If you are considering filing for divorce, if your spouse has broached the subject of divorce, or if you’ve already begun the divorce process, you almost certainly have questions. Better understanding the divorce basics in Texas can help you navigate the path forward with your financial and parental rights intact.
One of the most important steps that anyone facing a divorce can take is reaching out for the professional legal guidance of an experienced Austin divorce attorney.
What Are the Steps to Filing for Divorce?
Before you file for divorce, you should be sure that divorce is the answer. If your marriage isn’t going well and you don’t know how to fix it, you have options, such as having a serious heart-to-heart with your spouse, exploring couple’s counseling, seeking the counsel of a trusted clergy member, and more.
However, if you’ve reached the difficult decision that you need a divorce, it’s time to consult with a dedicated Austin divorce lawyer.
From here, the steps for filing for divorce include the following actions:
Determining the grounds for divorce
Filing the petition for divorce
Serving your spouse with legal notice
Receiving your spouse’s official response
Negotiating the terms of your divorce
Waiting at least 60 days before your divorce can be finalized (Negotiations often take considerably longer than 60 days.)
Finalizing your divorce either by reaching a settlement (uncontested divorce) or by going to court (contested divorce)
There is plenty of room within each of these steps for complications to arise, and having a seasoned Austin divorce lawyer in your corner is always well-advised.
What Are the Grounds for Divorce in Texas?
While some couples seek fault-based divorces in Texas, the vast majority of divorces throughout the state and country are no fault. In Texas, this is called insupportability divorce, which means the couple has irreconcilable differences.
Divorces based on fault tend to be more contentious, time-consuming, and costly. In Texas, divorce can be based on the following forms of fault:
Adultery, which you must be able to prove (such as if your spouse admits to it or you have some other form of proof)
Abandonment of at least a year
Abuse, including domestic violence and treatment that is mentally or physically cruel
A felony conviction
Mental incapacity
Can I File for a Divorce without a Lawyer?
If you’re wondering how to file for divorce in Texas without a lawyer, you should first consider everything that is riding on the outcome of your divorce. Your divorce terms will directly affect your parental and financial rights, and bringing your strongest case is key. With an Austin divorce lawyer on your side, you’ll be far better positioned to advocate for terms that work for you.
Where Do I File for Divorce in Texas?
When you begin divorce proceedings in Texas, you can file in any county in which you meet the following residency requirements:
You, your spouse, or both of you must have lived in the State of Texas for at least six months prior to filing.
You, your spouse, or both of you must have lived in the county you file in for at least 90 days prior to filing.
What Are the Terms of Divorce that We’ll Need to Resolve?
If you and your spouse share children, you’ll need to negotiate all the following terms of divorce:
Your child custody arrangements
Child support
Property division
Alimony – or spousal support – as applicable
If you share no minor children, you’ll only need to address property division and alimony. Contact a seasoned Austin divorce lawyer to discuss the terms you will need to resolve in your divorce.
How Does Child Custody Work in Texas?
Texas courts always base child custody decisions on the best interests of the children involved, and they often turn to the following factors:
The children’s needs, including any special needs, and each parent’s ability to address them
The preference of any children the court considers old enough and mature enough to weigh in on the matter
Each parent’s level of involvement in raising the children to this point
Each parent’s desire and ability to support the other’s ongoing and healthy relationship with the children
How well the children’s current living situation – called the status quo – serves their needs
Each parent’s commitment to successful co-parenting
Any other factors the court considers important to the case at hand
Texas courts begin with the presumption that it's in the children’s best interest to maximize the amount of time spent with each parent. While one parent may take on the role of primary custodial parent, the other will likely receive a generous parenting time schedule.
Legal Custody
Texas considers child custody in terms of both legal and physical custody. Legal custody determines how the spouses will resolve primary parenting decisions moving forward. While everyday decisions must be made by the parent who is with the children at the time, the following kinds of decisions are addressed by legal custody:
The kind of medical care the children receive
The children’s religious upbringing
The children’s participation in travel and extracurriculars
You and your ex can continue making these decisions between yourselves, but if one parent is awarded sole legal custody, this decision-making authority becomes theirs alone.
Physical Custody
Physical custody refers to the schedule by which you and your ex will divide your time with your shared children. If you need the court’s intervention on the matter, you can expect one of its standard parenting plans. However, if you and your divorcing spouse are able to resolve the matter between you, you’ll have far more flexibility.
How Will Our Marital Property Be Divided?
In Texas, marital property is divided equitably, which means fairly in relation to a wide range of factors like the following:
Each spouse’s contributions to the marriage, including homemaking and childcare
Each spouse’s separate assets
The involved tax considerations
Whether either spouse attempted to hide, spend down, or otherwise dissipate marital assets
Whether fault played a role in the breakdown of the marriage
Any other factors the court deems relevant
Any separate property that either of you brought into the marriage with you will belong to that spouse alone.
While an equitable division of marital assets can – and often does – mean an equal division, this isn’t necessarily the case. Work closely with an Austin divorce attorney to ensure that your property rights are protected during your divorce.
How Do I Know If It’s a Separate Asset?
If you, your spouse, or you and your spouse came to own the asset in question while you were married, it is almost guaranteed to be marital property. The only exceptions include the following assets:
A gift given to one spouse only
Separate property refers to those assets that you owned prior to marriage and that you kept separate while you were married. Keeping an asset separate while married can be tricky. If you allowed the separate property to commingle with your marital assets, proving its separate nature will be more challenging.
It’s also important to recognize that if the separate asset in question increases in value over the course of your marriage, that increase will likely be treated as marital property.
How Is Child Support Calculated in Texas?
A parent’s financial responsibility for supporting their children doesn’t end with divorce. As such, Texas requires one parent to pay child support. In Texas, child support is calculated in relation to each parent’s ability to pay.
Many factors go into the child support calculation process, but two of the most important include each parent’s earnings and the amount of parenting time they each have. Even if you and your ex divide your time with your shared children equally, you should expect the one who earns more to pay child support.
Will I Receive Alimony?
There are no guarantees when it comes to alimony in Texas. Each case is considered in light of the specific circumstances involved. Alimony is awarded only when one spouse is left without the financial resources to continue supporting themself at or near the level achieved during the marriage and when the other spouse has the financial ability to help.
All of the following primary factors affect whether or not alimony is awarded:
Each spouse’s earnings and earning potential
The length of the marriage
Each spouse’s contributions to the marriage, including in terms of childcare and homemaking
Each spouse’s contributions to the other’s earning power, including sacrificing one’s own career for the other’s
Whether fault played a role in the dissolution of the marriage
Alimony is usually intended to provide the recipient with the resources and time they need to become more financially independent – such as through job training, additional education, or the acquisition of job skills.
It’s important to note that if you have a binding prenuptial or postnuptial agreement in place that addresses the matter of alimony, the terms included will prevail. Discuss your specific case with an Austin divorce attorney to see if alimony is likely to be assigned in your divorce.
Is Our Prenuptial Agreement Binding?
If you and your spouse have a prenuptial agreement that was guided by your respective attorneys, it is very likely legally binding. Your prenup will very likely hold as long as the following criteria apply:
Your agreement is in writing.
Both parties signed the agreement.
You both revealed your financial information to one another – or one of you waived this right in writing.
There was no coercion or fraud involved.
The terms included don’t favor one spouse to the other’s detriment.
How Does Common Law Marriage in Texas Work?
Many people mistakenly believe that if they live together long enough, they are in a common law marriage – or informal marriage in Texas. However, this isn’t how common law marriages work. In order for a couple to form a common law marriage, the following criteria must apply:
You and your partner agreed between yourselves that you were married.
You lived together in the State of Texas as a married couple, which means that you did the things that married couples generally do.
You represented yourselves as a married couple to others
The following situations are just a few examples of evidence that can help support the establishment of a common law marriage:
One of you was on the other’s employment-based health insurance policy.
You filed your taxes together as a married couple.
You were beneficiaries on one another’s life insurance policies or other financial tools.
You applied for state benefits together.
Should I Fight for the Family Home?
A couple’s primary asset is often their family home, and if you have minor children, you may want to continue living in the home as their primary custodial parent, which can help mitigate the stress your kids experience. Texas courts are often invested in maintaining the status quo, especially related to living arrangements, when it’s working well for the involved children.
If you have your sights set on the largest asset, balancing your divorcing spouse’s share of your marital property can be difficult. However, you have several options you may consider:
Some divorcing spouses choose to continue owning their family home together post-divorce – for the sake of their children.
If there are enough cumulative assets, you can use them to balance the division of marital property.
If you have enough credit, you can obtain your own mortgage and buy out your divorcing spouse.
You can arrange a payment plan that allows you to buy out your soon-to-be ex’s ownership in the home over time.
It’s Time to Consult with an Experienced Divorce Attorney in Austin
Brett Pritchard at The Law Office of Brett H. Pritchard – proudly serving Austin – is an esteemed divorce attorney who recognizes that you have many pressing concerns regarding your divorce. In response, Mr. Pritchard dedicates his impressive practice to fiercely protecting the rights of clients like you, and he’s on your side.
To learn more, please contact us online or call us at (254) 781-4222 today.