Divorce Frequently Asked Questions (FAQ) July 9, 2015
1. What is collaborative law?
Collaborative law is a procedure in which the parties and their counsel agree in writing to use their best efforts and make a good-faith attempt to resolve their case on an agreed basis without resorting to judicial intervention, except to have the family court approve the settlement agreement. The parties’ counsel may not serve as litigation counsel except to ask the court to approve the settlement agreement. Collaborative law is a rapidly growing alternative to traditional divorce litigation, as it seeks to create an environment where the parties’ dispute is presented as a problem to be solved, rather than a contest to be won.
2. What are the residency requirements in Texas for filing a suit for divorce?
The party filing for divorce must have been a domiciliary of the State of Texas for six months, and a resident of the county in which the suit is filed for 90 days.
3. Is there a waiting period after the divorce suit if filed?
Yes. Texas courts may not grant a divorce before the 60th day after the date the suit was filed.
4. Do Texas courts recognize same-sex marriage or civil unions?
Yes. On June 26, 2015, the United States Supreme Court extended the right of marriage to same-sex couples.
5. Does Texas law recognize alimony?
Yes, in certain limited circumstances. The Texas Family Code defines “maintenance” as an award (in a suit for dissolution of a marriage) of periodic payments from the future income of one spouse for the support of the other spouse.
6. What are the eligibility requirements for maintenance in Texas?
Texas courts may order one spouse to pay maintenance to the other if the spouse was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence within the last two years or while the suit is pending. Additionally, Texas Courts may award spousal maintenance if the duration of the marriage was 10 years or longer:
- And the spouse seeking maintenance lacks sufficient property to provide for the spouse’s minimum reasonable needs
- And that spouse is unable to support herself or himself because of an incapacitating physical or mental disability
- Or is the custodian of a physically or mentally disabled child requiring substantial care such that the spouse cannot work outside the home
- Or the spouse clearly lacks earning ability in the labor market to provide for the spouse’s minimum needs.
7. Once a court determines a spouse is eligible for spousal maintenance, what factors are the court required to consider in determining the amount and frequency of maintenance payments?
Courts must consider:
- The financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the divorce proceeding
- The education and employment skills of the parties
- The time necessary for the spouse seeking maintenance to acquire new education and training
- The duration of the marriage
- The age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance
- The financial resources of the spouse from whom support is sought
- Acts by either spouse to destroy or conceal community property
- The comparative financial resources of the parties, including medical or retirement insurance
- The contribution by one spouse to the education, training, or increased earning power of the other spouse
- Property brought to the marriage by either spouse
- The contribution of a spouse as a homemaker
- Any marital misconduct by the spouse seeking maintenance
8. Are there any additional requirements on the spouse seeking maintenance?
Yes. Courts presume that a spousal maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in seeking suitable employment or developed the necessary skills to become self-supportive during the period of separation after the divorce was filed.
9. Are there any limits on the length of time a spouse may be required to pay spousal maintenance?
Yes. Unless the spouse receiving maintenance is unable to be self-supportive due to an incapacitating mental or physical disability, a court may not order maintenance payments for more than: 1) five years if the spouses were married for at least 10 years but not more than 20 years; 2) seven years if the spouses were married for at least 20 years but not more than 30 years; and 3) 10 years if the spouses were married for 30 or more years. But those limits are the maximums allowed by law. And within each period, Texas courts must limit the duration of maintenance payments to the shortest reasonable period that allows the spouse receiving maintenance to obtain the appropriate skills and employment for self-support.
10. Does Texas law recognize common law marriage?
Yes. The Texas Family Code recognizes “informal marriage” as existing when a man and woman agreed to be married and when after the agreement they lived together in Texas as husband and wife and represented to others that they were married. A person under 18 years of age may not be a party to an informal marriage or execute a “declaration of informal marriage.”
11. What is a “declaration of informal marriage?”
A declaration of informal marriage is a form provided by the county clerk’s office in which a man and woman may provide necessary background information and take an oath to the information veracity. The county clerk then files the declaration form and sends a copy to the Bureau of Vital Statistics. A properly recorded declaration is prima facie evidence of the marriage of the parties.
12. What is separate property?
A spouse’s separate property consists of:
- The spouse’s property owned or claimed before marriage
- Property acquired by the spouse during marriage by gift, devise, or descent
- Recovery for personal injuries sustained by the spouse during marriage, except for any recovery for loss of earning capacity during marriage.
13. What is community property?
Community property is the property, other than separate property, acquired by either spouse during marriage.
14. Does Texas law recognize prenuptial agreements?
Yes. According to the Texas Family Code, a “premarital agreement” is an agreement between prospective spouses made in contemplation of marriage that is effective upon marriage.
15. What is the scope of a premarital agreement in Texas?
Parties to a premarital agreement may contract with respect to:
- The rights and obligations of each party regarding the ownership of property acquired before or after marriage
- The right to buy, sell, or transfer property
- The disposition of property on separation, divorce, or death
- The modification or elimination of spousal support
- Any other matter not violating public policy or the criminal laws
However, the right of a child to receive child support may not be adversely affected by a premarital agreement.
16. Does Texas have “no fault” divorce?
Yes. Upon the filing of a petition for divorce, the court may grant a divorce without regard to fault if the marriage has become “insupportable” due to discord or conflict that destroys the legitimate ends of the marital relationship and destroys any reasonable expectation of reconciliation.
17. Does Texas still recognize fault-based grounds for divorce?
Yes. A court may grant a divorce for cruelty, adultery, and conviction of a felony offense during marriage, abandonment for more than one year, and living apart without cohabitation for at least three years (if the other spouse is confined in state mental hospital for at least three years).
18. Why might one party plead cruelty or adultery as a ground for divorce?
One party might plead cruelty or adultery as a basis to justify an unequal division of the property in favor of the other spouse or to use against the other spouse in a child custody case.
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