Texas Divorce: Frequently Asked Questions

This article covers the basic issues you'll encounter in a Texas divorce.

• Are there any residency requirements in order to obtain a divorce in Texas?
• What is the divorce procedure?
• Is there a waiting period in Texas?
• What are the grounds for a divorce?
• How is property divided in Texas?
• Can I get temporary spousal support while our case is pending?
• Will the court order permanent alimony?
• Can I get medical insurance benefits through my spouse's employer after the divorce?

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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. (See TX Family § 6.301)

What is the divorce procedure?

One spouse (the "petitioner") files an Original Petition for Divorce with the court, and has the papers personally served on (delivered to) the other spouse, who is referred to as the respondent. If the spouses are working together, the respondent can sign a waiver, giving up the right to be personally served with the papers. (TX Family §§ 6.402; 6-408).

At the time of filing, the petitioner spouse can request that the court issue a standard Temporary Restraining Order (TRO), which: (a) requires that no assets disappear before they can be divided by the court, and (b) requires that the spouses act civilly toward one another and not threaten or harass each other. (TX Family § 6.501).

If the spouses don't have all the divorce-related information they need from each other, such as financial information, they may engage in divorce discovery, which is the process by which they exchange information and documents.

Once they have all relevant information, the spouses can 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, also referred to as a divorce settlement agreement. This document will contain all of the terms of their agreements. The spouses and their attorneys sign it, and eventually the judge will review it and incorporate it into the final divorce order.

If the couple can't agree on all issues, the court will set a trial date. Before trial, spouses are required to attempt court-ordered mediation, which is the final attempt to resolve their issues. (Learn more about how divorce mediation works in Texas.)

If mediation fails, the case goes to trial, and the judge will decide the issues for the couple. 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 orders pertaining to the divorce, and it is binding on the spouses going forward, which means they must follow its terms.

Is there a waiting period in Texas?

In Texas, the court can't grant the divorce until at least 60 days have passed since the divorce petition was filed. (TX Family § 6.702). There are two exceptions to this waiting period:

In these cases, a court can finalize the divorce more quickly and before the 60 days has passed.

The divorce is final as soon as the judge pronounces it so in open court and signs the decree of divorce.

What are the grounds for a divorce?

Texas allows "no-fault" divorces, which means neither spouse has to blame the other for the break down of the marriage. Instead, for a no-fault divorce, the petitioner spouse will simply allege "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. Alternatively, spouses can also allege that they have lived apart for at least three years, which is another ground that carries no assignment of fault or blame.

However, if one spouse is at fault for the divorce, 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 in Texas are:

• adultery
• cruel treatment
• abandonment
• conviction of a felony or long-term incarceration of at least one year, or
• confinement to a mental hospital for at least three years.

(TX Family §§ 6.001-6.008).

How is property divided in Texas?

Texas is a community property state, which means that courts start with a presumption that all the property earned or acquired by either spouse during the marriage is community property, owned equally by the couple.

In a divorce, a court will divide community property equally between the spouses, and in most cases, this 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.

If you have separate property, which you believe belongs only to you and should not be shared with your spouse, you will have to prove it by tracing it back to its original source with "clear and convincing evidence."

Separate property includes property acquired by just one spouse before the marriage or 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.

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

Courts may issue temporary spousal support during the case 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.

Will the court order permanent alimony?

Spouses can request alimony or "maintenance" as it's referred to in Texas. The court may order maintenance for either spouse only if, after the divorce, the spouse requesting maintenance will lack sufficient property, including the spouse's separate property, to provide for the spouse's minimum reasonable needs and:

• 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 and can't become self-supporting through employment because of an incapacitating physical or mental disability,
• The marriage was at least 10 years and the requesting spouse lacks sufficient property to provide for minimal needs 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 at least 10 years, and the requesting spouse lacks sufficient property to provide for minimal needs and lacks earning ability in the labor market to provide for minimal needs.

(TX Family § 8.051)

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

Under the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) covered spouses may continue their medical insurance coverage through an ex-spouse's plan for a maximum of 36 months after the divorce. The employer can charge you for this coverage.

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 your divorce. If you miss that deadline, you won't be able to get these benefits.

After receiving your application, the medical insurance plan administrator must give you notice, generally within 14 days, of your right to elect COBRA continuation coverage.