Updated on January 19, 2023
It is critical to know how the divorce process works and to understand your rights as a married spouse seeking a divorce in Texas. Unfortunately, there are plenty of myths about divorce that make the divorce process more complicated.
If you are considering, are moving toward, or are in the middle of a divorce, you no doubt have some preconceived notions about divorce in general. While much of what you know may be useful, some of it may actually be myth-based. Movies, television shows, and urban legends alike help cement divorce myths that just seem to gain traction and hang on.
Just because you heard something about divorce does not make it true, especially if it came from someone who does not have a law degree. Don’t be fooled by the divorce myths out there; turn to an experienced Coryell County divorce lawyer if you are considering getting a divorce in Texas.
The Most Common Myths About Texas Divorce
There are many misconceptions about divorce, so it can be easy to get confused. This article will clear up the confusion about some of the most common divorce myths in Texas. If you have any questions about these myths or others, do not hesitate to reach out to an experienced Coryell County divorce attorney.
Myth #1: Property Is Always Divided Equally
Many people mistakenly believe that their property is always divided 50/50 when they get a divorce. However, getting a divorce does not necessarily mean that your spouse will get half of your property.
Under Texas Family Code § 3.002, Texas is a community property state, which means any property that was acquired by the married partners during their marriage may be split in a “just and right” manner.
A just and right manner does not necessarily mean a 50/50 split. Texas courts examine a number of factors before dividing community property between the spouses seeking a divorce:
Whether or not fault played a role in the divorce
Whether or not either spouse gave away, gifted, spent down, hid, or otherwise engaged in fraudulent practices in relation to your marital assets
The mental and physical health of each spouse and each spouse’s age
Any disparity in earning power between the spouses and the ability of each to support himself or herself
Each spouse’s level of education and overall employability
The tax implications of a proposed property division
The value of each spouse’s separate property (those assets that you bring into the marriage with you and keep separate throughout)
Any other factors the court considers relevant
Myth #2: I Can Protect Property by Keeping It in My Name
When you are married, anything that either of you buys is considered marital property—regardless of who makes the purchase, how it is titled, or anything else (with very few exceptions). Marital property is divided equitably—or fairly—in the event of divorce.
Under Texas law, separate property is not subject to division upon divorce. Texas Family Code recognizes any property acquired by either spouse before the marriage to be their separate property. In addition, gifts and inheritances received by one spouse during the marriage are also considered separate property.
Even if you keep your separate property in your name, you are at risk of losing it if you commingle it with your community property. A common example of commingling is using separate property funds to purchase community property or to pay for household expenses.
Your Retirement May Be Marital Property
Many people going through a divorce assume that the benefits they earn on the job belong to them alone, but – again – this is not how it works. While a retirement account that you brought into your marriage with you is likely to be your own separate property, any increase in its value over the course of your marriage is almost certainly marital property. Ultimately, the line between marital and separate property can be elusive.
Your Business May Be Marital Property
If you brought a business with you into the marriage, you may think it should remain yours alone, but this may not be the case. In order to keep your business separate, you must keep its finances distinctly separate from your family finances, which – over the course of a marriage – can be exceptionally difficult. The following factors make maintaining your business’s separate nature far less likely:
You ran the business but did not pay yourself a reasonable wage, which amounts to you draining your marital assets.
Your spouse worked at the business with you.
You used marital assets to grow your business.
Your business’s books are sloppy.
Your business borrowed money that came from marital funds.
The final point to make here is that even if you were able to keep your business strictly separate from your marital assets, any increase in its value over the course of your marriage is likely to be considered marital and will need to be divided between you equitably upon divorce.
Myth #3: I Can Ask the Court for a Legal Separation
While legal separations can help some couples find the space they need to either reconcile or move forward toward a more amicable divorce, the State of Texas does not recognize legal separations. In Texas, you are either married or divorced, and there is no in-between.
There are, however, steps you can take that mimic a legal separation, and an experienced divorce attorney can help you with this. Contact a Coryell County divorce lawyer for more information about legal separation.
Myth #4: We Are in a Common Law Marriage Because We Have Lived Together for Several Years
Living together for many years does not amount to a common-law marriage. In order for the State of Texas to consider you married, all the following must apply:
You and your significant other must have an agreement between you that you are married.
You and your significant other must have held yourself out to the public as a married couple. This can include calling yourselves married, identifying yourselves as married on official documents, and much more.
You must have lived together in the State of Texas as a married couple.
Simply living together does not cut it, but if the court finds that you are in a common-law marriage, you will need to address all the applicable terms of a divorce in the event of what amounts to a divorce, including:
Child custody arrangements
The division of marital property
Myth #5: Spousal Fault Is Required to File for Divorce in Texas
Many years ago, Texas law required married spouses to prove spousal fault to get a divorce. However, these times are long gone. Nowadays, you can file for divorce without having to prove anyone’s fault, though you may still have grounds to get a fault divorce in Texas.
Myth #6: I Need My Spouse’s Consent to Get a Divorce
You can get a divorce in Texas even if your spouse does not want to end the marriage and does not cooperate in the divorce process. In the past, courts required the consent of both spouses before the divorce. However, Texas law no longer requires you to have your spouse’s consent to file for divorce.
In fact, you can initiate the divorce proceedings despite your spouse’s refusal to sign divorce papers. You can also get a divorce if your spouse cannot be found or located.
The vast majority of Texas divorces are no-fault, which means that you do not need a reason to seek a divorce. In order to obtain a no-fault divorce, you need only claim insupportability, which roughly translates to irreconcilable differences – and your spouse is not required to agree.
While your spouse can certainly delay, prolong, or protract the divorce process, he or she cannot stop your divorce from happening, and prolonging the process generally serves no purpose other than racking up legal costs and increasing the acrimony. If you want a divorce, the most important first step you can take is consulting with a dedicated divorce attorney.
Myth #7: My Spouse Gets Everything Because I Cheated
There are countless myths surrounding adultery and divorce. Many divorcing spouses who have been unfaithful during the marriage have fears related to divorce, including these:
They will not be able to see their children because they cheated on their spouse.
Their spouse will get everything because of their adultery.
While Texas courts may consider adultery during a divorce case, adultery does not play a significant role in the outcome of the division of property or child custody (known as conservatorship in Texas). To learn more, read “How Does Adultery Factor into Your Texas Divorce?”
In other words, there is no reason to worry about your affair affecting your ability to spend time with your children (unless your new relationship is deemed to be outside your children’s best interests for some compelling reason). An affair, however, could affect the the allocation of alimony, depending upon the circumstances.
Myth #8: Courts Favor Mothers Over Fathers When Awarding Custody
While it is true that, statistically speaking, mothers are awarded primary custody rights more often, Texas courts cannot make child custody decisions based on gender or any other discriminatory reasons.
Courts consider a number of factors when awarding child custody in order to protect the child’s best interests. Learn more about the factors considered in child custody cases.
Myth #9: My Kids Are Old Enough to Decide
Many parents are under the mistaken belief that as long as their children are X years old, they can make their own decisions in relation to child custody arrangements.
The truth of the matter is that child custody concerns are always based on the best interests of the children involved, and this is always determined on a case-by-case basis. Texas courts turn to a long list of best interest factors when deciding child custody, and while one of them is sometimes the child’s preference, this factor alone is far from determinative.
The court’s stance is that children are not old enough to take care of themselves, which – by extension – means that they are not old enough to make primary child custody decisions regarding their own care.
If, however, your children are determined to be old enough and mature enough to reasonably weigh in on the issue, the judge is likely to take their preference into consideration in the context of many other best interest factors, including:
Each parent’s overall mental and physical health
Each parent’s preferences
Each parent’s ability and fitness to parent
Each parent’s ability and inclination to encourage a close relationship between each child and the other parent
The strength of each parent’s relationship with each child
The relative stability and permanence of the children’s living environment in the proposed child custody arrangements
How well the children are doing in terms of their current living situation, their current schooling, and the community in which they live (there is a tendency for courts to maintain the status quo)
Whether or not domestic violence or child negligence, or abuse is a concern
Any other factors deemed relevant by the court
In other words, while the court may hear your children’s preferences, they will only represent a small piece in a large puzzle.
Myth #10: Joint Custody Means that We Divide Our Parenting Time Equally
In Texas, child custody is addressed in terms of conservatorship, and there is no mandate that time with the children must be divided equally between both parents.
Conservatorship, in essence, breaks down into the parental responsibility of making decisions of primary importance on behalf of the children and parenting time (or how the children divide their time between you and their other parent).
Decision-making authority relates to decisions about matters such as your children’s education, religious upbringing, medical care, and extracurriculars, and it can be assigned in all the following ways:
One of you makes each of these decisions on your own.
You make these decisions between the both of you.
You make these decisions between you, but one of you has the ability to break a tie if it becomes necessary.
You divide these decisions between you according to the kind of decision that needs to be made.
The courts are motivated to maximize the time children spend with both parents – in relation to the given circumstances. This does not, however, mean that you and your ex will divide your parenting time equally, even if you have joint custody.
One of you may become the primary custodial parent with whom the children spend the majority of their overnights, while the other has a visitation schedule. Some parents, however, do have what amounts to 50/50 custody.
Myth #11: I Don’t Have to Pay Child Support Because I Have Joint Custody
It is a common misconception that parents who split their time with the kids right down the middle do not have child support orders, but this is very rarely how it works.
Under Texas Family Code § 153.138, the designation of joint custody does not affect the court’s ability to order a joint managing conservator to make child support payments to the other parent.
As mentioned earlier, Texas courts focus on what is in the best interests of the child when making custody and support decisions.
While the amount of time each of you is responsible for the children is a primary factor in the Texas child support calculation process, there is a wide range of other variables that come into play. Ultimately, the parent who has the higher income is very likely to have a child support obligation – even if you divide your overnights with the children equally.
Myth #12: I Can Avoid Paying Child Support
If you were ordered to pay child support, it is crucial that you comply with the court order. If you fail or refuse to pay child support, you may face repercussions, including criminal penalties. If you avoid paying child support, your spouse can take steps to enforce the child support order.
Myth #13: If My Ex Refuses to Pay Child Support, I Can Keep the Kids from Him or Her
Child support and visitation are entirely separate matters that are kept separate for two very good reasons:
Children deserve to be financially supported by both of their parents.
Children deserve to continue growing their relationships with both of their parents.
While the parent who has the children the majority of the time usually receives child support from the other parent, this is a matter of balancing both parents’ financial responsibilities.
If your ex fails to pay the child support that he or she owes you, you will need to address the matter with the court. Fixing a wrong with another wrong (denying visitation) is not going to cut it.
Myth #14: My Kids Do Not Have to Visit Their Other Parent if They Choose Not To
If there is a court order granting your ex-spouse visitation rights with your children, your children’s opinion on the matter does not alter the fact that you are legally obligated to support the visitation (in your actions if not in your private thoughts).
The law does not consider children mature enough to make important decisions of this nature on their own behalf, which is why the court looks to you and your children’s other parent to make the visitation schedule a reality.
Read “When Your Children Don't Want to See Their Other Parent” for advice on how to proceed in this difficult situation.
If your child custody arrangements are no longer working due to a material change in you, your ex, or your children’s schedule, however, a child custody modification may be an option.
Myth #15: Texas Isn’t an Alimony State
It is a myth that you cannot be required to pay alimony or that no one is entitled to alimony in the State of Texas. While many divorces do not address the term of alimony, which is called spousal maintenance in Texas, it can be ordered by the court if divorce leaves one ex unable to support himself or herself financially while the other has the financial ability to help.
Myth #16: Divorce Is Always Adversarial
Divorce does not always have to be adversarial and hostile. While we are used to seeing messy divorces that involve finger-pointing and hostilities in the movies and on TV, your divorce can be different.
Divorcing couples may reach an agreement regarding their divorce without court involvement. There are several alternative dispute resolution (ADR) methods to resolve a divorce case out of court, including collaborative divorce and mediation. (Read “Divorce Mediation: Is It Right for You?”)
Myth #17: I Don’t Need a Divorce Lawyer
While you may be able to file an Original Petition for Divorce on your own, it is highly recommended to seek the legal counsel of a skilled divorce lawyer to protect your rights and ensure a favorable outcome in your case.
You need a knowledgeable lawyer to represent your best interests and help you navigate the divorce process. Hiring an experienced divorce attorney is critical if your divorce involves children, high-worth assets, or disputes regarding the division of property, child custody, or alimony. Speak with a lawyer today to discuss your unique situation.
Speak with an Experienced Divorce Attorney
Give common divorce myths a pass by working closely with attorney Brett Pritchard at The Law Office of Brett H. Pritchard in Coryell County, Texas. Our divorce attorneys are committed to helping you achieve the best possible outcome in your case.
We are prepared to help you protect your rights and explain all of your options throughout the divorce proceedings. Call us at (254) 781-4222 or contact us online today to get a FREE consultation now.