Texas Divorce FAQs
Q: What is a legal divorce?
A: A divorce is a method of terminating a marriage contract between two individuals. From a legal standpoint, divorce will give each party the legal right to marry someone else, to divide and share marital assets and debts and to determine matters related to the care and custody of their children. In Texas, divorces are either fault-based or no fault.
Q: What is a no fault divorce?
A: Traditionally, divorce was granted only in cases of marital misconduct such as adultery or physical abuse. In these cases, the “guilty” spouse was punished by getting a smaller share of the couple’s property, being denied custody of their children or both. In a no fault divorce, however, both parties agree that there is no “fault” involved in the grounds for divorce. In Texas, married couples can get no fault divorces if the marriage has become “insupportable” because conflict has destroyed the legitimate ends of the relationship. No fault divorces can also be granted if a couple has been living separately without cohabitation for three years.
Q: What is a fault-based divorce?
A: A “fault” divorce is a divorce in which one party blames the other for the failure of the marriage by citing a legal wrong. In Texas, the grounds for divorce include adultery, abandonment, confinement for incurable insanity for three years, felony conviction and imprisonment for over one year, or cruel and inhuman treatment. The spouse against whom the divorce is sought can use as a defense that the divorcing spouse condoned the behavior, but the court will only allow that defense if there appears to be a good chance of reconciliation between the parties.
Q: What are the requirements for filing a petition for divorce?
A:In Texas, one of the parties must have resided in the state for at least six months and in the county where the divorce is filed for 90 days prior to commencing the action. Tex. Fam. Code § 6.301.
Q: What is a legal separation?
A: A legal separation deals with property distribution and child support and custody issues without ending the marriage. While most states have some form of legal separation, Texas does not. In Texas, temporary orders concerning marital issues can be granted while a divorce is pending, but there is no provision for an indefinite legal separation.
Q: What is an agreed divorce?
A: In Texas, if the couple agrees on the terms of the divorce, they can document the terms of that agreement and take it to a judge. The judge will ask the parties questions about the agreement, and if the terms are fair, the judge will grant the divorce according to the terms of the agreement.
Q: How is property divided in a divorce?
A: Texas is a community property state, which means that all the property owned by a married couple is categorized as either community property or separate property. Community property is owned equally by the spouses and divided at divorce. On the other hand, separate property is kept by the spouse who owns it. Most property acquired during the marriage will be considered community property, even if it was acquired in another state.
Q: What is the difference between maintenance and alimony?
A: Each word refers to the same concept — one spouse providing funds to the other. The legal term in Texas is “maintenance,” which are regular, court-awarded payments from the future income of one ex-spouse to support the other. Such payments are not often awarded, and when they are, they typically end after three years. The court will consider a range of factors when determining maintenance.
Q: Do I need to hire a lawyer?
A: It is not mandatory that you hire a lawyer and you may represent yourself. However, you may be putting yourself at a serious disadvantage. Most divorces are not straightforward unless there are no marital assets, children or other joint issues. Given the complexity of the issues, it is beneficial to employ the services of a professional who is knowledgeable of Texas law and experienced in the field.
Questions to Ask During Divorce
Considering whether to end your marriage is one of the most important and difficult decisions you will ever have to make. It is also important to approach the question from a rational perspective rather than solely an emotional one. In many ways, it is a business decision that requires you to evaluate many issues. Once you review this list of questions, you may rethink the direction you are headed, or you will be better prepared to move forward while working with a lawyer at Lindamood & Robinson, P.C. in Houston, TX.
- Who will the children live with?
- If they live with your spouse, how often will you be able to visit them?
- How will you and your ex-spouse make decisions about the children, such as their health and education?
- Who pays for the children’s living expenses? Their education? Travel?
- How is the amount of child support to be paid by one party to the other parent determined?
- What if your ex-spouse remarries and the stepparent wants to adopt your children?
- What about spousal maintenance? Will you receive it or need to pay it? How much and for how long? Why will it be required?
- Will either of the other parties’ support or the support of their children increase or decrease in the future due to the changed financial circumstances of either of the parties, economic conditions or other factors?
- Who will be entitled to claim the children as exemptions for income tax purposes?
Marital home and other property
- Who will live in the marital home during the divorce process?
- How is the home currently owned? How did you acquire it?
- What are your assets? How did you acquire them? When?
- Will one of the spouses keep the marital home or will it be sold? How will the proceeds be divided?
- If someone keeps the home, will one of the parties deed their interest in it to the other?
- If you decide to sell the home, will both spouses be involved in the sale and closing?
- Who decides the selling price or if a broker will be used?
- Who will be responsible for major repairs and the costs of preparing the home for sale?
- Who will be entitled to deduct the mortgage interest charges and real estate taxes for income tax purposes?
- Who will be responsible for any income (capital gains) taxes which may be imposed as a result of the sale of the home?
- Should you keep life insurance for the benefit of your children?
- Who will be the beneficiary of such insurance?
- Will either party be obligated to provide medical or other insurance for the benefit of the other and if so, for how long?
- Will either party be obligated to provide medical or other insurance for the benefit of the children and if so, for how long?
- Who will be responsible to pay for any medical, dental, drug or hospital expenses of the children that are not reimbursed by any policies of insurance that either of the parties may have?
- Who will be entitled to receive any refund that may be due on any past joint income tax returns filed by the parties?
- If there is a deficiency on any past joint income tax returns, who will be responsible for it?
- If you file joint income tax returns for the present year who will be responsible to pay any taxes due and who will be entitled to receive any amount refunded?
Psychologists put divorce on par with the death of a loved one, losing a job and relocating as one of the most stressful events that a person can go through in life. In the face of such a dramatic life change, people often have several questions regarding transitioning from married to single with respect to finances, investments and real estate matters.
One of the most common questions people have after divorce is: How do I handle my finances as a single person, after being part of a couple?
Experts suggest beginning by making a list of monthly income and expenses such as rent or mortgage payments, food expenses, clothing costs and utility bills. Such a list gives a person a realistic idea of his or her financial situation and how much disposable income he or she has each month. Another technique that can help people who may not have been responsible for paying the bills while married is to make a list of the due dates of each monthly recurring expense in order to keep track of when they need to pay bills.
A change in life circumstances such as divorce raises the question: How does divorce impact my long-term financial planning?
It is wise to seek the advice of a financial planner to review investments and retirement savings plans after a divorce. A professional can discuss investment options and offer advice on the amount a person needs to save and what types of investments will help a person meet his or her goals. After divorce it is also a good time to update any investment accounts a person has, reviewing the names on the accounts and the account beneficiaries.
Many people need to sell their homes after a divorce, and wonder: What are the most important things to remember when trying to sell a house?
Real estate experts advise sellers to make sure that the price they are asking for their homes are in line with the prices of surrounding homes in the neighborhoods. The next key element is to repair any defects that the house has in order for the property to appear in the best light to potential buyers. Additionally, a seller needs to ensure that the real estate agent they hire to sell the house is giving the home proper exposure to potential buyers through open houses, internet listings, neighborhood signs and print ads.
Speak to a Texas Divorce Lawyer
This list is not exhaustive but it does give you an idea about the issues that should be considered before making a decision to pursue a divorce. It is always in your best interest to consult with an experienced Texas lawyer to make sure you understand all the relevant issues and their legal impact on you. It’s in your best interest to think rationally and strategically about this enormous emotional issue in your life. Call Lindamood & Robinson, P.C. in Houston, TX, today to schedule a consultation.