The Texas Divorce Procedure

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The better you understand the basics of the Texas divorce procedure, the better prepared you’ll be to bring your strongest case – in protection of your parenting and financial rights.

While being better informed can help you navigate the divorce process more smoothly, no factor is more important than having the skilled legal representation of an experienced Round Rock divorce attorney in your corner.

Determining if You Can File for Divorce in Texas

Before you can file for divorce in Texas – or any state – you must meet the residency requirements. In Texas, you can file for divorce if at least one of you – you or your spouse – has lived in the state for at least the previous six months. You can file in any Texas county that at least one of you has lived in for at least the 90 days prior to filing.

If you each qualify in separate counties, you can choose the one that makes the most sense for you – and your seasoned Round Rock divorce attorney will help you make this potentially important decision. One county may be preferential over another in relation to your specific case.

Filing for Divorce

The divorce process is officially initiated as soon as one of you files the original petition for divorce, and the filing spouse becomes the petitioner while the other is classified as the respondent.

While filing first may come with administrative advantages related to gathering the documentation you’re going to need early on, this shouldn’t be a motivating factor. For example, if your spouse has already served you with divorce papers, it’s time to consult with a dedicated divorce attorney – and not to worry about who filed first.

If Your Spouse Filed First

If you filed the original petition for divorce, you included your request for specific divorce terms in it, but if your spouse filed first, they included their own. This triggers your response, which you only have a limited number of days to file. Your answer is very likely to be a counterpetition in which you request specific divorce terms of your own.

Serving the Other Spouse

Whoever files for divorce must have the other spouse served with the divorce papers, which sets the response time limit ticking. If you and your divorcing spouse are on the same page, the spouse who didn’t file can waive the right to service, and the papers can simply be handed off between you.

Otherwise, the filing spouse will need to go through the process of having the other officially served.

The Cooling Off or Waiting Period

In Texas, divorcing couples are required to wait at least 60 days after filing before their cases can be finalized. In reality, however, it generally takes a good deal more than 60 days to negotiate divorce terms that you both agree to, and the court’s busy docket will also play a role in how long the matter takes to be finalized.

When the stars align, a couple can be divorced in as few as 61 days, but it’s more important to focus on obtaining divorce terms that support your parental and financial rights than to rush the process for the sake of it. The 60-day waiting period can be waived under highly specific circumstances that include both the following:

When one spouse doesn’t want the divorce

The bottom line when it comes to divorce is that if one spouse wants it, the other can’t stop it, but they can make the process a good deal more complicated. If, for example, your ex refuses to negotiate divorce terms because they don’t want a divorce in the first place, it’s very likely to turn up the heat on your case, to draw it out, and to make it more costly.

Often, in these cases, the best path forward is heading directly to court, which helps limit the damage. Making your divorce a long, protracted ordeal doesn’t do anyone any favors, and proceeding forcefully ahead may be the only way to put the matter behind you with any sort of urgency.

If you are the spouse who doesn’t want a divorce, the emotional consequences can be that much more challenging. However, it’s important to recognize that no amount of strategizing is going to stop the divorce if your spouse has made their mind up.

At this point, your focus should be on protecting your parental and financial rights as fully as possible – and on getting the emotional support you need to make it to the other side of this very difficult transition.

The Grounds for Your Divorce

The grounds for the vast majority of divorces in Texas is insupportability, which basically means irreconcilable differences – or that you simply can’t make the marriage work. This is a no-fault divorce in which neither spouse has to prove the other’s wrongdoing – or prove anything else – for the divorce to be granted.

There are several very good reasons that most divorces in Texas are no fault, including:

  • They tend to be less time consuming.

  • They tend to be less expensive.

  • They tend to be less contentious.

  • They tend to be resolved out of court, which makes them uncontested divorces.

  • They are generally less emotionally challenging for the children involved.

Fault-Based Divorce

To obtain a divorce that’s based on grounds of fault, such as adultery or cruelty, you’ll need to prove your spouse’s wrongdoing, and your case will be resolved in court – making it a contested divorce. This means that you give up your right to make primary financial and parenting decisions on your own behalf and look to the court to do so for you.

In other words, proceeding with a fault-based divorce should be based on a very solid reason that supports your best interests. This is a critical decision that you should make under the trusted guidance of your focused divorce attorney.

Contested vs. Uncontested Divorce

It’s important to point out that a no-fault divorce can also be contested, which means it will ultimately be resolved in court. Virtually every fault-based divorce, however, is contested – because the spouse accused of wrongdoing is very unlikely to accept lesser terms without putting up some sort of fight.

Ultimately, any divorce that needs the court’s intervention is contested, and any divorce in which the spouses are able to negotiate terms between themselves – with the practiced legal counsel of their respective divorce attorneys is uncontested.

A final note is that even an uncontested divorce can be highly contentious, take seemingly forever to resolve, and become increasingly costly. In the end, it’s important to balance the pros and cons of proceeding to court and to cut your losses by heading to trial when it makes sense to do so.

If Your Marriage Is Common Law

Under highly specific circumstances, the State of Texas recognizes common law marriages, and if yours qualifies, it’s important to know that there’s no such thing as a common law divorce.

If your relationship is identified as being a marriage, you’ll need to obtain a divorce in order to break the contract established through common law. Just because your marriage is common law rather than a formal marriage doesn’t mean that there are any shortcuts when it comes to your divorce.

Texas Doesn’t Recognize Legal Separations

If you think that separating from your spouse and going your separate ways amounts to a legal separation in Texas, you’re mistaken. In fact, the State of Texas doesn’t offer legal separations, and you are married until you are divorced. This means your assets and debts remain intertwined in the eyes of the law, and a new romantic relationship is considered adultery – which can support a fault-based divorce.

Negotiating the Terms of Your Divorce

Your divorce can’t be finalized until you negotiate the applicable terms between yourselves or turn to the court to do so for you. When it comes to negotiations, you have options that include all the following:

  • Negotiating between yourselves under the guidance of your respective divorce attorneys

  • Allowing your respective divorce attorneys to negotiate on behalf of each of you

  • Heading to mediation – where a professional mediator in their role as a neutral third party will facilitate the back-and-forth until you are able to hammer out mutually acceptable terms, if possible

While your divorce will be uniquely your own, the terms that you’ll need to resolve are the same as those faced by every divorcing couple.

Your Child Custody Arrangements

Child custody in Texas is considered in terms of both physical and legal custody.

Physical Custody

Physical custody addresses parenting time, which determines how you and your ex will split your time with the kids. While one of you may become the primary custodial parent who has the children for the majority of their overnights, you’re both very likely to receive generous parenting time schedules.

Texas courts are motivated by the children’s best interests, and it’s widely accepted that children’s needs are best served when they have the opportunity to establish close, loving relationships with each parent. Only if there is a serious reason for doing so will one parent’s visitation with the children be strictly limited, such as by required supervision.

Legal Custody

Legal custody covers parental responsibilities, which guide decision-making authority. The kinds of decisions addressed include primary matters like the following:

  • The medical care your children receive

  • The schooling your children receive

  • The extracurriculars and travel your children participate in

  • The religious education your children receive

You and your ex may continue making these decisions by consensus between yourselves, but one of you may have the authority to break a tie if doing so becomes necessary. Other options include dividing these matters between yourselves according to specific categories, or one of you taking on sole legal custody and making these decisions on your own.

Child Support

The State of Texas requires parents to continue financially supporting their children post-divorce, and this is organized through child support. Each parent’s responsibility correlates with their ability to pay, and this means that the higher earner typically has the child support obligation—even when parenting time is shared evenly.

The Division of Marital Property

All the assets that you and your spouse – whether together or separately – acquired while you were married are considered marital assets, and they must be divided between you fairly upon divorce. While the term fairly here can mean equally, it doesn’t have to, and there are circumstances in which the court will distribute marital assets unevenly.

For example, any fraud on the estate – or hiding, spending down, or otherwise dissipating assets – can lessen the at-fault spouse’s share.

Alimony

Alimony – or spousal maintenance – only comes into play under highly specific conditions that relate to one spouse being left without the means to cover their own reasonable needs.

If the other has the ability to provide financial assistance, alimony will likely be ordered, but it’s generally restricted to the amount of time necessary for the recipient to gain greater financial independence through one of the following:

  • Further education

  • The acquisition of job skills

  • Job training

The greater the financial discrepancy between the two spouses and the longer the marriage, the greater the chance that alimony will play a role.

You Need an Experienced Round Rock Divorce Attorney on Your Side

Brett Pritchard at The Law Office of Brett H. Pritchard is a formidable Round Rock divorce attorney who will spare no effort in his focused pursuit of your case’s best possible resolution.

The terms of your divorce are important to you and your children’s futures, so please don’t wait to reach contact us or call us at 254-781-4222 to schedule your free consultation and learn more today.

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