In Texas in its simplest form a divorce terminates a marriage giving a married couple the legal right to marry another person.
What many people do not know is that a divorce is a lawsuit that does more than end a marriage. A Texas Divorce takes care of three things which are:
- Property - divides marital assets and debts
- Children – determines rights and duties of parents toward children, parental visitation, and establishes child support and
- Marriage – ends the marriage
Generally, in Texas Family Law Cases are heard by District Courts that have a primary responsibility of for law matters and these courts are known as “Family Law District Courts.” In smaller county’s this may not be true and the cases may be heard by county courts at law. In smaller county’s these courts may also hear other types cases then just family law cases.
No Fault Divorce
Like most states, Texas’s “no fault” divorce statutes allow for the marriage to be dissolved without allegations and proof of fault.
This means there is no need for the court to decide which spouse was the source problem for the failure of the marriage. With a “no fault” Texas divorce, the marriage is dissolved because it had become “insupportable”.
Other Grounds for Divorce
In Texas, you can ask the court to give you the divorce because it was somebody's fault. If fault is proven then when a court gives a divorce for "grounds," a court may give more of the community property to the "innocent" spouse.
Fault Grounds under Section 6 of the Texas Family Code Include:
- living apart
- confinement in a mental hospital
- Conviction of a felony and
Legal Separation in Texas
Legal separation is a concept that provides a middle ground between marriage and divorce. Some states have enacted statutes and enforce laws that allow or even require spouses to legally separate before divorcing. However, Texas does not recognize legal separation. In short, persons in Texas are either married or they are divorced.
Although Texas does not have a statute regarding legal separation when a couple has minor children Texas does have a law allowing people to seek court orders regarding the children even when the couple is still married.
A parent can file a “Suit Affecting the Parent Child Relationship” (SAPCR) asking a Court to establish provisions regarding:
- Child Support
- Visitation and
- Rights and Duties
Under Texas Family Code Section 6.301 for a divorce action to be commenced in Texas Divorce Court, one of the spouses must have been domiciled in Texas for 6 months or more and a resident of the county in which the suit is filed for the preceding 90-day period.
This is a jurisdictional requirement without which a Texas Court would have no legal power to dissolve the marriage.
In general, “domiciled in Texas” means at least one spouse is a permanent resident here. For those who leave the state temporarily or who have second homes elsewhere, Texas must be the place of permanent or indefinite domicile.
Under In Re Green, 385 S.W.3d 665, 669 (Tex.App. -San Antonio 2012) “The test for residence or domicile typically involves an inquiry into a person’s intent.
In Texas, there are two special statutes for military personnel regarding residency and domicile.
The first one is Texas Family Code Section 6.304. Under this statute a person not a resident of this state who is serving in the armed forces of the United States and has been stationed in this state for at least six months and at a military installation in a count of the state for at least 90 days is considered a Texas domiciliary and a resident of that county.
This is helpful for a military service member or their spouse seeking a divorce because they may not be technically a permanent resident of the state under cause law because he or she may not intend to reside here indefinitely or permanently.
The other helpful statute is Texas Family Code Section 6.303. Under this statute If Texas was the domicile of a military member or Federal Employee when they left Texas to serve outside of Texas, that person is still able to file for divorce in Texas.
Proper Venue or Where to File
Only one party must live in the county where the divorce is filed. This means a spouse can either file in the county where they are living or the county where their spouse is living.
This is one of the things I discuss in my blog article “does it Matter who Files First in a Texas Divorce?”
In either of these scenarios the party who is being used to meet residency requirements must have lived in that county for 90 days and have lived in Texas for 6 months.
Jurisdiction Over Children
Under Texas Family Code 152.201 a new case can be established regarding a child if:
- The State is the “Home State” of a child on the date the commencement of the proceeding.
- A court of another state does not have Jurisdiction or has declined Jurisdiction
Under the Texas Family Code Section 152.102 Texas has defined “Home State” to mean “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.
In the case of a child less than six months of age, the term means the state in which the child lived from birth with a parent or a person acting as a parent.”
A Texas Court also has to take into consideration the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). This act adds an additional residency requirement.
A Texas family law judge does not have jurisdictional authority to decide matters over child custody and child support without a greater period of residency – that is, six months.
The Texas Superior Court’s subject matter jurisdiction over child custody and child support issues depends upon the answers to the following questions:
- Whether Texas is the place where the child has lived for the most recent six months (“home state” jurisdiction); or
- Whether Texas has the most significant connection with the child and at least one parent; or
- Whether the child is physically present in Texas and needs protection based on abandonment or some emergency; or
- Whether no other state is able to assert jurisdiction (or chooses not to assert jurisdiction if it could), and it is in the child’s best interests for Texas to assume jurisdiction.
If a Texas court does not answer in the affirmative to one of these threshold jurisdictional questions, then the case with children will be dismissed.
The court is not really concerned with what the parties want in this regard because there is a bigger issue involved. If the court lacks subject matter jurisdiction, then it has no legal authority to render a decision over child custody and child support — lack of subject matter jurisdiction requires dismissal of the action.
Petitioning for Divorce
When filing for a divorce in Texas the person filing is called the Petitioner and the person who is served with the petition is called the respondent. The purpose of the petition is to give notice to the family court and your ex what you are asking for.
The Original Petition for Divorce will include the following information:
- Personal information about both parties: full names, last the 3 number of the Social Security Number, Last 3 numbers of driver’s license, and service address of respondent.
- Date of marriage
- Date of Separation
- That the “the marriage has become insupportable because of a discord or conflict of personalities that destroys the legitimate ends of the marriage relationship” with “no reasonable prospect of reconciliation”
- One or both spouses has been domiciled in Texas for at least 6 months and a resident of the county for the last 90 days.
- Personal information about all minor children born to or adopted by the couple and whether they have property.
- What kind of Orders you are asking the Court to make in regards to the children as to rights and duties, visitation, and child support.
- Information about whether the wife is pregnant or not
- Information regarding assets and debts, including marital and separate property.
- Statement of what assets should be given to which spouse (bank accounts, real property, household furnishings, retirement accounts, vehicles, etc.).
- Information about the debts incurred during the marriage and which spouse should be obligated to pay each debt.
- Request for spousal maintenance if you are seeking spousal support
- Has a protective order been sought or is one in place
- Are you seeking a name change?
- A prayer for the relief sought, including court orders to dissolve the marriage, restore a former name, order spousal maintenance, order child support, and so on.
The Petition for Dissolution of Marriage is filed with the district clerk in county in which one of the parties meet the residency requirements along with the filing fee which is between $300-$400. Once the petition is filed, the other party must be notified of the family law case.
Changing Your Name
Under Section 6.706 of the Texas Family Code if you wish to have your name restored to your maiden name or other previous name during a Texas Divorce, then you can request a name change in the petition.
If, at some point after the divorce is final, your or your former spouse decide to change their name, then you will need to file a separate lawsuit for an adult name change of Name change. This is a more expensive process involving a criminal background check.
Service of Process
To comply with Rule 106 of the Texas Rules of Civil Procedure, the Original Petition for Divorce and court citation must be served on the other spouse. This is referred to as “service of process.”
If service is not accomplished as required by law, then the court’s orders are invalid and unenforceable. Service of process, then, is not something that should be done, it is something that must be done.
Proper service per Rule 106 is essential for the case to advance. The opposing party is entitled to legal notice of a lawsuit so that he or she can respond within the requisite time and protect his or her rights and interests.
The requirement of proper notice of the lawsuit by service of process ensures fairness in the proceedings. “Proof of service” is evidence filed with the court that the other party was properly served by one of the following four methods:
- Personal Service – a true copy of the citation and divorce paperwork was personally deliver to the respondent by a sheriff or private process server. The process server or sheriff completes an “Affidavit of Service” which is filed with the court as proof of service.
- Mail - Service by registered or certified mail, return receipt requested
- Service by Publication - When other methods of service have failed a petitioner can ask the Court for permission to service respondent by publishing a legal notice advertisement in a newspaper of general circulation.
Once the other party has been served with the Original Petition for Divorce, they have the Monday next after the expiration of 20 days to file a written answer with the Court.
When the other party does not file a responsive pleading within the requisite time period, the Petitioner proceed with the divorce by seeking a default Judgment.
Texas has a 60-day waiting period from the time the Original Petition for Divorce was filed the court and grant a divorce. Thus, technically the soonest a divorce can be granted is 61 days unless there has been family violence.
Default divorces are certainly not uncommon in Texas. When no responsive pleading is filed by the other spouse (who was properly served with process under Rule 106 of the Texas Rules of Civil Procedure), the Petitioner may proceed with the divorce by seeking a default judgment.
The Petitioner brings to the default hearing the following documents:
- Divorce Decree
- Wage Withholding Order
- Medical Support Order
- BVS Form
- Child Support Information Sheet
- TFC Section 105.006 Information Form
- Court Report Information Form
- Certificate of Last Known Address
- Service Member Civil Relief Act Affidavit
When a response is filed with the court by the other spouse, then the divorce process continues.
When the spouses are able to enter into a written settlement agreement, they may be granted an uncontested divorce by the family law judge, avoiding further litigation and trial.
With an agreed decree, the case is fully resolved and finalized. If the spouses are unable to reach an agreement on all basic issues in the divorce, then the parties proceed through all phases of litigation, including trial.
Throughout the divorce process, the parties may avail themselves of Alternative Dispute Resolution (ADR), such as private mediation, to resolve as many issues as possible without court intervention. If a divorce is highly contentious and the dispute involves children, the judge may order an amicus attorney to represent the children and make a recommendation to the Judge.
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Other Articles you may be interested in:
- Getting Ready for Divorce in 2017 in Texas: Part Two of a Two Part Series
- Dividing Property in a Texas Divorce - The Just and Right Division
- Why is Separate Property Important and How to Keep it Separate in a Texas Divorce?
- What Wikipedia Can’t Tell you About Texas Divorce and Marital Property Division
- Texas Divorce Property Division Enforcement
- Separate Property in a Texas Divorce?
- Does it Matter Whose Name is on Title or Deed of Property in a Divorce in Texas?
- Is Social Security Considered Separate Property in a Texas Divorce
- Business Owners and Business Assets in a Texas Divorce
- What to do when your divorce decree does not include a marital asset?
Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers
The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.