Change is never easy, and nothing illustrates this sentiment quite like a divorce. Not only are these breakups an incredible drain on an individual’s emotional health, just charting out the logistics of how two people are supposed to sever ties can be physically overwhelming. The good news is, though, that it doesn’t have to be as hard as it sounds. Divorce isn’t a “fly by the seat of your pants situation,” but rather, a set legal process that follows a defined set of rules. Understanding how that process works can go a long way toward easing the stress and fear of the unknown and help individuals prepare for what is to come.
That being said, here are a few things to know about how to get a divorce in Texas.
Where to Start a Texas Divorce
While the term “divorce” carries a lot of emotional baggage, in legal speak, it’s really quite simple. A divorce, by definition, is nothing more than the dissolution of a marital contract. It is the formalized process by which marital assets and responsibilities are divided between two individuals who no longer wish to be married.
First off, to file for divorce in Texas, one of the two spouses must have been a resident of the state longer than six months. With that box checked, couples should then think about whether or not it’s possible for them to work out an agreement on their own. And if they can communicate respectfully and are willing to compromise, there’s no reason why they shouldn’t be able to. These amicable types of divorce include:
- Divorce Mediation—when a neutral third party helps the spouses work out an agreement without attorneys or court;
- Collaborative Divorce—a dissolution where attorneys might be involved, but where both sides work together to come to an arrangement without a trial; and
- Uncontested Divorce—when both spouses agree to all terms without litigation or mediation.
For couples capable and willing to negotiate on their own terms, mediation, collaborative, or uncontested divorces not only save time and money but can often set the stage for healthy, long-term family dynamics to thrive in their new normal.
In general, judges are usually willing to sign off on contracts that have been mutually agreed to by both parties. However, even in these situations, it’s always a good idea to involve a lawyer in the final agreement, just to make sure nothing important was missed.
Fault and No-Fault Divorce in Texas
Due to a wide variety of circumstances, however, an amicable divorce environment is sometimes not an option. Individuals unwilling, or simply unable, to come to their own agreement will then need to formally file for divorce. During this process, a court will review the grounds for the dissolution, and divide assets and responsibilities through a set procedure governed largely by the Texas Family Code.
When drafting a petition for divorce, there are two main types of “grounds” that an individual can file under, either:
- Fault Divorce—when one spouse’s behavior makes him or her largely responsible for the dissolution (often through infidelity), which can then influence the division of marital assets; and
- No-Fault Divorce—a split in which no party is specifically blamed, and is usually listed as “irreconcilable differences” on divorce paperwork.
The rules governing these grounds will vary from state to state. In days gone by, the fault was almost always an element considered in a divorce. Presently, however, it’s the opposite. All fifty states now offer at least some form of “no-fault” divorce, with some states, like California, operating as strictly “no-fault” jurisdictions.
In Texas, courts recognize both fault and no-fault divorces. While no-fault petitions are certainly easier to determine (in terms of evidence), a fault-based divorce has its merits, as it can be an important consideration when dividing marital assets. Under Texas law, adultery, cruelty, abandonment, lengthy incarceration, confinement to a mental hospital, and estrangement are all considered grounds for fault. Even still, fault-based divorces are relatively rare, and it can sometimes be difficult to prove these actions specifically lead to the dissolution of a marriage. Individuals who are unsure should consult a lawyer in order to establish the best course of action.
Texas Divorce Trials
After deciding on fault or no-fault, a petition of divorce should be filed in the District Court wherever one of the individuals lives. Specific counties may require other documents to be filed along with the petition, so it’s always a good idea to check with the local district before proceeding, in order to avoid any unnecessary delays.
Once the other party responds to the petition, a trial will ensue. During this process, the evidence is presented (for cases claiming fault), and a judge will make a ruling on how property, assets, and responsibilities will be divided, including child custody and alimony. Since Texas is a community property state, all assets acquired during the marriage by either party will be divided equitably. In contrast, separate property (or, assets acquired before the marriage) will leave with whichever party brought it into the union.
Judges will typically wait a minimum of sixty days after the initial filing before issuing a final divorce decree. In some cases, this waiting period is not required (for example, when domestic violence is involved), and in other instances, the process can take much longer, especially if there is a lot of disagreement about how assets should be divided.
After the divorce is granted, both individuals are barred from marrying anyone else (aside from each other) for at least thirty-one days.
Default Divorce in Texas
Occasionally, situations might arise where one spouse wants to divorce, and the other does not. Unfortunately for the latter, a court cannot force anyone to stay married. Even if the second spouse refuses to engage in divorce proceedings, so long as the first has properly filed and served all documents, a court will likely grant the dissolution. This type of situation is called a default divorce. Respondents have twenty-one days to answer a petition before they are in danger of defaulting.
In a default trial, courts will make a judgment in lieu of the other half’s absence, usually by simply granting whatever terms requested by the first spouse (similar to an uncontested divorce). Needless to say, it is rarely in a person’s best interest to allow this to happen, and individuals wishing to delay or halt a divorce by stonewalling should rethink this strategy.
Divorce Lawyers in Texas
When all is said and done, divorce is emotional, overwhelming, and can often feel like the end. At Neal Ashmore, we understand and empathize with individuals suffering from these emotions. However, through years of experience, we’ve also found, that what feels like the end, is often a beginning—a new start waiting on the other side of a difficult era. If you or a loved one is struggling with one of these life transitions, we may be able to help. Call us today at (972) 436-8000, or schedule a consultation online to discuss your situation. Though the process may seem daunting, the right attorney will not only be able to help your divorce run more smoothly but can also give you the tools you need to greet your new life with success.