The state of Texas recognizes divorce based on either fault or no-fault grounds. Spouses seeking a Texas divorce will fall into one of these two main categories.
The grounds for a no-fault divorce in Texas are: in supportability (also known as “irreconcilable differences”) or living apart without cohabitation for at least three years. Cohabitation is a term that generally refers to a couple living together without a formal, legal relationship such as marriage.
Potential fault grounds include cruelty, adultery, felony conviction, abandonment, and confinement in a mental hospital. We investigated each of these grounds in earlier posts, such as this one and this one.
Residency and Waiting
To file for divorce in Texas, one of the spouses must have been a resident of the state for at least six months and a resident of the county in which the divorce is filed for at least three months. The court can’t finalize the divorce sooner than 60 days after the initial court filing of the petition for divorce.
Division of Property
Texas is a community property state. This means that when a Texas divorce is finalized, the judge will divide the marital property equally between the two spouses. The spouses may have separate, or non-marital property, which might consist of inheritances, gifts, real estate, or any other type of property that one spouse had before they got married. Separate property is not game for division in a Texas divorce but remains the property of the spouse who owns it.
Property division does not apply only to real estate or personal property. It also applies to retirement plans, stock options, and even insurance payments. Whether property is considered marital or separate depends on how the property was acquired. For example, workers’ compensation insurance payments received during marriage by one spouse because of an on-the-job injury, are marital property, and both spouses are entitled to half of the payments, even if they’re received after the spouses separate. Why? Because these payments are intended to replace income that would have otherwise been earned during the marriage.
A Texas divorce court will only grant alimony under certain conditions. A spouse must show either: The inability to be or become self-supporting because of a physical or mental disability, the spouse is the primary caregiver to a child who requires “substantial care and supervision” because of a physical or mental disability, or other reasons that clearly show “a lack of ability to provide minimum reasonable necessities for themselves.” Factors that determine the amount of spousal support are the duration of the marriage, each party’s resources and needs, and – if relevant – any marital misconduct (adultery) of either party. These factor into a Texas divorce case.
Child Support and Custody
In the state of Texas, parents must support their child until he or she turns 18 or graduates from high school – whichever occurs first. The parents may stop providing support, however, if the child marries or dies. The Texas divorce court will calculate how much support is due from each parent by looking at the parent’s after tax and withholdings monthly income. Texas allows parents to pay support through periodic payments, lump-sum payments, or even by setting aside property to be used to raise money as support for the child.
When deciding child custody, the Texas divorce court rules on what is in the best interest of the child. The court will also endeavor to ensure that parents share in the rights and duties of raising their child together. However, if there is a history of domestic violence or abuse in the home, the court may award the abusive parent visitation only if it finds that the child would not be endangered.
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