Texas Divorce Information and FAQ

How long do I have to live in Texas before I can file for divorce?

You have to live in Texas for at least six months before you can file for divorce. In addition, you have to live in the county where you actually file for divorce at least 90 days before you file your divorce petition.

Is there a waiting period before the divorce is granted?

Yes. You have to wait at least 60 days from the date of filing of the divorce petition before you can present the final divorce decree to the judge for entry

What if my husband or wife and I agree on the division of property?

When spouses agree on the division of assets, they can have an uncontested divorce. Generally, either the husband or the wife hires an attorney to prepare the original petition for divorce. The petition is filed and the 60-day waiting period begins to run. During this 60-day period, the attorney prepares the final divorce decree granting the divorce, dividing community assets, and establishing custody and possession of the children. Upon the expiration of the 60-day period, the attorney goes to court with his client and "proves up" the divorce. Note that one attorney cannot represent both the husband and wife in an uncontested divorce. The attorney represents either the husband or the wife. The unrepresented spouse either hires his or her own lawyer or proceeds pro se.

What if my husband or wife committed adultery?

A divorce in Texas may be obtained on fault grounds as well. Adultery is one of these grounds. Other grounds for obtaining a divorce include cruelty and abandonment. When a fault ground is alleged as a basis for the divorce, along with a no-fault ground, the court may consider the fault of a spouse in the breakup of the marriage in dividing the community estate.

What is the community estate?

In very general terms, everything accumulated after marriage belongs to the community estate. Everything owned by the husband or wife before marriage is his or her separate property. The relevance of whether something is community or separate property has to do with a court's powers of division in a divorce proceeding. A court may only divide community, not separate, property. In Texas, the presumption is that everything the couple owns upon the filing of a divorce is community property. If property is, in fact, separate, the burden is on the spouse claiming separate property to prove the separate nature of the property by clear and convincing evidence. There are exceptions to the "everything is community property after marriage" rule. For instance, anything acquired by gift, devise or bequest after marriage by a spouse is that spouse's separate property. In addition, money received by one spouse for personal injuries suffered during the marriage (in a car accident, for instance) is also that spouse's separate property.

We have children. How will custody be decided?

Custody of children is decided on the basis of a "best interest" analysis. In Texas, the presumption in the Texas Family Code is that it is in the children's best interest for both parents to be appointed joint managing conservators. This does not mean that the parents will share equal possession of the children. One parent is always appointed the primary joint managing conservator. However, the parents, as joint managing conservators, have equal rights with respect to making decisions in their children's lives. The one exception is that the primary joint managing conservator has the exclusive right to establish the children's residence. Sometimes courts impose geographic restrictions on a parent's right to establish the children's primary residence. Sometimes they do not.

What are geographic restrictions?

Courts can impose restrictions on a parent's ability to move with the children. For instance, if the parties are divorced in Bexar County, the judge might restrict where the child lives to Bexar and surrounding counties.