Divorce basics - Residency Requirements and Grounds for Divorce

To file for divorce in Texas, you must be a resident of Texas for at least six (6) months and resident in the county you are filing for at least ninety 90 days.

Either spouse can get a divorce in Texas and fault is not required. When a divorce is filed, a simple statement that the marriage has become insupportable due to irreconcilable differences, and that there is no reasonable expectation of reconciliation.

How does the divorce process work in Texas?
The legal divorce process begins when one of the spouses files an Original Petition for Divorce in the Family Courts. The Divorce Petition is served on the other spouse, called the "respondent" and they are given twenty (20) days to file and answer. 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 in only sixty (60) days. If the parties can't come to an agreement, there may be multiple court hearings until a final trial is held in the future (which can take years in some instances). In these pre-trial hearings either party can request temporary assistance from the court in the form of temporary custody and child support orders, and orders to determine who pays community debts on a temporary basis.

Are the courts the only option for obtaining a divorce?
A court of law is the only way to obtain a divorce of decree terminating a marriage. The courts also have the power to decide custody and visitation rights, the division of property and marital estate, spousal support, child support, restraining orders, etc.

Can I file a divorce myself?
Family law is a complex area of the law which is not well served by simplistic forms that do not address all of the issues and areas concerned if the individual is not well versed or has not consulted with legal counsel. A review of the facts and problems of each individual case are crucial to protecting yourself in a divorce. The lasting effects of decisions made without proper legal advice could have long-term repercussions in your divorce case.

How long does it take to obtain a divorce?
An uncontested divorce or agreed divorce must take at least sixty (60) days. By Texas law, this 60 day period is utilized as a cooling off period to afford the married couple an opportunity to reconcile the marriage. If there are contested issues involved, it can take several years before the court resolves all of the issues involved in a divorce. The divorce becomes final when it is signed by the judge.

What is an "at fault" divorce?
An at fault divorce exists when there are certain grounds created by one spouse which was the cause for the divorce. The common grounds for an at fault divorce are: when there is infliction of emotional and/or physical abuse (cruelty); where there is consensual sexual relations by a married person with someone other than his or her spouse (adultery); where one spouse deserts the other for a specified length of time (abandonment); confinement in prison for a specified number of years; physical inability to engage in sexual intercourse, if it was not disclosed before marriage. Some of these issues will alter the distribution of property between divorcing spouses giving less to the at fault spouse.

What is a "no-fault" divorce?
A "no-fault" divorce is one where the spouse suing for divorce does not have to prove that the other spouse did something wrong. Texas is a no-fault divorce state. All that has to be shown is that there are irreconcilable difference that destroy the marital relationship. In Texas, there is minimum waiting period of sixty (60) days to finalize the divorce.

What happens if both spouses are at fault?
The court will grant a divorce to the spouse who is considered to be least at fault under a doctrine called "comparative rectitude." A long time ago, if both parties were at fault, the divorce was not granted to either party, which forced people to stay married when they no longer wanted to be married. The comparative rectitude alleviates this situation by granting the divorce to the party least at fault.

What is an annulment?
An annulment is a method of voiding the marriage. If an annulment is granted, the result is that the parties are treated as if the marriage never occurred. An annulment can only be granted if the initial marriage suffers from a defect in its formation. An annulment also requires that the parties do not live together since discovery of the trick or deception. In Texas, an annulment can be granted in the following situations: a.) one of the spouses is under 16 years of age; b.) one of the spouses is between the ages of 16 and 18 years of age and no parental consent was obtained before the marriage; c.) one of the spouses was under the influence of alcohol or narcotics at the time of marriage and does not voluntarily cohabitate with the other person after the effects of alcohol or narcotics have subsided; d.) one of the spouses was permanently impotent at the time of the marriage and withheld the information from his/her spouse and does not voluntarily cohabitate after learning of the impotence; e.) there was fraud, duress, or force to induce the spouse to enter into the marriage, and the spouse does not voluntarily cohabitate after learning of the impotence (Most common grounds for annulment); f.) lack of mental capacity; g.) concealed divorce and no cohabitation since the discovery; h.) the mandatory seventy-two hour waiting period after the issuance of the marriage license was not complied with and the annulment suit is filed within 30 days after the marriage 

What is a legal separation?
A legal separation is a legal status conferred by a court, where the parties remain married, but the court sets the rights and liabilities of the parties with respect to children, custody, support, visitation, alimony, property and debts. Texas does not recognize the legal concept of separation. Under Texas law, a person is considered married until a court enters a final decree of divorce. It is possible though to create a Separation Agreement or Partition and Exchange Agreement.

What kind of documents should I prepare for my divorce case?
You should prepare all documents that you may anticipate being important in your case. This includes information for business and personal contacts, financial records, computer and password information, property ownership, employment benefits, etc.

How is property and debt divided in a divorce?
All property of a married person is classified as either community property (owned equally by both spouses) or the separate property of one spouse. At divorce, community property is generally divided equally between the spouses, while each spouse keeps his or her separate property. Community property includes all earnings during marriage and everything acquired with those earnings. Also included are all the debts incurred during marriage, unless specifically designated from one of the spouses' separate property

What is separate property?
Any property which is considered separate property is not included in the community estate. The following is not community property. This includes property obtained before the marriage, including the income produced from the seperate property, is considered separate property, if the property was not commingled with the property acquired during the marriage. Property inherited from family during the marriage will generally be considered separate property if it was exclusively willed and was not commingled with community assets during the marriage. Property purchased with a combination of separate and community funds is part community and part separate property, so long as it can be shown that some separate funds were used.

Is property in Texas always divided equally in a divorce?
Not always. In Texas, courts have discretion in deciding what constitutes an equal division of the estate. The Judge will consider multiple factors when deciding how to divide property, including:

• The length of the marriage;
• The assets and debts of both spouses;
• Who should logically live in the family home (often the spouse with whom the children will live the majority of the time);
• How easily each piece of property can be sold;
• Whether particular assets should be sold or kept;
• The costs of selling assets;
• Any agreements between the spouses;
• Health of the spouses;

Is there Alimony in Texas?
A court can order alimony, called spousal support in Texas, under limited circumstancres. During the divorce proceedings, while the divorce is pending, the court can order temporary spousal support . Also, if the couple has been married for more than 10 years, spousal support may be provided for up to three years after the divorce is finalized. Texas courts will generally consider the following factors in awarding:

• The duration of the marriage;
• The needs of each party;
• The financial resources and liabilities of each party;
• The responsibility of either spouse for children;
• All sources of income available to either party;

What is a temporary orders hearing in a divorce?
A temporary orders hearing allows the court to issue orders placing immediate controls upon the relationship of the parties, the parties' financial affairs, and child custody until a final decision regarding the divorce is made. Violating temporary orders of the court can subject the person contempt of court and result in a fine and/or jail.

What can temporary orders do?
Temporary Orders can specify who will live in the marital residence, who will be able to write checks on what bank accounts, and who will have primary custody of the children. Furthermore, temporary orders can be issued in the absence of a party to the divorce for up to fourteen (14) days. Thereafter notice must be provided to the other party to the divorce and a hearing must be held, unless an agreement is reached.

How are Custody and Visitation issues decided?
In Texas, the court will make child custody decisions based on what is in the "best interest of the child" if the parents can't come to an agreement. Courts will presume that joint legal custody is best, unless proven otherwise. Texas laws encourage the parents to work out custody arrangements themselves instead of bringing the matter to court.

The family court system usually has several levels of counseling, mediation and conciliation for bringing parents together for the purpose of resolving custody and visitation issues. If parents in a child custody dispute do not negotiate some form of agreement before going to court, then the custody decision will be made by the judge.

What factors are considered in determining which parent will have primary physical custody of the child(ren)?

• The history of contact between the parents and the child
• The health, safety and welfare of the child
• The mental and physical health of the parents, and how close they live to each other
• Evidence of child abuse
• Wishes of the child, age 12 or older;
• Religious and/or cultural considerations;
• Need for continuation of stable home environment;
• Support and opportunity for interaction with members of extended family of either parent;
• Interaction and interrelationship with other members of household;
• Adjustment to school and community;
• Age and sex of child;
• Parental use of excessive discipline or emotional abuse; and
• Evidence of parental drug, alcohol, sex abuse or exposure to second-hand smoke.

What are the different types of Custody Arrangements?

• Physical and Legal Custody
  In most situations, physical custody is vested in one parent with whom the child will live. The parents who is the noncustodial parent shares "legal custody" of the child. "Legal custody" includes the right to make decisions about the child's education, religion, health care, and other important concerns.
  
• Joint Custody
  A joint-custody arrangement is one in which the child spends approximately equal amount of time with both parents. Proponents of this arrangement say it lessens the feeling of loss that a child may experience in a divorce. Critics, however, say that it is best for the child to have one home base, with liberal visitation allowed to the "non-custodial" parent. Because joint custody requires a high degree of cooperation between the parents, courts are reluctant to order joint custody unless both parents are in agreement and can demonstrate the ability to make joint decisions and cooperate for the child's sake. The parents may agree to a true joint custody arrangement in which their children split time living with each parent, and agree to work together on major decisions related to the children's upbringing and welfare.
  
  
• Split Custody
  Another option, although much less favored, is split custody, in which one parent has custody of one or more of the parties' children, and the other parent has custody of the other(s). Courts usually prefer not to separate siblings, however, when issuing custody orders.
  
  
• Unmarried Parents
  When the child's parents are unmarried, the statutes of most states require that the mother be awarded sole physical custody unless the father takes action to be awarded custody. An unwed father often cannot win custody over a mother who is a good parent, but he will usually take priority over other relatives, foster parents, or prospective adoptive parents.
  One form of custody is called "joint legal custody". This type of custody is where both parents make decisions on the child's upbringing and welfare. This situation usually involves the children living primarily with one parent, with the other afforded visitation.
  
  
• Sole Custody:
  If a parent is currently unfit or incapable of any parental responsibility, "sole custody" of the child may be appropriate. In this arrangement, only one parent will be provided the sole physical and legal custody of the child.
  

What are the preliminary issues involved in a custody dispute?
The court has the authority to determine issues related to the custody of children. A valid marriage does not need to exist for the court to make a determination as to custody and visitation of minor children. The first stage in a custody proceeding involves the temporary orders hearings and requesting temporary restraining orders. Temporary orders can be granted if the person requesting the order can show an immediate threat of harm to the children or that the children might be removed from the jurisdiction of the state. The next stage involved in a custody dispute typically involves mediation, counseling, and child custody evaluation and investigation. This stage entails court appointed mediators and counselors whose purpose is to try and resolve the disagreements between the parties. An evaluation or investigation regarding a child custody issue can occur by court appointment of a mental health professional or child custody evaluator to investigate the situation and report back to the court as an aid in making the determination. If an allegation of child abuse or child endangerment is lodged, a county agency may institute such an investigation as well.

What is legal custody versus physical custody?
Legal custody pertains to the rights and responsibilities of the legal custodian to make decisions relating to the child's health, education and welfare. This is a broad grant and is liberally construed to include most of the significant decisions in the child's life. Physical custody refers to where the child will reside. The parent exercising physical custody over the child will generally be thought of as the custodial parent, while the other parent is commonly referred to as the visiting parent. An award of physical custody is more significant than an award of legal custody because the parent with whom the child is residing typically will exercise the larger share of the decision-making in issues pertaining to the child.

Are the courts involved if my spouse and I are agreed on the custody arrangements of our child(ren)?
The court will need to approve the custody arrangement before it is finalized. becomes final. However, this is typically just a formality. Parents can resolve the custody and visitation matter outside of court by themselves during informal settlement negotiations and through alternative dispute resolution proceedings like mediation or "collaborative law. This usually occurs with the help of an attorneys.

How does the primary caretaker consideration affect custody?
The emotional bond created by the primary caretaker relationship is said to be important in the child's developmental stages. Experts strongly encourage the continuation of this relationship after divorce as being vital to the child's psychological stability. When determining which parent has been the primary caretaker, courts focus on direct care responsibilities. The primary caretaker is granted the physical custody of the child. See below the distinction between legal and physical custody.

How are decisions concerning visitation made?
Generally a court will grant reasonable visitation rights to a parent unless it is shown that the visitation will be detrimental to the best interests of the child. A non-parent can in the discretion of the court also be granted if they have an interest in the welfare of the child, this is generally divided into the area of grandparents, stepparents and other non-parents. It should be noted that this is discretionary. The court may also approve visitation plans and restrictions considering factors relevant to the best interests of the child.

What happens to my visitation rights if my wife/husband wants to move?
If the custodial parent wants to relocate, the court will generally require that parent to give the other parent a minimum amount of notice prior to the anticipated move. This notice gives the non-custodial parent an opportunity to go to court and seek orders restraining the relocation of the child. The primary concerns in these matters is always the best interests of the child, but these cases are very difficult to predict. You should seek the advise of counsel in these matter if you are unable to come to mutually agreeable terms.

What can I do if my wife/husband won't let me see the children?
If your spouse will not agree to let you see your children, you should seek a determination in court. You have the legal right to access to your children, and if a spouse is currently refusing to let you see or contact the children, the court can order access.

Should I forcibly take my children if my spouse won't allow me to see them?
Attempting to use force in order to secure possession is discouraged. This may serve to complicate matters by escalating into violence and case harm to the parties involved, including the children you seek to protect. It may also have long term consequences by affecting your right to custody of your children.

What can I do if the court granted me custody/visitation of my child(ren), but my spouse will not comply?
If you have been granted custody or visitation of your children, but your spouse will not comply with the court order, your spouse is in violation of a court order. This is called contempt of court. If your spouse persists with this behavior, you can hold your spouse accountable in court. In court, at a contempt hearing, your spouse can be taken into custody and imprisoned, his/her visitation or custody can be restrained or eliminated, and/or fines can be imposed.

What legal rights do grandparents have to visitation with their grandchildren?
Grandparents can assert their legal right to visitation with their grandchildren if that right is being interfered with by the child's parent(s) after a divorce or separation. Grandparents who face parental resistance to visitation with their grandchildren should consider requesting a mediation session with the children's parents. If mediation doesn't work and you end up in court petitioning for visitation rights. Grandparents should be prepared to testify about your relationship with your grandchildren, with the parents, any custody or visitation arrangements you had before the court action, and the last time you saw your grandchildren. Grandparents should be prepared to discuss their personal history in detail as all the details will be scrutinized by the court. This includes medical issues and criminal history. You face standards similar to those faced by a noncustodial parent seeking visitation: The children's welfare is always given the highest priority, although the courts also give great deference to a parent's decision to limit visitation. If a grandparent cannot perform some tasks independently or correctly, your visitation may be supervised or eliminated.

What if I don't want my child's grandparents to be involved in his/her life?
If you attempt to limit/eliminate the grandparents visitation, they can may take you to court to try to force visitation. If there are reasons why you want to limit/eliminate the grandparents visitation, these reasons should be raised in court. If the reasons are ones which are simply based on selfish wishes, pride, and/or anger, the grandparents will likely receive some form of visitation. This is especially true if the grandparents had a prior healthy relationship with the child. If visitation is ordered, reasonable visitation usually encompasses between one and three afternoons a month, for a few hours at a time. If there was not a prior relationship with the grandparents and child the court can allow visitation in your presence. If the grandparents live in another state, visitation over an entire weekend may be considered. You should try to reach a solution that is in the best interests of your child. A mediator may be helpful in these situations.

What is domestic violence?
This is violent conduct between relatives or family members and exists in many forms. Physical abuse, threats of bodily harm, mental cruelty, upsetting telephone calls, conflicts at work, and stalking are all forms of domestic violence. In general, one of the following relationships must exist in order for an action to be considered domestic violence: The parties are related by blood, marriage, or adoption; The parties are married now or were married to one another in the past; The parties are presently or were once living together; The parties are now or used to be dating or in an engagement relationship; or The parties have a minor child together. Violence in the course of a marriage or relationship will play a significant role in the decision to award custody and/or visitation of a child. Violence will also impact property division.

How will a physically abusive spouse affect the custody/visitation issues in court?
When a non-custodial parent has a history of violence, especially toward the child, the court may deny visitation outright or can require that visitation with the child be supervised. Supervised visitation means that an adult (other than the custodial parent) must be present at all times during the visit. The adult may be known or unknown to the child, and may be someone agreed on by the parents or appointed by the court. The adult must be approved by the court that ordered the supervised visitation.

How does marital status affect custody rights of unwed fathers?
When a child's parents are unmarried, the mother is almost always awarded sole physical custody unless the father takes action to be awarded custody. An unwed father often cannot win custody over a mother who is a good parent, but he will usually take priority over other relatives, foster parents, or prospective adoptive parents. If it can established that the mother is unfit for parenthood or is incapable of taking care of him, the unmarried father may get physical custody, especially if he was the child's "primary caretaker." Even if the court will not grant physical custody, shared legal custody should be granted. This would at least give the non-custodial parent the right to make important decisions about the child's upbringing and welfare. At the very least, an unmarried parent can take steps to secure some form of custody or visitation rights, and ensure an ongoing relationship with his child.  

How does religion affect custody?
With increasing numbers of interfaith marriages and divorces, courts across the country have made decisions that lack national uniformity with parental rights regarding religious upbringing. When called upon to resolve disputes between separated or divorced parents who disagree about the religious upbringing of their children, courts attempt to balance competing concerns. On one hand, courts must protect an individual's First Amendment right to the free exercise of religion as well as a parent's right to raise his or her child as he/she wishes, as long as those parenting choices do not endanger the welfare of the child. On the other hand, when making decisions about custody and visitation arrangements, courts must protect the best interests of the child. When one parent complains that the other parent's religious activities are not in the best interests of the child, courts have the difficult task of deciding whether it is necessary to encroach upon the parent's First Amendment and parenting rights by limiting that parent's religious activities. Any oral or written agreements that the couple previously made regarding this issue may also be considered.

What affect does a parenting agreement have on rights to religious upbringing?
Most courts reject enforcing agreements about which religion the children will follow when parents divorce. The reasons commonly used for rejecting these agreement include: vagueness of the agreement; the age of the agreement; the agreement is not in writing; and courts hesitation to curtail the parents First Amendment rights. Therefore, if a parent enters into an agreement about the religious upbringing, it stands the best chance of being enforced by a court if it is in writing, very detailed and no more than a couple of years old. You stand the best chance of obtaining a decision that allows you to remain active in your child's religious education if you already have either sole or joint legal custody. If you are afraid that your child may be harmed by your ex-spouses religious practices, consider taking your child to a health professional to present in court.

How does a nonmarital sexual relationship affect custody?
The impact of a parent's nonmarital sexual relationships on a custody determination depends on the facts of the case. Affairs or nonmarital sexual relations are not supposed to be a factor in deciding custody unless it can be shown that the relationship has harmed the child or is likely to harm the child in the future. If, for example, one parent has had a discreet affair during the marriage, that should not be a significant factor in deciding custody. Similarly, if after the marriage is over, a parent lives with a person to whom he or she is not married, the live-in relationship by itself normally is not a major factor in deciding custody. The quality of the live-in relationship between the child and the live-in partner can be an important factor in a custody dispute. If the parent's non-marital sexual relationship or relationships have placed the child in embarrassing situations or caused significant stress to the child, then the relationship would be a negative factor against the parent involved in the relationship. The issue of a parent's sexual conduct can be a factor a judge may consider in his/her decision.

What can I do if my spouse is hiding money and property?
If you suspect that your spouse may attempt hide assets or is already hiding assets, it's best to start investigating your household and business finances, if at all possible, before initiating divorce proceedings. Make copies of important documents such as tax returns from past years, bank account statements, pay stubs and any other documents that reflect joint assets or debts. Keep copies of these documents outside the home if you're still living with your spouse or partner.

What are the common things to look for when a spouse is hiding assets?

• Original tax returns:
  If you have reason to believe that the tax returns given to you or your attorney are not the actual returns, you should request a copy of the original from the IRS. Although your spouse's signature may be required to retrieve a copy of the tax return, a court can order your spouse to authorize this request.
  
  
• Children's bank accounts:
  Your spouse may be using your children's bank accounts to hide money. Similarly, joint bank accounts held by your spouse and other relatives can also reveal additional hidden income and assets.
  
  
• Safety deposit boxes:
  Just as your spouse may set up phony bank accounts, he/she may utilize safety deposit boxes to hide other assets. You should investigate bank records to see the times the safe deposit box was accessed and if it coincides with other significant events.
  
• Manipulation of expenses, benefits and income:
  If your spouse is the owner of a business, he/she can manipulate the financial figures to make it appear that he/she has less income or assets in a divorce proceeding. This should be investigated further when there are significant changes from previous figures close to the time of the divorce.
  

How can I protect my interest in our assets when my spouse is using deceptive tactics to hide them?
It may be extremely difficult to find hidden assets/property of your respective spouse. However, there are discovery procedures in court that can be used to discover these assets. Your attorney can make formal requests for documentation and sworn testimony from the parties involved. Also, for complex cases, your attorney can hire a forensic accountant and/or a private investigator.  A forensic accountant (create link for question below) is an accountant who is trained to look into accounting practices in order to gather evidence that can be used in court.

What does a forensic accountant look for when evaluating hidden assets?
A forensic accountant will look for the following (not limited to these):

• Collusion with an employer to delay bonuses, stock options or raises until a time when the asset would be considered separate property;
• If self-employed - Salary paid to a nonexistent employee, with checks that will be voided after the divorce;
• If self-employed - Money paid from the business to someone close for services that were never actually rendered (such as a father, mother, girlfriend or boyfriend);
• An account set up in the name of a child, using the child's Social Security number;
• If self-employed - Delay in signing long-term business contracts until after the divorce when the intent is to lower the value of the business;
• If self-employed - Skimming cash from the business;
• Undervaluing antiques, artwork, hobby equipment, gun collections and tools;
• Unreported income on tax returns and financial statements;
• Debt repayment to a friend for a phony debt;
• Expenses paid for a girlfriend or boyfriend, such as gifts, travel, rent or tuition for college or special classes;
• Hidden stocks and bonds;
• Cash kept in the form of traveler's checks. These can be found by tracing bank account deposits and withdrawals;
• Retirement accounts that your spouse never tells you about; and
• Wire transfers or bank transfers to relatives or friends.
  

Who gets the house after divorce?
If there is a family home and the children are still living there, the primary custodian is likely to get the family home. This results in stability in the children's lives and helps the primary custodian to adapt to the new single parent responsibilities. If this arrangement is unworkable because of financial restraints, the family home can be sold and the proceeds divided as the situation may require. Sometimes, the primary custody of the children will have a right to live in the house for a certain period, such as until the youngest child graduates high school. At the end of that time, a buyout of the home may occur the other or the home can be sold and proceeds divided.

My spouse got the house and she stopped making the mortgage payments. How do I protect my interest in the house?
When a court or a marital settlement agreement gives the entire interest in the family home to one spouse and the other spouse is made responsible for paying the future mortgage payments, the non-occupying spouse is still potentially liable for the mortgage. Unless the non-occupying spouse is released by the mortgage provider, the non-occupying spouse is still responsible for the mortgage payments if the other spouse defaults on the loan. The non-occupying spouse should protect themselves by including a hold harmless provision in the dissolution agreement. Therefore, if the occupying spouse is obliged to pay a loan and defaults on the loan, the non-occupying spouse can hold the occupying spouse accountable for any loss incurred. Assuming the house has a positive net worth, the court can order the house sold in order to pay back the non-occupying spouse.

Am I responsible for my ex-spouse's misrepresentations on our joint tax return?
You may qualify for the "innocent spouse" election under federal tax law. This law provides that if you file a joint return but then divorce, legally separate or live apart from your spouse for one year, you can elect separate liability if you can prove that the liability is attributable to your spouse. Another provision in the law allows equitable relief if your spouse or former spouse failed to pay taxes in the past. If your divorce decree states that your ex-spouse is liable for the tax liability and he/she doesn't pay it, you should file an action against your spouse in court.