A series of laws govern marriage and divorce in Texas and if you are facing the possibility of divorce, it is important that you have a basic understanding of what these laws are and how they will impact you.
The most important thing to know is that Texas is a community property state. This means all property acquired during a marriage is owned equally by both spouses, with a few exceptions.
Texas is also a no-fault state, meaning that no specific reason needs to be stated for why the marriage is ending, only that it is irretrievably broken with no hope of being fixed. However, spouses may choose one of seven reasons as grounds for divorce if they want to state a fault instead.
Both spouses do not need to agree to end the marriage. One spouse can initiate the action, and the other spouse or partner can’t stop the process even if they want to remain married.
These laws will guide important decisions regarding the division of assets, child custody, child support and alimony and other key elements of a divorce.
Here are some of the most common legal questions and major issues you should know about that come up during a divorce in Texas:
Under Texas law, all property that is real or personal acquired during the course of a marriage is considered community property and is equally owned by each partner. However, there are exceptions to this law.
If the property is acquired during the marriage by way of inheritance, as a gift, or as part of a personal injury settlement for injuries sustained by only one spouse, then the person who was given that property retains sole interest in it. Also, any property that was acquired either before the marriage or after the date of separation of the marriage is considered the sole property of the person who acquired it.
Texas law requires that community property be divided in a manner considered “just and right.” This means property must be divided equitably based on circumstances that a court may consider, including each spouse’s earning power, who has custody of any children, each spouse’s health, education, and other related issues.
If you want to retain sole possession and declare something as a separate asset, it is important to make sure you do not commingle the property, such as by depositing money in a joint bank account, adding your spouse to the deed on a house, or other similar actions. Disagreements and interpretations of community property issues can become complicated when there is evidence of commingling. In many cases, a spouse attempting to claim a share of property that may be possibly considered as separate will likely need to retain the services of an experienced family law attorney.
Just like assets, any debts acquired during the course of a marriage in Texas belong equally to both spouses.
In some instances, as part of a discussion of a division of assets, one spouse or the other may agree to assume a larger part of one debt in exchange for other concessions, such as retaining a larger degree of interest in a home or in a retirement account.
There are some instances when one spouse may create debt in their name only, and depending on the nature of this debt, it may be held separate, meaning that only one spouse will be liable to repay it. This may happen if only one spouse takes out a credit card in their name only and uses it to benefit only themselves.
In cases where there is excessive debt above and beyond a couple’s community assets, courts may assign a greater portion of the debts to the spouse who is in better financial condition to pay off the debts.
Debts that are incurred after marriage or separation, or before marriage or separation only belong to the spouse who incurred them.
As a community property state, the courts will divide marital assets in way that is considered “just and right” taking into consideration the rights of each spouse and any children in the marriage.
Community property is any property that is acquired during a marriage. Separate property is that which is acquired either before or after a marriage, with some notable exceptions. Property during a marriage that was acquired through an inheritance, as a gift or as a personal injury settlement for one spouse may also be considered separate property as well.
Things can become a bit muddled when separate assets are commingled with community property assets. For example, inherited money that is deposited in a joint account may actually become community property. A gift that is used by both spouses may also run the risk of becoming community property as well.
When dividing assets, the courts have the discretion of taking into account the age, health, earning power and other circumstances when trying to decide a just and right division of assets.
Things are not always split 50-50 right down the middle. This is where many disagreements can and do take place. Oftentimes, lawyers must be retained to negotiate a reasonable settlement among the parties.
Gifts received by one spouse in a marriage are considered separate property. It does not matter if the gift was given by the other spouse or if it was given by a third party.
However, disagreements can and do arise regarding gifts and whether or not they should be considered community property instead. For example, if one spouse gives the other a car as a gift, but the car is then used by both as part of their life together, the argument can be made that it is actually a community property asset instead.
To avoid disagreements, when possible, try to document the receipt of a gift, along with any notations that will help to clearly define the intent of ownership should the subject come up at a later date. If you are gathering paperwork at the beginning of a divorce, try to find documentation that will support your claim that the gift is either a separate asset or a community asset.
In Texas, inheritances are also treated as separate property when it is received during the course of a marriage.
But there are some instances that can create disagreements about whether it is a separate asset or a community asset. For example, a will may state that property you inherit goes to you and your family. Under this scenario, a spouse could make a claim and it would incumbent on the person who inherited the property or assets to prove that the deceased person intended for them to receive the asset for them alone.
Separate ownership can also be challenged if the person who inherited the asset commingles it with marital assets. For example, inherited monetary assets that are placed in a joint bank account could cause the inheritor to lose their sole interest. Also, if you inherit a home but both you and your spouse move into the home, it could be considered community property.
At all times, it is best to keep inherited assets separate if there is a possibility of divorce that looms in the future.
One other way to protect an inheritance is to have your spouse sign a postnuptial agreement whereby he or she agrees that the inheritance is yours, no matter how it is used in the marriage.
Pensions, IRAs, 401Ks and retirement plans are treated just like other assets in a divorce. They are considered community property and dividing them must be taking into consideration as part of the divorce process.
Many times, because pensions can involve large amounts of money, they may be used to negotiate when trading off value in other assets such as a house. For example, if there is a lot of equity in a home, one spouse may trade off an interest in pensions or retirement funds in exchange for taking possession of the family home.
Legally splitting pensions and other retirement funds are a multiple-step process. First, a divorce decree must order that these assets be divided. From this, a qualified domestic relations order, more commonly referred to as a QDRO will be created.
The QDRO must be approved by the courts and then it can be submitted to the plan administrator of each pension account who must also approve it. This establishes that your spouse can be considered an alternate payee, and the retirement vehicle is then divided according to the specifics contained in the QDRO.>
Because Texas is a community property state, all assets acquired during the marriage are presumed to be owned equally by both spouses. However, Texas law also allows that certain property may be considered a separate property under some circumstances. Those instances include:
There are complexities when it comes to separate property. Any inheritance acquired during a marriage is considered separate property but if the assets of the inheritance are commingled, perhaps in a bank account, or if both people live in an inherited residence, then it may be possible to claim that the inherited assets have become community property.
In cases where a home was bought before two people married, if both people live in the home during the marriage and both contribute to mortgage payments, then the case can be made that the house is no longer separate property, but community property instead.
To stop arguments regarding what is community vs separate property, couples may enter into pre- or postnuptial agreements to define which type of property an asset will be.
The issues of community property vs. separate property can become quite complicated and oftentimes require the assistance of an experienced family law lawyer to sort out ownership and make a spouse’s best case in front of the courts.
In Texas, spousal support is known as “court ordered spousal maintenance” or “contractual alimony” and is temporarily paid to support an ex-spouse after a divorce. There are big differences between them, including how much they pay out, for how long, how a spouse gets the support and how they may be changed or enforced. Spousal support is paid over and above child support.
With spousal maintenance, a judge can order a spouse to pay involuntarily as part of divorce litigation. Contractual alimony occurs when one spouse voluntarily agrees to pay the other spouse. The court still needs to approve this arrangement. A court can legally enforce this type of alimony payment if needed, treating it as he or she would any other contract in Texas.
Because Texas is a community property state, the value of various assets are divided as close as possible to be even with each other. A spouse who has stayed at home and taken care of children or not worked outside the home will not be penalized for doing so.
When a couple divorces, spousal maintenance is seen as a bridge for a non-working spouse to carry them to self-sufficiency until they can get a job. While some view this as a disincentive to work, the state also recognizes that a person who has been out of the workforce for some time will need assistance in training, getting a better education, caring for family members or if they have been a victim of domestic violence.
For court order spousal maintenance to occur, a spouse must prove at least one of the following conditions exist:
If a judge rules that a spouse is eligible for spousal maintenance, then they must decide how much to award. Generally, it is the upper limit amount of the difference between the spouse’s monthly expenses and monthly income. The judge will also consider:
The cap on spousal maintenance in Texas is set by statute and cannot exceed $5,000 per month or 20% of the spouse’s average monthly gross income. Statutes also cap how long spousal maintenance can take place and will vary based on several factors.
Child support in Texas is based on how much money the paying spouse makes minus certain allowed deductions. The state caps how much child support can be which is currently a maximum of $8,850 per month. That amount will be reviewed and probably changed in September 2019.
The state takes into account each parent’s wages, benefits, investments and other sources of income as part of the calculations. In addition, the amount of parenting time spent by each parent is also an important factor as well. Part of the reason that child support is one of the more confrontational issues is that one or both of the parents may not accurately release their current financial information. When it is suspected that this is the case, significant delays can take place.
Under Texas law, a paying spouse is calculated as a percentage of net monthly resources. It will vary by the number of children who must be supported as well.
The following guidelines apply:
A judge has some discretion on how much support to actually grant and that amount can change based on the age and needs of the child, educational expenses, health insurance costs, medical expenses, child care costs, spousal maintenance amounts, cash flow from investments, existing debts or any other reason consistent with meeting the child’s best interests.
In some cases, a parent may fall behind on child support payments, or they may completely disregard what the law says and what the court has put in place. When this happens, the other spouse can seek a court order compelling the parent to pay the required level of child support. This may eventually include garnishing the parent’s wages to ensure that the needs of the children are protected.
Once child support amounts have been set, they can be modified when there are changes in custody, one or the other parents’ finances or changes in the needs of the children.
Child custody in Texas is known as “conservatorship,” which spells out the legal rights and responsibilities of a parent in the state. Unless parents can come up with a parenting plan that is approved by the courts, a judge will set forth the terms of the conservatorship. In call cases, the terms of the conservatorship are determined by the best interests of the child involved in the divorce.
There are two types of child conservatorships in Texas:
A joint managing conservatorship means that both the mother and the father will share the rights and duties of being a parent. However, certain decisions and responsibilities may be assigned to one parent only. If both parents are made conservators, then the courts will decide which parent or it both parents make decisions jointly. This can become complicated when there are not equal possession and custody of a child.
Unless there are negative circumstances surrounding one parent or the other, courts will want an arrangement in which both parents are active and positive participants in their children’s lives.
A sole managing conservatorship means that the courts grant rights to only one parent to make certain decisions about a child. The main reasons why sole conservatorships are granted is when there is a history of family violence by one parent, a history of drug or alcohol abuse, one parent has been absent in the child’s life for a prolonged period, or if there have been major arguments about the educational, medical and religious decisions affecting a child.
The parent who is assigned primary custodial rights will generally have more power and influence over a child’s life. Custodial rights are often determined by a number of things, but always with the overarching principle of what is in the best interests of the child. Other factors may include:
Judges usually place parents on a fixed visitation schedule to ensure both are actively involved in the child’s life.
Texas is a no-fault divorce state, so this does not need to be stated as a reason for ending a marriage. However, when it comes to child custody and visitation issues, the presence or drug or alcohol abuse by one spouse will definitely have a major impact on their ability to secure these rights. Courts always make decisions based on the best interests of any child involved in a divorce.
Substance abuse can also affect a division of assets in Texas when it is determined that one spouse or the other spent considerable marital resources on to feed a drug or alcohol habit, or that it contributed to related negative behaviors such as a gambling problem
Before it can be introduced as a factor, a substance abuse problem must be documented and proven. This can be done by testing, the testimony of other family members, representatives from social services agencies or other parties who have an interest in the outcome of the divorce and can provide additional insights.
Bifurcation means that both parties in a divorce can be legally declared as a single person while the other issues in their divorce are still being worked out. It does not affect things such as child custody, visitation, child support, alimony or other contentious issues that may have stalled or become major sticking points that are keeping the divorce from being finalized. People often seek bifurcation if they are still going through a divorce but want to marry another person.
In Texas, family law courts are generally not allowed to bifurcate divorces. All property, child support and child custody cases must be decided before a divorce can be finalized. This means if you want to remarry or file your taxes as a single person, you must find a way to compromise with your spouse so that your divorce will move forward to completion.
Texas laws stipulate that spouses must disclose to each other the type and amount of all community and separate assets and debts when spousal support is being sought. This is so the courts can accurately determine if support is warranted or not. When there is no request for support, the spouses may not need to disclose financial information, as long as they or their lawyers can work out a fair and equitable division of assets and any child support issues.
When a spouse does not accurately disclose this information, or if they refuse to exchange it with their spouse, the court may order the spouse to do so, and also make them pay any associated attorney’s fees.
When a spouse does not reveal all assets, they also run the risk of committing fraudulent misrepresentation and in some cases, the courts may away the entire value of the asset to the other spouse.
When a spouse is served with a petition for divorce and fails to respond, they may be subject to a default judgment.
A default judgment is a judgment that basically gives the petitioner whatever they asked for in the petition, as long as it is within reason.
The petitioner must be able to show that the proposed property division is “just and right” and that if they are asking for custody and support regarding any children that are involved, it is in the best interests of the children.
Generally, a request for a default judgment can be filed after 20 days, but because there is a 60-day waiting period in Texas until a divorce can be finalized, there is still some leeway for a non-respondent to challenge a default judgment
When domestic violence is present in a marriage, personal safety is often more important than actually starting a divorce process. It is imperative that you take steps to protect your safety first by leaving the home where the abuser is and seeking a temporary restraining order or protective order to buy yourself time while more permanent measures can be put into place.
Domestic violence can take place in many ways against any member of a household, including:
After a petition for divorce has been filed, there is normally a 60-day waiting period before a divorce can be finalized. But if domestic violence is present in a marriage, the waiting period can be waived. The waiver can be applied if the defendant has been convicted of committing domestic violence against anyone in the household or if a restraining order has been filed against the abusive spouse.
Domestic violence definitely impacts rulings regarding child custody, visitation and support issues in a divorce. To help substantiate a claim, a victim may want to file criminal charges as a means of completely protecting children in a divorce. Both misdemeanor and felony charges can be filed depending on what type of actions the abuser took.
In a majority of marriages in Texas, one spouse is usually covered under the other spouse’s health insurance plan. However, when you get a divorce, that coverage usually will end. While a divorce is pending, judges will usually issue a temporary order that will prevent one spouse from removing or changing their health insurance as it relates to the other spouse.
If you are the spouse who will be losing health insurance coverage, then you should disclose the cost of what a plan will be for you so that they may be figured into any spousal support ruling. Health insurance costs also need to be figured in for any child support issues as well.
You may be able to continue health insurance through your ex-spouse’s plan as part of the Consolidated Omnibus Budget Reconciliation Act, better known as COBRA, but if this is the case, you will be required to pay the premiums that were formerly paid by the spouse and the employer. If your spouse keeps working for the employer and they have at least 20 employees, then you can stay on COBRA for up to 36 months maximum.
Infidelity and adultery, more commonly known as “cheating” takes place when one married person has voluntary sexual intercourse with someone who is other than their spouse. In Texas, these can be cited as reasons for a divorce.
Overall, there are seven reasons that a divorce can be based upon in the state.
Special laws that supersede state laws in many instances are in place for members of the military who will be going through a divorce in Texas. The Servicemembers Civil Relief Act eases legal and financial burdens of military personnel and their families who face the added challenges of active duty. Divorce proceedings can be postponed until the servicemember finishes active duty obligations as part of the Act.
Active duty servicemembers stationed outside of the United States or Texas may still be considered Texas residents. Members of the military who have not lived in Texas before, but who have been stationed in Texas for at least the previous six months, and at a military installation in a particular county of Texas for the 90 prior days are considered Texas residents and residents of the county where they have been stationed.
For military divorces, the grounds are the same as non-military divorces in Texas. Couples seeking a divorce may claim the no-fault option of insupportability, or they may file a divorce based on a finding of fault, such as for adultery, cruelty, abandonment, ongoing conflict, or confinement in a mental hospital.
Looking for more advice about divorce? Here are a few of our favorite resources:
Jason Crowley is a divorce financial strategist, personal finance expert, and entrepreneur. Jason is the managing partner of Divorce Capital Planning, co-founder of Divorce Mortgage Advisors, and founder of Survive Divorce. A leading authority in divorce finance, Jason has been featured in the Wall Street Journal, Forbes, and other media outlets. He is a Chartered Financial Analyst, Certified Financial Planner practitioner, and Certified Divorce Financial Analyst. You can email him at jason@survivedivorce.com.
