Whether you have been married for 5 years or 50, wed in a church, in a common law marriage or are a same-sex couple whose marriage is now recognized – the same rules typically apply to all who decide to divorce in Texas.
We asked Connatser Family Law Attorney Christine Powers Leatherberry what common questions people ask, what questions they don’t ask but should and what additional insight she can share about the divorce process in Texas. According to Christine, the top 12 questions people should ask include:
No. 1: Do I need to have fault grounds to file for divorce in Texas?
No, you don’t need to have fault grounds to divorce in Texas. “Texas is a no-fault state, so if you want to get divorced, you can file on the ground of insupportability. No fault means that a spouse does not have to prove the other spouse did anything wrong in order to get divorced. You don’t need to have grounds. However, some spouses will allege fault, which can affect the just and right division of community property (see No. 7).
Most of the cases we handle are no-fault divorces, where the petitioner alleges insupportability, which is defined as a discord or conflict of personalities. In other words, the two parties can’t get along. The most common statutory fault grounds parties allege are adultery and cruel treatment,” says Christine.
No 2: Can I get a quickie divorce in Texas?
Not exactly. There are statutory waiting periods for Texas divorces. As Christine explains, “It takes a minimum of 60 days to get divorced in Texas, because Texas has a mandatory waiting period. In addition, one of the spouses has to have been a resident of Texas for a continuous six-month period before filing for divorce. One of the spouses must also have been a resident of the county where the divorce is filed for at least 90 days prior to filing.”
No 3: Once I file, will the Court order any initial guidelines out the gate?
It depends, but probably. “Many Texas counties put a standing order in place that goes into effect immediately once one party files for divorce,” says Christine. Depending on the county, these orders may prohibit parties from:
- Closing financial accounts.
- Cutting up credit cards.
- Taking children out of the state.
- Changing children’s schools or where they go to daycare.
- Changing life insurance policies.
No. 4: How is our living situation handled once I file?
Per Christine, “Shortly after filing for divorce, if the parties do not agree, a temporary orders hearing will be held to clarify a number of things, which may include:
- Who lives where.
- Who pays for what (i.e., credit cards, mortgage, utilities, car payments, etc.).
- Who has possession of which vehicles.
- A possession schedule for the children.
- Temporary spousal support.
- Temporary child support.
- Who keeps and cares for family pets.
The parties are then required to abide by these orders until the divorce is finalized.”
No. 5: Once the divorce is filed and temporary orders are established, do we head straight to divorce court?
Not right away, in fact most cases are settled without going to court. “Mediation will very likely be ordered in your case, before you would go to trial. The judges want the parties to try to work issues out on their own and use court as a last resort. Going to court is usually more difficult on both spouses and any children involved. It’s also going to be more expensive,” advises Christine.
No. 6: Will my medical, phone and email records and social media accounts be scrutinized during my divorce?
Assume they will be. Social media posts, emails and text messages are frequently used as evidence in divorce cases. Opposing counsel can even request that a judge order you to release your private medical records.
Says Christine, “This is especially true when children are involved because medical records may be relevant. We have to work in accordance with HIPAA (Health Insurance Portability and Accountability Act), but if a judge orders medical records be released, even though they are private, the provider can be forced to release those records.”
No. 7: Will I be forced to split community property 50/50 with my spouse?
Not exactly. Texas is not a 50/50 community property state. The Texas Family Code requires a just and right division of community property. Judges may divide 55/45 or 60/40 if they see bad behavior on one side, or if there are fault grounds (adultery, cruelty, etc.), or if there is disparity in earning capabilities.
“For example, if one spouse is a homemaker who didn’t finish college and her husband makes a sizeable income, she might walk away with a larger share of the community estate, especially if adultery or cruelty by the other spouse is involved. On the other hand, if you have two spouses who make the same amount of money with no fault grounds, they may end up with a 50/50 ruling depending on other factors,” Christine says.
No. 8: What constitutes community property in Texas?
According to Christine, “All property earned or acquired during a marriage is presumed to be community property. If you have separate property, you have to prove it by tracing with clear and convincing evidence. It’s a pretty high burden. Separate property includes property acquired by one spouse as a gift or inheritance or property acquired before marriage.”
No. 9: How much alimony can I expect following my divorce in Texas?
Don’t expect it to be ordered very often. Alimony is a possibility in Texas, but it is difficult to qualify. Christine cautions clients to avoid assuming they will be awarded alimony following a divorce.
“You typically only qualify for alimony if you will lack sufficient property following the divorce to provide for your minimal reasonable needs and lack sufficient earning ability in the labor market. The courts expect both parties to return to the workforce at some point if capable of doing so,” she says.
No. 10: What about child support, how is that determined?
Child support is clearly defined in the Texas Family Code. In Texas, the party required to pay child support pays 20 percent of his or her net income for one child, 25 percent for two, and it goes up 5 percent for each additional child up to 40 percent. It doesn’t vary.
Also, a child support withholding order will be issued for one of the parties. The wages will be ordered withheld from one of the party’s paychecks and can be direct deposited into the other party’s bank account.
No 11: Can I stay on my spouse’s health insurance after divorce? Who pays?
Your spouse is not automatically required to pay for your health insurance. “You may be entitled to purchase health insurance under a former spouse’s group plan, as dictated by the federal law, COBRA (Consolidated Omnibus Budget Reconciliation Act). This doesn’t have anything to do with the family courts though. Typically you would pay that out of your own pocket, and COBRA premiums can be very expensive,” says Christine.
No. 12. When does the judge sign off on my divorce?
Once the divorce settlement is agreed upon, one spouse is required to appear in front of the judge for about 5 minutes before the divorce is finalized. As Christine explains, “With Texas divorces, there will be a 5 minute ‘prove up’ hearing in front of a judge at the end of the divorce, and only one party has to attend.
This is essentially a checklist for the judge to make the divorce official, at which point the judge usually signs off. While the judge can refuse to sign off (perhaps he or she doesn’t think the agreement is fair or in best interest of the child), those instances are rare.”