If you are facing a divorce, are considering a divorce, or have been served with divorce papers, you have a lot of important decisions to make – all while shouldering a heavy emotional burden. The administrative divorce basics alone can be overwhelming. Better understanding the rules and regulations as they apply to Texas divorce can help immensely, and the first order of business when it comes to protecting your parental and financial rights throughout the divorce process is working closely with an experienced Killeen divorce attorney from the outset.
Filing in Texas
In order to file for divorce in Texas, both of the following must apply to at least one of you:
You have lived in the state for at least the last six months.
You have lived in the county where you have filed for divorce for at least the last 90 days.
If your spouse lives in another state, you meet the residency requirements for Texas as long as both of the above apply to you and Texas has what is known as personal jurisdiction over your spouse. This remains true if your last marital residence with them was in Texas and if you file for divorce within two years of that marital residence ending.
Married in Another State
You could obtain a divorce in Texas if you were married in another state as long as your marriage is valid wherever it took place and as long as the preceding residency requirements are met.
No Separation Requirement
In Texas – unlike several other states – there are no separation requirements regarding divorce. Once the 60-day waiting period (or cooling off period) has elapsed and you have settled the terms of your divorce, your divorce can be finalized.
If you have already filed for a divorce in another state, you cannot file in the State of Texas until the earlier filing has been dismissed. Your seasoned divorce attorney can get to the bottom of this matter if you are unsure.
If You Are the Respondent
If your spouse has already filed for divorce, it makes you the respondent (and he or she is the petitioner). The most important point to keep in mind in terms of being the respondent is that it sets your response time, which can feel like a time crunch and, therefore, like a disadvantage.
My Spouse Does Not Want a Divorce
The majority of divorces in Texas are no-fault divorces, which means that your spouse does not have to agree with your decision to divorce and that you do not need a reason for divorcing him or her (other than that, it is the right decision for you). If you believe your marriage cannot be saved, you have the legal right to seek a divorce – whether your spouse wants one or not.
Fault-Based Divorce in Texas
While the majority of divorces in Texas are not based on fault, you are not precluded from seeking a fault-based divorce in specific situations. Your knowledgeable divorce attorney will help you make the right choices for you in this matter. It is important to note, however, that a fault-based divorce almost universally means a contested divorce, which typically means a lengthier and costlier divorce. No-fault divorces are based on what is called insupportability, which amounts to irreconcilable differences. If you are seeking a divorce that is based on fault, one of the following grounds must apply:
Living apart for at least three years
Confinement to a mental hospital for at least three years
It is important to note here that the burden of proof regarding your spouse’s fault in your divorce remains your burden.
Texas Does Not Recognize Legal Separations
Unlike many other states, the State of Texas does not recognize legal separations. In Texas, you remain married until you are divorced, which means that the assets and debts that either of you acquired during any separation remain marital property that will need to be divided between you equitably upon divorce. Texas will, however, allow you to legally address matters such as your child custody arrangements, child support, and spousal maintenance during any separation between you and your spouse. In the eyes of the law, however, you remain legally married throughout this separation period.
Finalizing Your Divorce
Even the most amicable divorce represents a difficult transition for the family involved, and you naturally want yours to proceed as efficiently as possible (without sacrificing your legal rights). While there is no way of guessing exactly how long your divorce will take before the fact, there are several considerations to keep in mind.
60-Day Waiting Period
Your divorce cannot be finalized until a 60-day waiting period has elapsed since one of you filed your Original Petition for Divorce. The day after you filed is considered day 1, and you can count 60 days forward from here, including weekends and holidays. If, however, the 60th day falls on either a weekend or a holiday, the next business day ends the waiting period. It is important to note that your divorce cannot be finalized until the court can issue the court order, which means that the court’s docket will play a role in your divorce timeline.
The Terms of Your Divorce
While your divorce can theoretically be finalized in about two months, there is the matter of your divorce terms to consider. Each of the terms that apply in your case must be resolved in a manner that you are both willing to sign off on, and if you and your divorcing spouse are in agreement on each of them, your divorce terms will not become a sticking point. If you do have one or more terms, however, that require more in-depth negotiations (or even the court’s intervention), it is likely that your divorce will take considerably more time to finalize. The basic terms that must be resolved for every divorce (as applicable) include:
The division of your marital property
Your child custody arrangements
Hiring a Divorce Attorney
You are not required to work with a divorce attorney, but failing to do so can leave your parental and financial rights at increased risk. Generally, if any of the following apply, having an experienced divorce attorney on your side is the best path forward:
You and your divorcing spouse are not in agreement regarding every divorce term that applies to your case.
Your spouse has a divorce attorney representing him or her.
Your divorce involves significant assets such as a home, a retirement account, a business, anything else of considerable value, and/or considerable debt.
One of you is seeking alimony.
You and your spouse share a child who has a disability.
Bankruptcy is involved.
Even if you and your divorcing spouse have worked out mutually acceptable divorce terms (with no unresolved issues), touching base with a dedicated divorce attorney remains an excellent idea. The fact is that there are tax implications and myriad other considerations you may not have addressed, and moving forward without professional legal guidance can leave you facing unforeseen negative consequences that could have been avoided.
Your Uncontested Divorce
If you and your divorcing spouse have managed to hammer out divorce terms between yourselves, you can consider yourself ahead of the game, but looking to an experienced divorce attorney to do all the following can be extremely beneficial:
Review your divorce forms to ensure they reflect what you intend them to
Draft any required legal documents to ensure they comply with all applicable rules and regulations
Help you prepare for any hearings that are involved (if you are finalizing specific matters)
Hiring an attorney in this capacity is known as limited scope representation, and if you are determined to represent yourself in your divorce, you are well-advised to – at the very least – discuss the specifics with a divorce attorney who has the experience and legal insight to ensure you are headed in the right direction in terms of protecting your best interests.
Your Spouse’s Attorney
Your spouse’s attorney cannot give you advice regarding your divorce. Your spouse’s attorney was hired to represent your spouse only, and any advice that he or she offers you should be considered suspect. If your spouse has a divorce attorney, you need an attorney of your own.
Paying for an Attorney
If your divorce involves contested terms, it can be a lengthy process, and you can expect higher legal expenses. If – in the interim (while your divorce is pending) – your finances are limited, you can turn to the court to require your divorcing spouse to cover your attorney fees by requesting interim attorney fees (via a Motion for Temporary Orders). The following factors improve your chances of being granted this assistance:
Your divorcing spouse has significantly more income and/or assets than you do.
Your divorcing spouse has a divorce attorney of his or her own.
Your divorce involves complicating factors.
Contested vs. Uncontested Divorce
Put simply; your divorce is uncontested if you have resolved all the issues regarding your divorce terms and are both willing to sign off on them (no matter how long it took you to get to this point or how you got there). If you do not need the court’s intervention on the matter, your divorce is uncontested. If, however, you and your divorcing spouse remain at odds about one or more divorce terms and require the court to intervene on your behalf, your divorce is contested. If your divorce does not file an answer to your service of divorce papers and does not otherwise appear in court regarding the matter, it may be finished by default, which means without your spouse’s participation, but this is not a common occurrence.
In some highly specific situations, an annulment is a viable option. While a divorce ends your marriage, annulment nullifies the marriage altogether. A marriage can only be annulled if one of the following applies:
You were married at the age of 16 or 17, and you did so without one of your parent’s consent (or without a court order). Such an annulment case must be filed by one of your parents before you turn 18.
You were incapacitated by drugs and/or alcohol at the time you married and have not voluntarily lived with the person you married since your incapacitation ended.
Your spouse is impotent, and you have not voluntarily lived together since this impotency came to light.
Your spouse used fraud, force, or duress to push the marriage, and you have not voluntarily lived with him or her since learning about the fraud or since breaking the chains of the force or duress used against you.
Your spouse was not mentally capable of consenting to marriage due to mental disease or defect; this fact was unknown to you at the time of your marriage, and you have not voluntarily lived with your spouse since your discovery.
Your spouse became divorced from someone else in the 30 days prior to your marriage; he or she kept this fact from you, and you have not voluntarily lived with him or her since. This is only a viable option for annulment if you have been married less than a year.
Your marriage can be entirely void by a judge only if one of the following applies:
Either of you was married to someone else at the time of the marriage being voided.
You and your spouse are too closely related.
Either one of you was not yet 16 years old at the time of your marriage (and you had no court order allowing you to marry).
You are a stepparent and stepchild.
An Experienced Killeen Divorce Attorney Can Help
Brett Pritchard at The Law Office of Brett H. Pritchard – proudly serving Killeen, Texas – is a trusted divorce attorney who dedicates his impressive practice to zealously protecting the parental and financial rights of divorcing clients like you. We’re on your side and here to help, so please do not wait to contact us online or call us at 254-501-4040 for more information today.