Texas Divorce Basics
Residency Requirement:
To file for divorce in Texas, either spouse must have been a resident of the state for at least six months prior to filing, and must have resided in the county where the Petition is filed for the prior 90 days.
For the court to exercise personal jurisdiction over a non-resident Respondent the couple’s last marital residence must have been in Texas, and the suit must be filed before the second anniversary of the date on which marital residence ended.
If one spouse has resided in Texas for the past six months and the other spouse lives in a different state or country, the spouse residing outside of Texas is permitted to file for divorce in the county in which the other spouse lives.
Military Personnel:
Texas residents serving in the armed forces and stationed outside of Texas or the U.S. may still be considered a resident of Texas. Military personnel, who have not been previous residents of Texas, but have been stationed at one or more military installations in Texas for at least the past six months, and at a military installation in a county of Texas for the prior 90 days, are considered to be Texas residents and residents of that county for the purposes of filing for divorce.
Pregnancy:
If one party is married, it is best to wait until the baby is born to seek a divorce. Most Texas courts will not finalize a divorce if the wife is pregnant, even if the baby is not the husband’s. The court will typically wait until after the birth of the baby so that orders regarding the child can be included in the final decree.
Filing:
The Petition for Divorce may be filed with the District Court of the county where either party lives. The Petitioner must give legal notice to the Respondent, other spouse.
If the Respondent does not file an Answer within 21 days from being officially served, the case is default and it may be possible to finish the divorce process without the Respondent.
There is usually a 60-day waiting period from the date the Petition is filed before a judge will grant a final divorce decree. The waiting period is not required if the court finds that the Respondent has been convicted of domestic violence offense against the Petitioner or a member of the Petitioner’s household, or if the Petitioner has an active protection order or an active magistrate’s order for emergency protection against the Respondent due to domestic violence committed during the marriage.
Neither party to a divorce may marry again, except each other, before the 31st day after the divorce is decreed, unless good cause is shown to the court.
Collaborative Divorce:
Upon written agreement of the parties and their attorneys, a dissolution of marriage proceeding may be conducted under collaborative law procedures.
Collaborative law is a procedure where the parties and their attorneys agree in writing to use their best efforts and make a good faith attempt to resolve their dissolution of marriage dispute on an agreed basis without resorting to judicial intervention, except to have the court approve the settlement agreement, make the legal pronouncements, and sign the orders required by law.
If the collaborative law procedure fails to result in settlement of the dissolution dispute, the parties’ counsel must withdraw and may not represent the parties for divorce court proceedings.
Spouse’s Name:
Upon the specific request of a party to change his/her name to the one used prior to the marriage, the court may change the name of the party in a decree of Divorce or Annulment, unless the court states a reason for denying the name change in the decree.
The court may not deny a change of name simply to keep the last name of family members the same.
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Legal Grounds for Divorce
There are seven statutory grounds for divorce in Texas, most of which require a finding of fault on the part of one of the spouses. However, one grounds, insupportability, is considered no-fault and is used most often.
A divorce may be granted for any of the following grounds.
1. If the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation;
2. Cruelty by one spouse towards the other of a nature that renders living together unsupportable;
3. Adultery;
4. The commitment of a felony by one spouse, who has been imprisoned for at least one year in the Texas Department of Criminal Justice, a federal penitentiary, or the penitentiary of another state, and who has not been pardoned (This does not apply if the spouse was convicted on the testimony of the other spouse);
5. Abandonment for at least one year;
6. If the couple have lived apart without cohabitation for at least three years; and
7. If, at the time the suit is filed, one of the spouses has been confined in a state mental hospital or private mental hospital in Texas or any other state for at least three years and it appears that the mental disorder is of such a degree and nature that adjustment is unlikely, or if adjustment occurs, a relapse is probable.
Annulment and Declaring a Marriage Void
In Texas, there are void marriages and voidable marriages. A voidable marriage is a marriage that should not have occurred, typically due to some sort of trick or deception at the time of the marriage. Parties to a voidable marriage may seek an annulment, declaring the marriage was not valid.
A void marriage, simple could never have been valid and cannot exist and so may be legally declared void by a court.
Annulment:
To file for annulment, the couple must have married in Texas or one of the parties lives in the state.
A court may grant an annulment when one of the parties is 16 or older, but under the age of 18 and entered into the marriage without parental consent or a court order. A petition for annulment for this reason may be filed by any to the following parties.
A next friend, for the benefit of the underage party (this party must file within 90 days after the date of the marriage, or the action will be barred);
A parent; or
A judicially designated managing conservator or guardian of the underage party, whether that be an individual, authorized agency or court.
The judge may use its discretion when granting an annulment for this reason, while considering the pertinent facts concerning the welfare of the parties to the marriage, including whether the wife is pregnant. Once the formerly underage party reaches the age of 18 years, a suit for annulment may no longer be filed.
Other grounds for annulment include the following:
At the time of the marriage, the petitioner was under the influence of alcohol or narcotics and therefore, did not have the capacity to consent to marriage;
Either party, for physical or mental reasons, was permanently impotent at the time of the marriage and the petitioner did not know of the impotency;
The other party used fraud, duress or force to induce the petitioner to enter into the marriage;
The petitioner did not have the mental capacity to consent to marriage or to understand the nature of the marriage ceremony because of a mental disease or defect, at the time of marriage;
One party concealed a divorce, that occurred less than 30 days before the marriage, from the Petitioner, and the annulment suit is filed less than one year after the date of the marriage; or
If the parties married less than 72 hours after the marriage license was granted and the annulment suit is filed less than 30 days after the date of the marriage.
For any of these grounds to be valid, the petitioner must not have voluntarily cohabitated with the other spouse after learning of the issue at hand or after the petitioner is no longer under the influence of the issue. An annulment may not be granted after the death of either party to the marriage.
Declaring a Marriage Void:
To sue to have a marriage declared void, the alleged marriage must have been entered into in Texas or one of the parties lives in the state.
The following conditions render a marriage void.
If one party to the marriage is related to the other party by the following relationships: an ancestor or descendent by blood or adoption, as a brother or sister, as an aunt or uncle, or as a niece or nephew (all these relationships refer to whole, half, or by adoption);
Bigamy;
Both parties are the same sex;
Either party is younger than 16 years of age, unless a court order has been obtained; and
One party is a current or former stepchild or stepparent of the other party.
A marriage that is void due to bigamy may become valid when the prior marriage is dissolved if, after the date of the dissolution, the parties have lived together as husband and wife and represented themselves to others as being married.
Neither same-sex marriages, nor civil unions are valid or recognized in Texas.
Property Division
