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The Texas Divorce Process: An Overview

The Texas Divorce Process…

The Texas Family Code governs divorce proceedings in this state, starting with a petition filed in district court in the county where at least one spouse resides. That court can hear any divorce-related issue that falls under its jurisdiction. A Texas divorce begins when someone files a petition, much like in any other lawsuit. It ends when the court issues a decree of divorce, except that unlike many lawsuits, the court will still have jurisdiction over issues that persist between the parties, such as child support. Between the petition and the decree, the court may conduct additional hearings and issue orders, and the parties may conduct investigations and exchange evidence.

Issues in a Texas Divorce

The first step in any divorce case involves identifying the issues that need attention. Unless a couple has no significant property, a court will have to rule on property division. This includes identifying what is community property and what is each spouse’s separate property, and making a fair distribution of the community property.

If the spouses have one or more minor children, the court will have to rule on two key questions: custody and support. Child custody includes not only who will have the right to determine where a child lives, but also how the parents will make important decisions regarding aspects of the child’s life like healthcare and education. An order for child support requires one parent to make regular payments to the other for the support of the child. These payments usually go through the Texas Attorney General’s Office. A final divorce decree involving minor children must address both custody and support. The court must find that all orders affecting a minor child are in that child’s “best interests.”

A court may also consider a request for spousal maintenance, formerly known as “alimony.” Texas law only allows a court to award spousal maintenance in limited circumstances. Texas courts can grant a wife’s request to return to the name she used before the marriage, but she must ask for a name change in her early court filings.

Filing a Divorce Petition

Either spouse can file for divorce. The first legal requirement for the spouse filing for divorce, known as the “petitioner,” is to establish that the court in which they are filing is able to hear the case. Under Texas law, either spouse must have lived in Texas for at least six months prior to the filing date, and they must have lived in the county for at least ninety days. If the non-filing spouse, or “respondent,” lives outside of Texas, the petitioner must demonstrate that the court can exercise personal jurisdiction over them

The divorce petition must assert one or more grounds for divorce. Texas is a “no-fault divorce” state, meaning that the petitioner only needs to plead that the marriage has become “insupportable.” Fault-based grounds for divorce include adultery, cruel treatment, and abandonment for one year or longer. The petitioner must offer evidence in support of a divorce based on fault. In a divorce based on “insupportability,” the fact that the petitioner filed for and continues to seek a divorce is often sufficient evidence.

The petitioner should identify the issues they want the court to consider, such as property division, child custody and support, and a change of name. If the petitioner has concerns that their spouse might try to hide or dispose of assets, withhold access to the parties’ children, or take other harmful actions, they might be able to obtain an ex parte temporary restraining order (TRO) at the time they file their petition. Each county maintains local rules governing the procedures for obtaining ex parte orders. A TRO remains in force for fourteen days or until the court issues new orders, whichever occurs first.

Temporary Orders

Texas law imposes a sixty-day “cooling off” period once a spouse has filed a divorce petition. The court cannot grant a divorce until at least the sixty-first day after the filing date. Many divorce cases go on longer than this for various reasons, such as backlogs in court dockets or complex issues that require lengthy negotiations. The court can hold a hearing on temporary orders (TOs), which remain in force until it signs a final decree of divorce. TOs often set up preliminary child support payments and child custody arrangements, including visitation schedules. They may also establish who may use what community property while the case is pending.

If the petitioner obtained a TRO when they filed the petition, the TO hearing gives both parties a chance to argue about whether the court should extend the TRO or convert it into a temporary injunction, which also remains in force until the end of the case. State law does not require parties to a divorce to seek TOs, but it is a good idea in many cases.

Discovery

The discovery period in most lawsuit begins once a petition has been filed and the defendant or respondent has filed an answer. Each party can submit requests for information or documents to the other party, who must respond or object within thirty days. Common discovery requests in divorce cases include inventories and descriptions of assets, pay stubs and other income information, and information about the parties’ children. Discovery must end at a set point prior to the trial date, if a trial has been scheduled.

Settlement or Trial

Courts in Texas — as well as the rest of the country and much of the world — encourage the parties to lawsuits to reach settlement agreements. The vast majority of lawsuits, including divorces, settle before trial. Many courts also urge parties to a divorce to use mediation as a way of reaching a settlement.

If the spouses in a divorce are able to come to an agreement, they can draft a final decree of divorce that includes the settlement terms. Otherwise, the case must go to trial before the court can sign a final decree. Either spouse can demand a jury trial, but bench trials are more common in Texas divorce cases. In a bench trial, the judge hears all of the evidence and makes the final ruling.

The Divorce Decree

Courts are more than happy to sign an agreed decree of divorce once they have determined that both spouses have approved it and it meets all the requirements of the Texas Family Code. If the case goes to trial, the parties must prepare a decree that incorporates the findings of the judge or jury.

The decree must include all rulings relating to child custody and child support, as well as the court’s findings regarding the children’s best interests. It should describe the division of community property with as much specificity as possible. A court may issue separate orders at the same time as the decree for matters like income withholding for child support and division of retirement benefits.

Modifications and Enforcement

The court retains jurisdiction over certain issues after it signs the decree. As long as a minor child continues to reside within the court’s jurisdiction, the court can hear motions to modify or enforce custody and support. It can also approve modifications to orders for the division of certain property. For example, retirement plan administrators have very specific requirements for court orders dividing their plans. If they have not pre-approved a court order, they may require a corrected order.

Stacey Valdez is a board-certified family attorney in the greater Houston, Texas area. At Stacey Valdez & Associates, we make our clients and their families our top priority as we help them through divorces, child custody disputes, and other family law matters. We are committed to helping our clients through such difficult ordeals with support, compassion, and tireless advocacy. Your first meeting with us is free in most situations. Please contact us online, or give us a call at (713) 294-7072 today to schedule a confidential consultation to discuss your case.

Categories: Divorce