I think attorney's all over the nation that practice family law can all agree on one thing; January is peak season for divorces. Whether you have been contemplating divorce from your spouse for a long time or your just got served with divorce papers knowing the basics can better help prepare you. Depending on the individuals, divorces can be easy if both parties are in agreement with everything or messy where the parties fight over everything down to who gets the china or the dog's sofa. Whether your divorce is on the uncontested track or the contested track there are a few things you should know about the divorce process in Texas.
1. Texas Must Have Jurisdiction
Just because you or your spouse lives here in Texas does not mean that the court has jurisdiction to hear your case. One spouse must be domiciled in Texas for a period of 6 months and be a resident of the county where the divorce is filed for at least 90 days prior to filing.
2. Texas Divorces are Not Quick
Like everything, people have a tendency to rush things when they are over a situation or someone. Unfortunately, the waiting period for a divorce in Texas is statutory. A party cannot finalize their divorce until after the 61st day. In other words, it takes a minimum of 60 days to get divorced. After the 60 days, you are free to get divorced whenever.
3. Texas Has Fault and No-Fault Grounds
When divorcing in Texas, most people file on the ground of insupportability which is considered no fault. This means that a spouse does not have to prove to the other spouse that they did anything wrong or it was their fault for causing the marriage to break up. In some situations, Texas allows for fault grounds where one spouse can allege fault which can affect conservatorship and the distribution of community property.
4. Texas is a Community Property State
Texas is one of the few states that designates property acquired during the marriage as community property. This not not necessarily mean that property will be split evenly or 50/50. Texas follows the "just and right division of community property" when awarding community property to spouses. Courts may take into consideration the type of property, the duration of the marriage, if children are involved, fault of the breakup and the financial disparities between the two spouses when making the distribution.
5. Spousal Maintenance vs. Alimony
Texas is a unique state and recognizes spousal maintenance instead of alimony. Texas has temporary spousal maintenance as well as contractual spousal maintenance. In each scenario, individuals requesting maintenance must meet certain factors and requirements in order to qualify for maintenance. Maintenance can be for the duration of the temporary orders until final trial or after final trial for a certain number of years.
7. Temporary Orders
If there is substantial community property involved or children, most parties will go ahead and ask the judge for a temporary orders hearing for the court to decide temporarily what will happen while the divorce is pending. Issues such as exclusion or temporary use of the marital home is decided upon as well as temporary child support and conservatorship.
8. Have a Proposed Property Division
Most courts go by the, "if you don't ask for it, I won't give it" mantra and I completely agree. Most courts require parties to submit a proposed property division for all community property in the estate when it is time for final trial. This is useful be cause it gives the court a guide to go by when you are putting on your case.
9. Have a Proposed Parenting Plan
Most courts are requiring parties to have a proposed parenting plan for parties to follow. These parenting plans cover virtually anything and everything that could be covered in a divorce when it comes to the children. Some parenting plans are required before the temporary orders while some are required at final trial. Regardless of the court's preference, it is always good to have something put together to show the court you are truly invested in the well being of your children.
10. Settlement or Final Trial
Not all divorces end up in court with screaming matches between attorney's and parties. Some courts may require parties to attend mediation to see if they can settle before their final trial. If parties are able to settle their MSA controls and their divorce decree is drafted based off of that. Unfortunately some spouses are not able to settle at mediation. Issue like child support, custody of the children and even distribution of property can make it impossible for some to see eye to eye. If parties are unable to settle to mediation, they will be set for final trial before a judge or a jury who decides what happens.
Thank you for tuning into our Divorce Series for the Month of
January. Stay tuned for our next blog posts in the divorce series.