Divorce, Dissolution, and Annulments
Aspects of Divorce
- Residency Requirements and Grounds for Divorce
You must be a resident of Texas for six months and a county resident for 90 days prior to filing your petition for divorce. The other party does not need to meet any such residency requirement.
Either spouse can get a divorce simply by stating in divorce papers that the marriage has become “insupportable” due to conflict between the parties and that there is no reasonable expectation of reconciliation.
The legal divorce process begins when one spouse files an “Original Petition for Divorce” with the District Court in the county in which they reside. That document informs the court that a divorce is sought, of any grounds the party may have for divorce, and what the party wants the court to award in regard to property and children. Concurrently, with the filing of the Original Petition, a party may ask the judge to enter temporary orders, and in cases of urgency, ask the judge to sign a temporary restraining order. The other spouse is then served with the paperwork and given time to respond. If the parties are in agreement about property and debt division, as well as child custody and child support matters, the divorce can be finalized without a trial. If the parties can’t come to an agreement, the court will set a time for a trial.
After the Original Petition for Divorce has been filed, either party can request temporary assistance from the court in the form of temporary custody and temporary child support orders, and other orders to determine who pays community debts on a temporary basis while the divorce is pending.
- Dividing the Property
Texas is a “community property” state, which means that all assets and debts acquired during the marriage are considered to be owned equally between the spouses. This includes real property, income/wages, retirement benefits, vehicles, credit card debt, loans, IRS debt, etc.
But not all property is considered community property:
Any assets you had before your marriage will be considered “separate property,” as well as any property that you received by gift or inheritance during the marriage and any income from separate property (i.e., rental income, stock dividends, etc.). However, this property can be mischaracterized as community property if it is mixed with community assets, so the best plan is to keep any separate property in a separate account away from community funds.
Upon filing for divorce, the court assumes that all property owned by either/both spouses is community property until proven otherwise. It is thus very important to maintain organized information about all your property, including when you purchased it, its value, account numbers, serial numbers. etc. Collecting this information before you see a divorce lawyer can save you a lot of time and money.
Property division can be a complex process in divorce. The court must divide all assets in a “just and right” manner. Just and right does not always mean 50/50. The courts can award one spouse a larger share of the assets if it is found that the other party is at “fault” in the divorce. Click here for more information on community property law in Texas.
- Mediation and Arbitration
Texas is a unique state in which to bring a divorce proceeding because it allows for many alternatives to a judge or jury-tried divorce proceeding. Divorce proceedings often get costly and stressful when brought before a judge or jury. Most family courts therefore often recommend or even require some form of alternative dispute resolution, such as mediation or arbitration. Resolution through mediation and/or arbitration allows the parties to come to terms with a divorce agreement together, without the influence of a judge or jury.
Mediation is a process where both parties use a neutral third party to help negotiate their property and/or child issues to resolve the case in a cost-efficient manner. Mediation is favored heavily in divorce cases because it places the decisions in the spouses’ hands rather than putting these important issues at stake in front of a judge or jury that knows little about the parties.
- Emergency and Temporary Orders
Emergency Orders and Temporary Orders may be the best solution for you if you are in the middle of a hostile marriage and you are fearful, or you are fearful for your child’s safety. While Temporary Orders do not have the lasting power of permanent injunctions or orders of support, they serve as a way to ensure that your spouse does not drastically alter or destroy any community property or harass you and/or the children during your divorce proceedings.
Emergency orders require immediate action by a court to protect yourself, your children, and your property. Such orders may require a showing of extreme circumstances, such as family violence or criminal behavior.
Temporary orders are orders issued by the court to place immediate controls upon the relationship of the parties, the parties’ financial affairs, child custody, and financial support while the divorce is pending. Temporary orders essentially order the parties to keep the status quo until the final divorce issues can be resolved.
“Discovery” is a general term for a number of legal devices designed to gather information from either party regarding the property and/or child issues. Discovery is sometimes an informal process of exchanging documents or information between the parties’ attorneys.
- Tax Issues
Divorce is almost always a highly-emotional time, and the disposition of property and finances following the divorce can be difficult to agree on. Tax issues are no different than the division of property because taxes involve a major financial transaction which can impact your finances for this year and the years to come.
If the case cannot be settled through settlement negotiations or mediation, then your case will be set for trial. Trial is often expensive, stressful, and risky for both parties. A trial can be before the court or before a jury on some issues upon request. An overwhelming majority of cases do not make it to a trial setting, however; most divorces are resolved through settlement negotiations or mediation.
- Post-Trial / Final Decree
Whether there is a settlement agreement or a trial, at the conclusion of the case a Final Decree of Divorce is drafted. This document details who gets what property, where the primary residence of the children will be, how much child support will be paid, the rights of the parties with regards to their children, and how various child-rearing decisions will be made in the future. The court’s orders in the Final Decree of Divorce can in some circumstances be modified in the future.