Texas Divorce Basics
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Grounds for Divorce
Texas recognizes divorce based on either fault or no-fault grounds. The grounds for a no-fault divorce in Texas are: insupportability (otherwise known as irreconcilable differences) or living apart without cohabilitation for at least three years. Potential fault grounds include cruelty, adultery, felony conviction, abandonment, and confinement in a mental hospital.
Residency Requirement and Waiting Period
To file for divorce in Texas, one of the spouses must have been a resident of the state for at least six months and a resident of the county in which the divorce is filed for at least three months.
The court can finalize the divorce no sooner than 60 days after the initial court filing.
Texas is a community property state. This means that at divorce, the judge will divide the marital property equally between the two spouses. The spouses may have separate (non-marital) property, which might consist of gifts, inheritances, or property that one spouse had before getting married. Separate property is not subject to division at divorce but remains the property of the spouse who owns it.
Property division does not apply only to real or personal property; it applies to retirement plans, stock options, and even insurance payments. Whether property is considered marital or separate depends on how the property was acquired. For example, workers’ compensation insurance payments received during marriage by one spouse because of an injury on the job, are marital property, and both spouses are entitled to half of the payments, even if they’re received after the spouses separate (that’s because they’re intended to replace income that would have been earned during the marriage).
(See Texas Divorce: Dividing Property for detailed information).
A Texas court will only grant alimony under certain conditions. A spouse must show either
- the inability to be or become self supporting because of a physical or mental disability
- that the spouse has the role of primary caregiver to a child who requires substantial care and supervision because of a physical or mental disability, or
- other reasons that clearly show a lack of ability to provide minimum reasonable necessities for themselves.
To determine the amount of spousal support, the court looks at the duration of the marriage, each party’s resources and needs, and, if relevant, any marital misconduct of either party.
(To learn more, see Understanding and Calculating Alimony in Texas).
Parents in Texas must support their child until the child turns 18 or graduates from high school, whichever occurs first. The parents may stop providing support if the child gets married or dies. The court calculates the appropriate amount of support from each parent by looking at the parent’s net monthly income, meaning their income after taxes and other withholdings have been deducted.
Unlike some other states, Texas allows parents to pay support through periodic payments, lump-sum, payments, or even by setting aside property to be administered as support for the child (or any combination of these).
When deciding child custody, the court in Texas evaluates what is in the best interest of the child. The court will also do its best to ensure that parents share in the rights and duties of raising their child together. However, if there is a history of domestic violence or abuse in the home, then the court may award the abusive parent visitation only if it finds that the child would not be endangered or if there are orders for the protection of the child.
The parents may make an agreement for child custody outside of court, but it’s subject to the court’s approval. A judge who finds that the agreement is not in the child’s best interests may require that the parents submit a revised plan or may order the parents to comply with a plan established by the court.
A parent who wishes to modify a child custody order must show the court that there has been a substantial change in circumstances and that the modification would be in the child’s best interest. But a modification in the child’s primary residence within a year of the original order will only be granted if the non-custodial parent can show that the child is not safe in the current residence.
(For more information, see Child Custody in Texas: The Best Interests of the Child).