Most people have no idea where to begin when they contemplate filing for a divorce. It is a stressful time for all, but there are important requirements you should be informed about if you are looking to obtain your divorce in Texas.
GROUNDS FOR DIVORCE
To begin there are certain “grounds”, or reasons that you are required to prove to get a divorce in some states. Luckily, Texas is considered a “no-fault” state, this meaning that one person does not need to have a reason to want a divorce from another like adultery. This is known as insupportability, simply meaning the parties do not wish to be together anymore.
Apart from the insupportability grounds there are six “at fault” grounds. If you wish to plead the marriage has come to an end due to fault on the other party, it is important to know it will have an impact on your divorce case since they will need to be proven.
The six “at fault” grounds are:
- Living apart: living in separate physical residences for at least three years.
- Confinement in mental hospital
- Cruelty: treatment so extreme it makes it impossible for the parties to live together, cruelty can be both physical or emotional and evidence is come about in support of a cruelty claim.
- Abandonment: one spouse has left the marital home with no intention to return, and the spouse claiming abandonment must prove the other has been gone for at least a year with no contact with the spouse still in the marital home.
- Conviction of a felony
- Adultery: voluntary sexual intercourse with someone you are not married to, that can be proven by direct or circumstantial evidence.
If you are questioning whether to file for divorce alleging fault or not, it is important to seek help from your attorney about what grounds to plead for, and for your attorney to let you know their impact on your case.
Common Law Marriage
Another common question that gets asked, is if people are eligible for divorce if they never got married legally/ceremonially. What they are referring to is the “common law marriage” that the state of Texas does recognize. However, there are a few statutory requirements to deem yourself as common law married. To be married in Texas three criteria must met simultaneously, and these include: (1) two adults [18 and over] must consent to be married to one another, (2) they agree to be married and live together as a married couple, and (3) they represent to each other they are married.
Doing things like buying a home together, filing taxes, even presenting yourself to friends and family as married will qualify you as being common law married. However, in Texas there is no such thing as a common law divorce, and if you are common law married you will simply go through a regular divorce.
When contemplating divorce, most people wonder if they must file for divorce in the same state that they married in, but this is a common myth. If you would like to file in Texas, you should keep in mind that you will have to meet certain residency requirements first.
The general rule is that if you are looking to file for divorce in Texas one of the spouses must be domiciled in Texas for a least six months, and be a resident of the county they seek the divorce in for 90 days before a divorce can be filed. Just because you are a domiciliary of Texas does not mean you will be eligible to file in any county you desire.
If you or your spouse is living out of the state or country, if one spouse meets the 6 month and 90-day requirement they will still be eligible for a divorce in Texas. Keep in mind that if you are contemplating a divorce that filing first may have an impact if you believe your spouse, living in another state, might try to file there first if they meet the residency requirements there.
There are also residency requirements for a state to have jurisdiction over a child in a divorce proceeding. This jurisdiction over child custody is established under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) and will only govern minor child under the age of 18.
In Texas, to have jurisdiction the child will need to have lived here for the most recent 6 months (this is known as “home jurisdiction”; or if Texas has the most signification connection with the child and on person; or the child is presently in Texas and requires protection because of abandonment; or no other state can assert jurisdiction and it is in the best interest of the child for Texas to assume jurisdiction.
Besides having a valid divorce that ends a marriage, there is also what is called an annulment, which is a procedure under the law that cancels a marriage. An annulment treats a marriage as being completely erased like it never happened or was never valid. Basically, you were never married in the first place.
Annulments are harder to get than a divorce because there are stricter statutory grounds that must be met to be eligible, and these include:
- Married under the age of 14;
- Marriage under the age of 18;
- If you married while under the influence of alcohol or drugs;
- If you were deceived by your spouse because of fraud or duress;
- Mental incapacity; or
- Concealment – a spouse hides something that would not have led you to marry them.
If you fall in any of the categories above, you may be eligible for an annulment rather a divorce.
Beginning a divorce case in Texas means understanding exactly the reason on why you wish to get a divorce. Knowing what grounds, you can file on and their impact is important to shape your case. Even more important is knowing if Texas has jurisdiction over the parties and children. You should also know if you can move forward with an annulment rather than a divorce and the different legal effect that the two have.
If you have any further questions about being eligible to file for divorce in the state of Texas, or about the requirements to file for divorce call our office! We offer FREE 30-minute consultations with an attorney who can give you expert advice about what path will fit in your unique set of circumstances. Thank you for your attention to today’s blog and we look forward to helping you with your legal matters.