Probably the most common family lawcase in Texas is the divorce. It’s likely that you know a handful of people in your own life who have been divorced and you yourself may be one of those people. Divorces come in many shapes and sizes depending on the parties involved and their circumstances. As we begin our discussion on divorce I want to make known that the information I am going to provide to you is intended as a general overview rather than specific advice for you and your family.
For specific advice about your case or your potential case, I would recommend that you contact an experienced family law attorney- such as those with the Law Office of Bryan Fagan, PLLC. So much of a divorce is not only giving legal advice and advocating for positions in court but is managing the day to day drudgery of a case.
Divorce cases in Texas are not court-centric. This means that your case may never even see a courtroom until your case is done and over with. Having an attorney means that your case proceeds efficiently- saving you time and money. Having an attorney means you have a sounding board for concerns and questions- a better sounding board than your cousin who has been through three divorces himself.
Does it take two to tango? What if I don’t want a divorce but my spouse does
You and your spouse got married and formed a contract to live together as spouses. Now your spouse wants to break that contract even though you do not agree with the decision and do not want the divorce. Can he or she do that to you?
The answer is, yes. In our state, if one spouse wants a divorce then the divorce will be granted to him or her. This is due to the fact that Texas is a no-fault divorce state. This means that neither you nor your spouse has to prove fault in the breakup of the marriage. The most typical reason for a divorce is a “no fault” divorce. This simply means that the divorce was likely due to the discord of personalities and irreconcilable differences.
Common Law Marriage and its effect on divorce in Texas
When there has not been an actual marriage license issued but the law considers you and another person married, that is called a common law marriage.
What are the qualifications for a common law marriagein Texas? First of all, you and another adult must have resided together in Texas, intended to be married and held yourselves out as being married to other people in your community. You could have met the latter two qualifications and then lived together for one year or one day and the common law marriage would have been in place.
If you have introduced your partner as your spouse at a party or have filed taxes together as husband and wife these would be examples of holding yourselves out as spouses rather than boyfriend/girlfriend. This is opposed to simply having a child with someone and living with your child’s other parent. This does not qualify as a common law marriage absent the three aforementioned qualifications being met.
If you’re in a common law marriage would you need to get a common law divorce to end the relationship?
If you have not resided with your common-law spouse for longer than two years then there would be no need for a divorce. The presumption would no longer apply that you are common law married if you have been living apart for two years. By that time the common law marriage would have come to an end naturally and without the need for a formal divorce. You and your spouse would have forfeited your rights to dividing up the community estate which is the main reason (other than children) for getting a divorce.
Expected length of a Texas divorce
One of the most frequently asked questions that I am asked in consultations with potential clients of the Law Office of Bryan Fagan, PLLC is how long a divorce takes in our state. Your divorce will take at least sixty days- that much I can tell you.
This is because the law is that from the date that your divorce petition is filed with the clerk there is a minimum sixty-day waiting period until you can head to court with an agreed order to have the judge sign off on your divorce. This is done in order to allow you and your spouse an extended period of time to consider whether or not you truly want to get the divorce.
For the most part, however, divorces take longer than sixty days. Sometimes the length of a divorce is considerably longer than sixty days.
As a general rule of thumb if you and your spouse have come to tentative or working agreements on most issues of your case you can expect your divorce to last anywhere from three to six months. If your divorce is contested, meaning that you and your spouse have different ideas about how different problems should be solved, your divorce can take anywhere from six to eighteen months. Most commonly I would say your divorce will be done in the four to a six-month range to complete.
Community vs. Separate Property
Outside of issues related to children, property is probably the second most contested aspect of any divorce- including your own. Texas is known as a “community property” state. If you own property and are married that property is presumed to be community property rather than properly owned solely by you or your spouse.
The same rule applies to debts owned by either of you. At the time your marriage ends due to divorce the debts and property accumulated by you and your spouse will be pushed to the middle of a hypothetical negotiating table to be divided by you and your spouse.
Separate property is property that you or your spouse acquired before you were married or acquired during your marriage via gift or inheritance. Again, the presumption is that all property that you and your spouse own is community property so you will have to prove that an item is your separate property if your spouse contends it is actually community property.
Dividing community property in a divorce
If you and your spouse are not able to negotiate a division of your community estate, the alternative is to take your case to court and have the judge decide how to do so. The legal standard in Texas that a judge will use to divide your community estate is based on a “just and right” division.
When dividing up the community estate many things will be considered including:
- The separate estates of you and your spouse
- the children each of you have
- primary responsibility to support
- your debts
The popular notion is that a judge would simply split your estate down the middle in a divorce. While this is possible it is not a certainty. Those other factors I just mentioned are considered strongly by judges and you cannot know exactly how the judge will feel about your circumstances heading into a trial.
Temporary Orders and an Introduction to Conservatorship- Divorce essentials to be posted tomorrow
Please come back to read more about divorce tomorrow as we begin to discuss some “meat and potatoes” issues in divorce cases including temporary orders and Conservatorship of children. At least one of these issues will affect every person going through a divorce- including you.
If you have any questions about anything you’ve read today please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. We can schedule a free of charge consultation for you where your questions can be answered by one of our licensed family law attorneys. Thank you for your time and interest in reading this blog post and please come on back tomorrow for more helpful information.
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”
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Other Articles you may be interested in:
- Common Law Marriages in Texas, Part Two
- Common Law Marriage in Texas
- Is a Common Law Marriage Just as Good as a Ceremonial Marriage?
- Common Law Marriage: How to avoid being or getting married without your intent
- Frequently Asked Questions Regarding Common Law Marriage and Divorce
- Frequently Asked Questions Regarding Texas Marriage
- Non-Marital Conjugal Cohabitation Agreements for the Unmarried Couple in Texas
- Common Law Marriage and Texas Divorce Guide
- How to get a Common Law Divorce in Spring, Texas
- Am I Married? - Marital Status in Texas
- Can I sue my spouse's mistress in Texas?
- Common Questions about Texas Prenuptial and Marital Agreements
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 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, 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, Houston, 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.