In the US, there are two types of laws: federal and state. Federal laws are drafted, proposed, and passed by the US Congress, and apply to all citizens of the United States, regardless of where they live.
On the other hand, state laws are created by state legislatures, and only apply to citizens living within that jurisdiction (though, visitors still have to follow the rules, while in town). State laws address things like taxes, probate, welfare, real estate, and—you guessed it—family law.
Because family law is handled at the state level, Texas divorce laws might look a little different than, say, those found in California, Maine, or Tennessee. And, while there’s nothing too crazy, we think noting these differences is a good way to help you fully prepare for what’s to come.
Hence, here are five unique things about Texas divorce laws you might not have known, and what Neal Ashmore can do to help you navigate these important nuances.
Difference # 1: Texas Allows Fault Based Divorce
Fault divorce is one of the biggest things separating the Lone Star State from other jurisdictions—but what is it, exactly?
We’re glad you asked.
The concept of “fault” ties directly back to the grounds your case is based on. In legal speak, “grounds” are the reasons you want a divorce, and must be stated in your initial divorce complaint.
In Texas, divorce grounds can either be “fault,” or “no fault.” The biggest difference between the two, is in how the court handles blame.
In a fault divorce judges are allowed to consider one party’s “guilt” in the marital breakup, and to assign blame, accordingly (usually with some sort of financial consequence as a punishment). Depending on the type of fault, this type of divorce can also have a significant impact on child custody.
On the other hand, a no-fault divorce does not consider guilt. This doesn’t necessarily mean that no one is to blame, here; it simply means that both parties have chosen to ignore the fault, and carry on with the legalities of breaking up.
Out of all fifty, Texas is one of only nine states that still allows couples to file for fault-based divorce.
Difference #2: Texas is a Community Property State
When it comes to dividing marital property, the large majority of US jurisdictions follow the rules of Equitable Distribution. Texas, however, breaks from tradition once again, by adhering to the rules of community property, instead.
In a community property jurisdiction, anything either spouse acquired during marriage belongs to both spouses equally—regardless of who’s name is on the paycheck, card, loan, deed, or mortgage. This includes all of your assets, property, retirement accounts, debt, and—yes, even that winning lottery ticket.
Essentially, once you say “I do,” it’s “What’s mine is yours,” until “Death do us part.” (Or, until you get divorced, naturally).
On the other hand, anything you brought into the marriage, is considered “separate property,” and will (theoretically) leave with its respective owner, upon divorce. (Assuming it hasn’t been commingled with marital property beyond recognition, that is…)
Difference #3: Texas Alimony is Hard to Get
Unlike some jurisdictions (where alimony is awarded much more liberally), Texas alimony is a little bit harder to get.
Alimony (a.k.a. “spousal maintenance”) refers to regular payments that one spouse makes to another, in order to help them get back on their feet, post-divorce. These payments operate a lot like child support, and are enforceable, as a matter of law.
In Texas, alimony is gender neutral, so it’s just as much available to same sex couples and stay at home dads as it is for homemaker moms. However, it can be difficult for anyone to get, since Texas courts have a “rebuttable presumption” that assumes alimony is not needed, until proven otherwise.
According to the Texas Family Code, the person seeking alimony is the one who has the responsibility of showing that it’s necessary. And when it is ordered, alimony is almost always awarded based on how long you’ve been married.
Difference #4: Texas Has Different Terminology for Child Custody
Another thing that’s unique in Texas, is our terminology for child custody. Instead of just keeping things simple and calling it what everyone else does, child custody is referred to as a “conservatorship,” and visitation, “possession and access.”
In other states, parents are referred to as “custodians.” In Texas, however, we like to call ‘em “conservators,” and child custody, a “conservatorship.” This term encompasses many important parental rights, including the right to:
- Make important medical, health, and education decisions.
- Receive information about the child’s health, education, and welfare from the child’s other parent.
- Have access to their child’s official records.
- Decide what cultural and religious exposure the child will have.
- Possession and access.
In Texas, child custody (ahem, conservatorships) can be awarded either as joint or sole custody, and are decided based on a child’s best interest.
Possession and Access
Visitation—also known as “possession and access”—refers to a parent’s right to be around their child, live under the same roof, and to raise them the way they see fit.
In Texas, it’s common for a judge to make one parent the child’s primary residence, while awarding the other ample parenting time in the form of visitation. The only time visitation would not be awarded, is if a judge thought it would cause a child harm (usually in cases of abuse or neglect).
Difference #5: Texas Does Not Allow Legal Separation
Finally, the last stop on our list of differences in Texas divorce laws, is the fact that here, there is no legal separation.
Legal separation operates much the same way as your casual, run-of-the-mill relationship time out, with both spouses living apart for an extended period of time. The main difference is that—unlike in a casual separation—a legal separation has an official document to keep things running smoothly while you’re on the outs.
This document is known as a “legal separation agreement,” and it can be used to:
- Assign debt;
- Allocate mortgages payments;
- Dictate custody and visitation;
- Keep property separate;
- Outline alimony; and,
- Address the handling of taxes.
Legal separation gives couples the time and space they need, without having to worry that things will fall apart while they’re away.
Unfortunately, however, Texas does not have legal separation. That being said, couples can still achieve similar results by drafting other agreements. Hence, if legal separation sounds right for you, be sure to call up your trusty family law attorney to discuss your options.
Do You Need Help with Texas Divorce Law?
At the end of the day, knowledge is power. And while the differences separating Texas divorce laws from those in other states aren’t anything too crazy, every little bit helps when trying to prepare for the unknown journey you’re about to take.
For more questions about Texas divorce laws—and how they might differ from those in other jurisdictions—we want to hear from you. Call the Neal Ashmore team today at (972) 436-8000, or schedule a consultation online, and let us help make your divorce path as smooth as possible.