When your marriage is ending and you have children, there’s probably one primary question looming in your mind. Who gets the kids after a Texas divorce?
You and your spouse can come to an agreement about child custody during a Texas divorce. If you disagree on who should get custody, though, a judge will decide for you.
Texas courts focus on supporting the best interest of the child and begin with the presumption that shared custody is best for the kids. There are a number of factors considered when determining child custody, though, and the answer will reflect the unique circumstances of each divorce.
Let’s take a look at everything you need to know about child custody and divorce in Texas.
If you and your spouse agree on who should have primary custody of the children, the two of you are free to come up with an agreement that works for the whole family as a part of your settlement agreement. This means that the two of you can decide where your children will live and the details regarding when the kids will spend time with the noncustodial parent.
Child custody is a common contentious issue in divorce. You can try to reach an agreement about this matter through processes such as mediation.
If you are unable to reach an agreement regarding child custody, the court will decide how custody is divided. The norm is for Texas courts to award joint custody when it is possible. This means that both parents get to spend some time with the children. However, there are some cases where the court will award sole custody to one parent over the other.
If you and your spouse aren’t able to reach your own agreement regarding child custody, the court will decide for you. There are a number of factors they will take into account when deciding who should have custody of the children.
Again, Texas courts are primarily concerned with what is best for the children. They begin with the presumption that a standard possession schedule or an expanded standard possession schedule– where custody is shared between both parents– is in the kids’ best interest.
It’s worth noting that there are certain factors that are not taken into account by a judge when determining child custody. These include a parent’s gender, race, religion, or marital status.
One thing the court will look at when deciding who gets the kids after a Texas divorce is the age of the child.
It is common for courts to award primary custody to the parent that has been acting as the primary caretaker for young children between the ages of 0 and 3. That is unless the parent poses a threat to the safety of the child.
Different children have different needs, and courts will want to make sure that the proposed custodial parent is able to provide for those needs now and over time. Ideally, custodial parents will need to be able to house, clothe, and feed their children, offer a loving and safe living environment, and help furnish opportunities for the social and intellectual development of the child.
The goal is for children to be able to grow up physically, emotionally, and socially healthy thanks to having the support and comfort they need in their home.
Children don’t have the right in Texas to decide who they are going to live with after their parents get a divorce. However, the court might consider the preference of a child when making their determination.
This will only factor into the decision if the court finds that the children are old enough and mature enough to make such a difficult determination. If a child is able to plainly express what they want, a judge will usually give this some weight.
A child might want to spend equal time in both households or maybe they want to live with one parent more than the other. They also might have an opinion about whether they live with their siblings.
Courts will also look at what roles and responsibilities each spouse has been taking on historically. They will try and determine which parent has been acting like the primary parent– the one that most often drops the kids off at school, takes them to the doctor, helps them with their homework, etc.
Again, parents can negotiate the duties and responsibilities assigned to each parent post-divorce during mediation if necessary. If no agreement is reached, though, parental history will have a big impact on the judge’s decision.
Another factor that courts will take into account is the health and financial circumstances of each parent. It’s important that children have a stable living situation, and a parent with poor health or unstable finances might not be able to provide that for their children.
Sometimes, one parent will try and undermine the relationship between the other parent and their children. They might constantly criticize the other parent in front of the kids to try and sour their relationship. When this type of behavior occurs, a court is less likely to award custody rights to the problematic parent.
However, if a parent shows that they are willing to cooperate with the other parent in terms of co-parenting and other issues, their case regarding custody will be stronger.
How involved has each parent been in the child’s life both in the past and now that divorce is pending?
Courts will try to maintain an equal split if that is generally how parental involvement played out historically.
Divorce can be really hard on kids, and courts often try to keep as much continuity in the life of children as possible. This means that they want to keep as many elements of the kids’ lives the same as they can through their decision.
For example, if a kid has been living with one of their parents full time, a court might give primary custody to this parent. Similarly, if one parent is going to keep the family home in the divorce, the court can end up ruling in favor of this parent in terms of primary custody so that the children can keep living in the same house.e
The goal is to let kids continue sleeping in the same bed, living in the same neighborhood, going to the same school, and maintaining their normal schedule.
Texas courts will also look into whether there are any problematic issues with either parent that makes them less suited to the role of having primary custody. There are a number of factors that can lead a court to believe a specific parent having custody wouldn’t be in the best interest of the child, including:
The physical and emotional safety of children is paramount in a divorce, so a court will want to make sure that they are not put in physical or emotional danger. The court will dig into whether there is any history of domestic violence or other issues in the family. Living in a house that is free from emotional trauma and threats of physical harm is a major consideration when working to serve the best interests of a child.
In fact, a court cannot appoint a parent as a conservator (either sole or joint) if there is credible evidence that they have a history or pattern of:
There are a number of instances where a court order might be made regarding child custody, one of which is in the case of a divorce where the parents don’t reach their own agreement. Other examples of court orders that involve custody are:
Some important terms you will want to know when it comes to Texas child custody include:
In most custody orders, both parents will be named Joint Managing Conservators (JMCs). Texas courts order that both parents share custody unless there is a compelling reason not to order this, such as a history of family violence of one parent.
Usually, a JMC will require that decision-making about a child’s medical treatment, education, and similar issues is shared between the parents.
A child’s time is not necessarily split equally between both parents when a court orders JMC. One parent often has the right to choose the primary residence of the child in most custody orders. This parent is typically the one that the kid lives with more than half of the time as well as the one who has the right to receive child support payments.
The parent that fulfills this role can be referred to as the:
The parent that does not fulfill this role can be referred to as the:
Usually, the noncustodial parent is the one that pays child support. They also normally have visitation rights.
A court can choose to name one parent as the Sole Managing Conservator (SMC) when there is a compelling reason to do so. This type of order can make it so one parent only has limited rights when it comes to making decisions about their children or it can entirely take away their rights to make certain decisions.
Usually, a Standard Possession Order (SPO) will be included in custody orders in Texas. This details the specifics of each parent’s time with their kids. Parenting time in Texas custody orders is referred to as access and possession, however, this is an interchangeable term with “visitation.”
Basic SPOs will outline when the noncustodial parent has possession of the child and where exchanges of the child will take place. It will also outline where the kids spend the holidays and will touch upon how the arrangement will work if the parents live more than one hundred miles from one another.
There are a number of reasons why a court might not follow the SPO, including:
Courts can make any orders in order to protect the child, including ordering the parents to get drug tested or ordering supervised visitation.
You will likely find that it is preferable to create a parenting plan as a part of your divorce settlement agreement with your spouse rather than letting the courts decide on issues of custody and visitation.
There are a number of basic elements you will want to include when making a parenting plan, which are:
You can find a sample parenting plan and other information about co-parenting in Texas in this guide published by the Office of the Attorney General of Texas.
It's worth noting that issues of child custody and support cannot be determined by a prenuptial agreement.
Every family is unique, so there's a good chance you have a lot of questions about how divorce will play out in your particular circumstance. Here are some frequently asked questions about children and divorce in Texas.
Texas courts aren’t able to make initial custody and visitation orders regarding a child unless the following is true:
There are some specific circumstances that might fit within the exceptions to this rule. If you are dealing with a situation where your kids don’t live in Texas and you are getting a Texas divorce, you’ll want to talk to a lawyer.
Your divorce is contested if you and your spouse don’t agree on the issue of child support. It is usually advisable to work with a lawyer if you are involved in a contested divorce case.
You can also seek help from the Office of the Attorney General. Though they aren’t able to represent either parent in these types of cases, they can ask judges to make orders about the following:
Yes. When filling out the Original Petition for Divorce, you are required to list all of the children that were born or adopted during your marriage. A judge will ask you– under oath– whether there have been any children born or adopted during the duration of your marriage.
The judge’s initial custody order will normally prohibit a child’s primary parent from relocating outside of a pre-determined geographic area. This is typically the current county that the child resides in, in addition to other nearby contiguous counties.
If you want to leave the state with your children after divorce and you have a custody order, you most likely won’t be able to just pack up and leave. Instead, you’ll need to get a court order that gives you permission to make the move.
You will still need to inform the other parent that you are planning on moving away with the child even if you have an older agreement or order that doesn’t specifically outline a particular area that your kid’s residence must be in. The other parent has the ability to file an application for a temporary restraining order if they want to try and stop you from moving away with the child. This type of order would mean that you can’t relocate until a relocation hearing is held by the courts.
A relocation hearing will require that you present compelling reasons that you are leaving the state. These might include relocating to be closer to your family that will be able to help care for the child or relocating for a job. You will not be allowed to move out of state if the court suspects that your motivation for moving is actually to interfere with the relationship your child has with the other parent.
If you're worried that your spouse is going to try and pull something funny during divorce like moving your children out of state, you'll want to learn about some of the other common sneaky divorce tactics to keep an eye out for.
Unless a parent’s infidelity caused harm to a child, adultery isn’t something that is taken into account when deciding custody in a divorce. This is because the court presumes that just because someone hasn’t been a good spouse doesn’t necessarily mean that they are a bad parent.
When you're getting divorced with children, the whole process becomes more complicated. After all, you don't only have to consider what post-divorce life will look like for you and your ex-spouse but also for your children.
In the best-case scenario, you and your spouse can come up with a parenting plan that works for both of you. It is unideal to take the case to court and leave this impactful decision up to a judge. After all, you know what's best for your family.
That isn't always possible, however. Luckily, Texas family law is set up in a way that is primarily focused on the best interest of any children involved in a divorce.
If you're getting divorced in Texas, it's a good idea to learn as much as you can about the process. This way, you can be prepared for just about anything as your proceedings unfold.
For more information about divorce in Texas, be sure to check out our Texas family law blog.
When you first realize your marriage is ending, there are probably millions of questions racing through your mind. As you cycle through the practical and financial repercussions of divorce, you’ll likely wonder: who gets the house after a Texas divorce?
The answer to this question has to do with whether the home is considered marital property or the separate property of one spouse.
In many cases, both parties technically get half of the house. Of course, dividing the property into two halves isn’t going to happen, so this can be dealt with in a number of different ways– for example, the house might be sold and the proceeds split between them or one person might stay in the house while the other spouse is awarded other assets to offset the value of the property.
This is an important question in any Texas divorce and not the most straightforward topic. Let’s take a closer look at what you need to know about the division of real property in a Texas divorce.
When you start the divorce process in Texas, you’re going to come across the term “real property.” This refers to land and any structures or anything that is attached to the land, such as houses, buildings, or fixtures.
Because they aren’t attached to the land, mobile homes aren’t considered real property. However, if you own the land that the mobile home sits on, the land itself would be considered real property.
Before we talk about who gets the house after a Texas divorce, we need to take a look at the difference between community and separate property. Texas is one of the nine states in the U.S. that is a community property state as opposed to an equitable distribution state.
In community property states, assets and debts acquired during the marriage are considered joint property of both spouses. At the same time, though, most community property states allow spouses to own property individually as well.
When a marriage ends in Texas, each spouse gets to keep their separate property. Community property, on the other hand, is divided either through agreement or by the courts.
Community property in Texas is all of the property that was purchased during the marriage with money that was earned during the marriage. You and your spouse can determine how to split your community property as a part of a divorce agreement. If the case gets to court, though, they will divide your property (including your house) for you.
Texas courts pay particular attention to how the property was acquired and when it was acquired to help them decide how to divide it between spouses.
Texas courts won’t just split all community property in a just and right way, but they will also divide all community debts. In some cases, a court might order that division of property and debts be unequal when they deem it to be “just and right.”
The definition of community property according to Texas law is all of the property that was acquired by either spouse during a marriage, except for property that is considered separate property.
Any property that an individual owned before a marriage or that was received as a gift or inheritance during the marriage is considered separate property.
Separate property in Texas is:
Separate property can include real property that was bought with money that falls into the category of separate property– i.e., buying a house with funds you received as a gift would mean the property itself is considered separate property.
Texas community property laws dictate that courts assume any property that either spouse possesses during marriage and when the divorce is occurring is community property. If you believe that something is your own separate property, you will need to present “clear and convincing evidence” to the court.
Considering that a normal Texas divorce can take anywhere between four months and a year to be finalized, you might be wondering what happens to the house before the divorce is final.
In most cases, both spouses have the right to live in the marital home during the time a divorce is pending. However, there are circumstances where one spouse can ask the court to exclude a spouse from the house.
Either spouse can file a motion for a temporary injunction after divorce has been initiated if they choose to. An injunction is an order from the court that prohibits one party from taking a certain action or orders one party to take a certain action.
A judge could exclude a spouse from the house after a temporary injunction hearing. This might be done because the property value is diminished through a spouse’s actions, because of a protective order, or for another reason. In some cases, this type of exclusion can span the full length of the divorce proceedings.
Now to answer the big question: who gets the house after a Texas divorce?
The answer is: it depends. One of the most important pieces of information is whether the house is considered community property or separate property.
Any real property that is considered separate property cannot be awarded to the other spouse by the court. That being said, the spouse that claims to be the sole owner of the property is required to provide clear and convincing evidence that it is actually separate property and not community property.
So, if you can prove that your house is your own separate property (or if your spouse can prove that it is theirs,) the house will go to the person who proves that they are the sole owner.
Marital homes are often community property, though. It’s common for couples to purchase a house jointly after they marry, so many divorcing couples have to figure out how to deal with a home that is considered community property rather than separate property.
A home that is community property will need to be split during a Texas divorce. Since you can’t literally divide your house in half, the value of the home will need to be determined and any equity or debt will need to be split between the parties.
In this scenario, one of the parties may keep the home or it may be sold.
Some of the most common ways that the division of the marital home shakes out in a Texas divorce agreement include:
When couples aren’t able to come to an agreement about how to divide the house, the court will decide for them. A judge might choose to award the house to one party or they might order that the house be sold.
Yes, you can prove that the real estate you own is separate property.
Texas law begins with the assumption that any property you have before or during the process of divorce is community property. You will need to prove by clear and convincing evidence that the property you solely own is actually separate property.
It’s a good idea to work with a divorce attorney if you need to prove that your house is separate rather than community property. They will be able to help you gather evidence that is compelling enough to show the court that the home is, in fact, your own separate property.
It's generally recommended to work with a divorce lawyer if your divorce is in any way complicated. If you really want to represent yourself in your divorce, read this article about divorcing in Texas without a lawyer first.
Though the share of first-time homeowners that are married has been declining nationally, more than half of first-time homeowners are still married couples. This means that there’s a solid chance that the home you own at the time of divorce was purchased once you were already married.
If you and your spouse didn’t sign a pre-nuptial agreement or a post-nuptial agreement that outlines what will happen to your house, and you aren’t able to reach an agreement in the form of a divorce settlement, a judge will divide the house in a way that is “just and right.”
While that might be well and good, the concept of the division being just and right can seem pretty vague to the layperson. Ultimately, a judge has a lot of leeway when it comes to how they split community property. There are a number of factors they will use to figure out what a just and right division is, including:
Basically, the house could go to either spouse or a judge could order that the house is sold and the proceeds are split in a specific manner.
A court might require that the person keeping the house buys out the other individual's interest in the home before refinancing the property if both parties have substantial equity in the home.
Another approach is awarding the person that isn’t receiving the house other assets to help offset the value of the property.
When these types of common options aren’t feasible, a judge can also order that the house is sold and the proceeds are split between the two spouses.
The unique circumstances of your marriage and life will inform who gets the house and how this is dealt with.
It’s possible that you and your spouse own more than just your marital home. Real estate investing is an increasingly popular way to diversify one’s investments, or maybe you and your spouse have a second home or a camp out in the woods.
Any real property that was purchased during the marriage– even if there is only one spouse’s name on the deed– is considered community property. All that matters in the eyes of the law is that the couple was married when the title to the property was acquired.
However, one person could purchase property with their own separate property, which would mean that the real property can still be considered separate even if it was purchased during the marriage. The spouse that owns the property will have to prove it is separate, however, as the court assumes all property acquired during the marriage is community property.
Whether you own your marital home or you have a real estate empire to your name, you probably have a lot more questions about how real property is divided in a Texas divorce. Let’s take a look at some of the questions frequently asked regarding this topic.
We know that gifted property or inherited property is considered to be the separate property of the receiving spouse. What happens if you were both jointly gifted (or inherited) a property, though?
Basically, separate property that is received during the marriage is still considered separate property during a divorce. This means that each spouse already owns half of the property and are co-owners.
Even if only one person is listed on the deed, any real property acquired during the marriage is considered under Texas law to be community property. The fact that only one person’s name is on the deed isn’t what’s important in the eyes of the law– the fact that the property was purchased during the marriage is what determines its status as community property.
However, there are a few exceptions to this general rule.
For example, if one spouse bought a property with their own separate property, the house would remain their own separate property in a divorce. However, the spouse that believes the house is their separate property will need to prove this as a part of the divorce proceedings.
If you refinanced a house that is separate property in your own name during your marriage, it will still be considered separate property during a divorce. That being said, if the refinance documents have both parties’ names on them, an argument could be made that the spouse that owns the house gave half of the house to their spouse as a gift. This would mean that each spouse owns half of the house as separate property.
Divorces are inherently difficult, and living together during the divorce proceedings can feel unworkable. You do not give up any of the rights you have to your marital house if you move out when the divorce is pending. However, it is possible that a judge will take your move out of the home into account when he or she is choosing how to split up your marital property.
Before you move out of the house, you'll want to talk to your lawyer about what the potential consequences could be in terms of how your real property is divided during divorce. It's also worth noting that it's important that you wait to start dating until your divorce is final, as this can technically be considered adultery and be used against you during the proceedings.
In some cases, a judge might order that the marital house is sold. In others, the couple might agree to a settlement agreement where the house will be sold.
If this occurs, both spouses will need to sign the paperwork at closing. The divorce decree should list important information about the sale, including how long the parties have to sell the house and a detailed legal description of the property.
If one party is going to receive the home after the divorce, you might be wondering how to transfer ownership.
In your divorce decree, it should state who is going to receive the property as well as a detailed legal description of the property. On top of that, the final decree should state which party will now be responsible for covering all of the house’s expenses.
When one party is awarded the house with the signature of a judge on the decree, the other party will need to transfer all of their interest in the property to the party that is taking ownership of the house. This is done by signing a Special Warranty Deed. This paperwork is required to be filed in the property records of the County Clerk’s Office.
According to the Census Bureau, the percentage of Texas homeowners with a mortgage is lower than the national average. That being said, around 58% of homeowners in the Lone Star State are still paying a mortgage, compared to the national average of 63.3%.
This means that there’s a good chance that you and your spouse still have a mortgage on your house at the time of your divorce. If both of your names are on the loan, you might be wondering whether you can take your name off the mortgage so you aren’t liable if your ex-spouse stops making payments or defaults on the loan.
Unfortunately, refinancing is the only way that you can get your name off of the home loan after divorce. The party that is keeping the house will need to refinance the mortgage in their name in order to remove your name from the mortgage.
This might not be a fast process because the bank will need to look at the assets and income of the spouse to find out whether they qualify to refinance the home loan.
In your final divorce decree, it should state whether the person that is keeping the marital house is required to refinance the mortgage. On top of that, it should mention the period of time in which the spouse is required to refinance the loan.
Texas courts don’t have the power to order a lender to give out a loan. Whether your spouse qualifies to refinance on their own is ultimately up to the bank. That being said, having the requirement to refinance the house can let you ask the court to enforce the decree through filing a motion if your ex doesn’t uphold their end of the bargain.
It is often advised that both spouses sign a document known as a Deed of Trust to Secure Assumption. This document lists the spouse that didn’t receive the home as the beneficiary and lays out all of the agreed-upon terms regarding what happens if the home-receiving spouse defaults on the mortgage.
While this isn’t a perfect solution because the spouse that didn’t receive the house can deal with negative credit repercussions if their ex doesn’t pay the mortgage, it does give them the right to foreclose on the property in the same way any other creditor would.
If you are planning on getting married and buying a house, it’s generally a good idea to talk to an attorney about the potential repercussions of purchasing a property before you are legally married. They can help you understand what this could mean for property division in the event of divorce.
The reason that buying a house before marriage can be problematic is that it will create an undivided separate property interest in the property. This means that the right to enjoy and use the home will be equally shared by both parties.
If you were to get divorced in this scenario, the family courts won’t be able to divide up your separate property. All they can do is confirm separate property. From there, you’ll have to take the matter to the civil district court.
This means more legal fees, more time in court, and more headaches.
If you are set on buying property before you get married (after all, there are plenty of reasonable circumstances where this could make sense,) there are steps you can take ahead of time to ensure that you don’t end up complicating things down the road should the two of you decide to split up.
One option is to enter a partnership agreement that states what will happen if the marriage is dissolved, such as an agreement to sell the property and split the proceeds.
There are few things in life as stressful as a divorce. Though it might be the last thing you want to think about, arming yourself with knowledge of the law can actually help to reduce your anxiety and stress around the topic. Once you have a better sense of what the divorce process will entail, you can be better prepared as the proceedings unfold.
Are you looking for more information about divorce in Texas? If so, be sure to check out our library of articles at TexasDivorceLaws.org.
If your spouse declares that you're divorcing you, your first thought might not be whether you get to keep your vehicle. However, as things unfold, you'll inevitably wonder: who gets the car after a Texas divorce?
The answer is: it depends. You'll first want to determine if the vehicle is separate or community property. If it's community property, you and your spouse can work out who gets what car in a divorce settlement. If you can't reach an agreement, a judge will decide for you.
Let's take a look at everything you need to know about what happens to your vehicle during a Texas divorce.
There is no set answer as to who gets the car in a Texas divorce. You and your spouse can come to an agreement through a settlement agreement or a judge can divvy up your property, including your vehicles.
The first thing you’ll want to determine is whether your car is considered community or separate property.
If you bought a car before the marriage and only your name is on the title and loan, it is considered separate property. However, if you made car payments using community funds during marriage, your spouse can ask to be reimbursed for the community funds that were used to pay for personal separate property.
Any vehicles that were purchased during the marriage, regardless of whether both names are on the title, is considered community property.
If one spouse is awarded a vehicle in the divorce decree, they are usually also responsible for the associated debt. If you and your spouse bought a car with financing during your marriage, the car is considered community property and the debt is also considered marital debt.
Divorce courts can choose to award one party a vehicle along with the balance owed on the loan. That being said, it isn’t within their power to remove the name of the other spouse from the auto loan.
What this means is that the other spouse can still be held responsible for payment by creditors if the bills aren’t paid. The only way to get off of an auto loan is for your ex to refinance the loan in only their name.
When it comes to splitting your property and debt, the ideal scenario is for you and your spouse to come to an agreement on how everything will be divvied up. You can then fill in the final divorce decree in a way that reflects the agreement you have reached. Unless your marital and personal estates are very simple, it’s probably a good idea to talk to a lawyer during this part of the process. Any couple with property of significant value (such as a retirement account, business, house, or other financial accounts) will want to have a divorce attorney review their divorce decree before finalizing the divorce.
(Are you committed to the idea of representing yourself in your divorce? Make sure you read this article about getting divorced in Texas without a lawyer.)
If you don’t work with an experienced lawyer at this part in the process, it’s possible you could make costly mistakes. Even though hiring a lawyer in Texas can be expensive, you might find that it will ultimately save you both money and time in the long run.
Let’s look at some of the options available to you when it comes to splitting up your vehicles during a divorce in Texas.
If your car is only in your name and the auto loan for the vehicle is in your name only and it is agreed in your divorce settlement that you will keep the car, you don’t have to take any action after the divorce except to keep your Final Decree of Divorce someplace safe.
Since you won’t be changing ownership of the car or the name on the auto loan, you don’t have to contact the Department of Motor Vehicles or your lender.
If you have an auto loan at the time of your divorce that is in both your name and your spouse’s name, you will likely want to refinance the loan into your name when you are awarded the vehicle as a part of the divorce decree.
When you refinance your loan, it means that only you are responsible for repaying the debt. Your spouse will no longer be liable and tracked down by creditors if you were to default on the loan.
Sometimes, a divorce decree will order a spouse to refinance a vehicle.
However, refinancing an auto loan requires that you have enough income and sufficient credit to be approved.
If both spouses’ names are on the title of the vehicle you are awarded in a divorce but there isn’t any outstanding debt, you will most likely want to change the title so it has only your name on it.
To do this, you will need to go to your local Department of Motor Vehicles with your Final Decree of Divorce and any other relevant documents. You can show the DMV employee the divorce decree that states that you have been awarded sole ownership.
The title can then be changed to take your ex-spouse’s name off and only state your name. When you don’t have a loan on your vehicle, it can make the whole process much more straightforward. That being said, many people who own newer vehicles do so with the help of an auto loan.
This is usually not an ideal option, but many people go this route regardless. A divorce is a process where you are separating yourself from your partner, which includes financial considerations. For this reason, it is best to make sure that any vehicles you are awarded in the divorce are solely owned by you and any associated debt is solely your responsibility.
There are a number of reasons why someone might choose this option despite the fact that there are better options available.
For one, they might not be able to pay off the loan from their savings or from the proceeds of the divorce. On top of that, they might not be able to refinance the loan in their own name because of a low income or a less-than-perfect credit score.
When this is the case, a person might choose to keep the vehicle so they have a mode of transportation while the title and the loan remain in both parties' names.
Usually, this will work as follows. The divorce decree will order the person that is awarded the vehicle to make all of the car payments on the loan. The title will still have the other spouse’s name on it until the vehicle is either sold or paid off (if the latter option occurs, you could then have the title changed at the DMV.)
As you might imagine, it isn’t ideal for your ex to retain the rights of ownership to property you were awarded in a divorce. Both you and your spouse likely won’t love this option– they remain responsible for the loan if you default while also maintaining some claims to ownership.
If you and your spouse don’t have a loan on a vehicle, the whole process gets a lot easier when one party is awarded the car in a divorce.
All you have to do is transfer the title on the car from one spouse to the other by bringing the final decree of divorce and other relevant documents to the DMV.
All of the property that you and your spouse have when you get divorced is considered community property except for the separate property owned by each spouse.
Community property might include:
Which spouse's name is on the title or which spouse's earnings were used to purchase an item doesn't matter except in cases where property can be proven to be separate (or if the spouses agree it is separate property.)
On top of the property you've accumulated marriage, there is also community debt to be concerned with. This is the debt you took on during the marriage.
It's worth noting that there are some exceptions to these rules. It's best to talk to a lawyer if you have questions about whether property or debts fall into the category of community property.
Separate property in the state of Texas includes:
The spouse that is claiming property belongs solely to them will need to prove that it is separate property unless both spouses agree. The property will be considered community property if the spouse cannot adequately prove it to be separate property and the other spouse doesn't agree.
Additionally, there is separate debt to be concerned with. This is debt that one spouse took on before they got married.
A car is treated in the same way as other property when it comes to determining if it is considered community or separate property.
For example, if your parents gave you a car as a gift, this is considered separate property. Similarly, if you bought the car before you got married, it is your separate property.
However, if you make car payments using community funds, you might have to repay your ex-spouse as a part of the divorce proceedings.
If you purchased a car during the marriage, it is considered community property in most cases. At the same time, any loan that is taken on during marriage will be considered marital debt.
Again, the best case scenario is for you and your spouse to reach an agreement regarding property and debt division, including who gets what car. If you can’t, a judge will decide who gets what and who is responsible for various debts. Here are some of the considerations you might take into account or a judge might take into account when making these decisions.
If a judge is deciding who will get a vehicle and the family car has positive equity, they might order you to sell it. Then, the proceeds from the sale would be divided between the spouses based on the order in the final divorce decree.
In this instance, you do have an option if you want to keep the car yourself. It might be possible to pay your ex-spouse the amount of money they would receive if you were to sell the car and take ownership of the vehicle.
It’s not unusual for people to have a personal attachment to a vehicle, and it might be that one spouse has a deeper connection with one of your cars than the other. This can be used as a negotiating tool during the settlement process, where you might be able to waive your right to the car in order to receive something you personally find more valuable, such as full ownership of a brokerage account, an art collection, or your favorite pieces of furniture.
Another consideration is who genuinely needs to use the car more out of the two spouses. Generally, a person that becomes a custodial parent will have a greater need for a vehicle than a person that becomes a noncustodial parent.
Even if there aren’t children involved, there might be a discrepancy between each of your needs for the vehicle. For example, one spouse might need to commute to work five days a week while the other works from home.
Of course, you might not necessarily be obligated to give the family car to your spouse simply because they technically need it more. However, it might be useful during divorce negotiations and could help to make the divorce process more amicable.
There are a lot of things to consider when it comes to property and debt division in divorce, but who gets what car is likely one of the most practical issues on the table next to who gets the house. Let’s look at some additional questions that are frequently asked about this topic.
If you weren’t awarded a vehicle in a divorce but your name is still on the loan and the title, the best-case scenario is that your spouse refinances the loan. If they aren’t able to refinance, the next best option is to sell the vehicle. Even if you owe more on the loan than the vehicle is worth, you might choose to pay the difference using a personal loan and allow both parties to purchase their own vehicle separately.
Even though the debt associated with the vehicle is also awarded to the person that is awarded the car, the lender doesn’t care about that at all. All they care about is that an agreement was made regarding loan repayment. Your relationship with the lender doesn’t change just because the divorce decree states that your spouse is responsible for making the car payments.
If your spouse continues to make timely payments on the loan until it is paid off, this won’t be a huge problem for you. However, if they don’t, you could end up being responsible for the rest of the loan and have your credit damaged.
Sometimes, a couple will have already separated their personal belongings sometime before the divorce is finalized. This makes quite a bit of sense when you think about it– after all, the typical divorce can take anywhere from four to twelve months to finalize.
When it comes to things like clothing and furniture, you most likely won’t need to list this type of property in the divorce decree. The final divorce decree will award each party the personal belongings that are in their respective care, control, or custody unless there are orders that specifically state otherwise.
That being said, any property that is of significant or substantial value will need to be included in the final decree of divorce, such as real estate, jewelry, businesses, financial accounts, and vehicles.
Each vehicle that you and your spouse own will need to be included in the divorce decree with their respective vehicle identification numbers (VIN). You can usually find this number by looking on the vehicle dashboard in the lower-left corner in front of where the steering wheel is.
It’s easiest to read this number by looking through the windshield from the outside. This number will also be listed in insurance documents, the vehicle title, and potentially in the owner’s manual.
If a vehicle has been awarded to you in the Final Divorce Decree that is in both of your names, you will want to go to your local county tax office with a certified copy of the divorce decree. You’ll be able to apply for a title for the vehicle.
As is always the case with this type of trip, there are a number of documents you’ll want to bring with you. For example, you’ll want to bring proof that you have current insurance on the vehicle as well as the application fee for the title.
It’s a good idea to look at the county clerk’s website or give them a call to learn the amount of the fee and the specific documents you will need to bring.
If the vehicle isn’t included in the divorce decree but you intend to transfer the title into your own name, you will need a properly assigned title. Your ex-spouse can either sign a power of attorney or sign the back of the actual title in order to assign a title to you.
FYI, you can check the tax-exempt box on the application form for the title if you are transferring a title due to divorce. You shouldn’t have to pay taxes on this type of title transfer.
If both your name and your spouse’s name are on the car loan and they are keeping the car, it’s perfectly reasonable that you would want to have your name removed from the loan. After all, when your name is on the auto loan, you will be responsible for the debt if your ex-spouse stops paying.
In order to get your name off the loan, your spouse will have to refinance the loan. If they are either unable to qualify for the loan on their own or are unwilling to refinance their debt, the loan will still be your responsibility. If you find yourself in this situation, you could talk to your lawyer about the different options you have.
Wondering what forms you're going to need to file for divorce in the Lone Star State? Check out this guide to Texas divorce forms.
If your name is still on a car loan after divorce that is attached to a vehicle awarded to your spouse, it's possible that repossession is an option if they fail to make payments toward the debt. This is something you will want to talk to an attorney about because they’ll be able to look at the language in the final divorce decree to see if repossession is an option.
If you want to include a provision of this sort in your final decree of divorce you will probably have to work it out as a part of the negotiation process. This type of language usually isn’t written into a judge’s decision as a part of a divorce trial. However, if you are able to negotiate with your spouse to include this type of language in the divorce decree, there are two primary benefits:
Again, you shouldn’t expect that this option is a given but instead should specifically negotiate for this during the process of reaching a divorce settlement agreement.
When you and your spouse decide to get divorced, your first thought likely isn’t about your car payments. However, this is one of the many financial considerations that you’ll need to address as a part of the process.
If a car belongs to your spouse as separate property (meaning he or she bought it before the marriage or it otherwise qualifies as separate property) and the title and auto loan are solely in his or her name, then the responsibility for making car payments is most likely left to your spouse.
If both of you own the vehicle together, though, the lender will hold both of you responsible for making payments. In the eyes of the court, you are both responsible for making these payments until that responsibility is altered by the courts.
It doesn’t matter if you never drive the car or if your name isn’t even on the title– if you’ve been making payments on the car and the note is in your name, you most likely have a legal responsibility to make the regular payments towards the loan.
During the temporary orders stage of a divorce case, you and your spouse will divvy up how bills will be paid during the period of time after divorce has been initiated but before it has been finalized. However, there’s a good chance you could still be responsible for making car payments during this time even if the vehicle is the separate property of your spouse.
If you and your spouse can’t come to an agreement about how your property and debt will be divided, including your vehicle and any loans associated with it, you will be leaving the matter up to a court. A judge will divvy up your property and your debts in a “just and right” way. This often means your property and debts will be divided 50/50, but that isn’t always the case.
There are so many different elements to divorce it can be completely overwhelming. First, there is the emotional aspect, which can be incredibly difficult to deal with on its own. On top of that, though, there are also the financial aspects of how your property and debts will be divided as well as how you will deal with the costs of divorce.
When you first realize that your marriage is ending, you likely have more questions than answers. The legal system is complicated, and they don't necessarily make it easy to navigate on your own.
Unless you're getting a simple divorce and you and your spouse don't have much in the way of assets or debts, you'll probably want to work with a lawyer during the process.
However, that doesn't mean you can't do research on your own. The more you know about the divorce process, the more prepared you'll feel for every step along the way.
If you're searching for more resources about getting divorced in the Lone Star State, you've come to the right place. Be sure to check out the rest of our blog at TexasDivorceLaws.org.
Every year, hundreds of thousands of marriages are damaged in the U.S. by infidelity. If you or your spouse cheated and are now discussing divorce, you might be wondering about adultery in a Texas divorce and how it affects child custody and alimony.
Under Texas law, adultery can impact the decision a court makes about financial issues such as property division and spousal support. However, judges aren’t usually permitted to consider the adultery of a parent when deciding about child custody and visitation.
Let’s take a look at what you need to know about divorce in Texas when adultery is involved.
Adultery is one of the fault-based grounds for divorce under Texas Family Code 6.003.
An act of adultery is committed if a married person has voluntary sexual intercourse with another party that isn’t their spouse. However, in order for a Texas court to recognize adultery, it must be proven by the other spouse.
Child custody issues in Texas are divided into two different categories. These are:
Conservatorship covers the duties and rights of parents to make decisions about their children, such as medical decisions, educational decisions, and psychiatric decisions. One person might be allowed to make all the decisions, which is known as Sole Managing Conservatorship, or both parents might jointly have the right to make these decisions, which is known as Joint Managing Conservatorship.
Texas courts are interested in what is in the best interest of the children when it comes to these issues.
Possession and access cover when parents can visit with their children or when they have physical custody. The two statutory schedules for possession and access are:
These schedules outline how parenting is split between two parents. That being said, courts can award a different schedule if they believe it is in the best interest of the child. The involved parties can also agree on a possession and access schedule that fits with their needs so long as it is still in the best interest of the children.
If you're concerned about child custody, you are probably also interested in learning more about child support. This article covers how child support is calculated in Texas.
In Texas, court-ordered payments from one spouse to the other after the divorce is final is known as spousal maintenance. Couples can also agree to alimony arrangements as a part of their divorce settlement, which is known as contractual alimony.
In some cases, courts might award temporary spousal support as a temporary order. This might occur in order to help the couple maintain the status quo while a divorce is pending.
In a recent post, we covered the topic of spousal support in Texas at great length. In short, though, it's important to understand that it is very difficult to be awarded spousal maintenance by Texas courts. Even if you do win spousal maintenance as a part of a divorce, there are limits to the percentage of a person's monthly resources that can be allotted toward spousal support.
In short, though, Texas law doesn't provide for alimony as a right, nor is it prohibited. An individual has to meet specific qualifications in order for a court to be allowed to order spousal maintenance payments. The most common way for people to receive this type of support through a court order is by being married for more than ten years and being able to prove that they won't be able to meet their basic needs independently.
There are also parameters set on the duration of court-ordered spousal support payments in Texas. These timeframes range from five to ten years. Spousal maintenance payments are commonly paid monthly.
If you have learned that your spouse was cheating on you and you're filing for divorce, it can be tempting to try and make the process as painful as possible for them and bring the case in front of a court with the hopes of winning big. It doesn't typically work this way, though, and you will likely be disappointed if you expect to be awarded massive amounts of spousal support or a lion's share of the property.
Curious to know how much to budget for your divorce? Learn how much divorce costs in Texas here.
Are you considering filing for divorce based on the grounds of adultery? If so, you’ll want to understand that the court will require you to prove that the affair occurred.
This means that it isn’t enough for you to simply state that your spouse cheated on you. You will need to provide evidence that supports and proves the claims you are making.
Unfortunately, adultery can be very difficult to prove because it is secretive by its very nature. You don’t need to prove that your spouse actually had sexual intercourse with another person as long as you can provide enough circumstantial evidence that points towards the existence of the affair.
Some of the types of evidence you can produce to show that your spouse was most likely involved in an adulterous affair include:
The evidence you provide will need to make it reasonably clear that your spouse was committing adultery during your marriage. Some individuals might enlist the help of a private investigator in order to get the evidence they need to prove adultery to the court.
All that being said, it's a good idea to talk to your lawyer about how adultery could impact your individual case. You might find that it makes sense to file a no-fault divorce even though you feel that your spouse is responsible for your relationship ending.
When a divorce goes to trial, the whole process can get very complicated and expensive. The more evidence that each side of the case is introducing, the longer you can expect it will take for a ruling to be made by the court.
(Check out this post if you're wondering how long a divorce takes in Texas.)
If you are choosing to represent yourself in your Texas divorce, (which, for the record, you have every right to do,) you’ll need to get very familiar with the Texas rules of evidence. These are guidelines that let you know what types of evidence can be brought in front of a judge. Representing yourself in a contested, fault-based divorce is not an easy feat, and you should think seriously about whether or not you’re up for the task. You might find that hiring a divorce attorney is well worth the cost.
Are you considering getting divorced without the help of an attorney? Make sure you read this post about how to file for divorce in Texas without a lawyer.
In most cases, the child custody arrangement that results from your divorce will not be impacted by a spouse’s adulterous behavior. Usually, there needs to be a compelling correlation in order for the child custody arrangements to be affected by adultery.
The assumption here is that behavior that makes a person a bad spouse doesn’t necessarily make them a bad parent. On top of that, Texas family law always starts from the perspective of trying to provide the best possible outcome for the children involved and protecting their best interests.
That being said, judges might not look kindly at spouses that start dating before a divorce is final– particularly if there are minor children in your family. The spouse that was cheated on could argue that person who is in a new relationship is disregarding the way their actions impact the children. Additionally, they could argue that they are acting irresponsibly in relation to their parental responsibilities.
For instance, let’s say that you start dating someone before your divorce is final and they spend the night in a home where your children also live. Your spouse could argue that this negatively impacts your kids and that your behavior is inappropriate.
Another example is if a cheating spouse exchanged inappropriate photographs with their lover on a device that was accessible by their children. A court could take this into consideration when deciding about issues of custody and visitation.
Your custody award could be impacted by this type of circumstance. Just so you know, child custody is known as conservatorship in Texas. How much time you are allowed to spend with your kids could be reduced if the judge believes your behavior is irresponsible or inappropriate in relation to your kids and impacts them negatively.
While Texas law doesn’t use the word “alimony,” there are several different types of spousal support that can emerge from a Texas divorce.
The first is spousal maintenance, which courts award in certain circumstances based on very specific guidelines. Texas is considered one of the most difficult states in which to receive court-ordered spousal support, and there are limits to how much money one spouse can be ordered to pay to the other as well as the duration of these payments.
The second is temporary spousal support, which is a temporary order made by courts that only last during the divorce proceedings (and sometimes for a brief period after the divorce is final.)
The third is contractual alimony. This isn’t a court order and instead is an agreement worked out between you and your spouse (and your lawyers if you have them.) This type of agreement is usually a part of the divorce settlement.
When it comes to spousal maintenance, courts will take a look at the behavior and actions of both spouses in the marriage as a part of their decision. If one spouse committed adultery, the court might determine that they shouldn’t receive spousal maintenance even if they fit the requirements for this type of support under Texas law.
Contractual alimony, on the other hand, isn’t decided by a judge and instead results from an agreement between both parties. However, a spouse that is fighting for alimony payments that also committed adultery isn’t in a great bargaining position.
Texas is a community property state that will split your property according to a division that is thought to be “just and right.” This means that the norm isn’t necessarily to split marital property precisely 50/50.
If you are able to prove that your spouse cheated on you during your marriage, you have the right to ask the court to award you a disproportionate amount of the property you and your spouse share. On the other hand, if the court is convinced by your spouse that you committed adultery, the shared property could end up getting split in a way that doesn’t favor you.
If either you or your spouse committed adultery, you shouldn’t assume that the property division will necessarily lean heavily in favor of the wronged spouse. There are a lot of different factors that can influence how adultery impacts property division, including:
If it is found that a spouse was using marital funds as a part of their adulterous behavior, then adultery can particularly impact the division of marital property. For example, a spouse might use shared funds to pay for gifts, dinners, or hotel rooms as a part of their affair.
A court can order the adulterous spouse to pay back any of the resources that they spent on the affair before the divorce was final, even if the community property division isn’t affected by the acts of adultery.
Judges tend to have a lot of discretion when it comes to this particular matter. This means the outcome you can expect isn’t set in stone. That being said, adultery isn’t something that reflects well upon a party in a divorce proceeding.
Of course, this is only applicable if your case goes all the way to trial. If you are able to settle your case during mediation or otherwise before the case goes to trial, the offending spouse isn’t in a great position when it comes to negotiating power.
There are likely a lot of questions running through your head if you are dealing with both the realization of adultery in your marriage and the notion that you're getting divorced. Let's look at some of the frequently asked questions about adultery and divorce in Texas that haven't already been covered in this article.
The state of Texas doesn’t recognize legal separation the way that some other U.S. states do. No matter how separated you and your spouse are in practice, you are technically married until the final divorce decree is issued by a judge.
This means that Texas courts will consider acts of sexual intercourse with parties outside the marriage to be adultery, even if you and your spouse have agreed to live separately and end your relationship. For this reason, it is important to wait to start dating until your divorce is final so it doesn’t have a negative impact on the outcome you receive.
It isn’t illegal to commit adultery in Texas. There are 21 states in the U.S. where adultery is technically a misdemeanor offense, but Texas isn't one of them.
That being said, any type of marital misconduct, adultery included, can be considered by Texas courts when deciding about property division and spousal support.
If you are filing for divorce on the ground of adultery, you will need to prove the adulterous behavior to the court. Of course, this can be very difficult because infidelity is secretive in nature. While you can use either circumstantial or direct evidence to prove that your spouse cheated, the proof does need to be clear and positive.
This means that it won’t be enough to provide evidence of innuendo or suggestion. You will need photos, texts, emails, social media messages, bank statements, or other evidence to show the court that a relationship exists (or once existed) between your spouse and another party.
Even if your spouse committed adultery, you might choose to file for a no-fault divorce. The reason for this is that fault-based divorces are inherently more complicated, more expensive, and more time-consuming. As you might imagine, this can also make them a lot more stressful to deal with.
When you file for a fault-based divorce, you are claiming that the other party is at fault for the marriage breaking up. You will then have to present evidence to prove that your spouse committed adultery.
If you file for a no-fault divorce, on the other hand, you don't have to prove that your spouse is at fault in any way. Instead, the two of you can move forward in the process without fighting over who is to blame.
In some instances, adultery can still impact the decisions of the court in a no-fault case. For example, a judge will take into account the marital misconduct of either spouse when determining whether spousal support payments will be ordered.
You are free to do what you want, but it can impact your case and outcome negatively. It is generally advised to wait to start dating until your divorce has been finalized. Since Texas doesn’t recognize legal separation, you are considered married until the final divorce decree has been issued.
Realizing that you probably shouldn't date before your divorce is final can be incredibly frustrating. After all, moving on with your life is a necessary part of dealing with divorce. However, starting a new relationship could jeopardize your ability to receive an outcome you are happy with during your divorce.
You can learn more about dating before divorce is final in Texas here.
The decision to end your marriage is never an easy one. If adultery is involved in your marriage, it can make an incredibly difficult situation even harder to bear.
Understanding how adultery impacts the divorce process is essential regardless of whether you are the offending spouse or not.
If you are going to file for a divorce on the grounds of adultery, you will most likely want to enlist the help of a lawyer. Divorce is complicated enough as it is when you aren't filing on fault-based grounds, and an experienced divorce attorney will be able to help you determine whether you have sufficient proof regarding your spouse's affair.
No matter where you are in the divorce process, learning as much as you can about Texas divorce and family law can make a big difference in your stress and comfort levels with the process. After all, we are often most afraid of what we don't understand. When you familiarize yourself with what to expect in divorce, it can take a lot of weight off of your shoulders.
If you're getting divorced in Texas, be sure to check out our library of resources at TexasDivorceLaws.org.
While divorces happen every day in Texas, every divorce case is unique. Before you hire a Texas divorce attorney, you’ll want to read our 7 tips.
A good divorce lawyer will be able to help you navigate the complicated legal process of dissolving your marriage. Choosing the wrong lawyer, though, can make your divorce cost more, take longer, and be more stressful.
Divorce is never easy, but the right divorce attorney can make the process as smooth as possible.
Let’s take a look at seven tips to help you hire the right Texas divorce attorney.
Hiring a divorce attorney can feel overwhelming at first. However, by understanding what type of divorce you need, gathering the names of prospective lawyers, and interviewing attorneys you might want to work with, you can find the lawyer that is best suited to your case.
Before you hire a lawyer for your divorce, it’s a good idea to consider which divorce process you will be following. The first question you’ll want to ask yourself is whether you expect your divorce to be contested or uncontested.
If your divorce is contested, it means that you and your spouse don’t agree on all of the major issues in your divorce. In an uncontested divorce, you and your spouse agree on the terms of your split or your spouse is refusing to participate in the process and you can pursue a default divorce.
Some couples decide to get divorced mutually and amicably. If this is the case, and you are both on the same page about property distribution, child custody and support, and other divorce issues, you can benefit from the faster, cheaper, and less stressful process of getting an uncontested divorce.
For other spouses, though, the issue of divorce is one that produces a lot of conflicts. Maybe both individuals are angry and hurt by the break-up and unwilling to compromise regarding divorce issues, or maybe just one party is being completely uncooperative.
Either way, it’s important to understand that high conflict divorces can take longer to finalize, cost more money, and be a lot more emotionally taxing.
Understanding how much, if any, conflict will be involved in your divorce should inform the divorce attorney you decide to hire. If you are getting a simple, uncontested divorce and your estate isn’t particularly complicated, you should be able to find a competent and experienced lawyer that will assist you in navigating the process. In fact, it’s possible that you don’t need a divorce attorney at all, or you might be able to at least avoid hiring a full-scope lawyer.
If you’re pursuing a contested divorce, though, you’ll need to find a lawyer that is highly qualified to represent you during negotiations and potential litigation.
At the same time, you don’t want a lawyer that is more aggressive than is suitable for your case.
Wondering how to get divorced without emptying your savings account? You can learn about cheap divorce options in Texas here.
It’s so much easier to get useful information about local attorneys these days than it used to be. With the power of the internet, you can get a sense of your options right from the comfort of your own home.
Most likely the first step you will take (if you haven’t already) is to google “divorce attorney in [your location].” This will bring up a ton of options, but you don’t want to assume that the first result is the lawyer you should definitely go with.
This initial search can help you get a sense of the different types of lawyers available in your area. You can learn a lot about the different law firms, including:
Some lawyers might have more information than others on their websites. You might find that some firms offer details about issues that specific attorneys have litigated. This can help you understand whether a certain firm or lawyer seems adequately experienced to handle your case.
In the next section, we’re going to talk about getting recommendations from other people for divorce attorneys. However, it really is a good idea to do a search online first, even if it’s cursory and brief. When you’ve done your own research, it can help you get a full picture of the playing field so that the recommendations you receive from other people can be kept in balance with your full scope of options.
Now that you have a sense of what is out there thanks to your internet research, it’s time to start asking for recommendations.
It can feel overwhelming to choose a divorce attorney, particularly if you’ve never had to deal with legal issues before. Finding a lawyer just from googling around also can leave you feeling unsettled– the number one result on the search results page isn’t necessarily the best lawyer to help you in your specific circumstances.
On the other hand, taking the first recommendation you receive for a divorce lawyer also isn’t always a good idea. After all, the person recommending the lawyer might have some personal stake in the matter (for example, they’re recommending their own spouse or a family member.) On top of that, the lawyer they used might have been a great choice for their divorce proceedings, but they might not suit your needs.
With those caveats in mind, it can be useful to talk to other people you know who have gotten divorced in your general region.
You might not feel comfortable going to everyone you know for advice about a divorce lawyer, but consider asking any relatives, friends, or colleagues that you trust for recommendations.
You won’t want to go with the first divorce lawyer recommendation you receive. Instead, ask around and gather a list of names that you can take home and do more research on. Chances are, someone will recommend one of the lawyers you found in your initial internet search.
It can also be a good idea to ask some people for referrals that you don’t personally know. For example, consider calling some non-family law attorneys in your area. You can ask them who they would hire if they found themselves in a position where they needed a divorce attorney.
Another type of professional you could call for recommendations is an attorney’s office. You might find that you get some non-biased, solid referrals.
When you’re gathering information about divorce attorneys, your goal should be to end up with a short list of lawyers you believe could be a good fit for your case.
Remember, every case is different. Just because your best friend was very happy with their divorce lawyer doesn’t necessarily mean they will be the right person to handle your divorce.
Once you have your short list of potential lawyers in hand, you can create a list of questions that you want each lawyer to answer. Then, you can set up interviews with each one of them. It’s best to not go with the first attorney you come across– the more lawyers you talk to, the more perspective you’ll be able to get regarding who can best represent your case.
Depending on your particular circumstances, you can prepare a list of questions that are specific to your case. Some questions you might want to ask your attorney about include:
Of course, you will want to personalize your list of questions to suit your needs. It can be useful to sit down and brainstorm all of the things that are on your mind regarding the legal aspects of your divorce. You can then hone in on unanswered questions and unique aspects of your case to build your list of questions.
Getting divorced isn’t usually cheap, and this can drive people to simply hire the cheapest divorce attorney they can find. However, there is almost always a correlation between a lawyer’s hourly or flat fees and how much experience they have.
If you are getting a straightforward, simple divorce, you might be able to get away with hiring a lawyer that hasn’t been in the practice for a terribly long time. If there is any complexity to your case, though, you’ll want to remember how valuable experience is when it comes to matters of the law.
When an attorney has years or decades of experience as a divorce lawyer in your particular region, they will be familiar with all of the nooks and crannies of the legal system and be aware of any obstacles that could pop up along the way. Lawyers who have a lot of experience will be much quicker to notice any issues that are developing and work to rectify them immediately.
When you interview your short list of lawyers, you’ll want to ask them how many years they’ve been practicing family law and if they have any experience with cases similar to yours. You can also ask to find out more about their track record with cases.
With your shortlist in hand and a number of interviews under your belt, you’ll want to make sure that the lawyers you are considering hiring have a reputation you feel comfortable with. You can do this by reading client testimonials on the firm’s website. Of course, the testimonials listed on their site will likely be a favorable portrait of their services.
So to further determine whether other clients have been happy with the legal advice and service they’ve received, you can also look at Google reviews and even ask the lawyer for past clients that would be willing to act as references.
The Better Business Bureau is another place where you can read reviews that should be less biased than the firm’s website. Remember, reviews should always be taken with a grain of salt, but you can start to notice informative patterns when you look at a number of reviews at once.
Finally, it’s always important to trust your gut when it comes to hiring a lawyer. You are going to be sharing a lot of personal information with your divorce attorney during the proceedings. This means that it’s absolutely essential that you feel comfortable with them and you trust them.
Even if an attorney looks like the perfect fit on paper, you might find that something just seems off. This doesn’t necessarily mean that they aren’t a great lawyer or that there’s anything wrong with them. It can simply mean that your personalities don’t jive well together and that you might feel more comfortable working with someone else.
Are you thinking about getting divorced without hiring a lawyer at all? Make sure you read this post about getting divorced in Texas without an attorney.
On top of our seven tips for hiring a divorce attorney in Texas, there are also some red flags you’ll want to watch out for. These are signs that a certain lawyer might cause more problems than they solve.
One of the biggest red flags when it comes to hiring a lawyer is poor communication. Good communication is vital to the relationship between an attorney and a client. Divorce cases can, at certain points, move quickly, and you’ll want to trust that your lawyer is letting you know about any developments that pop up right away.
The best attorneys will be very communicative with their clients. They will educate them about aspects of the law they need to know, let them know about decisions they need to make, and help advise them about their different options.
Aggression isn’t necessarily a bad thing in a lawyer, especially when you’re embroiled in a contentious divorce. However, it’s possible for overly aggressive attorneys to actually do more harm than good.
In most cases, the best attorneys are ready and willing to work with the other side of the case. If a lawyer you are talking to seems entirely focused on “crushing” the other side, you might find that they won’t perform well in the number of pre-trial stages that can help you save money, time, and energy.
A divorce attorney that is set on bringing a case to trial isn’t what you should be looking for. Almost all divorce cases are settled before it gets to trial, and going to court should really be a last resort when all other negotiation processes have been exhausted.
Taking a case to trial can wreak havoc on your life as it is way more expensive, time-consuming, and stressful. On top of that, it can be really hard on kids. The best divorce attorneys will know when and how to work with the other side to make sure that you get the best possible outcome from your divorce.
Are you wondering how much you should expect to pay to get divorced? Check out our guide to the cost of divorce in Texas.
Having a lawyer that helps you see the silver lining in things isn’t necessarily bad. However, some lawyers are overly positive, promising you outcomes that are unreasonable. For example, if an attorney is telling you that they’re going to get you an exorbitant amount in spousal support, full custody of your children, and a bulk of the marital property, this is a major red flag. If a lawyer you’re talking to is promising you that they will help you win almost everything in a Texas divorce, they are most likely just trying to get you to sign their retainer agreement and making empty promises to reach that end.
Yes, the legal system might be dry, but the emotional reality of divorce is anything but. Even if a lawyer has been practicing for decades, they should still be able to grasp the fact that you are going through a major life event.
The best divorce attorneys understand just how difficult divorce is at a personal level and how much it can turn a person’s life upside down. They are able to empathize with their clients and help them figure out what it is they want out of the divorce.
If you end up with a divorce lawyer that is lacking in empathy, it will likely be an incredibly frustrating experience.
Some lawyers claim to do it all. When you’re getting divorced, though, you really don’t want to be working with a generalist. You want a lawyer that specializes in family law and divorce. Beyond that, you want an attorney that has experience with cases that are similar to your own.
For example, if you are getting divorced with kids, you’ll want a lawyer that has helped clients successfully navigate divorce with children many times over. If you and your spouse are getting divorced and you co-own a business together, it is best to find a lawyer that has dealt with this type of circumstance in the past.
You never want to be a guinea pig client for a lawyer. When an attorney takes on a type of case they’ve never worked on before, there will almost always be things that come up that they aren’t able to anticipate. It’s ideal to find a lawyer that has seen it all and is able to help you navigate the process no matter what surprises pop up along the way.
If you’re interviewing a lawyer and you’ve noticed they are disrespectful to their staff or other people, it’s a major red flag. Maybe you heard them divulge confidential information from past cases or speak poorly or clients they had in the past. When you notice this type of behavior, you can expect this is the treatment you will receive during and after your own divorce case.
Asking for references can be a great way to make sure you are making the right decision when it comes to hiring a divorce lawyer. If an attorney refuses to provide references, this is a major red flag. Any lawyer that won’t give you a list of references you can contact most likely has something to hide.
For many people, getting divorced is one of the most difficult life events they’ll ever go through. It can shake up your life from every angle, even if the decision to get divorced is mutual and the process is amicable. When you get divorced, it is usually financially, mentally, and emotionally taxing.
Hiring the right lawyer can go a long way in making the divorce process more manageable. Not only can they help inform you about what the timeline will look like, but they can also lay out all of your options for each contested issue and give you valuable legal advice.
While it isn’t cheap to work with an attorney, many people find that it is money well spent. After all, the outcome of your divorce can have a major impact on your post-divorce life. Not only can it impact what property you end up with and your finances after divorce, but also your relationship with your children.
Getting divorced for the first time can be scary. One of the best ways to alleviate your fears, though, is to learn as much as possible about the process. No matter where you are in your divorce journey, be sure to check out TexasDivorceLaws.org.
The average cost of divorce in Texas is about $15,600 when a couple is divorcing without any children. When there are children involved in the marriage, the average cost is $23,500. When you look at numbers like these, you might be wondering how to find an affordable divorce attorney in Texas.
Depending on your situation, you might be able to manage your divorce without hiring a lawyer. In many cases, though, enlisting the help of a legal professional to some extent is advisable.
Let’s take a look at how to find the legal help you need at a price you can afford.
The state of Texas doesn’t require you to hire an attorney when you’re getting divorced.
Hiring a lawyer, however, can be beneficial for a number of reasons, including:
Some people choose to get divorced in Texas without hiring attorneys. If your divorce is amicable and your finances aren’t complicated, you might find that you and your spouse are able to walk through the process without professional legal help. However, consulting an attorney is usually a good idea if you are facing any issues concerning children, property distribution, or spousal support.
Divorcing couples that have already reached an agreement regarding the terms of a divorce might be tempted to try and hire one attorney to save money during a divorce. Not only does it cost more to hire two attorneys, but divorcing spouses often worry that two lawyers can end up stirring up avoidable conflict.
Unfortunately, though, you can’t hire one divorce attorney to represent both parties in a divorce. The reason for this is that the spouses are seen as opposing parties in a lawsuit, and it would therefore be a conflict of interest as well as a violation of ethics to have one attorney represent both parties. This is true no matter how amicable the split is.
However, there are a number of ways you can limit the role of lawyers in your divorce to keep the cost of divorce down. These include:
We will take an in-depth look at both of these options further down in the article.
If you are getting a divorce and you’ve learned that your spouse has already hired a lawyer, you most likely should hire your own attorney to represent you in the case. Divorces certainly occur frequently with one lawyer or no lawyers involved, and maybe you will find that hiring an attorney isn’t necessary for your situation.
However, not hiring a lawyer when your spouse has one can put you in an unfavorable position. This is particularly the case if your divorce is contested. When one spouse has a lawyer and the other doesn’t in a divorce, it is often the case that the person who has legal representation ends up receiving a better outcome when the divorce is finalized than the spouse without a lawyer.
In the section “How to Reduce Costs When Hiring a Divorce Lawyer in Texas,” we’ll talk a bit more about only one spouse deliberately hiring a lawyer to help save money on the divorce overall.
According to a national survey from Martindale-Nolo Research, the average total cost of divorce in the U.S. ranges from $7,000 to $23,000.
On average, divorce lawyers charge an hourly rate of $270, but there is a lot of variation when it comes to individual rates. 11% of respondents paid only $100 per hour, while 20% of respondents paid $400 an hour or more.
There are significant regional differences in the hourly rates charged by divorce attorneys. In large cities and on the coasts, lawyers tend to charge a much higher hourly rate than in rural areas and non-coastal locations. While it might go without saying, the survey also found that more experienced attorneys also charge a higher hourly rate than divorce lawyers that are new to the practice.
The hourly rate, however, only gives you a small piece of the puzzle when it comes to how much your legal fees will add up to at the end of the divorce.
In the survey referenced above, it was found that people who hired a lawyer to handle everything in the entire case (known as a full scope divorce attorney) ended up paying $11,300 in lawyer fees, on average.
This number is skewed by a small number of people that had very high attorney’s fees, though. When you look at the median, which is perhaps a better picture of the typical costs of hiring a divorce lawyer, the number comes out to about $7,000.
The biggest expense in your divorce will be the lawyer’s fees if you hire a full-scope divorce lawyer. That being said, there are other costs to getting divorced that you’ll want to incorporate into your sense of how expensive divorce will be in your particular case.
There are court costs you’ll have to pay, including the filing fees.
Depending on your circumstances, you might also have to pay fees for:
In the Nolo survey, the average cost for these additional expenses among people who hired divorce attorneys was $1,480. The median for these costs was $500.
You can learn more about the cost of divorce in Texas here.
Unfortunately, Texas is considered one of the more expensive states in which to get a divorce. According to a report from USA Today, the Lone Star State is the fifth most expensive state to get divorced in regardless of whether or not children are involved.
How much it will cost to hire a divorce lawyer in Texas will depend on the details of your case. Some of the factors that influence the cost of hiring a divorce lawyer include:
The average hourly rate for a divorce lawyer in Texas is $300 an hour. However, your location within Texas can play a role in how much your attorney charges by the hour. Let’s look at the typical hourly rates for some of the largest cities in Texas:
The average cost of divorce and attorneys fees in Texas, not including the filing fee, is $12,500, according to FindLaw.com.
Estimates of the total cost of divorce in Texas vary depending on the source. One study conducted between 2015 and 2019 found that the average cost of divorce in Texas was between $11,000 and $13,000. Another study suggests that divorces without children cost an average of $15,600 in the Lone Star State, while divorces involving children cost an average of $23,500.
As you can see, the range of how much a divorce can cost is enormous. Considering that attorney’s fees are the bulk of the cost of divorce, focusing on reducing costs when hiring divorce lawyers can significantly reduce how expensive your divorce is.
There are a number of creative ways to keep your costs down when it comes to attorney's fees in a divorce.
One popular option for divorcing couples that are interested in keeping the overall cost of divorce down is mediation. During divorce mediation, both parties can be ethically assisted by an attorney-mediator. The reason for this is that the mediator is acting as a neutral third party, rather than a representative of either spouse.
When you undergo mediation for your divorce, both spouses can receive legal information and even legal analysis from the mediator. However, the attorney mediator will refrain from giving legal advice to either party.
Basically, the mediator will work to educate each individual about their rights and responsibilities without taking sides or acting on behalf of either party.
The job of a mediator involves:
When you are proactive about going through divorce mediation, you can help to keep the cost of divorce down. Mediation is typically much less expensive than divorce litigation, particularly when you pursue it early on in the process.
In cases where mediators work with unrepresented couples, they will usually recommend that each party has their own attorney review their agreements before they put their names on legally binding contracts. However, each individual is free to decide whether or not they want to have a lawyer review the settlement documents.
Even if both spouses want to hire their own lawyers, early mediation can help to keep the overall cost of divorce down as well as the level of conflict.
The cost of private divorce mediation can range quite a bit. Nationally, the price for mediation is usually between $3,000 and $8,000. This bill is typically split between the two parties, however. According to one source, the average cost of divorce mediation in Dallas is between $4,000 and $8,000.
If you and your spouse have reached an agreement about all of the terms of your divorce, you could choose to have only one of you hire an attorney. While this can keep the overall cost of divorce down, you’ll want to be very careful when going this route– particularly if you are an unrepresented spouse.
The circumstances in which this could be appropriate include divorces where all of the following are true about the divorcing couple:
Usually, an attorney who only represents one party in a simple divorce that has gone through mediation or an uncontested divorce will charge a flat fee. This fee might cover a meeting to gather basic information and draft standard documents (including the petition and decree) between the client and a paralegal. It also might include:
It is very important to understand the notion of attorney-client privilege if you and your spouse decide to only hire one lawyer. The attorney will have the duty to diligently represent the best interest of and provide legal advice to the party that hires them only. This means that the person who actually signs the representation contract with the attorney is the only one that receives the benefits of having a lawyer.
If the agreement were to fall apart during the process of getting divorced, for example, the divorce attorney is very likely to transition the case to billing at an hourly rate rather than a flat fee because they would consider the case to now be contested rather than uncontested.
If you are wary of the expense of hiring a full-scope attorney in your divorce, you might choose to keep the cost of divorce down by hiring a consulting attorney to help you with specific tasks. A consulting divorce lawyer might be able to help you:
You also might be able to hire a consulting attorney to represent you in court appearances.
Based on the Nolo national survey referenced earlier in the article, only one out of ten respondents hired a consulting attorney as a part of their divorce. However, the average total fees were $4,600 with a median of $3,000 for those who hired consulting lawyers, which is quite a bit cheaper than hiring a full-scope attorney.
Of course, there is always the option to get divorced without a lawyer. When your estate is simple, the divorce is agreed, and you don't have children, this can be a reasonable path to take. Other people might be good contenders for a DIY divorce, but it's important to understand the risks of forging forward without any legal help.
To learn more about representing yourself in a divorce, check out our guide to getting divorced in Texas without a lawyer.
Wondering where you can find an attorney that won't charge you an arm and a leg for their services? Here are some places to look.
One way to find an affordable divorce attorney in Texas is to contact the Texas Bar Association. Their site has a search directory that allows you to look for lawyers that offer services based on a variety of fee options.
Their search function will let you answer a number of questions in order to find options that will fit your circumstances.
There is also a Lawyer Referral & Information Service offered by the Texas Bar Association that serves more than 246 counties in Texas. This service helps people that are seeking legal assistance find lawyers and other resources.
There are a number of different referral services, nonprofit law firms, and programs that aim to help middle-income Texans with the legal needs that they have. You can learn more about the Lawyer Referral Service of Central Texas, the Texas Lawyer Referral Service, the Houston Lawyer Referral Service, and the American Family Law Center on the Modest Means Programs section of the Texas Bar Association site.
Any family law attorney office you call will likely tell you that they are the best people to handle your case. “Affordable” divorce lawyers that advertise small retainers are often just trying to get you in the door before you burn through the initial retainer and end up owing them a lot more money.
One way to find neutral advice in terms of an affordable and good attorney is to speak with any non-family law attorneys or accountants you know. If there aren’t any legal or tax professionals in your network, you can also call a number of different offices and write down all of the recommendations you receive.
When you speak with these lawyers and accountants, ask them who they would use if they found themselves in a situation where they needed to protect their own interests. Of course, it’s always possible that these people have personal relationships with lawyers they would recommend, but calling a number of different offices should help you pin down some names that are worth following up on.
There are a number of options available to couples that are low-income in the state of Texas and are pursuing a divorce.
If you are seeking an attorney that you don’t have to pay for either through a legal aid organization, a law school, or other means, it’s worth noting that these types of programs can often have very long waiting lists. Divorce is expensive, and there are many people that are looking to save money or who simply cannot afford a divorce.
Firstly, it’s worth mentioning that you might qualify to have your court fees waived if you have a low income. You will need to fill out a Statement of Inability to Afford Payment of Court Costs or an Appeal Bond if you want to ask the court for a fee waiver.
This form is a way to communicate to the judge that you can’t pay the required court fees. It’s essential that you don’t leave any sections blank on the form and that you fill it out completely in either black or blue ink.
If you aren’t able to afford a lawyer but your spouse can, you can ask the court to order your spouse to pay for your lawyer. This is typically referred to as “interim attorney’s fees.”
You will be more likely to be granted your request for interim attorney’s fees if the following are true:
Pro bono lawyers are attorneys that agree to take on a portion of your case or all of your case at no cost to you. The best way to find one of these lawyers is to contact a program such as the Houston Volunteer Lawyers Program which specializes in providing Pro Bono lawyers.
In order to apply for this type of help, you will probably have to attend a free legal clinic first. It is worth mentioning that there is no guarantee that you will get a Pro Bono lawyer by attending a legal clinic.
Also, some of these Pro Bono programs are designed specifically for certain types of individuals, such as veterans or low-income individuals. They will each have their own guidelines or requirements.
While Pro Bono lawyers aren’t paid for their time, lawyers that work with a legal aid organization are paid for their work by funders rather than the client. Examples of legal aid organizations include the Legal Services Corporation and the Texas Access to Justice Foundation. To help you find legal aid organizations that might be able to assist you, you can use the Legal Help Finder from Texas Law Help.
You can also sometimes get free legal help from law schools in Texas. In many cases, however, these programs only serve people that are dealing with simple divorces that don’t involve children. Since they each have their own qualifications, though, it certainly doesn’t hurt to call law schools in your area and find out what your options are.
If you're interested in saving money in your divorce, check out these cheap divorce options in Texas.
Of course, you always want to be wary of people that are out to take advantage of you or scam you when hiring a divorce attorney. Everyone wants to spend as little money as possible on their divorce, but you don’t want to do so at the expense of a favorable outcome.
You should be very skeptical of law offices that offer flat fees of $200. The reason for this is that the filing fees in most Texas counties cost more than $200. On top of that, there are additional fees you will need to pay in a divorce, including hiring a process server and the cost of a citation.
You might also find lawyers that advertise $500 flat rate divorces. Considering the costs of filing fees and other associated expenses, it is unlikely that you will receive the type of services you are looking for at the rate. You might find that they are actually just selling you forms that you will need to fill out on your own and maybe some software if you’re lucky.
Divorce isn’t cheap, and it makes sense to try and save money when hiring a lawyer. After all, this is by far the most expensive part of getting a divorce. However, it’s important to make sure that you are still receiving quality legal services when you find a bargain or aren’t getting roped into an agreement that will ultimately leave you paying more money than you signed up for.
There are definitely ways to keep the cost of divorce down, and that doesn’t have to mean sacrificing having experienced legal representation on your side.
We hope to help empower Texans with knowledge about their rights and responsibilities under the law through our library of divorce resources. If you are getting divorced in Texas, be sure to check out the rest of our blog.
Are you contemplating divorce and wondering if you’ll be granted a divorce from the court? Can you get divorced for any reason in Texas, or do you need specific grounds?
When you file for divorce, you are asking the court to formally dissolves a legal marriage. Each state has its own laws that govern the process of divorce, including which grounds for divorce are acceptable.
The laws surrounding divorce have changed greatly in the U.S. since the middle of the 20th century. While it used to be that courts would only grant a divorce if you had sufficient grounds such as adultery, cruelty, or abandonment, this is no longer the case.
These days, all U.S. states allow for some form of no-fault divorce, including Texas. Let’s look at what you should know about the acceptable grounds for divorce in the Lone Star State.
When you file for divorce in Texas, you must list a legally accepted reason for your divorce. These are known as grounds for divorce. Most states in the U.S. are no-fault divorce states, however, a number of states still require that the person filing for divorce provides a reason for dissolving the marriage.
Each U.S. state has its own set of acceptable grounds for divorce. Historically, most states required that divorces only be granted based on fault grounds. These days, though, all states allow some form of no-fault divorce.
Common no-fault grounds in U.S. states include irreconcilable differences and living separately, while common fault-based grounds include adultery and cruelty. Texas has its own set of acceptable grounds for divorce, which we will explore a little later in the article.
When you file your Original Petition for Divorce, you will have to state the reason that you want the court to legally dissolve your marriage. However, there are a number of existing options you can choose from, the most common of which is insupportability. Commonly referred to as irreconcilable differences in other states, this term means that you are claiming that the marriage is irreparable.
This means that you can, in short, get divorced for any reason in Texas so long as you believe that the marriage isn’t salvageable. Insupportability can simply mean that you and your spouse experience a conflict of personalities or that there is too much discord in the marriage.
When you file for a no-fault divorce on the grounds of insupportability, you aren’t faced with the burden of providing proof for the reason you are getting divorced. It only takes one spouse to decide to get divorced– both parties don’t have to agree to end the marriage.
When you file for divorce, your spouse has the opportunity to file an answer and, if applicable, a counterpetition. If they choose not to file an answer before the deadline, however, they are giving up their right to have any say or participation in the divorce process. In these cases, the spouse that filed for divorce can ask the court to grant them a default divorce.
In a no-fault divorce, the spouse who is filing for divorce isn’t required to prove that the other spouse has done something wrong that led to the marriage ending. When an individual files for a fault-based divorce, however, they are stating that they are seeking a divorce because of specific behavior or actions of the other spouse (such as adultery, abandonment, prison confinement, or cruelty.)
The primary conceptual difference between fault and no-fault divorce is whether one party or both are being held to blame for the dissolution of the marriage. There are also very practical differences between these types of divorces, though– a fault-based divorce is often more complex, lengthy, and expensive than a no-fault divorce.
(Wondering how much you should expect to pay when getting divorced? This guide looks at everything you need to know about the cost of divorce in Texas.)
There are seventeen states in the U.S. that are considered no-fault states in the context of divorce. These states are:
You might notice that Texas isn’t on this list. That doesn’t mean that you can’t file for a no-fault divorce, however. It simply means that you have the option to file a fault-based or no-fault divorce in Texas.
The states listed above are sometimes referred to as true no-fault states because you aren’t given the option to file for divorce on fault-based grounds. All states now recognize no-fault divorce, but only some states no longer allow fault-based divorce.
In true no-fault states, fault-based divorces are no longer recognized. However, fault can still have an impact on the outcome of divorce in no-fault states in some instances. For example, in Florida, custody decisions can be impacted by one party committing adultery.
Since the laws around the grounds for divorce differ in each state, it’s important to become familiar with your own state laws when filing for divorce.
Most people that file for divorce in Texas do so in the form of no-fault divorces. This type of divorce formally states that neither party is guilty of any misconduct or to blame for the dissolution of the marriage.
Some individuals may choose to file for a no-fault divorce even if they believe that their spouse is at fault for ending the marriage. This is because proving fault in a marriage isn’t an easy task, and substantial evidence is required. On top of that, the process of proving fault in a marriage tends to be much more expensive, time-consuming, and emotionally difficult.
You’ve probably heard about couples that got divorced due to “irreconcilable differences.” In Texas, the concept of getting divorced because a marriage is no longer endurable or tolerable is known as insupportability.
Insupportability is the most common ground for divorce in Texas. The term is purposefully vague and can cover all manner of marital issues, allowing people who are dealing with conflict that prevents the potential for reconciliation to dissolve their marriages.
Even if the party filing for divorce believes that their spouse is at fault for the relationship falling apart, they might choose to file on the no-fault grounds of insupportability. When you file on fault-based grounds, you have to go through the time, effort, and expense of proving the fault of your spouse. Many people decide it is not worth the effort to legally prove the fault of the other spouse and instead get a no-fault divorce in a more cost-effective and timely manner.
In the Texas Family Code, the court is allowed to grant a divorce without any consideration for fault if the union:
“...has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.”
Another reason you can get divorced in Texas that isn’t fault-based is living apart. When spouses haven’t lived together for at least three years, a divorce can be granted by the court. During this period of time, the couple can’t have been cohabitating at any point and must have been living separately.
When the grounds for a Texas are listed as “living apart,” the court can rule in favor of either spouse.
While certainly not the most common reason for divorce in Texas, you can also file for a no-fault divorce if one spouse has been confined in a private or state mental hospital for at least three years and it appears that they won’t recover (or, alternatively, if they could recover, a relapse would be likely.)
It can be very difficult, time-consuming, and expensive to get a divorce on fault-based grounds. On top of that, the whole process can be extremely stressful and emotional. Divorces can start getting nasty quickly when fault is on the table, and individuals should think carefully about whether they want to go through the trouble of filing for a fault-based divorce.
If you have ample proof and enough to gain from filing for a fault-based divorce, you might find that this is the right route for you. However, in many instances, people choose to file for a no-fault divorce even when there is fault involved because it makes the process faster, less costly, and less emotionally taxing.
If one spouse commits adultery, a Texas court can grant a divorce in favor of one spouse. In order to be given a divorce on these grounds, however, you have to have clear and positive proof that your spouse was cheating on you.
This doesn’t mean that you need to have video evidence, of course. But it can be difficult to prove adultery because of the reality that participants often go to great lengths to keep their behavior hidden. You might be able to prove adultery through substantial circumstantial evidence, such as bank statements or receipts that show the purchase of gifts, trips, loans, or jewelry for a lover.
It’s important to understand, though, that mere innuendo and suggestion aren’t enough to prove adultery in a Texas divorce case.
If you are living separately from your spouse but still married, you’ll want to know that acts of adultery committed when you’re no longer living together can still be used to support a fault-based judgment against an individual. This means that it is in your best interest to wait to start a new romantic relationship until you have finalized your Texas divorce.
If one spouse willfully causes pain and suffering to their husband or wife, the complaining spouse can be granted a fault-based divorce on the grounds of cruelty. The Texas Family Code states that the court can grant the divorce in favor of one spouse if the other spouse “is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable.”
If one spouse has voluntarily left the other spouse, a court may grant a divorce on the grounds of abandonment. In order to be granted a divorce based on this reason, the spouse must have stayed away for at least one year and have left with the intention of abandonment.
On top of that, the spouse also must not be planning on returning to live with his or her spouse.
This one-year period needs to be continuous for a divorce to be granted on the grounds of abandonment. Basically, if your spouse has left you for eleven months and returns for a few brief nights, the clock on the one-year period could entirely restart. That being said, a court may still grant a divorce on these grounds if the spouse showed back up at home with no intention of continuing to live with the complaining spouse.
A person can also file for a fault-based divorce in Texas if their spouse is convicted of a felony, regardless of whether it was at the state or federal level. The following must be true for a court to grant a divorce on the grounds of conviction of a felony:
Additionally, a divorce cannot be granted on these grounds if the spouse that was convicted of a felony was convicted based on the other spouse’s testimony. Of course, that doesn’t mean that this couple can’t be granted a divorce. The complaining spouse will simply have to file based on other grounds, such as insupportability or cruelty, depending on what is applicable in the situation.
If you are filing for divorce on fault-based grounds, you will probably want to get a lawyer. The same is true if your spouse has filed for divorce on fault-based grounds. If you believe your divorce is going to be a no-fault, uncontested divorce, however, you might be a good contender for getting divorced without a lawyer in Texas.
Divorces in Texas can either be uncontested or contested. Uncontested divorces occur when both parties agree to the terms of the divorce or when a party asks the court for a default divorce. Contested divorces, on the other hand, occur when the parties don’t agree on all of the major issues related to the case.
It is possible for an uncontested divorce to either be a fault or a no-fault divorce. However, they are more commonly no-fault divorces.
Contested divorces, as well, can be filed based on fault-based grounds or no-fault grounds.
There are many different factors that can contribute to divorce, and there might not be one simple reason why a particular marriage falls apart.
That being said, there are some causes of divorce that are more common than others.
One study from the University of Denver involved fifty-two individuals that had been involved with a “prevention and relationship enhancement program” known as PREP. This is a program that focused on helping couples learn conflict resolution skills and communication skills.
The course initially took place before the couples got married. Fourteen years after the program occurred, researchers surveyed the individuals that ended up getting divorced.
According to this small but fascinating study, the most common reasons for divorce are as follows:
For much of American history, divorce was considered to be against the public interest. For this reason, divorces wouldn’t be granted by courts except if one spouse had “betrayed the innocent spouse.” The spouse that was asking for a divorce, therefore, needed to prove a “fault” such as adultery, cruelty, or abandonment.
If two people wished to get divorced but neither was at fault, however, they were not granted a divorce. On top of that, if two people were found to both be guilty of marital misconduct, they would also not be allowed to “escape the bonds of marriage.”
If it was found that the spouses conspired to make up grounds for divorce, divorce was also not allowed.
Since divorce isn’t governed by federal law and is instead governed by state law, the evolution of divorce laws differs from state to state.
There is a fascinating history of divorce in the U.S. that involves complex means of bypassing the fault system. In the early 20th century, Reno, Nevada was considered the divorce capital of the world because the residency requirements were minimal and the courts would often accept uncorroborated assertions of fault in divorce. In New York State, it was fairly easy to get a divorce on the grounds of adultery, and some Americans even went to Mexico or Haiti in order to be granted a divorce.
Even if bypassing the fault system wasn’t particularly common, it became a cause for widespread concern by the 1960s. The American Bar Association created a Family Law section in a number of different state courts at the urging of the National Association of Women Lawyers.
California became the first state in the United States to pass a no-fault divorce law in 1969. Over time, the rest of the U.S. states followed suit and now all fifty states allow for no-fault divorce.
There was an increase in divorces during the 1970s following the introduction of no-fault divorce.
These days, the median length of an American marriage is eleven years. While it’s common to hear nightmare divorce stories where a lengthy battle played out in court, the truth is that 90% of divorces are settled out of court in the U.S.
There are a number of benefits to filing for a no-fault divorce in Texas, including the fact that this type of divorce is:
If you are interested in filing for a fault-based divorce in Texas, you will definitely want to consult with an experienced lawyer that you trust. They will help you understand the potential pros and cons of going this route in your particular case.
If you file for divorce on fault-based grounds and your spouse is found to be guilty of misconduct, it could possibly result in the court dividing your marital property in an inequitable way.
However, if you have children involved in the marriage, you’ll want to know that proving fault during the marriage won’t impact the child custody rights your spouse has. This is because the child custody rights of a parent are considered to be separate and apart from the dissolution of the marriage in the eyes of Texas law.
Even if the court agrees that your spouse is at fault in a divorce case, it also won’t impact the obligation of a parent to pay child support or the right of a parent to receive child support.
Relationships are incredibly complicated, and even the healthiest of marriages experience extreme highs and lows. If you have considered getting divorced, you can find some solace knowing that you aren’t alone. According to a 2015 poll from the Institute for Family Studies, somewhere around half of all married couples have contemplated divorce.
If you’re thinking about getting divorced, you might have a long list of reasons why you feel the marriage isn’t salvageable. You don’t have to worry about proving your marriage is irreconcilable to the court if you file for a no-fault divorce based on the grounds of insupportability.
In some cases, it could be appropriate to file for fault-based grounds for divorce. However, this is a decision that you’ll want to take very seriously and discuss with your lawyer at length. Divorce is hard enough as it is, and having to go through the process of proving your spouse’s adultery, cruelty, or other misconduct can exacerbate the difficulty of the situation– as well as make it longer and more expensive.
If you’re thinking about divorce, learning more about the process can be very useful. For more information about dissolving your marriage in the Lone Star State, check out our articles about divorce in Texas.
There are many decisions to make when you’re getting divorced, and sometimes you and your spouse don’t agree on all of the major issues. If you are pursuing divorce without already having reached an agreement about things like property division, child custody, and child support, your divorce is considered contested. What happens when a divorce is contested in Texas, and what should you expect?
An amicable and agreed divorce is always preferred, but sometimes it simply isn’t possible.
In some cases, it’s necessary to fight to protect your rights and interests.
Let’s take a look at what you need to know about contested divorces in Texas.
A contested divorce in Texas is when the two divorcing spouses don’t agree on all of the issues in the divorce. This might mean that they don’t agree on the terms of their child support, child custody, property division, and more.
Your divorce will most likely be considered a contested divorce unless you and your spouse have reached an agreement about all of the issues in a divorce.
When you and your spouse agree on all of the involved matters in your divorce, it means that you can finalize your divorce by agreement. If either you or your spouse refuses to sign a settlement, however, the divorce is contested.
Hopefully, the two of you will be able to work out an agreement on your issues through Texas divorce mediation or another means. If you aren’t able to find a middle ground you can both live with outside of the courts, the case will go to trial and a judge might eventually need to decide how one or more issues are dealt with.
Sometimes, one spouse will want to make the divorce drag on for as long as possible in order to punish or hurt their soon-to-be ex. However, this can be incredibly costly to all parties involved, not to mention emotionally and mentally taxing.
There are almost always a lot of decisions that need to be made when you decide to get divorced. These can relate to issues including spousal support, child custody, child support, asset, and debt division, and more.
If you and your spouse come to an agreement about all of the major issues in your divorce, your divorce is uncontested. However, if you disagree on even one major issue, your divorce is contested.
It’s possible that your divorce will start out contested but will become an uncontested case once you work out the details of how to divide assets, share parenting responsibilities, and more.
The official beginning of a contested divorce in Texas is when you or your spouse files divorce paperwork with the county court. Either spouse can file the Original Petition for Divorce– the consent of both spouses is not needed to begin the divorce process.
The divorce petition will contain information including:
The process of getting a contested divorce is more complicated than getting an agreed or uncontested divorce. Let’s take a look at a typical timeline for a contested divorce in Texas.
When the petitioner files for divorce, the court will receive the documents and they will be submitted for a judge’s signature if a temporary restraining order has been requested. The court will also prepare any of the documents that will additionally need to be served to your spouse.
These typically also include a citation that outlines the details of what has been filed and what will be expected of them in terms of filing an answer as well as a precept. A precept is a legal notice that the court provides if there is a hearing set and an individual must appear before the court at a certain time and place.
The documents can then be retrieved by a process server or law enforcement member in order to serve the spouse that didn’t file the paperwork. This party is known as the respondent.
The respondent will have a deadline before which they have to file their answer with the court once they have received the divorce paperwork. This deadline is 10 am on the first Monday which occurs twenty days after they received the petition for divorce.
The answer to the petition in a contested divorce usually includes a denial of the allegations and terms that have been presented in the original petition.
The respondent can also file a counterpetition if they have independent claims that they want to assert against the petitioner.
If you are finding yourself in this position, you are in a contested divorce. Usually, both parties will have an attorney of their own to represent their interests.
Each individual having an attorney can be helpful in a number of different ways. On top of assisting with all of the legal aspects of the divorce, using attorneys can help to alleviate a lot of the emotional elements during the decision-making process. They can also help both parties make decisions that are more objective and ultimately lead to a better outcome.
The first major event that will occur in a contested divorce is a temporary orders hearing.
During these hearings, witnesses are called to testify and evidence is presented. The judge will ultimately issue orders regarding a number of different relevant issues. In this way, you can think about the temporary orders hearing as a kind of mini-trial.
Since the divorce process doesn’t happen overnight, temporary orders help to keep the family stable before the divorce is final. These orders help make sure that both parents still get to spend time with their children, bills continue to be paid, and other essential and immediate issues are decided.
Quite a bit of preparation is involved before the temporary orders hearing.
Negotiation will be required during a contested divorce since decisions on important issues haven’t yet been made. Both parties will need to find a compromise point that they can live with in order to avoid having a judge make decisions for them.
In almost all Texas contested divorces, the divorce process will reach its end during the mediation process.
Mediation is when a third-party, neutral attorney is selected to help the spouses come to an agreement about all of the issues that remain contested. This attorney doesn’t have any relation to either spouse and is an independent party.
During mediation, both parties will meet at the office of the mediator but will go to separate rooms. The mediator then spends time with each side, going back and forth between them to help facilitate conversation about each contested issue. Hopefully, an agreement will be reached during this process.
Mediation is scheduled for a pre-determined amount of time. In many cases, this will be somewhere between three and four hours.
It is natural to feel skeptical before going to mediation, particularly if you and your spouse are butting heads on important issues. However, many people find that the process is very helpful to help come to an agreement.
Finding a compromise point that both sides are happy with during mediation is often a much better option than having a judge decide what will happen regarding essential parts of your life. This way, you both get to have a say rather than receiving an order mandated by the court.
If the two spouses are unable to reach an agreement in the mediation process, the trial is the final stage of a contested divorce. This can happen after the divorce case has been going on for anywhere from many weeks to years.
During the trial, both sides will make their arguments and present evidence. The court will ultimately make a judgment about the issues that couldn’t be agreed upon.
Very few divorce cases make it to this point in the process. Couples are almost always able to reach an agreement before it is up to a judge to make these decisions.
Many experts agree that settling a case outside of court is far superior to letting a judge decide your fate for you. It lets the two of you stay in control of the outcome, even if you have to compromise quite a bit to find some common ground.
You aren’t required to have a lawyer in a Texas divorce and you are free to choose to represent yourself as a Pro Se Litigant. However, it is pretty much always recommended to have legal representation in a contested divorce.
The decisions that are made during a trial can have a huge impact on your life, including your post-divorce finances and relationship with your children. Even though hiring a divorce attorney can be expensive, a lot is at stake that is worth protecting during a divorce.
If you are just starting the process of divorce, you might be wondering whether any issues will crop up to make your case contested and more complicated. Let’s look at the most important decisions that need to be made in a divorce to help you understand what to expect.
Texas is one of nine states in the U.S. that is a community property state.
There are two different characterizations for property in the context of Texas divorce law: separate property and community property. This applies to both real and personal property.
If two spouses are unable to come to an agreement regarding how their property will be divided, a court has the authority to divvy it up how they see fit. There are a lot of different factors courts might consider when determining the division of community property, including:
Of course, there are also liabilities and debts to divide, too. When a person brings a debt of their own into a marriage, they are awarded the debt in divorce. If a debt is taken on during marriage, it is usually split between the spouses during a divorce. In some cases, one spouse might be required to take on the burden of a debt that was incurred by the other spouse during the marriage.
Spousal maintenance is only awarded by the court when specific qualifications are met. However, parties can contractually agree to alimony. Texas is one of the most difficult states in the country to have spousal maintenance ordered in a court, but even if that isn’t on the table, the issue of contractual alimony can be a contentious one.
There will always be orders in divorce decrees and settlements that have to do with child custody, possession, and support when there are minor children of the parties. As you might imagine, child custody can be a difficult issue to sort out when two parents have different desired outcomes.
The parent that isn’t awarded primary possession of minor children in the marriage or who spends less time with the children typically is required to pay child support to the parent with primary custody. This money is intended for the benefit of the children and is typically paid in monthly installments.
There are child support guidelines in the state of Texas that indicate a specific percentage of the support payer’s net resources, a term which is defined in the guidelines. This percentage is based on the number of children the individual is paying financial support for.
A contested divorce in Texas costs $15,600 on average. Numbers like these can be pretty overwhelming when you are first deciding how to approach your divorce. Because contested divorces usually require significant help from an attorney, the cost is much higher than that of an uncontested divorce.
An uncontested divorce in Texas, on average, ranges between $300 and $5,000. As you can see, this is a pretty big range.
On the lower end of the spectrum, it only costs a few hundred dollars to get a divorce without a lawyer in most cases. When you aren’t dealing with attorney’s fees, you’re generally just dealing with filing fees and other court fees.
On the higher end of the spectrum, lawyers are involved. Depending on how much legal help you need from an attorney, you might find your divorce costs anywhere within this significant range.
This means that getting an uncontested divorce is quite a bit more affordable than a contested divorce. The most expensive way to get divorced is almost always to take your case all the way to trial. However, it’s worth noting that collaborative divorces can also get pretty pricey depending on your particular circumstance.
This guide takes a deeper dive into the cost of divorce in Texas.
Divorce almost always takes at least sixty days in Texas because of the mandatory sixty-day waiting period. This waiting period is required in almost all divorce cases barring a few fairly specific exceptions.
That being said, even simply agreed divorces might not occur this quickly because of the calendar of the courts. The more issues that are contested in your case and the more complicated your marital estate, the longer you can expect the divorce to take.
If you and your spouse aren’t able to come to an agreement about all of the major issues in your divorce, it can take between six months to a year to finalize the divorce. In some instances, it can take even longer than that.
It is almost always advisable to have a lawyer representing each spouse during contested divorces. A divorce attorney will be able to help represent your interests during the divorce to ensure that you end up with an outcome that works for you.
It is particularly important to have an attorney of your own if your spouse already has a lawyer. Representing yourself isn’t an easy feat, and going up against an experienced divorce attorney on your own will likely be incredibly challenging.
If you are interested in learning more about DIY divorces, this article looks at getting divorced in Texas without a lawyer.
Uncontested divorces in Texas occur when both spouses agree on all divorce-related issues or in the case of a default divorce. Contested divorces, on the other hand, occur when spouses can't reach an agreement regarding their property, debts, spousal support, child custody, and support, or other pertinent issues.
Probably the most notable difference between these two types of divorces in terms of how they can impact your life is the difference in their financial cost and time cost.
While the filing fees are usually about the same regardless of the type of divorce you're pursuing, the attorney's fees and additional expenses are typically much more expensive in a contested divorce.
Even if you and your spouse start the divorce process in disagreement, it is likely beneficial to both of you (and any children involved in the marriage) to reach your own settlement agreement before taking the case to court.
In Texas, there is a mandatory sixty-day waiting period before a judge can finalize a divorce. The clock on this waiting period begins when the original petition is filed with the court. Though it can feel frustrating for the process to be on hold, this can be a valuable time when you and your spouse can reach an agreement, either by talking it out together or by working through your respective lawyers.
An uncontested divorce will let you begin your post-divorce life sooner than a contested divorce, in most cases, all while keeping more of your money in your pocket. On top of that, it can greatly help reduce the stress and emotional toll that divorce can take on a family.
Mediation can be a great solution if you are having a hard time communicating with your ex about resolving your issues. You can voluntarily undergo mediation, but a court can also order you to go through this process.
If the mediation process is successful, the mediator will present a drafted agreement to the court. If all is in good order in the eyes of the judge, he or she will sign it into the divorce order.
Entering a contested divorce isn’t the most pleasant experience, but sometimes it’s necessary. Every divorce is different, and there is no right or wrong answer when it comes to how you deal with your divorce.
That being said, it is definitely advantageous to try and settle things with your spouse out of court if it is at all possible. This can create a better outcome for everyone involved– you, your spouse, and children if you have them. Rather than letting the court decide important issues that will impact your day-to-day life post-divorce, it is usually best for the divorcing couple to find a middle ground they can live with.
If you’re getting divorced in Texas, you’re likely reading up on everything you can find about the topic. After all, the more you know, the better prepared you can be for the process.
At TexasDivorceLaws.org, we work to offer valuable resources to Texans that are dealing with divorce, getting married, or grappling with any situation under the umbrella of family law. If you’re looking for more information about divorce in Texas, be sure to check out our library of divorce articles.
If your spouse isn't participating in the divorce process, you can ask the judge for a default judgment. How long does a default divorce take in the state of Texas, though, and what should you know about the process?
Once you make the decision to get divorced, it’s perfectly natural to want to get the whole thing over with and move on with your life. However, a default divorce won't happen overnight.
Texas law requires that all divorce cases go through a sixty-day waiting period after the original petition is filed except in very specific circumstances. This means that, in almost all cases, getting a default divorce will take two months at a minimum.
In reality, though, most default divorces will take longer than sixty days. Let’s take a look at everything you need to know about default divorce in Texas and how long you should expect the process to take.
When a person is involved in a lawsuit in Texas, they are entitled to personal service of a copy of the paperwork that was filed at the courthouse. Since divorce is technically a lawsuit filed by one spouse against the other, this is also true in the case of divorce.
The person who files the original petition for divorce with the court is known as the petitioner. The other spouse in a divorce case is known as the respondent.
The respondent has a specific period of time in which they can file an answer with the court. They can also choose to file a document with the court that waives their right to being served and indicates that they are aware of the lawsuit and have received copies of the divorce paperwork.
If the respondent doesn’t file an answer or waive their right to being served, however, this doesn’t mean that the divorce is indefinitely put on hold.
Instead, it means that the petitioner is able to seek a default judgment in their divorce. This is a judgment that the divorce court enters. Within reason, a default judgment will reflect whatever the petitioner asks for in the divorce without any input from the respondent.
In short, a default divorce is a divorce that proceeds without one party having any say in the final judgment.
The petitioner still has to prove that the division of property and other terms of the divorce are fair. However, if the person being sued for divorce isn’t there to contradict the argument presented by the petitioner and the court finds the petitioner’s proposal to be fair, the outcome will likely be much less favorable to the respondent.
The divorce process begins when one spouse files the original petition for divorce with the court. The state of Texas requires that there is a sixty-day waiting period after this paperwork is filed before a divorce can be finalized except in very specific and rare circumstances.
The reason for the waiting period is to make sure that both parties have plenty of time to consider whether divorce is really something they want to go through with.
Even if the respondent has made it clear that they have no intention of participating in the divorce process or if they haven’t given any indication that they plan on responding to the lawsuit, a divorce cannot be finalized before the sixty-day waiting period has expired.
Under Texas law, there are only two exceptions to this sixty-day waiting period rule, which are:
There are two primary dates that you should be concerned with when it comes to getting a default divorce.
First, there is the period of time that the respondent has to file an answer with the court. This is a period of about twenty days when the respondent can respond to the divorce case.
If they don’t respond before the deadline and the sixty-day waiting period has gone by, you can ask for a default judgment from the court.
There is also a ten-day waiting period to be aware of. Basically, the individual (appointed by the court) that serves your spouse with the paperwork will file a timestamped form known as the “Return of Service” form. This form states the exact time that your spouse was served.
You cannot finalize a divorce for at least ten days after the Return of Service form was filed with the court.
If you're wondering what to expect when it comes to the length of any kind of divorce in the Lone Star State, check out this article about how long a divorce takes in Texas.
The minimum amount of time that it will take to finalize a default divorce in Texas is two months. The only exception to this is if you qualify for one of the exemptions to the sixty-day waiting period rule.
In general, though, it will likely take longer than two months to finalize a default divorce. How long it takes depends on a number of factors, including:
It’s worth noting that a default divorce is not something that happens automatically. Your spouse has to have an ample amount of time to formally respond to your divorce request. Another element that can impact how a default divorce plays out is whether there are children involved in the marriage.
Are you wondering what to expect from a divorce in the Lone Star State? Check out our guide to the divorce process in Texas.
If you don’t have children and you want to finalize a default divorce in Texas, there are a specific set of legal documents that will need to be filed with the court.
After you have filed the initial paperwork with the court, the following steps will be necessary in order for your default divorce to be final:
It’s generally a good idea to seek the counsel of an attorney if you are pursuing a default divorce.
There are different documents that are required if you are pursuing a default divorce with children. Because of the need to make decisions about child custody and child support, there are additional verification points required.
If there are any existing court orders for child support or child custody, you won’t be able to pursue a default divorce. Instead, you’ll have to go through the standard divorce process.
The Original Petition for Divorce you file at the beginning of the divorce will be a different form when you have children compared to the form you fill out when you don’t have children. The reason for this is so that you can make note of the children involved in your marriage when initiating the divorce process.
You will then need to follow the same steps outlined above, including letting the applicable waiting periods pass, checking with the court to make sure your spouse hasn’t filed an answer to the divorce and appearing during a court hearing.
The judge will sign the Final Decree of Divorce at the end of your hearing and will usually also include orders that have to do with your children and related circumstances that are involved in your case.
One order that is normally included in this part of the process is a Standard Possession Order. Another order that is common is an Income Withholding Order. This form relates to your former spouse providing financial child support.
In order to pursue a default divorce, the following needs to have occurred:
When all of those conditions are met, a default divorce can be pursued by the respondent.
There are a number of pieces of evidence that will need to be presented when requesting a default divorce. These include:
For each item that you are requesting in your Final Divorce Decree, you’ll need to be prepared to offer evidence.
For example, if you’re asking for child support you will need to offer information about the income of your spouse. You can ask the judge to base child support on the minimum wage if you don’t know the other parent’s income.
If you have filed for divorce and you expect that your spouse isn’t going to take any action to respond, it is still generally a good idea to work with an attorney.
There is still a lot of paperwork involved even when your spouse isn’t contesting the case or involved in any way. If all of the required documents aren’t complete or have been filled out incorrectly, a judge might not approve your divorce.
When you work with a lawyer, you have a professional on your side that can make sure there aren’t any filing errors. When filing errors are made, it can delay the process of making your divorce final. When delays occur, it means that your spouse has more time to respond and file an answer.
Your spouse can file an answer at any time before the divorce is complete even if the deadline for filing an answer has passed. For this reason, it’s a good idea to talk to a divorce lawyer to help you prepare for the possibility that your spouse will contest the divorce.
Even if you and your spouse talked about the divorce and they agreed that they wouldn’t be contesting any of the issues, you never quite know how people are going to act when something as serious as divorce is involved. After all, a divorce decides how property and debts are divided, not to mention custody and support for children, if applicable.
Essentially, working with a lawyer can help you cover all your bases.
To help keep the cost of divorce down, you might find that hiring a lawyer for some services is a good middle ground. You can have them look over your paperwork and help you understand important deadlines in your case.
If you're deciding whether or not to represent yourself in a divorce, make sure you first read this article about getting divorced in Texas without a lawyer.
A default divorce isn’t automatic if your spouse doesn’t respond to your divorce petition. Before your divorce can be completed, the sixty-day waiting period has to pass (including holidays and weekends.)
Your spouse still has the ability to file an answer anytime before the divorce is final even if they don’t file their answer in a timely manner after they’ve been served.
Once the sixty-day waiting period is over and you have confirmed that your spouse hasn’t responded to being served, you can call the courthouse to ask when they will be hearing uncontested divorce cases or how you can set up a hearing for a default judgment.
The clerk you speak with should be able to inform you about the date and time when your case will be able to be heard.
You’ll want to bring all of the original divorce paperwork with you on the day of the hearing. There are a number of factors that influence which specific paperwork you should bring, including whether you have children and whether an inventory and appraisal are required by the court.
When you arrive at the courthouse, a clerk can help direct you to the proper courtroom where the judge is hearing uncontested divorce cases. You might have to read simple testimony or answer some questions when your case is called. The testimony typically states your name and the name of your spouse, any children involved in the marriage, and the reason that you are filing for divorce.
When a party fails to answer the divorce petition and otherwise isn’t participating in the process of divorce, the divorce proceedings can carry on without them.
If you find yourself in this situation, you might be wondering how the judge will deal with property division.
Under Texas law, the court must divide property in a “just and right” manner. In order to do this, they must have evidence of the community estate’s value. This is the case even if one party refuses to be involved in the proceedings.
The petitioner in the case will need to present evidence in order to support the material allegations that were made in the petition. If there isn’t sufficient evidence of the value of the estate and the court divides the property on this basis, the division of property could end up being subject to reversal or appeal. This can be true even if the court issued a default judgment.
The court expects that some action is taken on a divorce case within a specific period of time after it is filed. If you filed for divorce and then haven’t made any moves to follow through with the process, the court might choose to dismiss the case using what is known as a DWOP (dismissal for want of prosecution.)
Basically, when little or no activity is made in a case, the court will file a DWOP in order to help keep their calendar as clear as possible. They try to keep their docket free from cases that have simply been sitting idle for too long.
How long it takes for a court to DWOP a case depends on the courthouse.
Your divorce won’t be dismissed without warning, though.
When a court notices that your case has been sitting without activity for too long, it will send out a notice that it intends to dismiss the case for want of prosecution. It will also set a hearing date.
If you don’t take any action after you receive this notice, the case will be dismissed by the court.
If you do go to the hearing, you’ll need to prove that you have been taking action to move the case forward. In some courts, it's required that you fill out and submit a scheduling order to the court to set the case for trial.
There are a number of reasons that a court might send out a DWOP notice, including:
If your spouse doesn’t respond to your petition for divorce, a default judgment does not follow automatically. This is something you need to request from the court. If you don’t ask for a default judgment to be made, your case could end up getting dismissed.
You typically have thirty days to file a Motion to Reinstate if your case was dismissed but you’d like it to be reopened. You will need to offer a reason that is deemed sufficient in order for them to open it back up again.
If you do nothing, though, and you still want to get divorced, you will need to start the entire process over again from scratch. This includes filing the original petition for divorce and serving your spouse. You will also have to repay the filing fee.
If you want to learn more about what it means for your case to be dismissed for want of prosecution, check out this article about whether Texas divorce petitions expire.
In some ways, getting a default divorce can be more straightforward than getting a divorce when your spouse is involved. This is particularly true if you expect that your spouse would contest the case if they were participating in the proceedings.
That being said, there aren’t really any types of divorce in Texas that are hassle-free. The laws surrounding marriage and divorce in Texas are complicated, and the documents you need to provide in order to obtain your divorce can be difficult to navigate on your own.
For this reason, it’s almost always a good idea to work with a lawyer in some capacity when getting a divorce. In some instances, such as amicable divorces that involve no children, no property, and no debt, couples can fairly easily pursue divorce on their own without the expense of a lawyer. In most other cases, though, the help of a legal professional can help ensure that your rights are protected and that you receive a favorable outcome once the divorce is final.
One of the best things you can do for yourself when you’re getting divorced is to read up on the family laws in your state. This can help you know what to expect from the process as well as help you understand what your rights and responsibilities are under the law.
If you’re looking for more information about the laws in Texas surrounding marriage and divorce, check out our blog at TexasDivorceLaws.org.
Are you wondering what to do if your ex is violating the non-disparagement divorce clause in Texas?
This clause in divorce decrees or custody orders exists in order to protect your children from the potentially damaging effects of hearing one parent speak negatively about the other. Even though you and your ex aren’t continuing your romantic relationship, you have to maintain a positive relationship for the sake of your kids.
If your ex breaches the contract you signed, though, you might be wondering what steps you can take to enforce the clause.
Let’s take a look at what you need to know.
In a child custody case or divorce, a non-disparagement clause is a clause that prohibits parents from negatively speaking about the other parent in front of their kids. In some cases, this clause might also apply to extended family members as well.
When researching non-disparagement clauses, it might be worth understanding that this type of clause can also be common in business contracts as well as divorce and custody cases. You’ll therefore want to make sure that the information you’re accessing is related to family law rather than corporate contracts and legal issues.
Not all non-disparagement clauses look the same, as they are written by attorneys to fulfill the needs of unique family circumstances. In their simplest form, these clauses need to clearly state the conduct that is prohibited by both parties.
A general non-disparagement clause might state something regarding both party's responsibility for fostering “a feeling of affection between the child and the other party” while also noting that “Neither party shall say or do anything that may estrange the child from the other party or impair the child’s high regard for the other party.”
If you and your ex communicate with one another and your children using electronic communication, additional language might look like this to cover this type of communication: “This means, for example, and not by way of limitation, each party shall refrain from all spoken and written statements and communication, including electronic communication, that the child may hear, read, receive or have access to that may estrange the child from the other party or impair the child’s high regard for the other party.”
When one or both parents are getting remarried, this can cause further complexity when it comes to maintaining positive parent-child relationships. If one party has made it clear that they don’t care for their ex’s new spouse, additional language might be included in order to cover the disparagement of a third party.
Writing a non-disparagement clause really isn’t a task for a layman. It’s best to talk to your attorney before you include any language in your divorce decree. It must stand up to legal scrutiny and both you and your ex need to understand what it means. The clause needs to be, at once, sufficiently vague and sufficiently clear in a way that will almost always require the help of a lawyer.
The primary purpose of a nondisparagement clause is to protect the relationship of the child or children with both of their parents. Psychologists and courts alike have been increasingly learning about how damaging divorce can be on a child, particularly when they are involved in a nasty divorce or forced to serve as a go-between.
A non-disparagement clause can be in everyone’s best interest. For the children, it can help make sure they grow up in a positive and nurturing environment even though their parents are no longer together. It can ensure that they don’t feel alienated from either parent and reduce the likelihood of negative psychological outcomes.
However, it can also be beneficial to the parents. It can help to protect the parent-child relationship for both individuals.
On top of that, studies have found that denigration commonly has a boomerang effect. This means that the kids end up distancing themselves from the parent that is speaking negatively about the other. If you feel tempted to bad-mouth your ex to your kids, this is something worth thinking seriously about.
When one parent disparages another in front of their children, it can be a form of custodial interference. It can make it much more difficult to co-parent effectively because distrust and tension can grow between the parents.
On top of that, it can negatively impact the children when one parent speaks negatively about the other. It can leave children feeling sad, guilty, or angry when they are spending time with a parent that has been disparaged.
Having this type of clause in your custody order can help ensure that your children have a positive experience with both of their parents.
The last thing you want is for your kids to feel like they have to take sides in your divorce. When you include a non-disparagement clause in your arrangement, it can help to protect your kids from parental alienation.
When both parents share visitation rights after a divorce, a non-disparagement clause could be helpful. If you are concerned that your spouse will speak negatively about you in front of your children when they’re spending time together, a non-disparagement clause can help outline an agreement between the two of you regarding disparaging the other when your children are present.
Your custody rights, possession, and access to your children will impact whether a non-disparagement clause is necessary in your case. There are two different categories of child custody rights in Texas, which are:
Under Texas law, the word conservatorship refers to the rights and duties a parent has to make decisions about important matters in their child’s life, such as healthcare, education, and religion.
Conservatorship can be further segmented into two categories:
Each parent’s visitation rights fall under the category of possession and access. Texas parents can create their own custom schedule that fits their unique circumstances and needs, or they can choose between standard and extended standard possession and access schedules.
Regardless of what type of visitation and access schedule parents choose to create, the primary focus in these instances always has to be the best interest of the child. Texas courts will always look at the child’s best interest as the main consideration when issuing custody orders.
It can be very difficult to enforce non-disparagement clauses in custody agreements when one parent breaches the clause. This is the case even when they are properly written and despite the fact that the agreement is legally binding.
One of the reasons for this is that the accusation of disparagement can be very difficult to prove. This type of situation frequently devolves into a back-and-forth “he-said-she-said,” where it is hard, if not impossible, to figure out who is in the right.
A judge isn’t likely to take away the visitation rights of a parent that doesn’t comply with the non-disparagement clause, even if you do end up taking the issue to court. Similarly, it is rare for them to impose any serious penalties for the breach. This is particularly true if you lack the necessary evidence to prove that they broke your contractual agreement.
If your child custody case is ongoing, though, and the evidence of disparagement is documented, the disparaging parent could receive less parenting time.
If you believe that your ex-spouse or co-parent has violated your non-disparagement clause, it’s a good idea to talk with an experienced lawyer to look at what your options are.
If you believe that your ex is violating the non-disparagement divorce clause, there are a number of steps you can take.
The first step is to gather testimonials and evidence. Proving that your ex has breached the contract you both signed can be difficult, and evidence will be crucial.
Some examples of evidence in this type of circumstance include:
It’s important that the evidence you collect goes beyond a one-off remark. When you only have one instance of disparagement, it’s all too possible that the comment was misunderstood, heard out of context, or said in jest.
Instead, you’ll need to establish that the violations constitute a pattern.
Texas courts will need to see that there is a clear history of your ex making negative or disparaging comments about you in front of your kids.
Now that you have collected evidence that could potentially violate the non-disparagement clause, it’s time to look at the specific language of the divorce order.
If your evidence doesn’t completely align with the verbiage used in the divorce or custody order, your ex could end up arguing that your evidence doesn’t match up with the agreement. If the evidence you collect doesn’t align with the language of the order, then it likely won’t be enough to enforce the clause.
It’s a good idea to work with a family law attorney if you believe that your evidence aligns with the language of the non-disparagement clause. It’s essential that you present the strongest possible argument to the court in order to reach a favorable outcome.
If your argument isn’t compelling, it can end up doing more harm than good. This is because it could potentially exacerbate any negative emotions between you and your ex, which can, in turn, have a negative impact on your kids.
The language of divorce and custody orders can be difficult to understand for the layperson, and an attorney can help you navigate the process and understand what your options realistically are.
An attorney can help you in the following ways:
If you worry that your ex is going to purposefully bad-mouth you in front of your children, you also might be concerned that they will try and make the divorce process as difficult as possible. Make sure you check out these sneaky divorce tactics so you know what to keep an eye out for.
It is, unfortunately, not very easy to enforce nondisparagement clauses. These types of situations can end up devolving into one person’s word against the other. On top of that, you might not be able to see a judge in order to deal with a breach of contract for weeks or even months after the alleged disparagement.
You will most likely want to work with a lawyer if you are getting divorced with children. They can help you draft a non-disparagement clause and also help you understand the enforcement options if the contract is breached. Typically, getting divorced without a lawyer in Texas is only a good idea if your case is agreed upon, your estate is very simple, and there aren’t children involved.
It isn’t uncommon for this type of clause to also include language about what the child says, too. A solo parent might be required to discourage their child from speaking negatively about the parent that isn’t around. As you might imagine, this can be a pretty difficult situation to deal with.
For example, the kid might just be speaking honestly about their observations and feelings about the parent they don’t see as often. You don’t necessarily want to push back on this type of activity which could rightfully be seen as the development of emotional intelligence. The last thing any parent wants to do is undermine their child’s confidence in their judgment.
Of course, you also wouldn’t want to violate the nondisparagement clause you agreed to.
If your child says something negative about the other parent, a good tactic can be to validate their feelings. You might say something along the lines of “that must have been very difficult for you.”
What do you do if your kid tells you that your ex said something negative about you?
A response that manages to not violate the clause while also acknowledging what your child is saying could look like “I imagine that was hard to listen to. I’m sorry you had to hear that.”
If your child seems to be getting into a pattern of speaking negatively about the other parent, you might find ways to help them process their emotions. Depending on their age, you might suggest that they draw a picture, write in a diary or journal, or get some exercise and fresh air.
There’s no question that co-parenting with an ex can be extremely difficult. Rather than being able to end your relationship and move on with your life, you have to continue dealing with your co-parent for years. While many people might assume this relationship ends when the youngest child turns 18, the reality is that there will be weddings, graduations, births of grandchildren, and more family events that will put the two of you in contact for the foreseeable future.
It’s common for parenting plans to prohibit parents from badmouthing each other to their children or in front of their children. This isn’t just a matter of ego on the part of the parents involved. This type of clause intends to protect the children.
Whether co-parents live together or apart, the conflict between them is strongly linked to psychological problems in children. These mental issues don’t always just fade away after the child grows up– they can continue lingering into adulthood.
If you make negative comments about your ex to (or around) your kids, it can backfire on you. This isn’t just true when it comes to your custody case, but also in regard to your relationship with your kid.
One particular study from Northwestern University found that young adults and their siblings feel less close to their parents than is normal when they are exposed to one parent denigrating the other. The study found these young adults had increased feelings of isolation from both parents and trusted both parents less.
The results from this study also found that when a father speaks negatively of a mother in front of children, the results are a more positive relationship with the mother but a more negative relationship with the father. Interestingly, when a mother denigrates a father to her children, the study found that the mother-child relationship is more negative but the father-child relationship remains the same.
One of the most important points made in this study was this: when one parent is denigrating the other, both parents are usually guilty of negatively speaking about their co-parent in this manner. This ultimately harms the relationship between both parents and the child.
The overwhelming effect of denigrating an ex in front of the kids is that the children feel more distant from the parent that is making negative comments.
When you decide to get divorced, you are making a difficult decision about what is best for you and your family. Even if splitting up is the right thing to do, divorce can be hard on kids. Every child is different, but some negative outcomes from divorce include:
While divorce isn’t an easy topic to discuss, being transparent with your children in an age-appropriate way can help your children cope with the changes that are occurring. One of the best things you can do to help reduce the occurrence of the issues listed above is to eliminate conflict between you and your ex and maintain a positive co-parenting relationship. This is because parents that fight in front of their children can create the last outcome listed above, where children feel like they have to take sides and choose loyalty to one parent over the other.
To help your kids cope, you’ll also want to encourage your children to talk to you about how they’re feeling. Creating a safe place for them to share their thoughts and feelings can help the whole family heal and grow from the change caused by divorce.
If you are working on building an agreement between you and your ex regarding how you will raise your kids post-divorce, you might find the co-parenting guide published by the Office of the Attorney General of Texas a useful document to consult.
The actual process of divorce can be hard on children, where there is a period of limbo in between when the process is initiated and when you settle into post-divorce life as a family. Keeping the legal aspects of divorce as brief as possible can help everyone heal in the ways they need to and move forward with life. If you’re getting divorced in Texas, this article takes an in-depth look at how long divorce takes in the Lone Star State.
Getting divorced is never easy, but it is particularly difficult and complicated when there are children involved. Texas courts approach issues that involve your children with a primary focus on the best interest of the kids. That being said, proving that your ex violated the non-disparagement clause can be very hard to do, and even if the courts do agree that their remarks constitute a breach of contract, your ex might just get a stern talking to from the judge.
Talking to an experienced family law attorney can help you understand whether it is worth taking your ex to court over a violation of a non-disparagement divorce clause. They will explain the different options you have and what the potential outcomes are if you chose to pursue any of them.
If you’re looking for more information about getting divorced in Texas, be sure to check out TexasDivorceLaws.org.
