Frequently Asked Questions about Texas Divorce

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 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 an attorney?

A: It is not mandatory that you hire an attorney 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 with Texas law and experienced in the field.

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