Although no one marries expecting to get a divorce, sometimes it’s best for a couple to go their separate ways. No matter where you live in the United States, you can dissolve your marriage, but the legal process for a divorce differs from state to state.
If you live in Texas and no longer want to be married to your spouse, it’s essential to educate yourself about Texas divorce law as soon as possible. Understanding how the state’s divorce proceedings generally work—and what kinds of requirements you might need to address—ahead of time may make your experience smoother and less challenging.
In this article, we’ll address some of the most important issues for Texans getting a divorce, including the difference between an uncontested and contested divorce and how courts decide alimony, child support and child custody.
Grounds for divorce in Texas
Texas divorce law recognizes seven reasons, or grounds, for dissolving a marriage. If you live in Texas and want to divorce your spouse legally, you must cite one of these grounds when you file your paperwork with the court.
Three grounds allow Texas courts to grant married couples a “no-fault” divorce, while couples can use the other four grounds to petition for a fault-based divorce.
A no-fault divorce means that neither party is responsible for ending the marriage. Because you don’t have to prove wrongdoing, no-fault divorces are often faster, simpler and less stressful to pursue.
On the other hand, if one spouse can prove they’ve been victimized in a marriage, they may gain more spousal support and a more significant portion of marital assets if they successfully pursue a fault-based divorce.
We discuss the seven grounds for divorce in Texas in detail below.
Using insupportability as grounds for divorce is the Texan way of citing “irreconcilable differences”. For example, when two people have conflicting personalities or are unable or unwilling to reconcile their disagreements with one another, they can petition the court for a divorce based on the claim that their marriage is insupportable. In Texas, claiming insupportability allows the court to grant a no-fault divorce, making it one of the most common grounds cited for divorces in the state.
According to Texas divorce law, if two married people can prove they’ve been living separately for three years or more without cohabitating at any point, they can be granted a no-fault divorce on the grounds that they live apart.
Confinement in a mental hospital
Someone can file for a divorce in Texas because their spouse is in a mental health facility in Texas or another state, as long as that person has been confined for more than three years and has an advanced enough condition that they’ll require in-patient treatment for an indefinite period or are likely to relapse upon release. Technically, “confinement in a mental hospital” is considered a no-fault divorce because an extreme psychological issue or mental disability is beyond a person’s control.
Texas divorce law hopes to ensure that any confined person is well-represented during the divorce proceedings. If someone is mentally incapacitated to the point that their spouse petitions for a divorce, the court will appoint a guardian to represent that person’s interests.
Although the state doesn’t regard cheating as illegal, it is considered “marital misconduct”, which means petitioners can cite it as grounds for a fault-based divorce.
Texas courts define adultery as voluntary sexual intercourse with someone who’s not one’s spouse. Other types of encounters, including sexually charged conversations, sharing lewd photographs or even non-penetrative activities may not meet the standards for adultery under state law.
To use adultery as the grounds for divorce, you must present clear and positive evidence that sexual infidelity occurred. This may include text messages from your spouse or their affair partner admitting to adultery (or not denying an affair), eyewitness testimonies, pregnancy and photographic or video evidence.
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Cruelty is another reason people can use to petition the court for a fault-based divorce. Texas divorce law stipulates that when one spouse has been physically, mentally or emotionally abusive to the other to such an extent that they can no longer live safely together in the same household, a divorce can proceed on the grounds of cruelty,
Because cruelty is a serious allegation, the courts require substantial evidence that abuse has occurred the way someone describes it. To prove physically cruel treatment, you can submit evidence like medical records from doctor’s offices or hospitals, police reports or eyewitness testimony that testifies to your abuse. Proving mental or emotional abuse can be more difficult but not impossible. Eyewitness testimonies may work, as well as text messages or video footage of mentally or emotionally cruel treatment.
Although rare, Texas courts will grant a fault-based divorce on the grounds of abandonment when one spouse has left their marital household for more than a year and never plans to return.
In abandonment cases, proving intention and permanency is everything; leaving for a short period doesn’t qualify as abandonment. The court may not take your abandonment claim seriously if you throw your spouse out of the house or permit them to go. And if your spouse leaves your shared home but continues to show up financially by supporting you or your children, the courts may decide that abandonment doesn’t apply.
Conviction of felony
When someone is a convicted felon and has been incarcerated for more than a year in either the Texas Department of Criminal Justice or a state or federal prison, their spouse can file a fault-based divorce on the grounds of their criminal misconduct.
There are two rare but important exceptions to this rule. First, if the criminal party has been pardoned, then conviction of a felony can’t be used as grounds for divorce. Second, if a spouse’s testimony leads to the offending party’s conviction, incarceration can’t be applied as grounds for any subsequent divorce case.
Residency requirements to file for divorce in Texas
To file for a divorce in Texas, you or your spouse must live in Texas for at least six months (and your residential county for at least 90 days) before you can petition the court to dissolve the marriage.
Texas divorce process through the court
A contested divorce means you and your spouse can’t agree on how a divorce should proceed. For example, settlement negotiations may have fallen apart, or you may disagree on who is at fault. Either way, a contested divorce can be a long, more complex process because it must move through the court.
Below are the main steps of a contested divorce in Texas.
1. Filing the initial paperwork
File an original petition for divorce, using the form to cite your grounds for dissolving your marriage and specifying any temporary orders you may want the court to enforce. Temporary orders often involve asking the court to make short-term decisions about property, child custody, spousal support or, in the case of cruelty, restraining contact during your divorce process.
Filing the initial paperwork currently costs $150 to $300, depending on the county in which you or your spouse live. Most people are ineligible for a free divorce in Texas, but if you’re in dire financial straits, you can file an “affidavit of indigency”, swearing you have no property or assets and asking the state to waive those fees.
2. Response period
You may request a temporary restraining order (TRO), which proposes guidelines by which you and your spouse will live as the divorce unfolds. A TRO is only good for a couple of weeks, at which time the court will set a hearing for temporary orders.
After you file your paperwork, a process server, law enforcement officer or county clerk will take your documents and legally serve them to your spouse. Only someone authorized by the court or by law can serve divorce papers; you can’t legally deliver the papers yourself.
Once your spouse has them in hand, they have roughly 20 days to respond by denying your allegations and filing a counter-petition.
3. Temporary orders hearing
Some counties require parties to attend mediation before a temporary orders hearing, as a way to encourage agreement without having to go to appear in court at this time.
During your first hearing, a judge considers any temporary orders you or your spouse have requested to ensure financial and emotional stability for your family during the divorce process. These hearings can have profound implications, so don’t take them lightly. They often require both parties to submit evidence or provide witness testimonies to prove their case before a judge makes any decisions.
Whether or not the parties mediate prior to a hearing on temporary orders, it’s likely you will do so before trial. A mediator—usually an unaffiliated attorney, counselor or trained social worker—works with both parties to reach a settlement agreement. Most divorces in Texas are finalized around this stage, eliminating the need to proceed to trial.
5. Court hearing
If the spouses can’t align on every issue of the divorce during the mediation phase, their case goes to trial. During a trial, both sides present their arguments, provide evidence around their claims and call witnesses when applicable. In most instances, a judge takes all of the information into account and renders a binding judgment, dividing assets, dictating child custody and making any other decisions the couple can’t come to an agreement on (although Texas also allows jury trials for family cases). Then the judge or jury renders a verdict and the court issues final orders. The divorce decree is based on these orders.
Texas divorce process outside of the court
An uncontested divorce means that both spouses agree on the divorce terms about property, debt, child custody, child support and any other aspect of family law that might apply to their case. Many people pursue uncontested divorces without hiring a lawyer because the court can process their divorce case without a full court hearing, though you still need orders from the court to finalize the divorce.
Below are the main steps of an uncontested divorce in Texas.
1. Come to terms
To begin an uncontested divorce, you and your spouse must agree to a no-fault divorce. In addition, you have to decide how to divide your property, assets and debt fairly, and, if you have children, you must agree on child support, visitation and custody. Once you decide these details, you can hire a lawyer to draft a final decree of divorce and file it with the court so that a judge can review the decree and make sure it’s fair to both parties.
If you and your spouse want to pursue an uncontested divorce but have trouble coming to terms, you can hire a mediator to offer supervision and guidance. Once you reach an agreement, the mediator drafts a mediated settlement agreement and files it with the court for a final review.
2. Finalize your divorce
Texas divorce law stipulates a waiting period for all divorces: Couples must wait a minimum of 60 days before they can finalize their divorce and legally go their separate ways.
Before COVID, the courts required couples pursuing an uncontested divorce to appear in a “prove up” hearing before they issued a final decree. Prove up hearings usually involve asking a few short, simple questions to a divorcing couple about their agreement and are relatively quick and painless. Once the judge is satisfied with the hearing, they sign the divorce decree and legally dissolve your marriage. However, since COVID, many judges have waived a couple’s requirement to attend a prove up hearing, meaning there are instances where people have gotten a divorce in Texas without ever having to go to court.
Division of assets and debts in Texas
Texas is one of nine community property states in the country. That means that, typically, all income and property acquired during the marriage belongs to both spouses, regardless of who might have earned or bought it.
If someone enters the marriage with wealth or property and keeps it wholly separate from their spouse and family for the duration of their marriage, the court may not consider it something to be split during a divorce. Inheritance, gifts, personal injury awards and assets explicitly listed as an individual’s property in a prenuptial or postnuptial agreement are also considered separate property. But the individual must prove with “clear and convincing evidence” to the court that their assets are theirs alone.
When any asset generates shared revenue, is sold for a shared profit or becomes incorporated into or “commingled with” shared household finances, it legally belongs to both parties and must be divided during a divorce.
In an uncontested, no-fault divorce, Texas courts usually leave couples to decide how to split their marital assets in settlement negotiations. Once they reach an agreement, the courts review their final decision to ensure that it’s a “just and right” arrangement before letting them go their separate ways.
In a contested or fault-based divorce that goes to court, a judge decides how to split marital assets. They might believe a 50/50 split is fair, but they don’t have to—depending on divorce details, a judge might determine that another arrangement is more appropriate. Some of the factors judges consider when deciding how to split marital assets include:
- The length of the marriage
- The nature of the marital property
- The relative size of each spouse’s separate assets (if any)
- The health and education level of each spouse
- The capacity of each spouse to earn an income (and how much that amount might be)
- Each spouse’s contribution toward raising children during the marriage
- The fault for the divorce
- Any child custody arrangements
Spousal support in Texas
Alimony, or spousal support, is a financial arrangement in which the judge court-orders one spouse to pay the other for a specific period of time. Texas divorce law doesn’t award alimony often. Instead, strict rules govern who can receive spousal support and how much a judge can grant.
Usually, to qualify for spousal support in Texas, a person must:
- Have been married to their spouse for 10 or more years
- Be unable to earn enough of an income to meet their basic needs
In specific cases—such as when someone has an incapacitating disability or when the couple shares a child who needs round-the-clock care—a judge may take those factors into account when deciding to award alimony. They may also consider if one spouse has been convicted of familial abuse within the last two years.
Even when someone qualifies for spousal support, the law stipulates that a judge must only award enough for them to meet their basic needs. The legal cap on any spousal support award is $5,000 or 20 percent of the payer’s monthly gross income, whichever is lower.
If a judge awards spousal support, the parties can petition the court to modify the arrangement after a divorce decree is finalized. Whoever requests the modification must prove two things: first, that their financial or emotional situation has “substantially changed” since the divorce decree, and second, that the change was both “unanticipated” and “in good faith”.
Appropriate reasons for asking to modify a spousal support award might include a decrease in income on the side of the spouse paying the alimony or an increase in income on the side of the spouse receiving it. If the spouse receiving alimony remarries, that can also terminate any spousal support obligations. However, intentionally reducing your income so that you no longer have to pay spousal support isn’t an acceptable reason to modify the award in Texas.
Under Texas divorce law, judges can only reduce—and never increase—spousal support awards after a divorce is complete.
Child support in Texas
In Texas, child custody arrangements determine who pays child support. When one parent lives with and cares for a child, the other parent makes child support payments.
To determine how much child support someone should pay, Texas uses an “income percentage” method that uses someone’s gross monthly income to calculate what they owe. For child support purposes, sources of monthly income can include:
- Wages and salary
- Commissions, tips, overtime and bonuses
- Military pay
- Revenue generated from rental properties
- Investment interest and dividends
- Royalty payments
- Gifts or prizes
- Severance pay
- Unemployment and disability benefits
- Retirement benefits, social security and pensions
- Veterans’ pay
- Worker’s compensation awards
- The market value of any owned or inherited property
- Child support payments from another former marriage
Once the court determines an average of how much someone makes in a month, they decide whether they meet a specific net resource threshold. The threshold amount changes every six years and is currently $9,200 a month.
If someone makes less than or equal to $9,200 a month, the court multiplies their income with a percentage based on how many children require support. The formulas are as follows:
- One child = net resources multiplied by 20 percent
- Two children = net resources multiplied by 25 percent
- Three children = net resources multiplied by 30 percent
- Four children = net resources multiplied by 35 percent
- Five or more children = net resources multiplied by at least 40 percent
If someone makes more than the income threshold, the judge can increase the amount they owe based on the child’s “actual needs” up to 100 percent of the cost.
Child support payments last until a child turns 18, is granted emancipation from their custodial parent or passes away. In rare cases, negative paternity tests give a man paying child support the right to petition the court to release him from his obligation. Otherwise, you can ask to modify a child support arrangement only when you can prove there’s been a substantial and material change in circumstances since a judge initially ordered support.
Substantial and material changes in circumstance most often include:
- An increase or decrease in earned income
- An increase or decrease in a child’s medical insurance coverage costs
- A change in where the child lives
- A difference in how many children a noncustodial parent is legally responsible for
Texas courts believe that calculating child support this way is in a child’s best interest and don’t look kindly at individuals who try to avoid paying what they owe. If someone intentionally remains unemployed or underemployed to reduce their child support obligations, the court will determine their earning potential and use that figure to calculate what they should pay.
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Child custody in Texas
In child custody cases, Texas courts always seek to implement an arrangement that’s in the child’s best interest. Ideally, that means guaranteeing access to both parents on equal terms, but in reality, child custody arrangements vary based on personal and familial details.
To determine child custody, Texas courts divide the issue into two categories: conservatorship and possession and access. In addition, Texas divorce law prohibits judges from considering gender or marital status when determining child custody arrangements.
A Texan conservatorship (often referred to as “legal custody” in other states) gives a parent the right to make decisions about a child’s education and healthcare, as well as spend time with them. Parents can share conservatorship responsibilities in a joint managing conservatorship, or a single parent can be responsible in a sole managing conservatorship.
In most cases, Texan courts presume the parents should share decision-making responsibilities. However, if the parents have a turbulent or violent relationship or can’t agree on decisions, or if one parent is at risk of harming the child, the courts may consider appointing one person as a sole conservator.
Even when both parents are named joint conservators, the judge usually grants one a custodial conservatorship and the other a noncustodial conservatorship. Custodial conservators can determine where a child lives. However, they’re often limited to a specific geographical area to make it easier to transport the child to spend time with their other parent.
Possession and access
Possession and access (called physical custody and visitation in other states) gives parents the right to live with a child or visit them regularly. Most times, when one parent is named the sole conservator of the child, the other parent is named a possessory conservator, meaning they can spend time with the child and make limited decisions for them while they are in their care. Some of their rights include the ability to:
- Provide clothing, food and shelter for the child while the child is in their possession
- Receive information about a child’s health and well-being
- Access a child’s educational records and talk with school officials about a child
- Attend school and after-school activities
- List themselves as an emergency contact for the child
- Consent to non-invasive medical care or, in emergencies, invasive medical care when the child is in their possession
- Consent to religious training when the child is in their possession
- Care for and reasonably discipline the child while the child is in their possession
It’s only in extreme cases—when a parent is abusive, violent or neglectful—that someone is denied any form of conservatorship at all. In rare cases, when the court finds that neither parent is a suitable candidate for child custody, they ask other adults in the child’s life or the Department of Family and Protective Services to get involved.
When to seek legal counsel
No legal requirement forces you to hire a divorce attorney in Texas, but seeking legal counsel is often a good idea. Lawyers can help you navigate your divorce process and avoid pitfalls, ensure your interests are protected and reduce stress. Most importantly, they can smooth and streamline the process, helping make your experience as efficient as possible so you can move on with your life faster and more securely.