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Couple in the Divorce Process

Divorce Overview

Though there are several options for divorce in Texas, the divorce process has common elements; divorce begins with one spouse filing a petition, there is a 60 day mandatory waiting period, and assets and liabilities as well as issues concerning children have to be addressed.

Texas Divorce Process

In Texas, divorce is begun by one spouse filing a Petition. There is a 60-day waiting period, so spouses cannot complete their divorce until at least 60 days have elapsed since the petition was filed. Texas divorce law allows couples to divorce based on an allegation that the continuation of the marriage has become “insupportable” (a no-fault basis), but at times spouses do allege fault grounds for divorce, and fault can sometimes affect the way property is divided if a case goes before a judge.

Assets and Liabilities

Texas is a community-property state, which means that spouses equally own property acquired during marriage that is not separate property. Texas law does not, however, require that all community property be divided equally upon divorce. Texas divorce law requires a judge to divide property in a manner that is “just and right,” given the circumstances of the spouses and their children, if any.

Texas divorce law presumes that all assets acquired during marriage and all liabilities incurred during marriage are community property. There are exceptions to this presumption. If a spouse can show by clear and convincing evidence that he or she has separate property, a court cannot divide that property between the spouses, but must confirm that it belongs to the spouse who proved the separate-property claim.

The following property will be considered separate property if a spouse can prove his or her claim by tracing the assets claimed as separate property to assets that currently exist, even if they exist in a different form.

  • Property owned before marriage
  • Property inherited, whether before or after marriage
  • Property received as a gift, including gifts between spouses
  • Awards for personal injuries (with some exceptions)

There are many intricate facts that can affect how Texas divorce law applies to a particular client’s situation. You should discuss the specific facts of your case with your lawyer to determine what result you can expect when Texas divorce law is applied to your case.

Child-Related Issues

Texas divorce law does not use the term, “custody.” Instead, the arrangements for caring for children of divorcing parents are broken into three categories:

  • Conservatorship: how decisions affecting the children will be made
  • Periods of Possession: the schedule of time a child will spend with each parent
  • Child Support: how the child’s financial needs will be met

Texas divorce law presumes that parents should be named as “joint managing conservators,” which means that parents jointly share the right to make some decisions about their children, and neither parent can make these decisions without the agreement of the other parent.

Texas has Child Support Guidelines that set an amount that is presumed to be paid by one parent to the other and a Standard Possession Order that sets out a schedule for visitation that is presumed to be in the best interest of children. Parents can agree to arrangements for their children that differ from the statutory provisions.

Application of Texas Divorce Law in Collaborative Cases

In the Collaborative Law model, Texas divorce laws and what might happen if you went to court are pieces of information that clients should consider when they are making decisions about how to resolve their divorce issues. This is often called the “law model.” Clients are encouraged, however, to create their own solutions that might differ in significant ways from the law model. This is often called the “client generated model.” Collaborative lawyers are trained to use specific techniques to help clients create agreements that work best for their particular situations.

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