Divorce

Divorce in Texas is a complicated matter.  If you have any children, property, or debt, you will need an attorney to help you get a divorce.  Many kits are available online & in bookstores that you could use to help you do your own divorce.  However, even though those kits say that they are designed for use in Texas, they often are not.  A significant portion of my practice is devoted to helping people untangle the mess that they created when using an Internet-based divorce package or a kit they got at a bookstore.

Here are some common questions that people have about getting a divorce in Texas, along with answers:

Does Texas provide for a legal separation? No.  There is no such thing as a “legal separation” in Texas.  In some states a legal separation is required before you can get a divorce. That is not the case in Texas.  If you need to protect your interests regarding your property or your children while separated from your spouse, you must file for divorce and get the court to issue temporary orders.

Occasionally, a couple will not to divorce one another due to tax reasons or religious reasons.  In that case, we can draw up a separation agreement that is basically a contract.  This is not a “legal separation”, but instead is a contractual relationship that is entered into by and between to parties.

What if I don’t want my spouse to divorce me? In Texas, if either spouse wants a divorce, he or she can get a divorce.  For almost half a century, Texas has been a “no fault” divorce state.  That means that you don’t have to show any fault in order to get a divorce. And, if you want a divorce you can get it whether your spouse wants a divorce or not.  A lawyer can “foot-drag” to slow the process down, but no one can prevent your spouse from divorcing you if that is their intention.

What if I only have a common law marriage? Texas recognizes a type of marriage known as “common law” marriage.  Why does Texas recognize this “informal” type of marriage?  In Texas’ early years, circuit preachers traveled around the entire state to minister to people who didn’t have a local preacher or church.  Because the state is so large, it could be two years or longer before the preacher made it back again to a rural area.  Young people who were ready to marry often didn’t want to wait for his return and they needed a way to legitimize their marriage in the absence of a minister or judge.  Out of this need, common law marriages were born.

What are the elements required to establish a common law marriage?  You only need three (3) things:

  • You must have lived together in the State of Texas
  • You must intend to be presently married to one another (and not just to be engaged, or married at some time in the future)
  • You must “hold yourselves out” to be husband and wife.

There is no minimum time that you have to actually live together.  Some examples of “holding yourselves out” as husband and wife include introducing yourselves as husband and wife, the wife using the husband’s last name, filing income taxes together, and including the other person as a dependent on health insurance.  Other examples include listing the other person as a spouse on life insurance policies and listing the other person as a spouse in a gym membership.

Living together and having children together is not enough, by itself, to create a common law marriage.  You may need an attorney to help you determine whether the facts of your particular case are enough to establish a common law marriage.

If you do have a common law marriage, you can go to the office of the County Clerk in the county where you live in order to “register” your common law marriage.  Such registration is not required.  Since it’s not required, why do people ever register their common law marriages?  Usually, it’s either because they want to prove the existence of the common law marriage or they want to establish an anniversary date so they can celebrate an anniversary just like everyone else.

If I have a common law marriage, can I get a common law divorce? The law in Texas has recently changed.  It used to be that if you had a common law marriage, you had to get divorced just the same as anyone who was marriage with a marriage license.  Now, however, if you separate for two (2) years, then you do not have to get a divorce.  Instead, the law presumes that you were never common law married.  (If you went to the courthouse to register your common law marriage, then you would have to go through a divorce proceeding.)  If you have property to divide, or children under the age of eighteen (18), you should go ahead and get divorced so that the court can divide the property and make provisions for the custody and support of the children.

How long does it take to get divorced in Texas? Texas has a minimum sixty (60) day waiting period, so in theory you could get divorced on the sixty-first (61st) day.

Why the wait?  Many people assume that the waiting period is a “cooling off” period, giving the couple time to consider whether they want to go through with a divorce.  While that may be a factor, the real reason is that you cannot get divorced in Texas if you are pregnant.  In the “old days” before EPT and other forms of early pregnancy tests, a woman might not know that she was pregnant until her second missed period.  Hence, sixty (60) days wait before a divorce can be final.

The sixty (60) days start running on the day that the Original Petition for Divorce is filed with the Clerk of the court.  However, most divorces take longer than the minimum time.  The time frame for a divorce often takes three to six months, if it is agreed, and up to several years if it is a highly contested matter.  The more agreements you can make with your spouse regarding the terms of the divorce (property and children), the sooner your divorce can be final.

What is considered to be community property and community debt? “Community property” is a Spanish legal concept.  The community property states are Alaska, Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin.  Most of these states had an early influence from Spain and/or Mexico in their early, formative years.  (Wisconsin & Alaska are considered “quasi-common law” states, not “pure” common law states like the others listed.)

Under community property laws, all money earned during the marriage and all property acquired during the marriage (except for gifts and inheritances) is considered to be owned one-half (1/2) each by the husband and the wife.   There is a basic presumption under the law that each party should receive one-half (1/2) of the property when divorcing.  The court can give one party more than just half, based upon many factors such as fault in the break-up of the divorce.

Debts incurred during the marriage are also assumed to be jointly owed by the husband and the wife.  Like community property, debt should also be divided in a divorce.  However, it is important to recognize that the creditor is not a party to the divorce.  Just because the court orders the husband to pay the Sears account, for instance, does not mean that Sears cannot go after the wife if the husband fails to pay the account after the divorce.  The creditor can pursue collection against either or both parties, irrespective of what the divorce decree says.  If the divorce court orders one spouse to pay a community debt and he or she does not do it, the other spouse may file an enforcement action against the non-paying spouse.  Both spouses will still have to deal with the creditor, though.

What does Texas law consider to be “separate property”? Separate property is property that you owned before the marriage and property that you acquire during the marriage as a result of a gift or an inheritance, or with money that qualifies as separate property.  Also, married people may agree in a properly drafted written agreement to “partition” community property.  The property would then, by agreement, change from community property to separate property.

How does the court divide community property and community debts? Community property and community debts are supposed to be divided by the court 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”.  This language gives the court flexibility, so that it does not have to give each of the parties fifty percent (50%) of the community property, or the debt.  When dividing the property and debt, the court will consider many factors, such as earning ability, number and age of children, the size of each party’s separate property estate (if any), and who is at fault in breaking up the marriage.

What is “Spousal Support”? The Court can order that one party provide spousal support to the other party, either during the pendency of the divorce, or for up to three years after the divorce.  The court looks at the earning capacity of the parties and whether or not each party is able to provide for his or her own minimum needs.  The spousal support is intended to help the less advantaged party get on his or her feet, gain an education, or to make similar gains.  In order to qualify for spousal support after the divorce, the parties must have been married for at least ten (10) years.

Spousal support is also available to a divorcing spouse who has a proven disability and who is unable to work to support himself or herself.  If one of the parties is unable to support himself/herself, the court can order that the other spouse should pay up to twenty percent (20%) of the working spouse’s gross income.  The other spouse could receive this amount for up to the end of his or her life, depending upon whether the disability continues.  The spouse who gets spousal support can lose it if they begin to cohabitate with someone in the future.  And, the paying spouse can ask for a medical evaluation, to determine whether the disability still exists.

What is a “Temporary Restraining Order”? Commonly referred to as a “TRO”, a temporary restraining order is a routine order issued at the beginning of a divorce.  The order prohibits the other spouse from doing anything to destroy or transfer marital property, or to cause harassment to the other spouse, or to take the child.  By law, the TRO can only be in effect for up to fourteen (14) days and it normally becomes a temporary mutual injunction following the hearing.  The other party must be served with a copy of the TRO and the hearing must be held within fourteen (14) days from the date that the judge signs the TRO.

What is a “Temporary Hearing”? A temporary hearing may be requested by either party to the divorce, to ask the court to make certain orders while the case is pending.  Temporary orders set forth the rules for the parties’ conduct while the case is pending.  The temporary order likely will address who pays for what during the pendency of the case, who has possession of the child(ren), who pays child support, who gets to live in the marital home, and whether someone should pay temporary spousal support to the other party.

The Court may also put into effect orders relating to lifestyle, such as no alcohol consumption or illegal drug use within eight (8) hours of possessing the kids or a ruling that anyone that either party has a dating relationship with is prohibited from being present in the house where the kids are located after 8 p.m. and before 8 a.m.  Drug testing and even a home study might also be ordered at a temporary hearing, based upon the facts that are presented or alleged.

What is “Discovery”? Discovery is a common method of investigation used to gather documents and information.  Discovery may be sent as requests to the other party in writing, or it may be done in person by deposition.  Time deadlines apply in regard to the latest date that discovery can be started, as well as the number of days a party is given to respond.  Discovery should be complete before the parties go to court or to mediation.  Sometimes, a party will try to lie on discovery, by not disclosing assets in an attempt to keep the asset for themselves.  This is always a bad idea.  If the other party finds out about it, the deceitful party could have to pay the other side’s attorneys fees.  And, if the asset is not divided by the court in the divorce, it will continue to be owned 50/50 by the parties even after the divorce.

What is “Mediation”? Mediation is a common method of settlement used to try to reach an out-of-court settlement.  A neutral person, trained in negotiations & called a “mediator”, meets with the parties to try to help facilitate an agreement.  Mediation is often successful.  In Amarillo, we have a dispute resolution facility with trained mediators and the cost for participation there is only $125 per “side”.  Private mediators are also available for more complex and difficult negotiations.  Their cost varies depending on the length of time involved in negotiating the case.

What happens at trial? A trial is a court hearing.  All issues that are in disagreement (property, debt, children, etc.) are resolved.  You may either have a “bench trial”, where a judge alone decides the case, or a jury trial, where a jury decides the case.  Texas is the only state that allows a jury to decide who gets custody of a child.  The issues are resolved through testimony of the parties, the witnesses, and all evidence presented to the court.

What is a “Prove-Up”? A prove-up is the process involving the conclusion of your divorce if all of the issues have been resolved, either by agreement or by default.  It is always an uncontested court hearing.  At the prove-up, one or both of the parties go to court, are sworn in, and then tell the court what agreement has been reached.  The judge then as the discretion to either approve the terms, grant the divorce, and/or to make any other orders that the judge believes are appropriate.

Can you get a name change as a result of your divorce? Texas used to allow either party (husband or wife) to change their name in the divorce decree to any name they choose.  It was a way to get a “free” name change.  The law has been revised recently, however, to restrict what name you can change to.  You may now only change your name to a name that you previously “legally” had.  So, a woman could go back to her maiden name or to a previous “married” name.  If the husband took his wife’s name at the time of the marriage, he could go back to his original surname.  They can no longer just open a phone book to pick out a name that they like, or legalize a nickname that they have long had.

When is the divorce officially “final”? Your divorce is final under the law on the specific day that the Judge signs the Final Decree of Divorce.

When can I remarry? Since either of the parties may appeal a divorce within thirty (30) days after the date that the divorce is final, you may not get married in Texas within thirty days.  You can ask the judge to waive this rule, however, and sometimes such a request is allowed.  You may also leave the Great State of Texas to get married before the thirty (30) days have run.  Vegas, baby!

This article is not intended to be legal advice and is not a substitute for legal representation by an attorney. You are encouraged to seek the advice of your own attorney to answer any specific legal questions you may have.