The decision to file for divorce can be one of the most difficult and emotionally challenging decisions you may ever have to make.  Many clients have questions about what to expect from the divorce process.  Below is a list of frequently asked questions about divorce in Texas.  If you have questions that aren’t answered here, or wish to speak with an experienced Texas divorce attorney, contact the attorneys of Garg & Associates, P.C. today.

1. How does the divorce process begin?

A divorce begins with the filing of a document called the Original Petition for Divorce with the court of proper jurisdiction.  The person who     files for divorce is called the Petitioner; his or her spouse is called the Respondent.  Once a Petitioner has filed for divorce, notice must be given to the Respondent.  This can be accomplished several ways, but is most often accomplished by having the Respondent served with a copy of the Original Petition for Divorce or having the Respondent sign a Waiver of Service.

2.  How long does it take to get divorced?

In Texas, a divorce cannot be granted until the Original Petition for Divorce has been on file with the court for at least sixty (60) days.  If the Petitioner and Respondent agree to all issues in the divorce (child support, custody and visitation, division of property and debts, etc.), a divorce in Texas can be granted on the 61st day after the Petition is filed.  The process can be much longer if the parties cannot reach an agreement with respect to all the issues.  In this case, the divorce may take several months to be finalized.  In certain situations, the 60-day waiting period can be waived. 

3.  Where do I file for divorce?

To file a suit for divorce in Texas, either the Petitioner or Respondent must have been a resident of the State of Texas for six months before he or she files for divorce.  Further, the suit must be filed in the Texas county in which either the Petitioner or Respondent has lived for the 90-day period preceeding the filing of the Petition. 

4.  Do I have to prove fault to get a divorce in Texas?

Texas is a no-fault state; therefore, is it not necessary to prove fault to get divorced in Texas.  Divorces in Texas can simply be granted on the grounds of insupportability, meaning that there is marital discord for which no reasonable expectation of reconciliation exists.  However, fault grounds may also be pled.  For a discussion of the advantages and disadvantages of pleading fault grounds, see Fault or No Fault?

5.  What if my spouse doesn’t want to get divorced or feels we will reconcile?

In Texas, all it takes is for one spouse to feel that there is no reasonable expectation of reconciliation.  If one spouse provides testimony that a reconciliation is not reasonably expected, a court has the power to grant the divorce.

6.   What can I expect from the divorce process? 

The more agreements you can reach with your spouse, the faster your divorce will be.  If you and your spouse reach an agreement on all the issues in the case, you both will sign an Agreed Final Decree of Divorce.  This document is an order from the court detailing the rights and duties of the Petitioner and Respondent, divides any property and debts, and may provide for child support and visitation if children are involved. At least one party will then be required to appear in Court to answer a series of questions under oath.  The judge will review the decree. If children are involved, make a determination that the provisions of the Decree are in the best interest of the children.  If property is involved, the judge will review the terms of the decree to ensure that the property is divided in a just and equitable manner.  Once the judge approves the final decree, the divorce is garnted and finalized.   When an agreement cannot be reached between the parties, the divorce process may be significantly longer.  In this case, the parties will appear before a judge, give testimony, and often have witnesses give testimony.  The judge will then decide all remaining issues based on the testinony given and evidence presented, and issue a final order. 

7.  How is property divided in a Texas divorce?

Texas is a community property state.  Texas classifies property as either community property or separate property.  Community property is defined as all property that was acquired during the marriage, including income from employment earned during the marriage.  Separate property is all property that was owned prior to marriage or that was acquired during the marriage by gift or inheritance.  In a Texas divorce, only the community property is subject to division.  Many clients mistakenly believe that community property must be divided 50-50.  However, Texas law only requires that the community property be divided in a way that is “just and equitable.”  Therefore, a 50-50 division of community property is neither guaranteed nor required. 

8. How much child support will I receive or be required to pay?

The amount of child support a court will order depends on a number of factors including the needs of the children, the payor’s net resources/income, and the number of children the payor has a duty to support.  In most cases, child support is calculated using a formula contained in the Texas Family Code.  Under the Family Code, the following amounts are considered in the best interest of the child/children:

1 child: 20% of the payor’s net resources; 2 children: 25% of the payor’s net resources, 3 children: 30% of the payor’s net resources; 4 children: 35% of the payor’s net resources; 5 children: 40% of the payor’s net resources;   6 or more children: Not less than 40% of the payor’s net resources.

9. When is my divorce final?

The divorce is finalized when the judge approves and signs a document called the Final Decree of Divorce. 

10.  Do I have to wait to get married again?

Texas requires a person wait at least thirty (30) days after the divorce is granted before he or she can marry.