Every divorce is specific to the people and the circumstances involved, but there are also facts that guide every divorce in Texas. Understanding these basics can help you navigate the divorce process more smoothly while protecting your financial and parental rights along the way.
One of the most important steps anyone who is facing a divorce can take is securing the trusted legal guidance of an experienced Round Rock divorce attorney early on.
One: It’s in Your Best Interest to Consult with a Seasoned Divorce Attorney
Divorce is a legally complex matter, and even the most straightforward cases can go south in the blink of an eye. The bottom line when it comes to divorce in Texas is that your financial and parental rights hang in the balance, and protecting these rights is paramount.
When you have the professional legal representation of a seasoned divorce attorney in your corner, you can proceed with the peace of mind that comes from knowing your rights are in good hands.
Your practiced divorce attorney will ably assist you with each of the following primary tasks:
Assessing your marital estate and determining your fair division of marital property
Proving the separate nature of your separate assets
Helping you determine your divorce priorities, which will guide your negotiation strategies
Negotiating fair terms between you and your divorcing spouse that work well for you and your children
Zealously advocating for your parental and financial rights throughout the legal process
Guiding you seamlessly through mediation if you and your spouse are unable to negotiate terms between yourselves – with the skilled legal guidance of your respective divorce attorneys
Preparing to skillfully fight for your rights in court – in the unlikely event that your case doesn’t settle
Having a knowledgeable divorce attorney backing you up from the start can make a serious difference in your divorce terms, which can make a serious difference in your future.
Two: Divorce Residency Requirements Are Exacting
In order to obtain a divorce in Texas, you must meet the state’s strict residency requirements, which include:
At least one of you must have lived in the state for at least the 6 months prior to filing.
You must file in a Texas county where at least one of you has lived for at least the 90 days prior to filling.
If you qualify in two different counties – which means you and your spouse have lived in different counties for at least the last 90 days – you can file in the county that makes the most sense for you. Your focused divorce attorney will help you explore your options – including whether or not one county is advantageous over the other.
Three: There Is a Mandatory Waiting Period
Texas implements a mandatory 60-day waiting period between the time that you file for divorce and the date that your divorce can be finalized. This is known as a cooling off period, and most divorcing couples use this time to negotiate their divorce terms.
While a 61-day divorce is achievable in theory, the court’s docket plays a significant role, and most couples require more than 60 days to reach mutually acceptable divorce terms in each of the following categories:
Parenting time and legal custody
Child support
The division of marital property
Four: Texas Is a No-Fault Divorce State
In Texas, you don’t need a specific reason for seeking a divorce – other than claiming insupportability, which basically means that you and your spouse have irreconcilable differences.
In other words, all it takes is for one spouse to want a divorce, and it will happen – whether the other spouse is on board or not. This said, however, a spouse who doesn’t want a divorce can complicate the process in all the following ways:
By making the divorce more emotionally fraught
By making the divorce more costly
By making the divorce process lengthier
Fault-Based Divorce
Texas also, however, allows divorces that are based on fault, and the most common grounds are adultery and cruelty. In order to obtain a divorce that’s based on fault, the filing spouse must prove the other’s fault, which can be a challenging hurdle.
For example, your spouse is unlikely to admit having an adulterous affair and proving that they and their paramour are anything more than friends or business acquaintances can be difficult.
Considerations Related to Fault-Based Divorce
Obtaining a fault-based divorce is likely to take more time, to be more expensive, and to be more contentious than a no-fault divorce, and it can also be harder on your children. This is not to say, however, that seeking a fault-based divorce is never a good idea.
Your spouse’s wrongdoing could support better divorce terms for you, which could make a considerable difference in your future. Your savvy divorce attorney will help you make the right decisions for you throughout the divorce process, including in relation to how you file.
Five: Texas Is a Community Property State – with a Twist
Texas is what is known as a community property state, which means that every asset you, your spouse, or you and your spouse together acquired during your marriage belongs jointly to the two of you.
In Texas, however, the division of these assets isn’t necessarily 50/50 the way it is in most other community property states. Instead, Texas seeks a just and right division of marital assets, which means the circumstances of the marriage and the divorce are taken into consideration.
Factors Affecting Property Division
Texas considers factors like the following in the fair division of marital property:
The length of the marriage
The contributions made by each spouse to the marriage, including in the forms of homemaking and childcare
The size of the marital estate and of each spouse’s separate estate
Whether either spouse engaged in financial wrongdoing, such as hiding, giving away, or otherwise diminishing marital assets
The matter of fault, which can play a role even in a no-fault divorce
Any disparity in terms of each spouse’s income and earning power
Each spouse’s age and overall mental and physical health
The tax consequences of the proposed property division
Separate Assets
Each spouse keeps their own separate assets upon divorce, and this refers to those properties they owned prior to marriage and kept separate throughout. The line that divides separate from marital assets is not especially robust in Texas, and this means that any commingling of separate and marital funds can wear away at the distinction between the two.
Additionally, any increase in a separate asset’s value is likely to be considered marital. For example, the amount that a retirement account increases in value over the course of a marriage is treated as marital property.
The State of Texas begins with the presumption that all assets are marital, which means that the spouse claiming separate property must prove its separate nature.
Six: Your Child Custody Arrangements Will Be Based on Your Children’s Best Interests
Texas courts base every child custody order on the best interests of the children, and this generally means that each parent receives a generous parenting time schedule. The reasoning behind this is that children’s best interests are considered best served when their relationship with each parent is supported.
The factors that Texas courts turn to when making child custody determinations include all the following:
Each child’s needs, including any special needs
Each parent’s ability and commitment to addressing the children’s needs
Each child’s age, developmental stage, and overall mental and physical health
Each parent’s age and overall mental and physical health
Each parent’s commitment to co-parenting effectively with the other
Each parent’s commitment to supporting the other’s strong bond with the children
Whether matters such as domestic violence, child abuse, child neglect, or parental alienation are concerns
The distance the parents live from one another and the cost of travel back and forth
The level of parenting each parent has engaged in thus far
The strength of the relationship between each parent and each child
How well the status quo – or the children’s current living situation – serves their best interests
The preferences of those children who are considered mature enough and old enough to voice them
Seven: Alimony Is the Exception Rather than the Rule
Alimony is by no means a given in a Texas divorce. Generally, alimony isn’t even a consideration unless the marriage lasted at least 10 years. Further, the spouse seeking alimony must prove that divorce will leave them without the means necessary to provide for their own reasonable needs – in the context of the standard of living achieved during the marriage.
When alimony is awarded, it’s set for an amount and a duration that allows the recipient to gain greater financial independence through one of the following:
Higher education
Job training
The acquisition of job skills
Eight: The Higher Earner Generally Pays Child Support
In Texas, child support is generally calculated according to a straightforward methodology. While the primary concerns are the amount of parenting time each spouse receives, the higher earner among you should expect to have the child support obligation – even when parenting time is divided evenly between you.
When the circumstances call for it, Texas courts will deviate from the state’s calculation process, but typically, the higher earner pays child support according to the following breakdown:
20 percent of their net income for 1 child
25 percent of their net income for 2 children
30 percent of their net income for 3 children
35 percent of their net income for 4 children
40 percent of their net income for 5 children
At least 40 percent of their net income for more than 5 children
Nine: You’ll Very Likely Go to Mediation before Heading to Trial
The vast majority of divorce cases in Texas are settled out of court. If you and your divorcing spouse make no headway regarding your negotiations, you should expect to go to mediation.
Most divorcing couples prefer to make decisions about primary factors in their lives themselves – rather than allowing a stranger to do so for them – which motivates most divorcing spouses to dig deep when it comes to negotiating.
If you reach the point that your negotiations stall – even with the skilled legal counsel of your respective divorce attorneys – mediation is a great option.
At mediation, a professional mediator will guide the proceedings in their role as a neutral third party by going back and forth between you and your divorce attorney and your soon-to-be ex and theirs and attempting to move the needle in the direction of compromise.
Mediation can be highly effective, but it’s important to know that, if your spouse is bound and determined to make your divorce as ugly as it can possibly be, skipping mediation and addressing the matter head-on in court may be the best approach.
Ten: You Should Expect the Unexpected
Divorce is nothing if not unpredictable. The most peaceful divorce can turn ugly in the space of a moment, and a highly contentious divorce can lose its steam and resolve itself relatively quickly, such as through mediation. Understanding this fact going into divorce can help you keep your bearings. The most important steps you can take include all the following:
Work closely with your accomplished divorce attorney throughout the process
Focus on your divorce priorities, which helps to ensure you won’t be distracted by the small stuff
Let your children’s best interests and well-being guide you
Don’t get caught up in games with your divorcing spouse – if it’s necessary in order to maintain a level of peace, stick solely to electronic communications between the two of you
An Experienced Round Rock Divorce Attorney Is on Your Side
Brett Pritchard at The Law Office of Brett H. Pritchard—proudly serving Round Rock, Texas—is a well-respected divorce attorney with the experience, legal insight, and resources to help guide your case effectively and efficiently toward a favorable resolution that works for you. Learn more by contacting or calling us at 254-781-4222 and scheduling a free consultation today.