What if you want to get a divorce in the State of Texas but have no idea where to begin? Where can you go to get your questions answered? Do you have to read a bunch of books with statutes and decisions from appellate courts? Sure, you can go this route. Knowing the family laws passed by our legislature and the conclusions from appellate courts would improve your knowledge base. However- I think both of us know that you are unlikely to go this route. Who can blame you? Not even lawyers believe that sort of thing is fun. I think we’ll try a different option….
I’ve got it. Maybe you have a friend or, even better, a family member who has gone through a divorce. Not that you’re happy someone you know has had a failed marriage, but having someone you trust to be able to tell you a few of their experiences would help you out. All you need to do is sit down with them and buy them a cup of coffee. From there, you can pepper them with questions that range from how their community estate was divided to how their custody situation is working out with the kids. Sounds easy enough.
Hold on, though. Do you know what a community estate is? Does your friend? The reality of the situation is that very few people that goes through a divorce take the time to learn about the process. As a result, your friend or family member probably has opinions about divorce, but they will have trouble telling you how it works. Unless you want to hear horror stories about unfair judges, attorneys who don’t return phone calls, and a lying spouse, you should probably consider another option.
Another source of information that you could choose to take advantage of is the internet. Hey, you’re here now, aren’t you? Everything that you read on the internet can’t be wrong. Attorneys are well known for their honesty, after all. So why not read a few articles, message board posts, or Twitter threads about divorce in Texas. You’ll probably learn a thing or two that can help you in your situation.
That’s a reasonable thought to hold until you’ve read some of the articles or blog posts that relate to divorce in Texas. If you want to learn about how divorce works in Texas, you cannot rely on mere internet articles (this one included). If you expect to learn all you need to know from three paragraphs on a lawyer’s website, then you will be sadly mistaken once your divorce begins. A divorce in Texas is not rocket science, but it can be not very easy, and it takes some time to learn even the basics.
With that all said, I wanted to take a little bit of time today and talk to you about how divorce works in Texas. Of course, I cannot summarize a divorce and how it works in a single blog post from beginning to end. I wouldn’t expect to be able to do that in a dozen blog posts. But here’s my offer to you: once you are done reading this blog post, you are more than welcome (in fact, I invite you to do this) to contact the Law Office of Bryan Fagan. Our law practice is devoted to representing people just like you in divorce cases across southeast Texas. We will set up a free-of-charge consultation for you and one of our licensed family law attorneys to ask questions and have your specific issues addressed.
Where does a divorce in Texas begin?
In most situations, you will file for divorce in the county where you and your spouse reside. I assume that you are like most married folks: you live together with your spouse right now, or one of you has recently moved out of the marital home. Either way, you are both residents of the same county, so you would file for divorce where you live.
The basic residency requirements for filing for divorce in Texas are as follows: you or your spouse must first have been residents of Texas for six months and a resident of the county where you plan to file for the past ninety (90) days before you can file for divorce. As long as one of you meets this requirement, you are going for launch as far as filing for divorce is concerned.
Keep in mind that if you find yourself in a situation where you and your spouse have been separated for longer than ninety days, and your spouse has moved to another county, you don’t know what they have in mind as far as filing for divorce themselves. So, what you may encounter is that while you have filed for divorce in Harris County, your spouse may choose to file for divorce in Travis County, where he moved to be closer to family.
You may be well served to go ahead and file for divorce in your home county once you have decided to do so, learned enough about Texas divorces to feel comfortable, and then have hired an attorney to assist you in that endeavor. That way, you can help avoid a situation where you and your spouse are battling to determine the venue is proper. If you beat them to the punch and file first, you have the leg up if they choose to file shortly after that.
What if I don’t want to participate in a divorce filed by my spouse?
I often get this question enough from people that I feel the need to discuss it with you. The question will come from a spouse who has been somewhat unexpectedly served with an Original Petition for Divorce. Maybe this person didn’t think their marriage was going great, but neither did he believe that a divorce was on the horizon. In a state of shock and dismay at the divorce proceedings, this person comes to our office to see what happens if he chooses not to respond to the divorce petition and fails to appear in court for any hearings.
Whether or not you participate in the divorce is up to you, but keep in mind that if your spouse wants to divorce you, she can do it. She doesn’t need your permission, consent, or participation in the divorce process to get a divorce from you. You can either play ball or not. By playing ball, you have the opportunity to voice your opinion and negotiate on the terms of your divorce. If you have a substantial or even minimal amount of property to your name, children under the age of 18, or retirement benefits subject to division, you must come to the table and work with your spouse on the divorce.
On the other hand, you can choose not to participate in the divorce. Do so at your own risk. You may be deadest against the divorce. You may not want to spend a dime on an attorney. Whatever your motivation is for not wanting to participate in the divorce, I would go back and examine that thought. If you choose not to participate in the divorce, you put your short and long-term futures at risk.
By not participating in the divorce, you allow your spouse to come up with all of the terms of your divorce. That doesn’t mean that she can say she wants you thrown in jail for being a jerk to her, but it can mean that you get stuck paying all marital debts, losing out on a massive chunk of community property rights that you had and gaining a less good slice of parenting time with your kids. The result of a divorce that you don’t participate in is entirely out of your control.
This is known as a “default divorce” because the result of the divorce would be granting a default judgment to your spouse. If you have a legitimate reason for not appearing in court, such as not being properly notified of the divorce having been filed, you may be able to have the default judgment thrown out. You would then have a brand-new opportunity to make yourself available to participate in the case. Otherwise, if you knew of the lawsuit and plain didn’t want to play ball, it’s nobody’s fault but your own that the final divorce decree suits your spouse much better than it does you.
What happens to my family home in the divorce?
Your family home is probably your largest, single asset. You may be fortunate to have some retirement accounts with hundreds of thousands of dollars (or more) in them. However, the alternative is that your family home is likely the most significant asset in play during your divorce. Think of the sizeable down payment, the monthly mortgage payments, renovation costs, utilities, etc., that you and your spouse have invested into the home. Now all of that is in jeopardy due to the divorce. That’s just part of the equation when it comes to solving the problem of your marital home in a Texas divorce.
The other part of that equation that is just as important is the emotional aspect of dealing with the family home. While you have made many bad memories in that home, it is true also that you have made many good memories in that home. Is it where you and your spouse moved into right after your wedding? Maybe your kids took their first steps in the kitchen? It could be that you and your spouse dug down deep and did all the repairs to the first floor of the home right after Hurricane Harvey.
Whatever your specific circumstances are, know in advance that the family home is a big part of a Texas divorce. It is presumed that any asset or debt acquired during your marriage is considered community property in Texas. Community property is subject to division in a divorce. That division can occur either via an agreement between you and your spouse or via a decision from the judge. Most spouses find that mediation and negotiation are better places to resolve disagreements on the home than in trial. However, it is certainly possible that your case will go all the way to a contested trial where a judge will have the final say in the outcome of your divorce.
You should be prepared for whatever eventuality occurs in your case. Know that there are three outcomes in a divorce regarding the family home: the house can go to you, the house can go to your spouse, or the house can be sold. Those are pretty much the only options. What option is selected depends on your ability to pay a mortgage on only one salary. You are awarded primary custody of the kids and a host of other factors that we don’t have space to discuss here.
If your spouse is awarded the home in a divorce, you will not have to walk away empty-handed. It is customary that you will be paid your portion of any equity in the home or be awarded a similar valued amount of the community estate for making you whole. Legal documents will need to be drawn up that deed your part of the home to your spouse and another that protects you if your spouse falls behind on a mortgage that still bears your name even after the divorce concludes.
How does divorce work in Texas? A lot better when you have an attorney
If you have any questions about the content of today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week. These consultations are an excellent opportunity to have an attorney answer your questions and directly address whatever issues you and your family face.