Getting Started with a Divorce

Important things to know and steps to take when considering divorce in Texas

Divorce shouldn’t be taken lightly, and you should think long and hard about the consequences before you throw the “D” word out to the world. If you believe divorce may be the best option for you, prepare yourself. Getting a divorce will likely be one of the most challenging life experiences you will ever face.

Many people think about divorce, especially during trying times. The truth is most couples go through ups and downs, and many of those couples are able to work things out and stay married. Some marriages survive due to counseling, while other make it because the couple is willing to do the hard work marriage often requires. Of course, that isn’t always the case for other couples.

Questions to ask yourself before seeing a divorce lawyer

If you’re unhappy in your marriage and not sure divorce is the answer, take time to do a little soul searching. Ask yourself the questions below and answer them honestly. Your answers may help you figure out whether you should think seriously about getting a divorce.

  • Is there still some love in the marriage, or are you and your spouse just two people living together?
  • Do you really want a divorce or are you just angry about something that could be fixed?
  • Have you thought about what your life will be like after a divorce?
  • Can you remember when you last enjoyed each other’s company?
  • Do you dream or fantasize about divorce or life without your spouse?
  • Has your spouse been unfaithful?
  • Can you get past your spouse’s adultery even though studies show that people who cheat once in a marriage are likely to cheat again?
  • Do you feel irritated with your spouse all the time?
  • Are you ready to let go of the good as well as the bad in your marriage?

Give yourself time to think these questions through. You don’t need to make a decision today. Rushing into divorce usually isn’t a good idea, unless your spouse poses a threat to you and your children.

Things you should and should NOT do when contemplating divorce

Once you decide that divorce could be a real option for you, there are some steps you should and should not take before and during the divorce process.

Talk to a counselor. You may be 100% certain you want a divorce but it never hurts to discuss your thoughts, feelings and goals with an objective third party. A counselor can help you organize your thoughts and may reduce the odds of you having regrets in the future.

Talk with your spouse before serving papers to him or her. A surprised and angry spouse can make things very difficult for you during the divorce process. When possible, be respectful and serve papers in a place and manner that is discreet for your spouse. (Of course, if spousal abuse is an issue, surprise and anger probably won’t make things any worse.)

Take time to figure out your finances. If you don’t have a good sense of where you stand financially, now is the time to start. Begin gathering records and listing assets as soon as possible. If you’re not sure where to start, your attorney can provide a list of important documents and recommend a reputable financial advisor if needed.

Don’t move out of your home unless your spouse is abusive. If you move out and then start divorce proceedings, the legal process may become more complex. You may even risk losing your right to stay in the home in the future.

Don’t leave your children behind if custody rights are important to you. If you move out of the house and leave the children in your spouse’s care, you could risk losing custody and access to your children. When possible, it’s critical to speak with an attorney about options because once you lose custody and access to your children it’s very difficult to reverse course.

Don’t tell your spouse about an affair until you are sure you want a divorce. Although adultery is not a crime in Texas, it can still affect the outcome of child custody, spousal support and property division. Your attorney can guide you on when it’s best to reveal an affair in your case.

Don’t get pregnant. Adding a little one to your family now will only complicate matters further should you decide to divorce. A broken home also isn’t the best environment to raise a child who deserves the love, nurturing and time of both parents.

Once you determine that either you or your spouse is going to pursue divorce, the next step is to talk with a divorce lawyer or family law attorney. After talking with a lawyer and deciding to proceed with divorce, you can expect to face a long and often-complicated path. This is especially true for parties who are experiencing the legal system for the first time, which can be very overwhelming.


Getting started with a divorce

Key legal aspects of divorce in Texas

Taking time to learn about the legal aspects of divorce and how the process works is one of the best things you can do for yourself. You’ll find some general insight on the divorce legal process below. Your divorce attorney can explain how each step applies in your individual case.

Residency Requirements

To get a divorce in Texas, one spouse must have been a resident of the state for a minimum of six months continuously, prior to filing for divorce. In addition, one of the two spouses must have resided in the county where the divorce will be filed for at least 90 days prior.

Filing for Divorce in Texas

If you are seeking a divorce, the first formal document you will need to file (as the Petitioner) is the Original Petition for Divorce, which must be filed at the county courthouse where you (or your spouse) live. You must also pay a filing fee, which may be waived if you cannot afford to 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 with the court, which informs the court that the respondent received the Petition for divorce. If the court does not receive an answer within 21 days, the court can allow the divorce process to proceed without the Respondent present.

Fault Grounds in Texas

Texas is a no-fault state. This means that married couples do not need to prove that one of the parties did something wrong in order to obtain a divorce. However, fault can still play a role in Texas divorces and have an impact on divorce settlements. No-fault grounds for divorce in Texas include: insupportability (irreconcilable differences); living apart; and confinement to a mental hospital. Fault grounds include cruelty; adultery; conviction of a felony; and abandonment.

Child Custody Basics

Once a divorce has been filed and the responding party has been served (and filed an Answer to the petition), the parents should work out a temporary agreement pertaining to child custody as soon as possible—which the parents then need to file with the court. Temporary custody agreements typically stipulate a primary residence for the child (which parent the child will live with most of the time), as well as what access and visitation rights the other parent will maintain during the divorce, among other details. Final custody orders often mimic temporary ones, so it’s important to try to get your wishes for custody met at the outset, especially if you’re seeking primary or sole custody in Texas.

Contested or Uncontested Divorce

When the Respondent returns the Answer to the Petition for Divorce, 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 considered to be a contested divorce. Contested divorces are usually more difficult and may be more costly in terms of time, money and emotional pain and distress. The outcome of a contested divorce may be settled through mediation or decided in court.

If the Respondent agrees to the terms in the original petition, the court considers the matter an uncontested divorce in Texas. The parties come to an agreement on all the issues and complete paperwork that forms the basis for the Final Decree of Divorce together. There will be no trial and the judge will usually approve the couple’s settlement agreement—unless he or she determines the terms are unfair to one of the parties or that one of the parties was incapable of making decisions about matters pertaining to the divorce. Uncontested divorces are usually much less expensive and resolved faster.

Settling the BIG issues in divorce

Whether your divorce is contested or uncontested, the parties will need to determine—based on Texas laws and guidelines—how the marital property and debts will be divided, whether one spouse will pay support to the other, and if children are involved, who pays what amount of child support and where the children will live.

Community and separate property

There are generally two types of property considered in a Texas divorce: community property and separate property. Community (or marital) property includes the financial assets and real property a couple acquired during the marriage. Separate property pertains to individual property acquired before the marriage, or inherited by or gifted to one of the spouses. If a couple agrees on how to divide their property, the court will usually sign off on it. If the parties cannot agree, the court will decide who gets to keep what during the trial.

Child custody, child support and spousal support

The court views child custody, child support and spousal support (or spousal maintenance as it is referred to in Texas) arrangements similarly to property division, where the parties can either agree to arrangements or go to mediation or trial to let the court decide. However, there are minimum state-mandated guidelines that must be considered in Texas child support and spousal support cases.

In the case of spousal support, Texas has established guidelines for the amount of maintenance 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 spousal support, is subject to state guidelines. The amount to be paid according to Texas child support laws is generally based on 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.

Finalizing the divorce process

If you and your spouse are unable to agree about one or more issues in your divorce, the court will order you to go to mediation to see if you can resolve the issues. If you can’t resolve your issues during mediation, you will need to go to court, where the judge will decide the outcome of any unresolved issues pertaining to your case. Even if you agree on everything, you will have to wait for the court to approve the Final Decree of Divorce.

The decree states exactly how all issues pertaining to the divorce are to be resolved. These issues 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.

Our Fort Worth family lawyers can guide you on next steps

This overview does not include all the steps required to obtain a Texas divorce. Each case is different, with some divorces being straightforward and others being very complex. If you have questions about divorce and child custody in Texas, an attorney at the Sisemore Law Firm, P.C., can advise you regarding options that may be suitable for your divorce, custody and other family law concerns.

Contact our firm today to speak with one of our experienced divorce and child custody lawyers in Texas.