vary from the 50-50 split is to compensate one party for the other’s wrong doing, to equalize future interest (such as when one party gets an ongoing business concern), or when the Court determines variance would just be fair.
Keep in mind, “community property” is any property that is not show to be separate property – in other words everything is assumed to be community property, it is the burden of the party claiming the property is separate to establish it is separate property. This is an important distinction since the court cannot divide separate property, it belongs to the party who brought it into the marriage. In order to show property is separate property, it must be established that the property was in possession of one spouse prior to the marriage or; was acquired during the marriage by gift, devise, or purchased with property/assets that are separate (tracing).
Income and earnings from the spouses’ property, wages, salaries, and other forms of compensation received during the marriage is community property regardless of the nature of the income producing property.
Pension and Retirement Accounts
Pension and retirement accounts are often the one of the two largest assets in any marriage (the residence/home being the other). Much like the home, spouses tend to attach a great deal of emotional value to the retirement/pension accounts. While a discussion of this subject can and does fill volumes of books, a Court in Texas must determine the rights of both spouses in a pension/retirement plans as part of the divorce. Generally, the division is accomplished through a Qualified Domestic Relationship Order (QDRO) that orders the pension administrator to calculate each spouse’s respective interest and mail two checks when the employee spouse retires. Again, this subject is too lengthy to discuss here and each case is different, but the formula most commonly used is to establish the value on date of marriage, and date of divorce and award each party 1/2 of the amount accrued during the marriage. Of course the QDRO contains language that the administrator is to determine the residual interest for each spouse’s interest independently. (For military retirement, the formula is established in the case of Berry v. Berry (number of months in which marriage and service overlap divided by the number of months of credible service at time of retirment with the result divided by 2 = non-member spouse’s respective interest). NOTE: a military spouse DOES NOT GET 1/2 just because you were married for 10 years. The 10-year rule may apply in other states but in Texas the Berry formula rules.
Alimony is unconstitutional in Texas, however, in the 1990’s the Texas Legislature recognized that our society has changed. We are no longer a society that acquires property and therefore stuff to be divided at divorce, we have become a society that acquires debts (which are also divided). Therefore the legislature has devised “Spousal Support” as a means to equalize the property interest at time of divorce.
The court has discretion in determining when and how much spousal support to order one spouse to pay the other. However, this discretion is not unlimited. Spousal support or spousal maintenance is only available in a limited number of circumstances.
1. the parties have to agree to the support amount, duration and terms
2. the Court must find that one spouse committed a criminal offense defined as family violence agains the party asking for support
3. the parties have been married at least 10 years and the spouse asking for support lacks sufficient property, including property distributed to the spouse as part of the division of property in the divorce to provide for the spouse’s minimum reasonable needs or the spouse seeking maintenance:
○ is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability
○ 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 clearly lacks earning ability in the labor market adequate to provide support for the spouse’s minimum reasonable needs.
Even if a Court that determines a spouse is eligible to receive spousal support/maintenance the amount awarded and the time period for which it is awarded is also limited. Generally, the amount is limited to the lesser of the amount necessary to provide for the acquiring spouse’s reasonable needs or 20% of the obligor spouse’s “net resources” as defined by the Texas Family Code and not to exceed three years in duration.
Factors considered include:
1. the financial resources of the spouse seeking maintenance
2. the education and employment skills of the spouse along with the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment
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
12. the efforts of the spouse seeking maintenance to pursue available employment.
The Process of Divorce in Texas
One of the first questions I am usually asked by new clients is how long will this take. First, the divorce process is just that, a process. The length of time required varies from case to case and an exact time frame can never be accurately established up front when a case is contested. However, there is one time frame that is certain, the “cooling off period” as it is sometimes called is 60 days. The 60 days starts with the filing of the petition.
The Petition: The divorce process in Texas begins when one spouse files a Petition with the Court asking for the divorce. This document controls much of the process. It establishes which spouse (or his/her attorney) will speak first at the hearing, what has to be proven to get the divorce and it starts the 60 day time period. In accordance with Texas Rules of Civil Procedure, a party can only have the relief that the party asks for in writing (in the Petition) and shows him/herself entitled at a hearing so the Petition also controls the issues before the Court.
Once the Petition is filed, the Clerk for the Court will assign the Petition a Cause Number and in counties with multiple courts, the clerk will assign the case to a Court that will hear the case. Collin County which encompasses Allen, Frisco, McKinney, Plano, Sachse, and Wylie currently has nine (9) District Courts that hear Divorces. Dallas County which includes Addison, Dallas, Garland, and Richardson has nineteen (19) District Courts, though not all of them hear Divorce cases.
Petitioner: Petitioner is the title given to the spouse who initiates the filing procedure.
Respondent: Respondent is the title given to the spouse who must respond to the petition or the non-Filing Spouse.
The Respondent is the spouse who does not file the initial divorce papers, but rather receives them by service.
Response: A response is a document filed with the Court to let the Judge know the Respondent disagrees with some
part of the petition.
A Response can also contain a Counter-Petition in which the Respondent ask the Court for something as well – recall
a party can only have
the relief that the party asks for in writing (in this case, the Counter-Petition) and shows him/herself entitled at a hearing.
Jurisdiction: In order for a Court to resolve any issue, including granting a divorce, dividing property, rendering
child support or child custody orders, the Court must first have jurisdiction over the persons involved and the subject
matter of the suit. By filing the divorce, the Petitioner gives the Court jurisdiction over him or her. The jurisdiction over the Respondent, however, must be acquired either by service of process, a waiver or a general appearance of the Respondent.
Service of Process is the delivery of the Petition to the Respondent personally by a Sheriff, Constable, or Process Server who will file an affidavit called a Return of Service with the Court notifying the Judge of the date and time the Respondent was made aware of the divorce proceedings. Whereas a “Waiver” of service is an affidavit signed by the Respondent telling the Court that he/she is aware of the proceedings and “Service” is not necessary. Finally, a General Appearance is accomplished by showing up in Court or filing documents in the case which gives the Court jurisdiction over the person filing the document. Note, the Petitioner makes a General Appearance by filing the Petition, a Respondent can make a General Appearance in by filing a Response.
Discovery: While discovery is not a necessary part of every divorce – some are agreed or uncontested – when one spouse believes the other spouse has guilty of infidelity or has hidden assets, formal discovery may be used to establish facts for a contested hearing/trial. Discovery consists of depositions (sworn testimony) and several forms of written discovery, such as request for production, request for admissions, request for disclosure and written interrogatories. The parties may also exchange sworn inventories which is a list of all assets the spouse knows to be in existence.
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