Texas Divorce Questions

Texas men’s divorce attorneys provide answers to frequently asked questions about the Texas divorce process and Texas divorce laws.

What are the grounds for divorce in Texas?

There are seven grounds for divorce allowed under Texas law.

The first is insupportability. Insupportability means “discord or conflict of personalities” that has prevented any “reasonable expectation of reconciliation.”

Another ground for divorce is living apart. This ground requires that the “spouses have lived apart without cohabitation for at least three years.”

The third ground for divorce is confinement in a mental hospital, and requires that one spouse be confined in a state or private mental hospital for at least three years plus the requirement that “the mental disorder is of such a degree and nature that adjustment is unlikely or that, if adjustment occurs, relapse is probable”

The next ground is cruelty, which occurs when one spouse treats the other spouse cruelly and living together is insupportable.

Abandonment can also be a reason for divorce, and requires that one spouse has “left the complaining spouse with the intention of abandonment; and remained away for at least one year.”

Conviction of a felony and adultery are the last two grounds. It is important to note that the person alleging grounds for divorce must also prove those grounds. For example, when a spouse suspects adultery that spouse must be able to prove the adultery occurred.

What is a divorce going to cost me? Can I afford it?

It is very difficult to predict the cost of a divorce. It all depends on the issues involved and how the opposing party is going to respond to the divorce.

However, the more issues (i.e. custody, property valuations, fitness of a parent) that arise and the number of contested issues will add to the cost of the divorce. The more issues that clients and the opposing party can agree on, the lower the cost of the divorce.

When discussing whether or not a client can afford to go through a divorce, we often explain to the client that there are highs and lows in a divorce case. At the onset of a case, fees will be quite expensive with getting the initial pleadings (petitions and answers) filed and working on getting temporary orders (dealing with possession and access to children, property issues and financials) issued.

Typically there is a lull in the case while the parties are conducting and reviewing discovery, evaluating the parties (fitness as a parent), and negotiating for a final settlement. During this lull, we recommend that parties begin to build a “war chest” by saving money, borrowing from family, or gathering other resources so that once we are ready to go to final trial or to draft the final decree of divorce, the parties will be financially able to proceed.

Do I really need to hire an attorney?

Whether a party really needs an attorney depends on the facts of the case. Attorneys are professionals and know their field extremely well. They can offer you their expertise and counsel you through your divorce.

Divorce lawyers can also see issues that may not occur to couples proceeding pro se, such as tax treatment of financial issues surrounding the divorce, issues with exercising possession and access of your children, and even discovery of hidden assets. A good analogy is if you had no medical experience, would you treat your own broken leg or would you go to a doctor to have it repaired?

Does Texas grant divorces based on marital fault?

Yes. Texas grants divorces based on the following fault grounds: adultery, cruelty, felony conviction and abandonment. Adultery means one spouse has committed adultery. Cruelty means that one spouse treated the other in such a way that the marriage and living together was insupportable. Abandonment requires that one spouse has “left the complaining spouse with the intention of abandonment; and remained away for at least one year.” Felony conviction requires that the other spouse be imprisoned for a year.

Can I get maintenance or will I have to provide maintenance to my spouse?

Either you can get maintenance or you will have to provide maintenance to your spouse in only two specific circumstances:

  1. The spouse from whom maintenance is requested was convicted or received deferred adjudication for family violence within two years from the suit for dissolution of the marriage or while the suit is pending; or
  2. If the marriage lasted more than 10 years, the spouse seeking support does not have “sufficient property” to provide for their “minimum reasonable needs,” and if the spouse seeking spousal maintenance either:
    1. Cannot support themselves and get employment because of an incapacitating physical or mental disability;
    2. Is the custodian of a child of any age who needs substantial care because of a physical or mental disability making it impossible for that spouse to obtain outside employment; or
    3. The spouse does not have the earning ability to provide support for that spouse’s minimum needs.

In determining the “nature, amount duration and manner of periodic payments,” the court will review specific statutory factors. Typically, spousal maintenance is limited to three years. However, the Texas Family Code does provide some exceptions relating to disability of a spouse or a child. Furthermore, the court may not order a spouse to pay more than $2,500, or 20%, of the spouse’s gross monthly income, whichever is less.

Can I change my name at the time of divorce?

Yes. When you file your petition or counter petition you can request a name change that will be final upon the entry of the final decree of divorce. You will then have to go through the necessary government agencies to get all of your government issues documents changed.

Can I get an annulment in Texas?

Yes, you can get an annulment in Texas. Typically annulments are granted if there was a legal deficiency in the marriage. Examples include: one of the parties was underage; one of the parties was under the influence of drugs or alcohol; one of the parties is impotent; or one of the parties is mentally incapacitated.

When can I file for divorce in Texas?

You can file for divorce as soon as either you or your spouse meets the residency requirements of the state and county that you plan on filing in. More specifically a party must be a domiciliary of the state for the preceding 6-month period. A domiciliary of the state means a person that primarily lives in that state.

Second, a party must be a resident of the county in which the suit is filed for the preceding 90-day period. However, a spouse that does not live in the state may file a case against a spouse that does live in the state, as long as that spouse meets both of the requirements stated above.

When is my case going to be over?

Your case can be over in as little as 60 days or it can be over in a few years. The amount of time that it takes for a case to be completely finished depends on the issues that arise in your case.

For example, the court may order a social study to evaluate both of the parents and their living situations. The social study itself can take from two months to as long as year or more.

Another example is property division. Complex property issues may require an expert to be brought in to evaluate businesses or property valuations and, like social studies, can take from two months to a year or more.

Do I have to go to court?

Not necessarily. If you and your spouse are able to agree on everything including possession and access to the children, child support and property division, the only time you would have to go to court is to do a Final Prove Up of the divorce and even then your spouse can have that done with only your signature. However, if parties contest issues, a hearing or final trial is likely.

If attempts to serve my spouse do not work, what is my next step?

If a process server is not able to serve your spouse, you can petition the court to either serve your spouse via certified mail or by publication. Serving your spouse by certified mail means that we will mail a copy of the citation and petition to the last known address of your spouse and that will trigger service.

The other alternative is to serve your spouse by publication, which means that notice of the filing of your petition will be published in a local newspaper or newspapers. Service by publication takes a little bit longer than the other methods of service, as there is a longer period of time that must past before the answer is due.

If your spouse does not file an answer by the answer due date, a default judgment can be entered.

At what point during the process can a spouse remarry or start dating?

A spouse can remarry as soon as the final decree of divorce is entered and the requisite waiting period (72 hours) for a new marriage license is met. It is recommended that the parties not date during the divorce process. Dating during the divorce process may affect issues surrounding child possession and access. Your spouse may also harbor ill feelings that could potentially create complications during the divorce process.

What if my spouse does not want the divorce?

If your spouse does not want the divorce, you are still able to pursue the divorce on your own. A default judgment can be pursued if your spouse decides to completely ignore the petition for divorce. Typically when one spouse does not want the divorce, they will draw out the process as long as possible and create issues. However, the case can be set for hearings and/or final trial to push the case along.

Do the other issues – child support, child custody, alimony, and property – have to be decided before the divorce is final?

Yes. Unlike other states issues surrounding support, custody, alimony and property have to be decided before the divorce is final.

How long do I have to live in Texas to obtain a divorce?

In order to file a divorce case in Texas, certain residency requirements must be met. First, a party must be a domiciliary of the state for the preceding 6-month period. A domiciliary of the state means a person that primarily lives in that state.

The second requirement is that a party must be a resident of the county in which the suit is filed for the preceding 90-day period. However, a spouse that does not live in the state may file a case against a spouse that does live in the state, as long as that spouse meets both of the requirements stated above.

After I file for divorce, do I have to continue to live in Texas?

If children are not involved in the divorce, then you absolutely do not have to continue to live in this state. However, if you are awarded primary possession of the children, the court can restrict the state and counties where you are able to live. When children are involved, it is also important to consider whether you will be able to exercise regular possession and access to your children.

What if I am in the military and out of state?

If you are in the military and out of state, you can file in Texas as long as either you or your spouse meets the residency requirements and if your spouse is out of state, can be served within Texas, has “minimum contacts” with Texas relating to the divorce and/or meets statutory provisions allowing the court to exercise jurisdiction over out of state residents.

What forms do I need to file for a divorce in Texas?

In order to file a divorce, you will need a Petition for Divorce. If children are involved you may also need a Health Insurance Availability Affidavit and if a party is out of state—a UCCJEA Affidavit, which states the last addresses of the children.

How and where is a divorce complaint filed?

The divorce complaint is typically filed with either the county court or the district court in the county where either you or your spouse meet the residency requirements. The divorce complaint is filed by presenting the actual complaint along with the requisite filing fees to the clerk who will then file your complaint, assign you a court and issue citation to the opposing party.

How do I serve the divorce complaint on my spouse?

Either a private process server or constable will personally serve the divorce petition on your spouse or service by certified mail or publication is also an option.

You will have to wait the 60-day waiting period in order to receive your final decree of divorce.

How is a divorce granted? Will I have to go to court?

In an agreed divorce, a divorce is granted upon one of the parties showing up at the time set by the court and attending a “prove-up” hearing. During the “prove-up” hearing, either the judge or the attorney will ask the parties standard questions about the decree (i.e. residency, whether the parties agreed, if the terms are in the best interests of the parties, etc.) and the judge will sign the final decree and it will be filed with the court.

If the terms of the divorce cannot be agreed upon by the parties, then the parties will have to go to Final Trial in which the parties will conduct a full trial (calling witnesses, testifying, and presenting evidence) after which the court or jury will decide the terms of the divorce. The terms will then be drawn up into a divorce decree that will govern the divorce.

What typically happens if I go to court to obtain my divorce myself?

If you do not have an attorney to ask the questions at the prove-up hearing, the judge will assist and ask the standard prove-up questions.

How do I prove fault for divorce?

Fault will typically be proved by the court hearing evidence relating to adultery, cruelty, felony conviction and abandonment. The court can hear witness testimony and can also consider hard evidence (e-mails, documents, print outs of Facebook posts, etc.).

At any time can a parent change a minor child’s last name without the other parent’s permission?

No. Both parents’ approval must be obtained before a minor child’s last name can be changed.

Can a couple become legally married by living together as man and wife under the state’s laws (common law marriage)?

Yes, a party can be legally married if: they agree to be married; if they live as husband and wife, together in Texas; and if they hold themselves out to be married to others.