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Texas Divorce Basics

Before making a decision on proceeding with a Texas divorce, it is a good idea to take time to understand the basic process and the key issues that must be addressed.

For most people, divorce is new and uncharted territory. For many people it can be a frightening process. Obtaining information about the process can ease this anxiety considerably. This blog article on Texas Divorce Basics is the best place to start.

In this article, we introduce and discuss the following concepts:

  • Divorce and legal separation in Texas;
  • The difference between a no-fault divorce, Divorce with Fault, and divorce from a covenant marriage;
  • The difference between an uncontested divorce and contested divorce;
  • The special characteristics of a military divorce;
  • The availability of divorce self-help; and
  • Continuing health insurance coverage under COBRA.

Divorce Terminates the Marriage Contract

From a legal standpoint, divorce is the method of terminating a marriage contract between two individuals (the parties). A divorce ends a valid marriage. It is the legal procedure that returns both parties to single status with the ability to remarry.

In Texas a divorce takes care of three issues:

  1. Children – it gives both spouses the right to determine the future care and conservatorship of their children,
  2. Property and Debts – it divides property and debts in a “just and right manor”.
  3. Divorce - Once the divorce is final, either is free to marry someone new.

Legal Separation in Texas / Suit Affecting Parent Child Relationship

Some spouses may conclude that continuing to live in the marital home together is impossible. But they are unwilling to go so far as to dissolve their marriage. Instead, they would rather legally separate.

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:

  1. Child Support
  2. Visitation and
  3. Rights and Duties

Unlike a divorce the parents will not be free to marry other people and none of the couple’s property or debt issues will have been resolved. If the couple decides to divorce later having done the SAPCR will probably not save the couple any money if they decide they need to make changes to the prior arrangement.

Divorce that’s No One’s Fault

A majority of states have at least one form of “no fault” grounds for divorce. Texas is no exception and allows people to plead for divorce on “no-fault” grounds. This means a spouse can file for divorce under the ground that the marriage has become insupportable.

This means a standard clause is placed in the Original Petition for Divorce that "the marriage has become insupportable because of a discord or conflict of personalities that destroys the legitimate ends of the marriage relationship". In other words the spouse asking for the divorce wants a divorce.

What every spouse needs to know when pleading “no-fault” in Texas divorce is that a divorce will be granted without either spouse alleging or having to prove marital fault, or guilt.

Meaning that for the purpose of the divorce itself it is not necessary to prove fault under Section 6 of the Texas Family Code such as:

  1. living apart
  2. confinement in a mental hospital
  3. cruelty
  4. Abandonment
  5. Conviction of a felony and
  6. adultery

Instead, one of the spouses must state under oath that “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”.

Additionally, either spouse may obtain a divorce despite the other’s objection. Mutual consent is not required for a no-fault divorce in Texas.

Divorce on Fault Grounds

As discussed above Texas grants divorces based on the following fault grounds: adultery, cruelty, felony conviction and abandonment.

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.

Divorce from a Covenant Marriage

As discussed above Texas does have fault grounds for a divorce that can be plead such as a spouse committing adultery. Usually this is done to try and get more property out of the divorce.

Under some states there is a type of marriage called a “Covenant Marriage” where similar legal grounds must be alleged to support a request for divorce from a covenant marriage.

Compared to a standard marriage, there are additional requirements for entering into a covenant marriage, such as premarital counseling. There are also specific statutory grounds for divorce from a covenant marriage.

Currently Texas does not have a covenant marriage statute. Every legislative session a bill is introduced but as of this writing has not passed.

Difference Between Contested and Uncontested Divorce

Before a divorce will be granted, there needs to be a clean slate. Matters of spousal maintenance, assignment of separate assets, division of community property and pensions, legal decision-making custody, parenting plans, and child support obligations must all be resolved.

In uncontested divorce in Texas both spouses have reached an agreement on all divorce issues which include:

  1. Both spouse agree to be divorced
  2. Parental decision making responsibility for thing such as medical decisions, educational decision, psychological decision for the children, etc.
  3. parental visitation
  4. the amount and duration of child support
  5. the amount and duration of any spousal support (alimony)
  6. the division of property, and debts.

If spouses are able to reach an agreement all issues then it is a matter of drafting the necessary paperwork, waiting the required time period according to Texas law, proving up the divorce decree in Court and then the parties are divorced.

If spouses do not reach agreement on all the basic issues, then then divorce is contested. If Respondent disputes any family matter raised in the petition, then the divorce is contested.

Military Divorce in Texas

The term “military divorce” is simply used to describe a Texas divorce wherein one or both spouses is or was a member of the uniformed services. Military divorce is a descriptive term, not a legal one.

Military service member or retired military personnel have many family and property issues that are unique. These include:

  1. the division of military pensions
  2. health insurance for former civilian spouses and dependents
  3. long-distance visitation during deployment
  4. devising a parenting plan, and
  5. managing court appearances when stationed overseas, among other important matters.

Self-Help: is a website dedicated to providing free, reliable legal information to low-income Texans. It is part of a broader effort within the national legal aid community to use technology, specifically the Internet, to enhance and expand the delivery of legal aid.

The website provides do-it-yourself court forms for divorce and many other civil matters. Every spouse should consult with an attorney before making important decisions about child custody, property division, and financial support.

But if you would prefer to handle your divorce without legal representation, you can utilize these forms.

If you want a little more help the Law Office of Bryan Fagan, PLLC offers Texas Divorce & Child Custody coaching. This is another do-it-yourself alternative. Every subscription includes help with Texas divorce forms and instructions, checklists, and unlimited email access to an Texas attorney.

Continuing Health Insurance Coverage Under Cobra

Texas divorce often has an impact on employer-provided group health or dental insurance coverage for dependents. Therefore, insurance availability, terms of coverage, and replacement costs should be factored into the parties’ divorce just like assets and debts are.

For example, health insurance coverage should be discussed when parties negotiate spousal maintenance or a parenting plan for their children.

Unless ordered otherwise by the court or agreed by the parties as part of a spousal support package, the individual premiums on the COBRA coverage will be billed to and paid by the non-employee spouse postdivorce.

The granting of a divorce makes the non-employee spouse ineligible for group health insurance coverage that may have been available previously to all of the family members.

If a spouse’s employer is subject to the federal Consolidated Omnibus Budget Reconciliation Act (COBRA) provisions (not all employers are), then after the divorce is final health insurance coverage may be continued for dependents as qualified beneficiaries the children or a former spouse.

Both divorce and legal separation are qualifying events that trigger COBRA. As a qualified beneficiary under COBRA, the nonemployee-spouse has the right to pay the premiums and continue under his or her former spouse’s employer-provided group health insurance.

While the non-employee spouse is not guaranteed the same group premium rates he or she enjoyed previously, the non-employee spouse will have uninterrupted health insurance coverage for a specified time so that he or she can obtain other coverage through that party’s own employment or private carrier and can terminate the COBRA coverage.

Insurance coverage can continue under COBRA for 18 months, 29 months, even 36 months after the divorce, depending upon the facts. COBRA requires proper notice of the divorce or legal separation followed by an election period.

The employee-spouse, non-employee spouse, or qualifying dependent must notify the group health benefit plan administrator. Thereafter, the qualified beneficiary must be given an election period of at least 60 days to choose continued health care coverage under the group plan or not.

The health benefit provisions in COBRA amended the Employee Retirement Income Security Act (ERISA), the Internal Revenue Code, and the Public Health Service Act.

While state laws vary in how they address these issues, the basic principles followed by the courts when considering requests for divorce are relatively uniform. If you are thinking about filing for divorce in Texas, then speak to a divorce attorney with the Law Office of Bryan Fagan, PLLC. We can help.



Adobe Stock 62844981[2]If you want to know more about what you can do, CLICK the button below to get your FREE E-book: 16 Steps to Help You Plan & Prepare for Your Texas Divorce

Other Articles you may be interested in:

  1. Roadmap of Basic Divorce Procedure in Texas
  2. Texas Child Support Basics
  3. Know How Property and Debts are Divided, When Preparing for Your Texas Divorce
  4. Dividing Property in a Texas Divorce - The Just and Right Division
  5. How Can I Get My Spouse to Pay My Attorney's Fees in a Texas Divorce?
  6. 7 Important Ways to Financially Prepare for Your Texas Divorce
  7. 6 Tips - On How to prepare for a Texas Divorce
  8. What are the Steps of a Contested Texas Divorce, and How can I Prepare for Them?
  9. 6 Mistakes that can Destroy Your Texas Divorce Case
  10. 6 things You Need to Know Before You File for Divorce in Texas
  11. Understanding Texas Divorce

Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan, PLLC 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 Child Divorce Lawyers right away to protect your rights.

Our Divorce lawyers in Spring 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, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC 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.

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