Introduction to Texas Divorce Law
Terminating a Marriage in Texas
Divorce is the legal termination of marriage in Texas from the day the final
divorce decree is signed. An annulment is where the court declares that
marriage is void from the beginning for a particular reason. The effect of a
court granting an annulment is that the court goes back to the beginning of
the marriage and from a legal point of view erases the marriage and all the
implications arising from that marriage.
I. Divorce
A marriage is dissolved when a district court judge signs a final divorce
decree. The parties to a divorce can resolve all issues related to their
marriage and enter an agreed divorce with the court. Generally the court
will approve a decree where both parties are in total agreement. When the
parties cannot agree on issues such as the division of property, child
custody, child support, visitation or spousal maintenance then the judge or
a jury will decide these issues based on the facts presented.
At the time of filing suit for divorce, one of the parties to the divorce
must be a domiciliary (place where someone has his permanent home) of Texas
for six months and resident of the county in which the suit is filed for
preceding 90-day period. A Texas domiciliary outside of the state while in
the service of the armed forces or other service of the United States or of
Texas is considered a residence of this state.
Parties must wait at sixty days from the time that the divorce petition is
filed with the court until the time that the court can sign a divorce
decree. When the matter is not agreed and a default judgment is not taken,
it generally takes much longer to resolve contested matters.
A. Grounds for Divorce
Generally the parties plead and court grants most divorces without regard to
fault. The court finds that the marriage has become insupportable because of
discord or conflict of personalities that destroy the legitimate ends of a
marital relationship and prevents any reasonable expectation of
reconciliation. At fault grounds for a divorce in favor of one spouse or the
other may include the following:
a. Cruelty;
b. Adultery;
c. Conviction of a Felony and has been imprisoned for at least one year;
d. Abandonment where the spouse left with intention of abandonment and
remained away for a year;
e. Living apart for at least three years without cohabitation; or
f. Confinement in mental hospital for a least three years and it appears
that the disorder is of such a decree and nature that adjustment is unlikely
or if it does occur, relapse is probable.
B. Temporary Orders
Temporary Orders, as the term implies, involves the Court issuing orders that are intended to resolve
any issues that must be resolved prior ot the final trial, or other resolution of the divorce case. If the parties
are able to cooperate during the pendency of their case, it isn't necessary for the Court to issue any orders. However, any
issue that arises during the pendency of the suit, that the parties cannot agree upon, must be taken before the Court for a decission.
Common issues for temporary orders may involve, who lives where, who pays what bills, who uses what property, and of course, with whom will
the children reside primarily, and what type of visitation will the other parent have.
B. Temporary Restraining Order
After filing suit for divorce, on the motion of a party or the court, the
court may grant a temporary restraining order without notice to the other
party to the divorce for the preservation of the property and for the
protection of the parties as the court finds necessary. Some courts in the
state have a standing temporary restraining order that goes into effect for
both parties when a divorce is filed. After notice to the other party, the
in a hearing may issue a temporary injunction to preserve the property and
protect the parties as the court deems necessary and equitable. The court
can order one or both parties to provide:
1. Sworn inventory and appraisement;
2. Payments for the support of the other spouse;
3. The production of books, papers, documents, and other tangible things;
4. Payment of the other spouse’s attorney fees;
Additionally the court can order:
1. the appointment of a receiver for the preservation and protection of the
property;
2. that one spouse will have exclusive use of the residence during the
pendency of the divorce;
3. that the parties are prohibited from spending funds beyond what the court
determines as reasonable and necessary living expense;
4. that one spouse will have exclusive control of the party’s usual business
or occupation;
5. that spouses will not commit certain acts that would frighten, embarrass,
harm or harass the other party.
C. Protective Order
Either party to a divorce may file an application for a protective order to
protect the applicant or a child from family violence. An application for
family violence may be filed without filing for a divorce, during a divorce
and after a divorce is final. Most applications for a protective order will
include an ex parte request for a temporary ex parte order before the
hearing for a protective order. A temporary ex parte protective order
contains a detailed description of the facts and circumstances concerning
the alleged family violence and the need for the immediate protective order
and the applicant must sign the application under oath stating the facts and
circumstances contained in the application are true. A court is required to
issue a protective order if it finds that family violence has occurred and
is likely to occur in the future.
D. Division of Property
Marital estate means one of three estates:
1. the community property owned by the spouses together;
2. the separate property owned individually by the husband; or
3. the separate property owned individually by the wife.
The court may order an unequal division of the community property of the
marital estate when a reasonable basis exists. The division of property must
not be so disproportionate as to be inequitable and the circumstances must
justify awarding more than one-half to one party. The court may consider
such factors as the spouses’ capacities and abilities, benefits which the
party not at fault would have derived from continuation of the marriage,
business opportunities, education, relative physical conditions, relative
financial condition and obligations, disparity of ages, size of separate
estates and the nature of the property. The court has great discretion in
deciding whether to award attorney fees to either party and in determining
the amount of attorney fees to be so awarded. The allocation of attorney’s
fee is a factor to be considered by the court in making an equitable
division of the community estate regardless of who is successful in trial or
appeal.
The court cannot divide separate property in a divorce. Separate property
can arise from several ways such as property owned or acquired prior to
marriage, property that is inherited and gifted, property awarded for pain
and suffering and property set out in premarital agreements.