Divorce

Divorce can be a challenging journey, and no two divorces unfold the same way. Divorces can be frustrating, drawn out, expensive, and emotionally taxing. It is important to have an attorney that understands both the law and your goals throughout the divorce process.

The process involves filing a petition, notifying your spouse, and ultimately reaching a final decree, either through trial or agreement. Despite the seemingly straightforward nature, divorces are seldom simple. They often involve complexities like motions, hearings, discovery, and may require experts, mediation, or a final trial.

Throughout each step of the divorce process, careful consideration of costs and benefits is essential. Deliberate thought about the impact on both the immediate divorce and your future beyond the case is crucial. Your lawyer should advise you on realistic expectations, financial costs, settlement offers, and uncertainties so that you are empowered to make the right decision. Because you will rely on the knowledge and advice of your attorney, you should seek counsel that you trust to help you navigate these decisions.

Divorce Timeline in Texas

One of the first considerations a couple makes when moving forward with a divorce is how long the divorce will take. As is often the case in any legal proceeding, the Texas Family Code outlines various dates and timelines parties must follow during a divorce. Some of the most important considerations include:

Texas Family Code §6.301(1): One of the parties in the divorce must be a “domiciliary of this state for the preceding six-month period.” Each state has its own domiciliary requirement for a divorce proceeding, which may lead to competing jurisdiction in some cases.
Texas Family Code §6.301(2): One of the parties in the divorce must be a “resident of the county in which the suit is filed for the preceding 90-day period.” This ensures the most appropriate venue for a divorce to take place, rather than moving to a county in bad faith and filing a petition for divorce.
Texas Rules of Civil Procedure Rule 99(b): After the district clerk approves the petition of the filing party, the Petitioner, must ensure personal service of the petition on the non-filing party, the Respondent. After the Respondent has been served with a petition for divorce, the Respondent has until “10:00 AM the Monday next following the expiration of 20 days after you were served” to file an answer. If you do not file an answer within that time period, a default judgement may be taken against you.
Texas Family Code §6.702(a): A petition for divorce must be on file for 60 days before a judge can sign a proposed decree with a few exceptions.
- Texas Family Code §6.702(c)(1): If the Respondent has “been finally convicted of or received deferred adjudication for an offense involving family violence.”
- Texas Family Code §6.702(c)(2): If the Petitioner has an active protective order against the Respondent.
Texas Family Code §6.801(a): Neither party to a divorce may remarry within 30 days of a divorce being finalized.

There is no one size fits all answer to how long a divorce will last. Some of the factors that most commonly affect the length of the process are children, complexity and value of assets, claims of the parties, willingness of the parties to settle, and caseload of the court. However, a divorce typically takes six months to a year to complete.

Uncontested Divorce in Texas

Divorce, a challenging process for any family, can sometimes unfold without major disputes over property or parenting plans. In such cases, opting for an uncontested divorce can save time and money. While procedurally similar to contested divorces, it offers a less disruptive path if both parties can agree on terms.

Representation by an attorney is not mandatory, but parties may choose legal assistance for document drafting and navigating the legal system even in uncontested cases. Divorce can have serious consequences on finances and the future of a family, and each spouse has their own interest to consider. It is important to carefully consider whether parties realistically believe that they will be able to agree to all terms in a divorce.

The initial step in a divorce, contested or uncontested, is filing an original petition for divorce with the district clerk of your county. Standard forms are available online through Texas Law Help, and additional resources, such as law libraries with attorneys, may be accessible in some counties.

Once the petition has been filed with the appropriate filing fees and accepted by the district clerk, the filing party, the Petitioner, serves the petition on the other spouse, the Respondent. The Respondent can sign a Waiver of Service acknowledging, among other things, that they are aware of the divorce or be personally served a citation by a private process server or constable.

Once these requirements are met, the petition for divorce must be on file 60 days before it may be finalized. A judge will evaluate the terms of the divorce to ensure it comports with all of the legal requirements and if so, sign the Final Decree of Divorce.

While the process may seem straightforward, unexpected situations can arise. Hiring an attorney for document drafting and guidance adds an extra layer of protection post-divorce.

Informal Marriage in Texas

Although Texas does not formally recognize common law marriage, Texas Family Code §2.401 recognizes informal marriage. Informal marriage can be established through two methods: First, the parties may complete a marriage application and file a declaration of informal marriage with their local county clerk. Second, an informal marriage can be established by proving that the parties made an agreement to be married, and after such agreement they represented themselves as married to others and lived in Texas.

The question of whether a couple was informally married is an issue of fact in a divorce proceeding. The party claiming that there was an informal marriage has the burden of proving these three elements:

An agreement to be married requires that the parties had a present, permeant, and immediate agreement to be married. This differs from an engagement for example, which is a future agreement to be married.
A couple represents themselves to be married, also referred to as holding out to the public, by conducting themselves as a married couple. This includes referring to each other as spouses, establishing a reputation within the community, not just friends and family, as married. Additional proof of holding out can be found in official documentation, such as taxes, insurance, personal identification cards, financial accounts, real property records, lease agreements, military records, estate documents, and school records.
The parties must have lived in Texas after the agreement to be married. States differ in informal marriage statutes, therefore if the parties never lived in Texas after the agreement to be married or held themselves out to be married in Texas, then the Texas law would not apply. Proof regarding cohabitation can be helpful evidence affecting the other two elements that must be proven. The length of cohabitation, division of bills, other occupants in the home, and location of personal belongings can persuade a trier of fact regarding an agreement to be married and holding out.

If an informal marriage is established in a divorce proceeding, its dissolution follows the same process as a formal marriage—by divorce, annulment, or the death of a spouse. As a result, the dissolution of an informal marriage is treated no differently than a formal marriage and a final decree of divorce must establish orders regarding any children of the couple and the division of the community estate.

However, it is important to note that there is a statute of limitations on informal marriage in Texas. If a divorce proceeding has not commenced within two years of the parties separating and living apart, there is a rebuttable presumption that the parties did not agree to be married. One helpful way to think about this requirement is that most married couples who separate and cease living together begin a divorce within two years.

Navigating Military Issues in Divorce Proceedings

Divorces involving active-duty military personnel entail unique procedural considerations. The initial challenge is determining the jurisdiction for filing a divorce petition. Even if stationed outside Texas, active-duty members may still file for divorce in Texas.

Texas Family Code § 6.303 establishes residency of a public servants or a spouse of a public servant who is not physically residing in the state during service. Additionally Texas Family Code § 6.304 provides clarity in cases where neither spouse was previously a resident of the state but is stationed in Texas. Seeking advice from a family law attorney with military expertise is crucial, as the chosen venue significantly impacts applicable laws on child support, spousal support, alimony, and property division.

Once the filing jurisdiction is established, another procedural hurdle involves the active-duty servicemember’s ability to participate, governed by the Servicemembers Civil Relief Act (SCRA). The court may impose a 90-day stay of proceedings if the servicemember is on active duty, ensuring their rights are protected and allowing adequate time for response under 50 U.S. Code § 3932.

After overcoming procedural issues, most servicemembers or their spouses ask about benefits derived military service. The three most common benefits are:

When determining child support, base pay, Basic Allowance for Housing (BAH), and Basic Allowance for Subsistence (BAS) are typically included in child support calculations.
Military retirement earned during the marriage is community property and therefore must be divided in a divorce. This differs greatly depending on whether the points are accrued during full service or as a member of the reserves.
Disability pay may be considered in a calculation of child support but will not be divided in a divorce, absent an agreement of the parties. Disability pay is considered separate property of the servicemember as a result of their sustained injuries. This falls under federal law.

While these are commonly asked questions, the complexity of military law necessitates an attorney well-versed in the specifics. Consulting with a knowledgeable attorney is crucial to address additional nuances such as medical benefits (20/20/20 rule), commissary and exchange privileges, Survivor Benefits Plan (SBP), among others, ensuring a comprehensive approach to the divorce process.

Void and Voidable Marriages

Void marriages are completely void on their face because they have violated very clearly defined requirements of marriage. If a marriage is void, it is found to have never existed because it violates the requirements of marriage in Texas and does not require a ruling by the court to be found void. Void marriages are all featured under Texas Family Code § 6.201-6.206 and prohibit the following marriages:

Relation by birth or adoption
If one or both of the parties is currently married to another person
If one or both of the parties are under the age of 18 is void unless a court has previously removed the minor’s disabilities
If the parties are currently or formerly stepchild and stepparent

Where a void marriage is automatically understood to have not legally existed, voidable marriages violate public policy and may be annulled if the disadvantaged party seeks such remedy. A suit for annulment must be brought, the fact that the marriage may be voidable does not make them void until a judge has ruled on the matter. Voidable marriages are all featured under Texas Family Code § 6.101-6.110 but require more fact specific analysis than void marriages. The most common ground for annulment is inducement into marriage by fraud, duress, or force. This requires meeting a difficult burden that you should discuss with an attorney who is well versed in the applicable case law.