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How does divorce work in Texas?

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 as well as the decisions from appellate courts would definitely 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 think 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 to have someone that you trust be able to tell you a little bit about their experiences would definitely help you out. All you need to do is sit down with him or her and buy them a cup of coffee. From there you can pepper him or her 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 go through a divorce actually take the time to learn about the process. As a result, your friend or family member probably has some opinions about divorce but he or she will have trouble telling you how a divorce really 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 bad, right? 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 own situation. 

That’s a reasonable thought to hold until you’ve actually 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 pretty complicated and it definitely 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 sum up what a divorce is and how it works from beginning to end in a single blog post. 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 where you can 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 meet this requirement then you are go 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 he or she has 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 made the decision 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 to avoid a situation where you and your spouse are battling with one another to determine where venue is proper. If you beat him or her to the punch and file first, you have the leg up if he or she chooses to file shortly thereafter. 

What if I don’t want to participate in a divorce filed by my spouse?

I get this question often enough from people that I feel the need to discuss here with you. The question will come from a spouse who has been served with an Original Petition for Divorce somewhat unexpectedly. 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 that are subject to division then I would point out that it is especially important that you come to the table and work with your spouse on the divorce. 

On the other hand, you can choose to not 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 to not participate in the divorce you are putting your short and long term futures at risk. 

By not participating in the divorce you are allowing 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 huge chunk of community property rights that you had and gaining a less favorable slice of parenting time with your kids. The end result of a divorce that you don’t participate in is completely out of your control. 

This is known as a “default divorce” because the end of result of the divorce would be the granting of 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 had knowledge of the lawsuit and just plain didn’t want to play ball it’s nobody’s fault but your own that the final decree of divorce 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 largest 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 which is just as important in many regards 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 in Texas any asset or debt acquired during the course of your marriage is considered to be community property. 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 basically three outcomes in a divorce when it comes to 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 each of your ability to pay a mortgage on only one salary, which of you is 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 portion of the community estate in order to make you whole. Legal documents will need to be drawn up that deed your portion of the home to your spouse and another that protects you in the event that 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 a great opportunity to have an attorney answer your questions and directly address whatever issues are facing you and your family. 


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