Filing for a divorce in Texas

Starting a divorce journey is like navigating a complex maze. At Ben Carrasco’s Family Law Office in Austin, TX, we know the ins and outs of the Texas divorce process. We’re here to guide and support you through every twist and turn of this journey. Let’s dive into the 10 key steps of the Texas divorce process.

  1. Making the Decision to DivorceThe first step in the divorce process is deciding to divorce. This decision is deeply personal and often comes after much thought and consideration. It’s important to understand that divorce is a legal process that will have long-term effects on your life and the lives of any children involved. It’s not a decision to be taken lightly and often involves a lot of emotional turmoil. It’s essential to seek support during this time, whether from a therapist, a support group, or trusted friends and family.
  2. Hiring a Qualified Divorce AttorneyOnce you decide to divorce, the next step is hiring a qualified divorce attorney. An experienced family law attorney can provide legal assistance, guide you through divorce, and advocate for your interests. At the Family Law Office of Ben Carrasco in Austin, we have the expertise to handle both contested and uncontested divorces. We understand that every divorce case is unique, and we tailor our approach to meet each client’s specific needs and goals.
  3. Filing the Divorce PetitionThe divorce process in Texas officially begins when one spouse files an Original Petition for Divorce with the district clerk’s office in the county where at least one spouse has resided for the past 90 days. This document outlines the grounds for divorce, any requests for child custody or spousal support, and the division of community property. It’s important to note that Texas is a no-fault divorce state, meaning you can file for divorce without proving that your spouse did something wrong.
  4. Serving the Divorce PapersAfter the divorce petition is filed, the other spouse must be served with the divorce papers. This can be done by a process server or through certified mail. The served spouse then has the opportunity to file a counter-petition. This step is crucial because it ensures that the other spouse is aware of the divorce proceedings and has the opportunity to respond.
  5. Responding to the Divorce PetitionThe spouse who receives legal notice of the divorce petition (the respondent) has 20 days plus the following Monday to file a response. If a response is not filed, the court may grant a default divorce decree, which favors the spouse who filed the original divorce petition. Responding to the divorce petition promptly is crucial to protect your rights and interests.
  6. Temporary OrdersIn many divorce cases, temporary orders are issued by the court to establish immediate terms that remain in effect until the final divorce decree is issued. These orders can cover issues such as child custody, child support, spousal support, and the use of marital property. Temporary orders provide stability and clarity during divorce, ensuring that bills are paid, and children are cared for.
  7. Discovery ProcessThe discovery process is a crucial part of the divorce proceedings. During this phase, spouses exchange information about their financial situation, property, and other relevant issues. This information is used to negotiate the settlement agreement. The discovery process can be complex and time-consuming, but it’s essential for ensuring a fair division of assets and debts.
  8. Negotiation and SettlementMost divorce cases in Texas are resolved through negotiation between the spouses and their attorneys. This can be done informally or through alternative dispute resolution methods like divorce mediation, where a neutral third party helps facilitate discussion and agreement. Negotiation aims to reach a settlement agreement that both spouses can agree on, avoiding the need for further court hearings or a trial.
  9. TrialIf the spouses cannot agree, the divorce case will go to trial. Both spouses present their cases during the trial, and the judge decides on contested issues. Going to trial for contested divorce can be stressful and expensive, so it’s typically seen as a last resort if negotiation and mediation are unsuccessful.
  10. Final Divorce DecreeThe final step in the divorce process is issuing the final divorce decree to the court. This document officially ends the marriage and outlines the divorce terms, including property division, child custody, and spousal support. It’s important to understand that the divorce and final decree is legally binding, and failure to comply with its terms can result in legal consequences.

Understanding Child Custody in Texas Divorce

Child custody is one of the most critical aspects of a divorce case involving minor children. In Texas, legal custody is divided into conservatorship and possession and access. A conservatorship gives either parent the right to make important decisions regarding their children, such as medical care, education, and religious upbringing. Possession and access, on the other hand, refer to how physical custody is shared between the parents.

THE BEST INTERESTS OF THE CHILD

In any child custody case, the court’s primary concern is the child’s best interests. The court considers a variety of factors in determining the child’s best interests, including the child’s physical and emotional needs, the ability of each parent to care for the child, the stability of each parent’s home, and the child’s wishes if the child is at least 12 years old.

JOINT VS. SOLE CUSTODY

In Texas, the court can award joint custody, also known as joint managing conservatorship, or sole custody, also known as sole managing conservatorship. In a joint custody arrangement, both parents share the rights and duties of a parent, although not necessarily equally. In a sole custody, one parent can make certain decisions about the child’s life.

VISITATION RIGHTS

In addition to custody, the court will establish a visitation schedule, also known as a possession order. The standard possession order in Texas gives the noncustodial parent the right to have the child on the first, third, and fifth weekends of each month, a month in the summer, and alternating holidays.

MODIFYING CHILD CUSTODY

After a child custody order is issued, it can be modified if there has been a significant change in circumstances and the modification is in the child’s best interests. For example, if one parent has moved, has started abusing drugs or alcohol, or is not following the current custody order, the court may consider a modification or child custody evaluation.

Child Support in Texas Divorce

In many divorce cases, one parent is ordered to pay child support to the other parent. Child support is a financial contribution from the noncustodial parent to the custodial parent to assist with the costs of raising the child.

CALCULATING CHILD SUPPORT

In Texas, child support is calculated as a percentage of the noncustodial parent’s net resources, increasing based on the number of children. For example, for one child, the noncustodial parent would typically pay 20% of their net resources in child support.

ENFORCING CHILD SUPPORT

If a parent fails to pay child support as ordered, the other parent can take legal action to enforce the child support order. The court has several methods of enforcing child support, including wage garnishment, liens on property, and even jail time for the non-paying parent.

MODIFYING CHILD SUPPORT

Child support can be modified if there has been a substantial change in circumstances. For example, if the noncustodial parent loses their job or has another child, they can request child support modification. Similarly, the custodial parent can request a modification if the child’s needs significantly increase.

Property Division in Texas Divorce

One of the most complex aspects of a Texas divorce involves dividing the marital property. Texas is a community property state, meaning most property acquired during the marriage is considered community property and must be divided equally in a divorce.

COMMUNITY VS. SEPARATE PROPERTY

In Texas, property is classified as either community property or separate property. Community property includes most of the property acquired during the marriage, regardless of which spouse owns the property or how the property is titled. Separate property includes property one spouse owned before the marriage, inheritances, gifts received during the marriage, and personal injury awards (except for awards for loss of earning capacity).

DIVIDING COMMUNITY PROPERTY

In a Texas divorce, the court must divide the community property in a “just and right manner.” In most cases, this means an equal division of the community property. However, the court can consider various factors in deciding whether an equal division would be unfair, including each spouse’s earning potential, the size of each spouse’s separate estate, which spouse has custody of the children, and any fault in the breakup of the marriage.

DIVIDING RETIREMENT ACCOUNTS

Retirement accounts can be one of the most valuable assets to divide in a divorce. If a retirement account is considered community property, the court can award a portion of the account to the other spouse. This is typically done using a Qualified Domestic Relations Order (QDRO), a court order instructs the plan administrator on how to divide the account.

DIVIDING THE MARITAL HOME

The marital home can be one of the most emotionally charged assets to divide in a divorce. There are several options for dividing the marital home, including selling the home and dividing the proceeds, one spouse buying out the other spouse’s interest, or one spouse keeping the home and offsetting the value with other assets.

Spousal Support in Texas Divorce

Spousal support, or alimony or spousal maintenance, is a payment made by one spouse to the other after a divorce to provide financial support. In Texas, spousal support is not automatically granted and must be requested by the spouse.

ELIGIBILITY FOR SPOUSAL SUPPORT

In Texas, a spouse may be eligible for spousal support if they lack sufficient property to meet their minimum reasonable needs. One of the following conditions is met: the other spouse was convicted of family violence during the marriage, the marriage lasted 10 years or longer, the spouse seeking support has a physical or mental disability, or the spouse seeking support is the custodian of a child who requires substantial care due to a physical or mental disability.

CALCULATING SPOUSAL SUPPORT

In Texas, spousal support is limited to $5,000 monthly or 20% of the paying spouse’s average monthly gross income. The duration of spousal support depends on the length of the marriage and the reason for the support.

MODIFYING OR TERMINATING SPOUSAL SUPPORT

Once a spousal support order is issued, it can be modified or terminated if there has been a material and substantial change in circumstances. For example, if the spouse receiving support remarries or cohabitates with a new partner, the spousal support order can be terminated.

Domestic Violence in Texas Divorce

Domestic violence can have a significant impact on a divorce case in Texas. If there is a history of family violence, it can affect the court’s decisions on child custody and spousal support. It’s important to seek legal assistance if you are a victim of domestic violence.

IMPACT ON CHILD CUSTODY

In a child custody case, the court’s primary concern is the child’s best interests. If there is a history of family violence, the court will consider this in determining the child’s best interests. In most cases, the court will not award custody to a parent with a family violence history.

IMPACT ON SPOUSAL SUPPORT

In Texas, a spouse may be eligible for spousal support if the other spouse was convicted of family violence during the marriage. The court will consider the history of family violence in determining the amount and duration of spousal support.

PROTECTIVE ORDERS

If you are a victim of domestic violence, you can seek a protective order from the court. A protective order can prohibit the abuser from committing further acts of violence, communicating with you or your children, going near your home or work, or possessing a firearm.

Navigating the Complexities of a Texas Divorce with the Family Law Office of Ben Carrasco

Going through a divorce can be a complex and emotionally challenging process. However, understanding the important steps in a Texas divorce can help you navigate the process more effectively. At the Family Law Office of Ben Carrasco in Austin, we are committed to providing our clients with the legal support and guidance they need during this difficult time. Whether you are dealing with child custody issues, property division, spousal support, or domestic violence, we are here to help.

FAQs: Divorce in Texas

WHAT ARE THE BASIC STEPS FOR FILING FOR A DIVORCE IN TEXAS?

Filing for a divorce in Texas involves several steps. First, one spouse (the petitioner) files an Original Petition for Divorce with the district clerk in the county where at least one spouse has resided for the past 90 days. The petition is then served to the other spouse (the respondent), who can file a response. If the divorce is uncontested, meaning both spouses agree on all terms of the divorce, the process can be relatively straightforward. However, if the divorce is contested, the process can be more complex and involve negotiation, mediation, or even a trial. After the waiting period of 60 days, the court can grant the divorce.

WHAT IS AN UNCONTESTED DIVORCE IN TEXAS, AND HOW DOES IT WORK?

An uncontested divorce in Texas is a type of divorce where both spouses agree on all issues, including property division, child custody, and spousal support. This type of divorce can be faster and less expensive than a contested divorce. To proceed with an uncontested divorce, one spouse files the divorce petition, and both spouses sign a waiver of service, indicating that they do not need to be formally served the divorce papers. The spouses then work together to reach a settlement agreement submitted to the court for approval. After the mandatory waiting period, the court can grant the divorce based on the terms of the settlement agreement.

WHAT IS THE WAITING PERIOD FOR A DIVORCE IN TEXAS ACCORDING TO TEXAS LAW?

According to Texas law, a mandatory waiting period is 60 days from the date the divorce petition is filed before the court can grant a divorce. This means that even in an uncontested divorce, the soonest a divorce can be finalized is 60 days after the divorce petition is filed. However, this waiting period can be waived in certain situations, such as cases involving domestic violence. It’s important to note that while the divorce can technically be granted after the 60-day waiting period, many divorces take longer to finalize, especially if there are contested issues.

About the Author
Ben Carrasco is a highly skilled family law attorney based in Austin, Texas, known for his extensive expertise in family law and business litigation. While his primary focus is family law, Ben brings a wealth of experience in litigating diverse business disputes, ranging from breach of contract and collections to business torts, fraud, and real estate matters. In his family law practice, Ben navigates all aspects of the field, including divorce, child custody, support, property division, and more, offering clients expert guidance throughout the litigation process. His legal journey began in complex commercial litigation, initially with a global law firm and later with a prominent Austin-based firm. However, driven by a desire to make a direct impact on people's lives and embrace the human element of the law, Ben transitioned to family law, a decision that has proven to be deeply rewarding. A proud Austin native with roots in California, Ben completed his undergraduate studies at the University of California, Berkeley, before earning his law degree at Stanford Law School, where he excelled in legal writing and served as an associate editor of the Stanford Law and Policy Review.