We present a family law resource for the public and our clients. At the Puvvada Law Office, we believe the more you know and understand about family law, the better we can serve you.
To file for divorce in Texas, you must have lived in Texas for the past 6 months, and lived in the county where you plan to file for the past 90 days. These rules don't apply to military personal from Texas out of state on duty.
1. Marriage has become "Insupportable" - this is a no-fault divorce where the only reason needed is that the couple can no longer sustain their relationship.
2. Cruel Treatment - either spouse must be guilty of cruel treatment toward the other spouse that renders living together insupportable.
4. Conviction of a felony and imprisonment for at least 1 year.
5. Abandonment for more than 1 year.
6. Separation for more than 3 years.
7. Confinement in a mental hospital for at least 3 years.
In Texas, a divorce cannot be granted until 60 days after the divorce suit is filed. However, that's the earliest a divorce can be granted. If the spouses aren't in agreement on how to end the marriage, then the divorce can take a lot longer. For example, if a trial is necessary, it ideally should take 7 to 12 months to get to trial, but sometimes it may take even longer.
Usually, if the parties reach a settlement agreement and don't go to trial, marital property is divided in whatever way the parties agreed. If the divorce does go through trial, Texas courts have the power to make a "just and right" division of all community property. What's "just and right" is determined by the court on a case by case basis. There are many factors the court can consider, including: fault in breakup, disparity of incomes, disparity of age, spouses' financial positions, spouses' health, children's needs, length of marriage and spouses' earning potential. Note, "just and right" division only extends to community property, and a court does not have the power to divide a spouse's separate property during divorce.
Basically, separate property is any property owned or claimed before marriage. Separate property also includes property inherited or received as a gift during marriage. Finally, separate property also includes any recovery for personal injuries sustained during marriage, excluding recovery for loss of earning capacity.
Community property is any property acquired during marriage that is not separate property. All property is presumed to be community property unless proven otherwise.
Alimony in Texas is referred to as spousal maintenance.
In order to qualify for spousal maintenance, a spouse must first show that, if they are divorced, they will lack sufficient property to provide for their minimum reasonable needs. What a person’s “minimum reasonable needs” are is something courts determine on a case-by-case basis, usually by looking at monthly expenses.
Once the spouse has met this initial requirement, then there are multiple paths to qualify for spousal maintenance. Spousal maintenance is available if the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a family violence crime against the other spouse or the other spouse's child. The offense must have occurred during the marriage and either within two years before the date the divorce suit is filed or while the divorce suit is pending. Spousal maintenance is also available if the spouse requesting maintenance either: (1) can’t earn sufficient income to meet their minimum reasonable needs because of an incapacitating physical or mental disability, (2) has been married for at least 10 years and lacks the ability to earn a sufficient income to meet their minimum reasonable needs, or (3) is the custodian of a child from the marriage who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum reasonable needs.
The spouse required to pay spousal maintenance is called the “Obligor.” The maximum amount of spousal support is $5,000.00 per month or 20% of the Obligor’s average monthly gross income, whichever amount is less. “Gross income” means all income actually being received minus the following: (1) return of principal or capital; (2) accounts receivable; (3) benefits paid under federal public assistance programs; (4) benefits paid under the Temporary Assistance for Needy Families program; (5) payments for foster care of a child; (6) Department of Veterans Affairs service-connected disability compensation; (7) supplemental security income (SSI), social security benefits, and disability benefits; and (8) workers' compensation benefits.
When deciding how much monthly spousal maintenance should be paid, the courts consider multiple factors. Such factors include: (1) each spouse's ability to provide for that spouse's minimum reasonable needs independently; (2) each spouse's financial resources on dissolution of the marriage; (3) the education and employment skills of the spouses; (4) the time necessary to acquire sufficient education or training to enable a spouse seeking maintenance to earn sufficient income and the availability and feasibility of that education or training; (5) the duration of the marriage; (6) the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance; (7) periodic child support payments; (8) acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property or other property held in common; (9) the contribution by one spouse to the education, training, or increased earning power of the other spouse; (10) the property brought to the marriage by either spouse; (11) the contribution of a spouse as homemaker; (12) marital misconduct, including adultery and cruel treatment, by either spouse during the marriage; and (13) any history or pattern of family violence.
The duration of spousal maintenance payments depends on multiple factors. If the spouse who receives maintenance, also known as the “Obligee,” qualified for spousal maintenance because he or she couldn’t earn enough income for his or her minimum reasonable needs due to his or her own disability or having to care for a child with a disability, then spousal maintenance can last as long as the disability exists. Otherwise, courts will seek to limit the duration of spousal maintenance to the shortest reasonable period that allows the Obligee to earn sufficient income to provide for the Obligee’s minimum reasonable needs, and in these situations, the maximum duration of spousal maintenance depends on the duration of the marriage. If the marriage lasted less than 10 years but the Obligee qualified for spousal maintenance because of a family violence crime committed during the marriage, then spousal maintenance can last up to 5 years. If the marriage lasted between 10 and 20 years, then spousal maintenance can last up to 5 years. If the marriage lasted between 20 and 30 years, then spousal maintenance can last up to 7 years. If the marriage lasted at least 30 years, then spousal maintenance can last up to 10 years.
In Texas, you cannot remarry until 30 days after the court grants your divorce unless the court waives the prohibition against remarriage.
An uncontested divorce is the fastest and cheapest way to get a divorce. For an uncontested divorce to work, both spouses must agree on the divorce settlement. Usually, only one spouse hires an attorney. The attorney files a petition for divorce with the court, and the non-filing spouse signs a Waiver of Citation, thereby relieving the filing spouse from serving the non-filing spouse with process. The attorney then drafts the agreed upon divorce decree and submits the decree to the court. The decree divorces the parties and states, among other matters, how marital property will be divided, custody of any children and spousal maintenance, if any. The attorney and the filing spouse eventually go before the judge. After the attorney asks his client some routine questions, the judge grants the divorce by signing the divorce decree.
There is no such thing as legal separation in Texas. That is, there is no unique legal status in Texas for a couple that is still married but no longer living together. In Texas, either you’re married or you’re not. However, there are options for those who want to remain married but live separately.
In regards to any children, either parent can file a Suit Affecting the Parent-Child Relationship (SAPCR) while still married to the other parent. A SAPCR determines how custody, visitation and child support will work. While SACPRs are typically part of a divorce suit or used when the parents are not married, nothing in the Texas Family Code prevents a SAPCR from being filed by two parents who are still married. In fact, two 2014 cases out of the Second District and Third District of the Court of Appeals of Texas held that child support can be ordered even while the parties are still married to each other.
In regards to assets and debts, a married couple can enter into a marital property agreement to legally divide their assets and debts without the necessity of a divorce.
By using a SAPCR and a marital property agreement, spouses can have many of the legal benefits of a divorce without actually being divorced.
The person responsible for paying child support is referred to as the “Obligor”.
The first step in calculating child support is figuring out the Obligor’s “net monthly resources”. Net resources is all income from all sources minus the following: return of principal or capital; accounts receivable; benefits paid under the Temporary Assistance for Needy Families program or other federal public assistance programs; payments for care of a foster child; social security taxes; federal income tax assuming one person claiming a personal exemption and standard deduction; union dues; cost of medical insurance or medical support for the child(ren) before the court; and non-discretionary retirement plan contributions if the Obligor doesn’t pay social security taxes. Generally, the Obligor’s net resources for the past year are calculated and then averaged to a monthly amount.
If the Obligor’s net monthly resources are less than $8,550, then the Obligor pays a percentage of his net monthly resources as child support. The amount of the percentage depends on the number of children before the court. For example, if the Obligor has to pay support for one child, then the Obligor’s child support amount will be 20% of the Obligor’s net monthly resources. It’s 25% for two children and 30% for three children.
If the Obligor has to pay support for children in multiple households, then the percentages depend on two factors. First, how many children are before the court? Second, how many children not before the court does the Obligor have to pay support for? For example, if there is one child before the court and the Obligor also has to pay support for another child not before the court, then the Obligor has to pay 17.50% of his net monthly resources for the support of the child before the court. Also by way of example, if there are two children before the court and the Obligor also has to pay support for another child not before the court, then the Obligor has to pay 22.50% of his net monthly resources for the support of the two children before the court.
If the Obligor’s net monthly resources are more than $8,550, then the appropriate percentage is applied to the maximum amount of $8,550. If the costs of the child’s proven needs are more than the resulting child support based on the maximum amount, the excess costs are divvied among the parties as the court see fit.
The court can order child support to be paid until the child is 18 years old or until the child graduates from high school, whichever occurs later. For child support to continue when the child is 18 years old, the child needs to be in an accredited secondary school in a program leading toward a high school diploma. Child support can end early if the child is emancipated by order of a court or through marriage. However, child support can be required indefinitely if the child is disabled.
Texas has a standard possession and visitation order that is presumed by law to be in the best interests of children. For the purpose of answering this frequently asked question, we're assuming both parents have been appointed as the conservators of the child. Also, when we use the term "non-custodial parent," we mean the parent with whom the child does not live.
Under the standard possession order, if the non-custodial parent lives within 100 miles of the primary residence of the child, the non-custodial parent has possession during: (1) the first, third and fifth weekends each month, starting Friday at 6pm and ending Sunday at 6pm, (2) from 6pm to 8pm every Thursday during the school year, (3) the child’s spring vacation during even-numbered years, starting at 6pm on the day school is dismissed for vacation and ending at 6pm on the day before school resumes, and (4) 30 days in the summer.
If the non-custodial parent lives more than 100 miles from the primary residence of the child, the non-custodial parent has two options for possession under the standard possession order. Under the first option, the non-custodial parent has possession the first, third and fifth weekends each month, starting Friday at 6pm and ending Sunday at 6pm. Under the second alternative option, the non-custodial parent has possession one weekend per month, a weekend of the non-custodial parent’s choice, provided the non-custodial parent notifies the custodial parent at least 14 days before the selected weekend. If the non-custodial parent prefers the second alternative option, then the non-custodial parent must select the alternative option by notifying the custodial parent within 90 days after the parents start living more than 100 miles from each other. The non-custodial parent also has possession during: (1) the child’s spring vacation every year, starting at 6pm on the day school is dismissed for vacation and ending at 6pm on the day before school resumes, and (2) 42 days in the summer.
Under the standard possession order, there are certain holiday periods of possession that are unaffected by the distance between the non-custodial parent and the primary residence of the child. The non-custodial parent has possession of the child: (1) in even-numbered years beginning at 6 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28; (2) in odd-numbered years beginning at noon on December 28 and ending at 6 p.m. on the day before school resumes after Christmas vacation; and (3) in odd-numbered years, beginning at 6 p.m. on the day the child is dismissed from school before Thanksgiving and ending at 6 p.m. on the following Sunday. Also, the parent not otherwise entitled under the standard possession order to possession of the child on the child's birthday gets possession of the child beginning at 6 p.m. and ending at 8 p.m. on that day, provided that the parent picks up the child from the residence of the parent entitled to possession and returns the child to that same place. The father has possession of the child beginning at 6 p.m. on the Friday preceding Father's Day and ending on Father's Day at 6 p.m., provided that, if he is not otherwise entitled under the standard possession order to possession of the child, he picks up the child from the residence of the mother and returns the child to that same place. The mother has possession of the child beginning at 6 p.m. on the Friday preceding Mother's Day and ending on Mother's Day at 6 p.m., provided that, if she is not otherwise entitled under the standard possession order to possession of the child, she picks up the child from the residence of the father and returns the child to that same place.
A common law marriage is when a couple is considered married despite neither having a marriage license nor going through a marriage ceremony. A common law marriage requires that the parties agreed to be married, lived together as husband and wife and represented to others that they were married.
When a marriage ends, it’s common for one of the spouses to move. Whether a spouse moves to Texas or away from Texas, many individuals end up in a situation in which they want to file for divorce in Texas but their spouse lives in another state or country. When your spouse doesn’t live in Texas, then you have to figure out whether Texas courts have personal jurisdiction over your spouse.
Personal jurisdiction is the power of a court to render a judgment that binds a person. The reason personal jurisdiction exists is so that you can’t be dragged into court in a state with which you have no contacts. By way example, if you’ve never been to South Dakota and have had nothing to do with South Dakota, then you shouldn’t be forced to be a party to a case in South Dakota.
In Texas, a court can dissolve your marriage even without personal jurisdiction over your spouse, but the court can’t do much more regarding your spouse. Without personal jurisdiction over your spouse, a Texas court cannot divide marital assets and debts or order spousal maintenance. Those issues, which are a significant part of any divorce, would need to be resolved in a court that has personal jurisdiction over your spouse.
There are two situations in which Texas courts have personal jurisdiction in a divorce case over a spouse who doesn’t live in Texas. In both situations, the spouse filing the lawsuit must live in Texas. First, Texas courts have personal jurisdiction over a nonresident spouse if Texas is the last marital residence of the parties and the divorce is filed before the second anniversary of the date on which marital residence ended. The term “last martial residence” suggests a permanent place of abode by the spouses. In other words, the couple should not have intended to separate when they acquired the residence, and there should have been more than just occasional visits by one spouse to the residence.
Texas courts can also exercise personal jurisdiction over a non-resident spouse using any basis consistent with the constitutions of Texas and the United States. This is a “catch-all” standard that can include many different situations. Because this article is for the public, I’m not going into a legal analysis of this standard. Instead, I will list three specific and common situations that Texas courts have held fall within this standard: (1) if the spouse is personally served with citation while physically in Texas; (2) if the spouse has a long-standing business in Texas; or (3) if the spouse purchased real estate in Texas. The common thread in all three situations is that the non-resident spouse put themselves in a position to benefit from the laws of Texas.
Keep in mind that there are also procedural miss-steps that can grant a Texas court personal jurisdiction over a non-resident spouse. If you’re a non-resident spouse who’s been sued for divorce in a Texas court, your first step should be to file a “special appearance” with the court. A special appearance is a pleading that challenges the court’s personal jurisdiction over you. If a non-resident spouse files anything other than a special appearance first, then that non-resident spouse waives their right to claim the Texas court doesn’t have personal jurisdiction. Many non-resident spouses are dragged into a Texas divorce because they sent a one-page letter to the court saying they need more time or don’t agree with their spouse’s claims.
Under the Texas Family Code, you can modify the terms of conservatorship and/or possession and access in a prior order if at least one of the following three conditions is met: (1) the child, if at least 12 years old, tells the judge in chambers that he/she wants to change who can decide where the child lives, (2) the conservator who had the right to decide where the child lives voluntarily gave up possession and care of the child to another person for at least 6 months, or (3) the circumstances of the child, a conservator or other party affected by the order have materially and substantially changed since the prior order.
The first two conditions listed are fairly straightforward, but the majority of modifications are based on the third condition listed. So what exactly is a "material and substantial" change in circumstances? Some of the changes courts have considered "material and substantial" include: remarriage of one or both parents, conduct and abilities of a stepparent, change in number of children, meaningful change in children's ages, criminal conviction of a parent, and meaningful relocation of a party and/or child. This list is not exhaustive but merely examples. Whether your particular circumstances have changed enough to qualify as "material and substantial" is a question you and your attorney should consider.
If less than a year has passed since the prior order was signed, there are additional requirements if you want to modify who has the exclusive right to decide where the child lives. At least one of the following three situations must exist: (1) the child's present environment endangers the child's physical health or significantly impairs the child's emotional development, (2) the person who has the exclusive right to decide where the child lives wants to modify the order, or (3) the person who has the exclusive right to decide where the child lives voluntarily gave up possession and care of the child for at least 6 months. On a final note, voluntary relinquishment of the child for a period of at least six months is not enough to modify a prior order if the person who gave up possession did so because of military deployment, mobilization or duty.
Texas is a community property state, which means that property is either considered community property or separate property. Separate property is any property owned or claimed before marriage. Separate property also includes property inherited or received as a gift during marriage. Finally, separate property also includes any recovery for personal injuries sustained during marriage, excluding recovery for loss of earning capacity. Community property is any property acquired during marriage that is not separate property. Within community property, there are two additional categories known as sole management community property and joint management community property. A person’s earnings, revenue from separate property and recoveries for personal injuries are that person’s sole management community property. Also any increase in value or revenue from a person’s sole management community property is also that person’s sole management community property. All other types of community property are considered joint management community property.
All these definitions of property matter when dealing with your spouse’s creditors. The type of property and the type of liability determines what assets creditors can go after to pay off a debt. For the purposes of this article, there are two types of liabilities: tortious and non-tortious. The most common examples of a tortious liability include: a judgment against you for a car accident, a judgment against you for wrongful death or injury, a judgment against you for slander, or a judgment against you for professional malpractice. The most common examples of non-tortious liabilities are unpaid bills and money owed under a contract, like a lease or loan.
If your spouse’s liability is non-tortious, then your spouse’s creditor can only go after assets that are joint management community property, your spouse’s sole management community property and your spouse’s separate property. If your spouse’s liability is tortious but incurred before marriage, then your spouse’s creditor can go after assets that are joint management community property, your spouse’s sole management community property and your spouse’s separate property. However, if your spouse’s liability is tortious and incurred while you’re married, then your spouse’s creditor can go after any community property and your spouse’s separate property. Your spouse’s creditors can never go after your separate property, regardless of whether the liability is tortious or non-tortious.
There are two situations when your spouse’s debts are also considered yours. The first situation is when your spouse incurs a debt while acting as your agent. In that situation, your spouse is legally acting as your representative. However, simply being married doesn’t make your spouse your agent. Your spouse acts as your agent, for example, if your spouse signs a mortgage agreement on your behalf with your authorization. The second situation is when your spouse incurs a debt for “necessaries.” The Texas Family Code doesn’t define what are “necessaries,” but courts have held “necessaries” to include clothing, food, medical care, shelter and legal fees. If either of these situations applies, then the creditor can go after all your spouse’s assets and all your assets, including your separate property.
Finally, remember that in Texas, most creditors cannot go after certain assets no matter what. The most common of these exempt assets include your homestead, annuities, retirement plans, college savings plans, life insurance and up to $60,000.00 of certain personal property.
A pre-marital agreement serves two purposes. First, it controls how property will be owned and used during the marriage. Without a pre-marital agreement, any property purchased or income earned during marriage by either spouse is equally owned by both spouses. However, by way of example, a pre-marital agreement can have a spouse's income remain the exclusive property of the earning spouse or have gains during marriage from specific or all assets acquired prior to marriage remain the exclusive property of the owner-spouse. These are a few of the multiple options available in this regard. Second, a pre-martial agreement settles certain issues that arise when the marriage ends, either by death or divorce. For example, parties can arrange how property will be divided upon divorce. Parties can also decide if and how much spousal support will be provided. Decisions regarding disposition of property upon the death of a spouse can also be addressed.
A pre-marital agreement needs to be in writing and signed by both parties. Courts will not enforce a pre-marital agreement against a person in two situations. The first situation is when the person didn’t enter into the agreement voluntarily. The second situation is when the agreement is unconscionable and all three of the following occurred to the person: (1) not provided a fair and reasonable disclosure of the property or financial obligations of the other party; (2) did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and (3) did not have, or reasonably could not have had, adequate knowledge of the property or financial obligations of the other party. What makes a pre-marital agreement unconscionable is determined on a case-by-case basis. However, some factual situations courts have held not to be unconscionable include: an agreement signed shortly before the wedding; a party not represented by independent counsel; a "one-sided" agreement; and a party denying reading the agreement before signing. Clearly, any party challenging a pre-marital agreement has an uphill battle.
The great advantage of the pre-martial agreement is timing. The questions considered by the parties when drafting a pre-martial agreement are far more difficult to answer during the marriage and even more so at the end of the marriage. By making choices before marriage regarding their property, a couple greatly minimizes the conflicts and hostilities such choices can create farther down the road.