Texas State Law Concerning Divorce

by Bernadette A. Safrath
A Texas court will try to divide martial property equally between the spouses.

A Texas court will try to divide martial property equally between the spouses.

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When a marriage breaks down and the couple decides to call it quits, one spouse must initiate divorce proceedings. The Texas Family Code outlines the laws and process for obtaining a divorce in Texas. During the divorce proceedings, a Texas court will divide marital assets, award alimony, if appropriate, and determine child support and custody if the spouses have any children.

Requirements

A divorcing spouse must file a Petition for Divorce in the Texas District Court in her county of residence, or that of her spouse, to initiate divorce proceedings. Texas requires that at least one spouse be a state resident for at least six months in order to file for divorce. The law also requires grounds for divorce. Texas recognizes no fault and fault divorce. The petition must state either the no fault ground of "insupportability," similar to "irreconcilable differences" or "irretrievable breakdown of the marriage" in other states, or a fault ground, such as cruelty, abandonment, adultery or felony conviction.

Community Property

Texas is a community property state, which means that generally all marital assets are divided equally between the spouses. First, the court will award each spouse their separate property. This includes anything owned prior to the marriage, personal injury awards recovered during the marriage and any property acquired through inheritance or as a gift. Next, a court will value all marital assets and award each spouse property that is worth half of the total value. Occasionally, courts will divide marital assets unequally, but in a manner deemed "just and right." The court considers several factors when determining a fair division, including each spouse's education and income, value of each spouse's separate property and which spouse has custody of the children. Two important factors are fault in the breakup of the marriage and misuse of marital property prior to and during the divorce. For example, if a spouse spent significant marital assets on an adulterous relationship, the court might award fewer assets to the guilty spouse as punishment for misconduct.

Alimony

Texas made significant changes to its alimony laws in 2011. A spouse used to be eligible for alimony if she could show that she was the financially weaker spouse. Now a spouse must demonstrate financial weakness and the marriage must have lasted at least 10 years. The only exceptions to the 10-year requirement are when a spouse has a disability limiting her ability to earn income or when a spouse is caring for a child with a disability requiring a level of care that prevents the spouse from working or earning a sufficient income. Additionally, the law sets the maximum monthly award at $5,000 or no more than 20 percent of the owing spouse's income. The maximum duration for alimony depends upon the duration of the marriage.

Custody

Recognizing that divorce is difficult for children, a Texas court will generally approve a custody agreement formulated by the parents. However, when parents cannot resolve custody issues, a Texas court will decide custody based on what is in the best interest of the child. Gender of the parent or child is not a factor when deciding custody. Instead, the court will choose the parent best suited to provide a stable environment, emotional support and care.

Child Support

Typically, the noncustodial parent is obligated to pay child support after the divorce. In Texas, child support is set using a formula that calculates the noncustodial parent's income, percentage of time the noncustodial parent has physical custody of the children and total number of children who require support. Child support is generally owed until the child turns 18 or graduates high school, though the obligation can be extended indefinitely when a child has a disability.