Texas Divorce Laws

By WomansDivorce 

Copyright Notice: This summary of Texas divorce laws is an interpretation by WomansDivorce.com of the most relevant laws concerning divorce, custody, and support for residents wanting to file for an annulment or divorce in Texas.  Unauthorized reproduction of this material is prohibited and violation of this notice will result in immediate legal action.

To read the complete online divorce statutes, please visit the official Texas Statutes - Family Code.

RESIDENCY REQUIREMENTS TO FILE FOR DIVORCE 

Either the petitioner (the person filing for divorce) or respondent needs to be a resident of Texas for a minimum of 6 months before filing for a divorce. In addition, the spouse filing for divorce needs to have resided, for at least 90 days, in the county where the divorce is filed before filing the petition. Military personnel in Texas need to stationed within the state for a minimum of 6 months and have resided in a Texas county for at least 90 days to establish Texas domiciliary for the purposes of filing for a dissolution of marriage. (Texas Divorce Laws; Family Code, Sections 6.301 and 6.304)

GROUNDS FOR DIVORCE IN TEXAS 

Texas will grant a no-fault divorce if the court finds the marriage has become intolerable due to irreconcilable differences. The state also recognizes the following fault grounds when granting a divorce:

  • cruel treatment by one spouse against the other which makes living together intolerable;
  • adultery by a spouse;
  • a spouse's felony conviction while married, unless the conviction was based on the testimony of the other spouse;
  • willful abandonment for more than one year;
  • living separately with no intention of reuniting for a minimum of 3 years; or
  • confinement to a mental institution for a minimum of 3 years without possibility of improvement. (Texas divorce laws. Family Code, Chapters 6.001 - 6.007)

GROUNDS FOR ANNULMENT 

An annulment may be granted if the court finds:

  1. the marriage occurred without the parental consent of any minor between the ages of 16 and 18;
  2. the petitioner didn't have the capacity to consent to the marriage because he or she was under the influence of alcohol or narcotics, and didn't live as husband and wife after the intoxicating effects wore off;
  3. either spouse was permanently impotent when the marriage occurred, the petitioner didn't know about such condition at the time of the marriage, and didn't live as husband and wife after the impotency was discovered;
  4. the marriage was entered into fraudulently or under coercion or force and the petitioner didn't live with the other spouse after discovery of the fraud or being released from the coercion or force;
  5. the petitioner did not have the mental capability to consent or understand the nature of the marriage ceremony and did not voluntarily live with the other spouse during a time when he or she had the mental capacity to recognize the marital relationship;
  6. either spouse was currently married to someone else at the time of the marriage; 
  7. If the marriage occurred within 72 hours after the issuance of the marriage license, except as provided by Sec. 2.204 (Texas divorce laws, Family Code, Ch 6 Sec. 6.102 through 6.110)

LEGAL SEPARATION 

Texas divorce laws do not have specific provisions for legal separation, but do have laws allowing for temporary orders to be filed while a suit for dissolution of a marriage is pending (also see Is Legal Separation in Texas Possible?). (Texas divorce laws, Family Code, Chapter 6 Sec. 6.502)

ALTERNATIVE DISPUTE RESOLUTION

In an effort to keep divorce proceedings out of the courtroom, the court may utilize the following methods to resolve disputes: 1) arbitration; 2) mediation; 3) collaborative law; or 4) informal settlement conferences. (Texas divorce laws, Ch. 6 Sec. 6.601 through 6.604)

DIVISION OF ASSETS AND DEBTS 

If the spouses cannot mutually reach an agreement regarding the division of assets and debts, the court will divide the marital estate in such a way as it considers fair and proper. The court takes into consideration all relevant circumstances of the spouses, with due respect for the rights of each spouse and any children of the marriage. Since Texas is a community property state, all property acquired during the marriage is subject to distribution, whether the property is located within Texas or not. The court may also divide retirement, employee benefits, and other plans, as well as divide insurance policies. The court will also take into consideration the impact of taxes when dividing the estate.

If the spouses have reached a prior written agreement concerning each spouse's earnings and income on or after January 1 of the year in which the divorce was filed, the court will confirm such as separate property due to partition or exchange. (Texas divorce laws, Ch. 6, Sec. 7.001 through 7.008) 

SPOUSAL MAINTENANCE 

Maintenance (also called alimony or spousal support) may be awarded to either spouse only if the following situations apply: 

  1. if the marriage lasted longer than 10 years and the spouse requesting support does not have sufficient property, and is either unable to be self-supporting due to debilitating physical or mental disability, doesn't have the income capabilities to provide for his or her reasonable needs, or is the custodial parent of a child of the marriage who requires extensive care due to a physical or mental disability, or;
  2. the spouse from whom support is being requested is found guilty of family violence under Title 4 and the violence happened either within 2 years prior to the divorce filing or while the divorce was pending.

In determining the amount and duration of maintenance to be awarded, the court will consider: 1) the monetary resources of the party seeking support and his or her ability to be self-sufficient; 2) how long the marriage lasted; 3) the age of the party requesting support, as well as his or her physical and emotional condition, employment history, and earning capability; 4) the dependent spouse's education and employment skills, including the time necessary to receive training to allow that spouse the ability to find adequate employment; 5) the attempts of the party requesting support to seek out available employment counseling; 6) the assets brought into the marriage by either party; 7) the dissipation of marital property and/or assets by either spouse; 8) the financial resources of each spouse in comparison to the other spouse, 9) the contributions of a spouse as homemaker; 10) whether one spouse contributed to the education, training, or increased earning capacity of the other spouse; 11) marital misconduct of the party requesting support; and 12) the ability of the party who will be paying support to meet his or her personal need while still paying child support or maintenance.

In determining how long maintenance will remain in effect, the court will limit the duration of the order to no more than 3 years or for the shortest realistic period which would allow the dependent spouse to obtain appropriate employment, unless the dependent spouse is unable to meet such a requirement due to 1) physical or mental disabilities; 2) his or her custodial responsibilities for an infant or young child; or 3) any other undeniable obstacle to paid employment. In such a case, support may be ordered for the duration of the disability, with periodic reviews of the order to establish whether the spouse is still unable to be self-supporting.

The amount of support that may be ordered shall be $5000 or 20% of the obligated spouse's average monthly gross income, which ever amount is smaller. The amount of support may be modified due to a verified material and substantial change in circumstances of either party. The obligation for support ends upon the death of either spouse or if the supported spouse remarries. Support obligations may also be terminated by a court hearing if the supported spouse is cohabitating with someone in a continuing conjugal manner in a permanent residence. (Texas divorce laws, Family Code, Chapter 8 Sec. Sec. 8.001 through 8.056)

NAME CHANGE 

As part of a divorce or annulment decree, the court may change the name of a spouse to a prior name. The person whose name will be changed can apply for a change of name certificate from the court clerk. (Texas divorce laws, Family Code, Chapter 6 Sec. 6.706) 

REMARRIAGE AFTER DIVORCE 

Neither party may remarry someone else until at least 31 days after the divorce is finalized. (Texas divorce laws, Family Code, Chapter 6 Sec. 6.801) 

CHILD CUSTODY 

If the parents cannot mutually agree as to the custody and care of any minor children of the marriage, the court will determine physical and legal custody and visitation in such a way as to provide the child with active involvement by both parents. The court can award either sole or joint conservatorship, but favors joint conservatorship.

In making this determination, the court will focus on the best interests of the child, without bias towards a parent's gender or marital status. In determining the best interests of the minor child, the court will generally consider: 1) Whether either parent has a history of domestic violence against a child under 18, the party's spouse, or the parent of a child; 2) The circumstances of each parent and their ability to care for the child; 3) Each parents level of participation in child rearing activities before filing for custody; 4) The ability of the parents to cooperate regarding the child's welfare; 5) The ability of each parent to encourage an ongoing positive relationship with the other parent; 6) How close the parents will live to each other; 7) The child's preference, if he or she is older than 12 years old; 8) The physical, emotional, and developmental needs of the child; and 9) Any additional issues the court deems relevant. (Texas divorce laws, Family Code, CHAPTER 153)

CHILD SUPPORT

The court may order support until a child: 1) turns eighteen or upon graduating from high school; 2) becomes emancipated due to marriage or a court order; or 3) dies before reaching the age of emancipation. Support may be continued indefinitely for a disabled child.

Either or both parents may be required to pay child support, but support is generally only paid by one parent, taking into consideration the income of both parents. If the obligated parent's income is significantly less than what he or she would normally earn due to intentional unemployment or underemployment, the court may base the support order on the earning potential of that parent. All child support orders will include an income withholding order and a provision for medical support for the child.

The official Texas child support guidelines are used to determine the base level of support to be paid. The court may vary from the guidelines if it determines the application of these guidelines would be inappropriate or unjust, based on any of these factors:

1) the child's age and needs;
2) the parents financial resources available for child support;
3) the ability of each parent to contribute to the financial support of the child;
4) the custody and visitation arrangements;
5) the obligated parent's net resources, as well as that parent's earning potential if he or she is willfully unemployed or underemployed;
6) child care costs due to work;
7) how much spousal support is being paid to or received by a parent;
9) the educational expenses for a child's post-secondary schooling;
10) whether either parent's employer, another person, or a business entity furnishes an automobile, housing, or other benefits;
11) any deductions from income or other reimbursement for personal services of the parents;
12) any provisions regarding health insurance and the payment of uncovered medical costs for the child;
13) extraordinary health care, educational, or other expenses of the parents or the child;
14) travel expenses for visitation;
15) any debts assumed by either parent;
16) cash flow (either positive or negative) resulting from any assets or property, including a business entities and investments; and
17) any other circumstances of the parents the court deems consistent with meeting the best interests of the child. (Texas divorce laws, Family Code, CHAPTER 154) 

If you will be filing for a divorce in Texas, you can find additional divorce and child support resources at Texas Divorce Resources.

This summary provides general information about Texas Divorce Laws and should not be considered as legal advice. WomansDivorce.com and its contributing experts disclaim any liability from any claims arising from any information contained on this website.

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