Texas Divorce Basics
If you’re thinking about divorce, this blog will help you understand the basics:
- residency requirements
- procedures
- how long
- grounds
- dividing property
- permanent alimony
- health insurance
What are the Residency Requirements for a Texas Divorce?
At least one spouse must have continuously resided in Texas for 6 months (Texas Family Code §6.301). Also, one spouse must have resided for at least 3 months in the county where filing for divorce.
The Process
Usually, one spouse (known as the Petitioner) files his/her “Petition for Divorce” with the court, then personally serves the other spouse (known as the Respondent). If amicable, the Respondent can waive the right to be personally served.
When filing, a Petitioner can ask for a temporary restraining order (TRO) requiring that:
- no assets disappear before they can be divided by the court, and
- the spouses act civilly toward each other and not threaten or harass each other
The court may issue temporary orders involving visitation, child support, who uses the family home, and other matters. The order may address temporary spousal support (sometimes called ‘alimony pendente lite’, or pending litigation) and attorneys’ fees.
The spouses usually engage in discovery, where they seek more information and documents from each other.
If spouses can settle their case (either by themselves, or through the help of mediation or their respective attorneys), they can avoid the expense, anxiety and time lost preparing for and attending trial. The many benefits of mediation are the subject of another article on this website.
If spouses can’t resolve all of their issues, they go to trial.
How Long Does Divorce Take?
At least 2 months in Texas; the divorce can’t be granted for at least 60 days after filing the petition. Depending on the parties’ cooperation, civility, child and financial issues, a divorce can take months or years. It usually depends on how contentious the spouses are.
What are the Legal Grounds for a Texas Divorce?
Texas law allows for “no-fault” divorces. Texas also has statutory “fault grounds”:
- adultery
- cruelty
- long-term incarceration
- confinement to a mental hospital
- living apart for at least three years
See Texas Family Code §6.001, et. seq.
Dividing Property
Texas is a ‘community property’ state, meaning all property acquired while married belongs equally to both spouses. ‘Separate property’ (for example, through inheritance or by gift) belongs to the designated spouse, as long as that property is separately maintained and not commingled (mixed together). Usually, courts divide property one-half for each spouse; but there are many factors that affect property division (for example, the spouses’ earning capacity, and whether there was fault in the marriage’s breakup).
Will I Receive or be Obligated to Pay Permanent Alimony (Spousal Support)?
To be eligible for alimony (called “maintenance” in Texas), the requesting spouse must satisfy one of these requirements:
- the paying spouse committed a crime of family violence within 2 years of the divorce filing date
- the requesting spouse cannot earn sufficient income to provide for the spouse’s minimum reasonable needs because of an incapacitating physical or mental disability
- the requesting spouse was married to the other spouse for 10 years or longer and lacks the ability to earn sufficient income to provide for the spouse’s minimum reasonable needs
- the requesting spouse is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs
See Texas Family Code §8.051. Whether called alimony, spousal support or maintenance, this is usually a huge issue for divorcing couples.
Post-Divorce Medical Benefits
Under Federal law, you might be able to keep health insurance with your former spouse’s group plan. The Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) applies to employers with 20 or more employees. Generally, those employers must offer “continuation coverage” for the first 3 years after the marriage ends. The employer can charge the former spouse for coverage, but not more than 2 percent what other employees pay. There is a 60-day deadline to file after your marriage ends.
The Law Office of Jaclyn Y. Roberson, PLLC is a family law and estate planning firm based in San Antonio serving the citizens of South and Central Texas.
