Divorce and Separation in Texas

by Wayne Thomas
Texas does not recognize legal separation.

Texas does not recognize legal separation.

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While some states allow parties to request some sort of court-ordered legal separation as a first step toward divorce, Texas does not. However, spouses are allowed to draft contracts to divide property and voluntarily live separately, which may accomplish the same result as a legal separation. If the marriage does not repair itself, a petition for divorce can be filed, provided the spouses meet the residency requirements.

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Alternatives to Legal Separation

While Texas does not recognize legal separation, couples can draft specific contracts to divide property in advance of divorce. These contracts are known as "partition and exchange agreements," and are fully enforceable by the court. If a party goes through with filing for divorce, either spouse can request that the court issue temporary orders, known as pendente lite orders, to cover issues related to both child custody and support while the case moves forward.

Residency Requirements

To obtain a divorce in Texas, at least one spouse must have lived in the state for six months prior to the filing of the petition. Further, the petition must be filed in the county where one of the spouses has resided for 90 days prior to the filing. If the case is filed in the wrong county, it will be dismissed for lack of jurisdiction.

Grounds for Divorce

Texas recognizes six fault grounds for divorce, including adultery, abandonment, conviction of a felony, living apart, cruelty and confinement in a mental hospital. In addition, Texas allows parties to file without assigning fault on the basis of insupportability. To obtain a divorce on the basis of insupportability, the petitioning spouse must show that discord or personality conflicts have destroyed the marital relationship and there is no reasonable expectation of reconciliation.

Process

In Texas, the divorce process begins with the filing of a petition for divorce with the appropriate court. In the petition, the party must indicate that the residency requirement has been met, include both spouses' contact information, the grounds for divorce, certain financial disclosures and information related to any minor children. The petition must also specify the manner of service of process or how the other spouse will be made aware that the divorce has been filed. Often, this is accomplished by mail or by personal service through the sheriff's office or a professional process server. If both spouses can come to agreement on the major issues related to the divorce, such as property division and child support and custody, a signed marital agreement can be filed with the court. However, a waiting period of at least 60 days from the date of filing for divorce is required before the judge can issue a final order.