Texas Divorce: Frequently Asked Questions

If you're considering filing for divorce, or have already filed, you'll need to know the particulars of your state's laws. This article covers the basic issues you'll encounter in a divorce in Texas.

What's On This Page

1. Are there any residency requirements in order to obtain a divorce in Texas?
2. What is the procedure for getting a divorce in Texas?
3. After the divorce is filed, how long does it take to finalize?
4. What are the grounds for a divorce?
5. Can I get temporary spousal support while our case is pending?
6. How is property divided in Texas?
7. Will the court order permanent alimony?
8. Can I get medical insurance benefits through my spouse's employer after the divorce?

Are there any residency requirements in order to obtain a divorce in Texas?

To file for a divorce in Texas, one of the spouses has to have been a resident of the state for a continuous six-month period. In addition, one of the spouses must have been a resident of the county where the divorce is filed for at least 90 days.

What is the procedure for getting a divorce in Texas?

A typical divorce requires the following steps:

• One spouse, called the Petitioner, files an Original Petition for Divorce with the court, and has the papers personally served on (delivered to) the other spouse, who's referred to as the Respondent. If the spouses are working together toward settlement from the beginning, which saves on cost and on conflict, the Respondent can sign a waiver, giving up the right to be personally served with the papers.
• At the time of filing, the Petitioner can request that the court issue a standard Temporary Restraining Order (or an extraordinary order, if circumstances warrant). The order basically freezes the status quo. It requires that no assets disappear before they can be divided by the court, requires that the spouses act civilly toward each other and not threaten or harass each other, steal each other's cars or mail, cut off each other's utilities, credit cards or insurance, or hide the children from each other.
• If no Temporary Restraining Order is issued, the Respondent has 20 days plus the next following Monday to file a document called an Answer. If a Temporary Restraining Order was issued, the court must schedule a hearing within 14 days of issuance. At that time, the court will make the Temporary Restraining Order into a temporary injunction against both parties. Commonly, the court will also consider temporary orders, which will be in effect while the divorce is pending. Temporary orders usually involve temporary custody, visitation, and support of the children, and temporary use of property and servicing of debt. It can include temporary spousal support and the payment of interim attorney's fees as well.
• If the spouses think they haven't gotten all the information they need from each other, they then engage in discovery, which is the process by which they exchange information and documents. They may submit written questions (interrogatories) to each other, make requests for admissions (true/false statements), request documents, and take depositions (oral questioning under oath).
• The spouses discuss settlement of the case, either directly or with the help of attorneys or mediators. If they can work out an agreement on everything, one of the spouses or attorneys will prepare an Agreed Decree of Divorce, which will contain all of the terms of the agreement. The spouses and their attorneys sign it, and eventually the judge does as well.
• If the spouses are not able to agree on all of the issues in the case, a trial date will likely be set.
• Before trial, spouses are required to attempt mediation. Mediation is an informal process allowing the divorcing couple to work with a neutral third party (the mediator) to negotiate and settle all terms of their conflict. All communications (with very limited exception) made during the mediation process are protected by rules of confidentiality and cannot be used at trial. The spouses can propose and agree to creative settlements that could not otherwise be ordered by a court.
• If mediation fails, the case goes to trial. At the conclusion of the trial, one of the attorneys will prepare a Final Decree of Divorce to present to the judge for signature. This will contain all of the court's rulings and will resolve all issues pertaining to the divorce, and is binding on the parties going forward.

After the divorce is filed, how long does it take to finalize?

In Texas, a divorce cannot be final for at least 60 days after the petition is filed. This does not mean that the divorce is automatically final on the 61st day. But if the spouses are in agreement as to all the terms of their divorce, they can go ahead to prepare and sign a final decree of divorce during the 60-day period. The divorce is final as soon as the judge pronounces it so in open court and signs the decree of divorce. If the spouses are not in agreement, it typically takes about six months to one year or longer to finalize a divorce, depending on the complexity of the issues and the degree of conflict.

What are the grounds for a divorce?

Texas law allows for "no-fault" divorces. However, if one spouse is at fault for the breakup of the marriage, the court may take that into consideration in determining what is an equitable (fair) division of the couple's property. For that reason, you may want to include fault grounds in your petition for divorce. The statutory grounds for a fault divorce are: adultery, cruel treatment (that renders further living together insupportable), abandonment (for at least one year with the intent to abandon), long-term incarceration (more than one year), confinement to a mental hospital for at least three years, or living apart for at least three years. For a no-fault divorce, your petition alleges "insupportability," which is defined as discord or conflict of personalities that destroys the legitimate ends of the marriage and prevents any reasonable expectation of reconciliation.

Can I get temporary spousal support while our case is pending?

Courts may issue orders awarding temporary spousal support if one spouse is unemployed or earning significantly less than the other. There are no guidelines for temporary spousal support, so if you're seeking support, you should be prepared to show what your needs are and what resources your spouse has to meet those needs.

How is property divided in Texas?

The court starts with a presumption that all the property earned or acquired by either spouse during the marriage is community property, owned equally by the spouses.

If you have separate property you have to prove it by tracing it with "clear and convincing evidence." Separate property includes property acquired by just one spouse by gift or inheritance. For example, you might show that you inherited some money from your grandmother and always kept it in a separate account with only your name on it.

The court divides community property between the spouses in a "just and right manner." In most cases, that means a 50-50 split. In some cases, however, factors such as unequal earning power and fault in the marital relationship can affect the division of property.

Will the court order permanent alimony?

In order to qualify for alimony, which is called spousal maintenance in Texas, the requesting spouse must meet one of four requirements:

• The paying spouse was convicted of family violence within two years of the date of the filing of divorce;
• The marriage was 10 years or longer, and the requesting spouse lacks sufficient property to provide for minimal needs (including property awarded in the divorce) and cannot support himself or herself through appropriate employment because of an incapacitating physical or mental disability;
• The marriage was 10 years or longer, and the requesting spouse lacks sufficient property to provide for minimal needs (including property awarded in the divorce) and is the custodian of a child who requires substantial care and personal supervision, making it necessary for that spouse to remain at home with that child; or
• The marriage was 10 years or longer, and the requesting spouse lacks sufficient property to provide for minimal needs (including property awarded in the divorce) and lacks earning ability in the labor market adequate to provide for minimal needs.

If a spouse qualifies for maintenance under the first, third, or fourth requirement, maintenance can last no longer than three years, and the amount ordered cannot exceed 20% of the gross income of the paying spouse. If a spouse qualifies for maintenance under the second requirement, the term can be indefinite.

Can I get medical insurance benefits through my spouse's employer after the divorce?

Under federal law, you might be entitled to keep your medical insurance benefits under your former spouse's group plan. The Consolidated Omnibus Budget Reconciliation Act of 1985 created what are commonly known as COBRA benefits, which are available to the former spouses of people who work for employers who have 20 or more employees.

In general, this law provides that employers must offer "continuation coverage" for the first three years after the termination of the marriage. The employer can charge the former spouse for this coverage, but the charge cannot be more than 2% greater than what is charged to employees. After the three years have ended, the employer must offer a former spouse the right to purchase "conversion coverage," but there are no limits on how much the insurer can charge for this coverage.

COBRA further provides that the former spouse does not have to pass a physical examination to obtain the continuation or conversion benefits. This is significant if you have any pre-existing conditions that might not be covered by another medical insurance carrier.

To obtain COBRA benefits, contact your former spouse's employer directly and request the appropriate forms. You must file your application with your spouse's employer no later than 60 days after the termination of your marriage. If you miss that deadline, you will not be able to get these important benefits.