Frequently Asked Questions about Texas Divorce and Family Law
Learn about family and divorce laws that will affect your Texas divorce.
There are approximately 75,000 divorces in Texas each year. If you’re one of the couples involved in a Texas dissolution, the following FAQs may help.
Does it matter which spouse files for the divorce
Probably not. Except for some slight procedural advantages -- the person who brings the case first gets to talk first – there is usually not much advantage to filing the divorce papers.
Do I have to prove fault of the other spouse to get a divorce?
No. You do not have to show fault to get a divorce in Texas, but if there is fault – such as adultery, for example – it can sometimes be a factor in court, depending on the circumstances.
How long will it take to finalize my divorce?
A minimum of 60 days. Texas law requires that the couple wait 60 days after the date the divorce petition is filed to finalize the divorce. How long any individual case takes to resolve depends on many factors. Some courts require a divorce case to go to trial fairly quickly, while other courts are content to let divorce cases languish for very long periods of time.
What is the cost of divorce?
The cost depends on whether you and your spouse can reach an agreement regarding the property division and children, how long the case has to be litigated before that agreement is reached, whether temporary orders are necessary, whether a trial is necessary, whether discovery is conducted, and how reasonable your spouse and your spouse's attorney are (or aren't) throughout the process.
Why do lawyers require up-front retainer fees?
Short answer: to make sure they get paid. Lawyers practice law because they like the challenge and because they need to make a living. Like you, they have bills to pay, and they go to work to trade their time and expertise for compensation. They also have employees and office overhead. The retainer insures that the attorney is compensated for his or her efforts.
My ex-spouse is not paying enough child support for how much he or she makes. Can I get the amount of child support increased?
To modify the amount of child support
(either an increase or decrease in the amount ordered), one of two things
must be proven in court: either (a) you show that the circumstances of the
child or a person affected by the order have materially and substantially
changed since the date the order was signed; or (b) it has been three years
since the order was signed and the monthly amount of the child support award
under the order differs by either 20 percent or $100 from the amount that would
be awarded in accordance with the child support guidelines. Most cases will
fall under the three-year category, so the question of whether child support
can be modified becomes primarily a question of math.
At what age can a child decide with whom he or she wants to live?
The court, not the child, is the
ultimate judge of where the child's primary residence will be; however, at age
12, a child can sign a "Choice of Managing Conservator." This is a
document that communicates the child's wishes concerning primary living
arrangements to the court. In conjunction with this document, a Motion to
Modify must be filed with the court before the court can modify its prior
order. Although the "Choice of Managing Conservator" document is very
persuasive to the court, it is not binding, as the court will attempt to make a
decision which is in the child's best interest (which is not always what the
What is common law marriage?
There are two ways people can form a common law marriage in Texas:
- they sign a Declaration of Marriage under section 2.402 of the Family Code (this is fairly rare); or
- the man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and represented to others that they were married.
If you are
married pursuant to common law and no longer wish to be married to your common
law spouse, you will need a divorce. If a divorce from a common law marriage is
not brought within two years after the parties separate, then there is a
rebuttable presumption that there was no common law marriage. Note that the
presumption is rebuttable, which effectively creates an informal but not an
absolute statute of limitations for common law marriages.
How is property divided in Texas?
The starting point is that the court presumes that all the property of the marriage is community property, and if you have separate property you have to prove it by tracing it with "clear and convincing evidence." The court divides the property in a "just and right manner." What does this mean? In most cases, it means a 50/50 split. In other cases, factors such as unequal earning power and fault in the marital relationship can affect the division of property. There is a reported case where a 90/10% split was deemed a just and right division. This case was upheld at the appellate level.
Can I get alimony?
getting temporary spousal support (while the divorce is pending) is very
common, it is unusual to get post-divorce alimony. You can get post-divorce
alimony only if you qualify
and an attorney’s advice would be necessary.
Do grandparents have rights in Texas?
Although the state of the law in this area is somewhat in flux as the result of a U.S. Supreme Court decision striking down another state's grandparent custody law, under the Texas Family Code, a grandparent can get access (limited visitation) with a grandchild in certain circumstances. Grandparent custody of a child is also allowed under the Texas Family Code if the parents consent or if the child's present living environment presents a serious question concerning the child's physical health or welfare.
What is the process for an action for divorce?
Separation. Texas does not recognize the legal concept of separation. You are "married" until a court enters a final decree. Nevertheless, you can enter into a "separation agreement" or "partition and exchange agreement." Your actions at the separation stage can "point" the case to the final outcome.
Original Petition for Divorce. The divorce process starts by filing a document entitled "Original Petition for Divorce." That document informs the court that a divorce is sought, of any grounds the party may have, and what the party wants the court to award in regard to property and children. Concurrently with the filing of the Original Petition, a party may ask for temporary orders, temporary restraining orders, and/or a protective order.
Temporary Orders. Temporary orders are orders issued by the court to place immediate controls upon the relationship of the parties, the parties' financial affairs, child custody, and financial support while the divorce is pending.
Mediation. Mediation is a process where both parties meet in a neutral setting to discuss their differences and attempt to resolve the case.
Discovery. "Discovery" is a broad general term for a number of legal devices designed to gather information. Discovery is sometimes an informal process of exchanging documents or information between the parties' attorneys.
Trial. If the case cannot be settled, then it will be set for trial. Often, in addition to the pre-temporary orders and mediation, a second mediation will be ordered prior to a final trial. Trial is often expensive, stressful, and risky. A trial can be before the court or before a jury upon request.
Post-Trial / Final Decree. Whether there is a settlement agreement or a trial, at the conclusion of the case a Final Decree of Divorce is drafted. This document spells out who gets what property, where the primary residence of the children will be, how much child support will be paid, and how various child-rearing decisions will be made in the future. The court's orders in the Final Decree of Divorce can in some circumstances be modified in the future.
Appeal. If there has been a procedural error in the trial, or if the ruling of the court was not equitable or not in the best interests of the children, you may file a motion for new trial, or begin an appeal within a very limited period of time.