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Divorce in Texas

I. What Is Divorce

Divorce is the legal separation of a marriage. It is the termination of the marriage relationship before the death of either of the spouses. 

II. Divorce in Texas

In Texas, divorce is also commonly referred to as the dissolution of marriage.  There are two different types of divorce: fault divorce and no-fault divorce.  Both of these types of divorce are fairly explanatory.  A fault divorce implies that one or both parties did something that would cause them to no longer want to be together.  A no-fault divorce is when both parties mutually decide that they no longer want to be together.

III. Divorce Process

The process of a divorce is one that is done through the court system.  In Texas, one of the parties seeking divorce will file a petition for divorce.  Typically, both parties hire lawyers and it is negotiated either in a courtroom or through arbitration.  After 60 days from filing with the court, a judge can decide to accept a negotiated divorce.

When a petition for divorce is sought, the petitioning party can request a temporary restraining order for their protection.  The order requires that assets not be sold off before an agreement is reached.  It also requires that both parties act civilly toward each other.

Before any trials begin, the parties in a divorce are required to attempt to find a resolution via mediation.  Mediation is conducted by a neutral third party.  Many divorce cases get settled in mediation because it makes it easier for all parties involved.  It also almost always more affordable.

If the parties cannot agree, they, or their lawyers, will have to argue their cases in divorce court.  A judge will make the final determination about the various involved factors in these cases.  In almost all cases a Texas judge will divide all assets equally.  Both personal and real property will not be included in the division of assets.

IV. Grounds for Divorce

Texas is a mixed state, meaning that they will hear cases for both at fault and no-fault divorces.

No-fault divorces are the most common cases that Texas courts hear.  It means that there is no blame for the divorce.  Both parties have agreed that the marriage has failed.  Both parties agree that there are unreconcilable differences.

It is rare for someone to file for a fault based divorce but it does happen. Texas law sets out several circumstances which are the grounds for such divorce:

• Abandonment For 1+ Years

• Adultery (Cheating)

• Cruel Treatment (Domestic Violence)

• Felony Conviction (Major Crime)

• Mental Institution Stay of 3+ Years

V. Child Custody

When it comes to who gets custody of children during a divorce, the court rules in what it sees to be the favor of the child or children.  The court’s primary concern during any divorce case is the welfare of any children involved.

One of the things that all judges in Texas try to do when it comes to custody is maintain an equal partnership in raising any children involved.  That means that in most cases joint custody will be approved.

In some cases, parents might come to custody arrangements outside of the court.  These are often in cases when parents can agree on what is in the best interest of the children.  Any custody agreement that is reached outside of court is subject to the approval of a judge.  If the judge rejects the plan submitted to the court the judge will either rule on the custody of the children or will ask the parents to submit a new plan for custody.

VI. Child Support

If one spouse gets the custody of the children, then they have the right to financial аѕѕіѕtаnсе from the other spouse. This is the right that the custodial parent has. Tурісаlly, the child must be under 18 years old and must be a full-time student for the custodial parent to enforce this right against the noncustodial parent. 

Child support can also be ordered by the court in order to help the primary custodian of any children keep the child’s needs met.  Judges have a child support chart that they work off of to determine what percentage of the secondary custodian’s income (all sources of income) is to be paid for child support.

Medical needs are also covered with child support.  In most cases, the parent with the better health insurance will choose to provide coverage for the child willingly.  In cases when the parent is not willing to provide coverage to the child, the court will order the parent to provide coverage.  This also applies to parents using a Medicaid plans.

VII. Spousal Support

Spousal support, more commonly referred to as alimony, is not something automatic in the state of Texas. There are guidelines that judges follow whenever they consider ordering a spouse to provide spousal support. There are few factors that can cause a spouse to have to pay for alimony. One of which is when the other spouse lacks the financial abilities to provide himself or herself for even the most basic needs. These needs will, of course, be defined by the court.

If a spouse has to pay alimony, it will be a certain amount of money that will have to be paid for a certain period. Most of the time, the spouse who worries about spousal maintenance or having to pay alimony is the spouse who is the breadwinner in the family. This concern arises in situations where a couple undergoes a divorce and only one spouse is working and the other is a stay-at-home spouse. If your divorce is filed in a court in Texas, you generally don’t really have to worry about having to pay spousal maintenance.

While in some cases a custody order is final, that is not always true.  A request for modification of custody can be filed for by either parent.  In order to file for a modification of the custody order, you would need to have a substantial change in circumstances.  These circumstances need to be judged to be in the best interest of the children by the court.

VIII. Property Division

Getting a divorce calls requires splitting community property – this means taking all of the community property you and your spouse own and dividing it up accordingly. Of course, you also each have your separate property which you will have to determine and announce separately in court. It’s the jointly-held property that can get a little complicated during the divorce. 

There are only three people who can make that decision. First, you and your spouse – if you decide to forget your ill feelings towards each other (if you have any), team up and make a rational decision about splitting community property that you own. Second, the judge in the court where you filed for divorce can make a decision in splitting community property instead of you and your spouse.

In making a decision regarding your community property, the judge can place more weight on certain factors and less weight on other factors. The judge will evaluate the factors presented in court and the corresponding evidence and will then evaluate what properties should be given to the wife and which ones should be awarded to the husband. The judge will also consider who gets primary conservatorship of the child, the income each of you earns, your age and the duration of your marriage. If one spouse cheated during the course of the marriage, which eventually led to the divorce, the judge will also take that action into consideration. Aside from that, if you have engaged in gambling activities using your community assets or have done anything that undermined your livelihood, the judge will consider that before making a decision as well. The decision of the judge will depend on how he views and reacts to the factors involved in your case.

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Mr. Hutton is a Divorce and Custody Lawyer based out of Round Rock, TX. His background is with child psychology at Arizona State University where he received a B.S. in 2006, and he continued this by working with the Children’s Right’s Clinic at the University of Texas School of Law where he received his J.D. in 2009. Throughout his practice, he has been a strong proponent of utilizing modern technology to improve his practice and the representation of his clients. He currently is the technology chair of CAFA of Travis County and is committed to improving and modernizing the practice of law in Texas. If you have any questions you can contact him at

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