Common Questions Regarding Divorce in Texas

What issues are to be decided in a divorce?

  • Division of community property/debts
  • Spousal Maintenance, if any, to be paid (alimony for marriage lasting 10+ years)
  • How taxes will be paid.
  • Parent with which child under 18 will reside.
  • Rights and Duties of each parent.
  • Visitation of other parent
  • Child Support

What is community property?

All property and income acquired during the marriage (including all property acquired through the date the final decree is signed by the Judge).  Employee benefits (ie. funds in a 401K plan, pension, disability payments, workers’ compensation) acquired during the marriage are community property.  The income from separate property, such as rent houses, is community property.  Increases in value of a sole proprietorship or partnership that is separate property are community property.  

What is separate property?

All property owned by a spouse prior to the marriage, property a spouse received through inheritance during the marriage, or property received as a gift by one spouse during the marriage.  Increases in value of corporate stocks are separate property.

How is property divided in a divorce?

The court has power over the “community estate” in a divorce.  The community estate consists of community property and debts acquired or incurred during the marriage.  Texas law requires the judge to divide community assets and liabilities in a way that is “just and right”.  This does not always mean that community property is divided evenly. If the parties are in agreement, any property division is possible.  For example, one spouse may want to give the separate property residence to the other spouse in order to keep a larger portion of their retirement benefits.  See attached worksheet to help determine what is a fair division of your property.

What does a Judge consider in making uneven divisions of property?

Factors a Judge considers in awarding uneven division of community estates are: fault in break up of marriage, earning capabilities and education of the parties, parties ages and health, any special needs of the child, and whether there is separate property owned by either spouse.

How are debts divided? 

The division of debts is also based on a “just and right” basis.  A divorce decree will order the payment of debts by the spouse who will be responsible for the debt.  Note:  A divorce decree does not rewrite a mortgage or loan agreement.  

Does Texas have alimony?

Yes.  A judge may order alimony payments (“temporary spousal support), for those seeking court intervention, during the pending of their case.  A Court may also order spousal maintenance in the conclusion of a divorce.  The parties can also agree for one to pay the other regular payments as part of a divorce settlement.  

When can a Judge order spousal maintenance?

Maintenance payments can be ordered when a divorce is granted if either party:

  • A spouse is convicted of a crime of domestic violence within 2 years of when the divorce was filed (or while the divorce is pending); or
  • The couple has been married at least 10 years, the financial resources of the spouse who wants maintenance are limited; and the spouse seeking maintenance:
  • Is unable to be self-supporting because of disability, or
  • Has custody of a child who requires such care that the spouse cannot work outside the home, or
  • Clearly lacks the ability to earn enough to meet his or her minimum needs.

How long can alimony/spousal maintenance payments last?

Maintenance can be ordered for:

  • 5 years if there was a conviction or deferred adjudication for domestic violence
  • 5 years if the parties have been married for at least 10 years
  • 7 years if the parties have been married for at least 20 years
  • 10 years if the parties have been married for at least 30 years.
  • Indefinitely, as long as a spouse is severely disabled and unable to support him or herself or is caring for a severely disabled child. Texas Family Code Sec. 8.054.

How much can alimony/spousal maintenance payments be?

Maintenance is to be the lessor of $5000 per month or 20% of the paying spouse’s average monthly gross income.  Agreements for spousal support are contractual alimony and can be for any duration and any amounts the parties agree to.  There may be tax advantages to paying alimony.  

If the case is uncontested, do both sides hire a lawyer?

In uncontested cases, usually only one of the spouses hires an attorney to prepare the necessary paperwork. A lawyer can never represent both sides in a divorce. If, for example, the husband hires a lawyer in an uncontested divorce, that lawyer will prepare and file the divorce petition, and draft the waiver of citation and divorce decree. The lawyer will also go to court with the husband to get the divorce approved by the judge.

The wife in this example only needs to read and sign the waiver and the final decree. She may call the husband’s lawyer to ask questions, but she must always bear in mind that the lawyer does not work for her. The wife may want to consult an attorney to make sure the divorce decree is fair to her and truly reflects the settlement the parties have reached.

How is an uncontested divorce handled?

A divorce petition (typically 2 or 3 page document that opens the case with the court) is filed.  Then a final divorce decree is prepared and signed by both sides.   A Waiver of Service must also be signed by the Respondent (other spouse in the case).  There is a 60-day waiting period for divorces in Texas, meaning that a divorce cannot be granted until 60 days after a divorce petition is filed. The final step is to prove up the divorce, which means the husband or wife and a lawyer go to court to get the judge to approve the divorce and sign the decree.

What is a waiver of citation?

In the usual lawsuit, one party files and the other gets served with the suit by a constable or process server. In an uncontested divorce (where saving money is important), the divorce petition is simply given to the other spouse along with a waiver of citation and Final Decree of Divorce. The husband or wife who signs the waiver is merely acknowledging that he or she has received the divorce petition and does not need to be officially served. The waiver also allows the final divorce hearing to be held without that person being.  

What is the divorce decree?

The divorce decree is the document signed by the judge granting the divorce. The decree is where the division of property and debts are listed for each party, and provides for each parents rights and duties regarding the child, visitation, child support, etc.

What happens at court when an uncontested divorce is presented?

Only one of the spouses needs to go to court, although both can be present if they want to. Your lawyer will usually schedule the court appearance and notify the court clerk. Some forms must be filled out, especially if child are involved. When your case is called, you and your lawyer approach the bench where the judge sits. The judge will usually be looking over the divorce decree and waiver while your lawyer asks you a few, simple questions including:

    Your name

    Your spouse’s name

    Texas and county residency

    Dates of marriage and separation

    Is there a signed waiver of citation?

    Is there a signed divorce decree?

    Is there no hope of reconciliation?

    Are there child? Is the wife pregnant?

    Are you asking the court for a divorce?

The judge may ask a few questions, but then he or she will usually say that the divorce is granted. As simple as that, you are divorced. You will need to get a copy of the final, signed divorce decree. If needed, a child support account will need to be set up with the district clerk’s office. A divorce is techniqually not final for 30 days and you cannot remarry before that time without court approval.

How is child custody usually handled?

Texas law assumes that most divorcing parents will be made Joint Managing Conservators of their child.  This means the parents share rights and duties, but the child lives with one parent and the other has visitation.  Texas presumes a standard visitation schedule will be followed in most cases for a child 3 and over.  Parties can agree to terms that differ from the standard visitation order. 

What are Joint Managing Conservators (JMC)?

Where there is a JMC both parents are share most of the rights and duties regarding child.  Usually, one parent will have the exclusive right to decide where the child lives (primary possession).  The other parent will have visitation.

What is Sole Managing Conservator?

In few circumstances, a parent may be a Sole Managing Conservator and the other parent may be the Possessory Conservator (and usually have fewer parental rights) and will have visitation.  

What is the Standard Possession Order (SPO) consist of?

The Standard Possession Order for parents who live within 100 miles of each other basically divides holidays evenly between both parents and give the parent with visitation 1st, 3rd, and 5th weekends per month, and two hours on Thursdays during the school year and 30 days in the summer.

How is child support calculated?

Child support is a percentage of net resources per month.  Net resources are determined by using a tax table the Texas Attorney General issues annually. See the Tax Table HERE

The cost of health insurance for the child is deducted from gross income in addition to the amount of taxes allowed by the Attorney General’s tax chart.  The adjusted net income per month is multiplied by a percentage depending on how many children are involved as follows:

No. of Children Percent of Net Resources
1 20%
2 25%
3 30%
4 35%
5 40%
6 or more not less than 40%

Who Pays Health Insurance for my Child?

Persons paying child support on children from separate households pay using a slightly different percentage.In most cases, the parent who pays child support also provides or pays for the child’s health insurance.  Parents split uninsured medical expenses 50% to each parent, unless another division is agreed upon.

How are child support payments made?

Usually, child support payments are deducted, by the employer from the person’s.  All child support payments are made through the Texas State Disbursement Unit (SDU) located in San Antonio.  A Child Support account is set up in the case.  Payments are made to the SDU and usually automatically deposited into the payee’s bank account.