Texas Divorce FAQ
If you are facing a divorce – or are even considering divorce – there is a lot to think about. While divorce is a difficult emotional endeavor, it is also a complicated legal matter that requires careful legal guidance. Every divorce follows its own unique path toward completion, but having the answers to some of the most frequently asked questions can help ensure that you make the right decisions for yourself.
How do I know if divorce is the right answer for me?
The fact is that there is no formula to follow – or answer book to consult with – when it comes to making the difficult decision that you need a divorce. This is a decision that only you can make, but there are some things that you can do to help you along the way.
Talk to Your Spouse
If you are considering divorce, it is time to talk the matter over with your spouse. If he or she is willing to seek marital counseling or therapy together, it is a good sign that he or she is interested in saving your marriage. If he or she is not, however, this fact may amount to another piece in the puzzle. Marriage is a partnership, which makes sharing your concerns an important place to start.
Share Your Concerns
If speaking with your spouse does not provide you with the clarity you are looking for, share your concerns with a trusted friend, family member, counselor, or therapist. Having someone whom you can bounce your feelings and thoughts off may give you the perspective you need to make the right decision for you.
Consult with an Experienced Divorce Attorney
Many people believe that once you consult with a divorce attorney, you are too far in and will have to proceed toward divorce, but nothing could be further from the truth. A dedicated divorce attorney who is worth his or her salt will help you better understand what a divorce is likely to mean for you in terms of your parental and financial rights and what steps you will need to take in order to instigate a divorce (if that is your final decision) but will not advise you regarding whether or not divorce is appropriate in your situation. If you are not sure, your marriage may be salvageable, and that is worth pursuing.
Should I talk to my spouse or file for divorce first?
It is generally considered the best policy to tell your spouse before you file for divorce. Springing a divorce on your spouse by having him or her served is a good way to get the divorce process off to a rocky start and can increase the stress (and contentiousness) of an already stressful situation. Telling your spouse that you are filing for divorce shows him or her a level of respect that honors the relationship you once had. This being said, however, if your spouse is volatile, abusive, or violent, moving forward by filing for divorce (and taking the necessary safety precautions) is likely better advised.
What is the first step in the divorce process?
After you have made the difficult decision that you need a divorce, the path forward involves consulting with a dedicated divorce attorney who will help ensure that your divorce proceeds as smoothly as possible from the outset – while protecting your parental and financial rights along the way. The first official step in the divorce process is filing the petition for divorce with the appropriate court.
What are the filing requirements in Texas?
In order to file for divorce in Texas, one of you must have been a state resident for six continuous months prior to filing. Further, one of you must have been a resident of the county in which you file for at least 90 days prior to filing.
Is there a mandatory waiting period?
In the State of Texas, you must wait at least 60 days after filing for divorce before it can be made official. You can use this waiting period, however, to negotiate the terms of your divorce, which often takes considerably longer than 60 days to accomplish.
Can I obtain a fault-based divorce?
The vast majority of divorces in Texas (and elsewhere in the country) are no-fault, but the State of Texas does allow divorces that are based on fault. No-fault divorces are based on insupportability, which amounts to the irreconcilable differences you are no doubt familiar with. In order to obtain a divorce that is based on your spouse’s fault, you will need to prove one of the following (which can be difficult to accomplish):
A felony conviction or long-term incarceration of at least one year
Confinement to a mental hospital lasting at least three years
If you do go forward with a fault-based divorce and are able to prove your allegation of fault, this fact can affect how your marital property is divided and can preclude the at-fault spouse from receiving alimony (if he or she would have otherwise been eligible).
What are the terms of a divorce in Texas?
While every divorce is singular to the people and the situation involved, every divorcing couple must tackle the same basic divorce terms, which include (as applicable):
The division of marital property
Child custody arrangements (called parental responsibilities and parenting time in Texas)
Alimony (called spousal maintenance in Texas)
How are the terms of divorce resolved?
When it comes to resolving the terms of your divorce, you have options.
Negotiating between Yourselves
Any terms that you and your divorcing spouse are able to negotiate between yourselves (with your respective divorce attorney’s skilled guidance) goes in the win column. Once your negotiation efforts hit a wall, however, it is time to look to your respective divorce attorneys for additional guidance.
Allowing Your Divorce Attorneys to Negotiate on Your Behalf
Divorce challenges every couple’s ability to communicate openly and to negotiate fairly with one another, and you may need to turn to your respective divorce attorneys to hammer out some of your more complicated differences. Your dedicated divorce attorney will help you better understand your options in the matter and will skillfully negotiate for terms that support your parental and financial rights.
Attending Alternative Dispute Resolution
From here, you can move on to an alternative dispute resolution (ADR) option, such as mediation. At mediation, you, your divorce attorney, your spouse, and his or her divorce attorney will engage in negotiations that are guided by a professional mediator. This process is often considered desirable for all the following reasons:
Mediation is generally far less time-consuming than going to court, and your schedule will not be constrained by the court’s tight docket.
Mediation is generally far less expensive than going to court (saving the legal expense of your attorney preparing for court).
Mediation is a far less formal procedure than going to court is, and it allows you to participate in the proceedings (in court, your attorney will typically speak on your behalf – and only according to the court’s rules).
Mediation is only binding if you sign off on whatever terms you negotiate. In other words, mediation cannot force you to accept divorce terms that you are not willing to accept (the court – on the other hand – can).
Mediation keeps the decision-making power between you and your divorcing spouse.
The results of your mediation are private (if your divorce goes to court, it is a matter of public record)
The mediator will help you understand what would likely happen if you proceeded to court, which may help motivate both of you to dig a bit deeper when it comes to your negotiations.
Any terms that you resolve at mediation are terms that you won’t need to address at court (even if mediation does not resolve every divorce term in question).
Going to Court
If you have exhausted your negotiation options, you will need to seek the court’s intervention. Most divorcing couples value keeping the decision-making between themselves and prefer not to abdicate this power to the court. There are some situations, however, in which looking to the court is the best option. Consider the following:
If you are hopelessly deadlocked on a topic, the court can put an end to seemingly endless negotiations.
If your divorcing spouse is determined to make your divorce as difficult as possible (regardless of the consequences for himself or herself), proceeding directly to court can save time, money, and heartache in the long run.
If you are seeking a fault-based divorce and your spouse is not in agreement about his or her fault in the matter (which is common), you’ll need the court’s intervention to accomplish your goal.
How is marital property divided?
All the assets that you and your spouse acquire as a married couple (regardless of who makes the purchase or whose name is on it) are considered marital property, and upon divorce, these assets must be divided equitably. Equitably means fairly when it comes to matters like the following:
The age and mental and physical health of each spouse
The level of education, employability, and earning potential of each spouse
The duration of the marriage
Each spouse’s separate property
Each spouse’s contributions to the financial support of their shared children
Any attempt by either spouse to spend down, get rid of, gift, or otherwise disappear marital assets
Either spouse’s fault in the dissolution of the marriage (as discussed above)
What constitutes separate property?
Separate property refers to those assets either of you owned prior to marriage and that you kept separate throughout your marriage – which remain your separate property upon divorce. Marriage being what it is, however, it can be a serious challenge to keep separate property separate throughout a marriage, and there is often considerable disagreement when it comes to identifying separate property in a divorce. It is also important to note that some assets can be partially separate and partially marital – thus complicating the matter even further. For example, if you come into your marriage with a 401k, the value of the retirement account at the time of your marriage may be considered separate, but any increase in value over the course of your marriage is likely to be considered marital property.
What factors tend to complicate the division of marital property?
Even the simplest division of the most straightforward marital property has the potential to become very complicated very quickly, but there are certain factors that almost guarantee that serious complications will ensue, and these include:
Complicated assets that involve intermingled separate and marital property
How are child custody arrangements determined in Texas?
In Texas, child custody is addressed in terms of parental responsibilities and parenting time.
Parental responsibilities refer to who will be making the important parenting decisions going forward, including decisions that address the following:
Your kids’ schooling
Your kids’ religious upbringing
Your kids’ healthcare needs
Your kids’ extracurricular activities
This decision-making responsibility can rest with both of you equally, but there are other options available, including:
You can make these decisions together, but one of you will have the ability to break a tie if it becomes necessary.
One of you can take on sole responsibility for making big picture decisions on your children’s behalf.
You can divide this responsibility between you according to the kind of decision that is being made.
Parenting time relates to what you probably think of as physical custody, and while you can get creative with your scheduling, your basic options include:
One of you becoming the primary custodial parent while the other has a visitation schedule
Splitting your parenting time fairly equally between the two of you
An Experienced Killeen Divorce Attorney Can Help
Brett Pritchard at The Law Office of Brett H. Pritchard in Killeen, Texas, is a compassionate divorce attorney who is committed to tirelessly advocating for your parental and financial rights – in pursuit of divorce terms that support you and your children’s best interests. To learn more, please do not hesitate to contact us online or call us at 254-501-4040 today.