Getting Started with a Divorce

Getting Started - Residency Requirements

To get a divorce in Texas, on spouse must have been a resident of the state for six months continuously. Either spouse must have resided in the county where the divorce is filed for at least 90 days.

Getting Started - Fault

Texas is a no-fault state. This means that spouses do not need to prove that one of the parties did something wrong in order to obtain a divorce. However, fault can still be used in divorces; grounds for divorce in Texas include adultery, abandonment, confinement in an institution for the insane for three years, felony conviction and imprisonment, and cruel and inhuman treatment.

Getting Started - Children

Couples with children should have a temporary agreement about child custody, i.e., where the child will live while the divorce is pending. It should specify the timing and circumstances of the other parent's contact with the child or children. This should be filed with the court.

Getting Started - Filing

If you are seeking a divorce, the first formal document to file is the Original Petition for Divorce. You must file it in the county courthouse where you (or your spouse) live. You must pay a filing fee, which may be waived if you cannot pay the fee. The form for obtaining a waiver is called an Affidavit of Inability. One copy of the Original Petition must go to the Respondent (the other spouse) who then must then file an Answer. This lets the court know that the Respondent received the Petition. If the court does not receive an Answer within 21 days, the court can proceed with the divorce process without the Respondent.

Contested or Uncontested Divorce?

When the Respondent returns the Answer, he or she must indicate whether the terms in the Petition are agreeable. If the Respondent does not agree to the terms, then the divorce is contested. These are the most difficult divorces, costing more in terms of time, money and emotional pain and distress.

If the Respondent agrees to the terms in the original petition, the divorce is uncontested. The parties come to an agreement on all the issues and complete the paperwork that forms the basis for the Decree of Divorce together. There will be no trial, as in a contested divorce, and the judge can often approve a settlement agreement unless he or she determines that the terms are unfair to one of the parties or that one of the parties was not capable of making decisions about the matter. This type of divorce is less expensive and usually faster.

Settling the Big Issues in Divorce

Whether your divorce is contested or uncontested, the parties will need to determine how the marital property and debts will be divided, whether one spouse will pay support to the other, and, if there are children involved, who pays child support and where the children will live.

There are two kinds of property in a Texas divorce, marital or community property and separate property. Marital property is the financial assets and real property that the couple acquired during the marriage. Separate property is individual property acquired before the marriage or after the couple separated. If the couple can agree how the property is to be divided, the court will simply sign off on it. If they cannot agree, the court will have to decide during trial.

Child custody, child support and spousal support are similar to property division in that they can be agreed to by the parties or can go to trial to let the court decide. However, they are different in that there are state-mandated guidelines that must be applied in child and spousal support cases. In the case of spousal support, also known as alimony, Texas has guidelines that determine the amount to be paid and how long it will be paid based on factors such as the length of the marriage. It also limits spousal support to 20 percent of the paying spouse's income or $5,000, whichever is less. Child support, like alimony, is subject to state guidelines. The amount to be paid in child support is generally determined by the paying spouse's income and the number of children. Child custody is determined based on the standard of the "best interests of the child." In cases where this is not clear or is disputed by the parents, experts may be called upon to determine a child's best interests.

End of the Divorce Process: The Decree

If you and your spouse are unable to agree about one or more issues in your divorce, you will need to go to court. An intermediate step may be an order to participate in mediation to see if you can resolve the issues without going to court. Even if you agree on everything, you will have to wait for the court to approve the Final Decree. This decree states exactly how all the issues in the divorce are to be resolved. These include property division, child custody, visitation, child support, spousal support, health insurance payments, and tax payments, among other matters. Once the Final Decree is Issued, the couple is divorced and must follow all the provisions of the decree.

This summary does not include all the steps required to obtain a Texas divorce. Each case is different, and some divorces are straightforward and others very complex. An attorney at the Fort Worth law firm, Sisemore Law Firm, P.C., can advise you.