30 Questions About Divorce and Our Answers

By J. Turner Thornton, Partner, Varghese Summersett Family Law Group

Do you have questions about divorce? If you are considering divorce, or have already started the process, you probably have a lot! How long will the process take? How is child custody determined? How will our property be divided? In this article, we answer the most common questions about divorce and family law matters.

The answers are specifically designed for divorce law in Texas, so please confirm the laws in your state with your divorce attorney and/or divorce mediator. That said, much of this information is applicable to your state, as well, so it should be helpful.

1. How do I file for divorce in Texas?

The first step is to file a petition for divorce with the district clerk in the county where you or your spouse have lived for more than 90 days. Once the petition is filed, your spouse will be served with divorce papers and will have 20 days to respond. A family law attorney can file the petition and start the process on your behalf.

2. What is a divorce petition?

A divorce petition is the document that gets the divorce process rolling. The original petition for divorce contains basic information, such as the names and addresses of the parties, the date of marriage, and the grounds for divorce. Once it is filed with the court, it will be served on the other spouse. When people say they have “filed for divorce,” they are referring to the divorce petition.

3. Who is the petitioner and who is the respondent?

In Texas divorce cases, one spouse is the petitioner and the other is the respondent. The petitioner is the spouse who initiates the divorce by filing a petition for divorce. The respondent is the spouse who receives divorce papers from the petitioner and must then file an answer. The benefit to being the petitioner is that you get to go first in family court, which could set the tone for the case.

4. What is a “no-fault divorce”?

Texas is a no-fault divorce state, which means that you do not need to prove that your spouse did anything wrong in order to get a divorce. You can simply state that the marriage has become “insupportable” due to discord or conflict.

Insupportability is a divorce ground that simply means the marriage is no longer working and there is no hope for reconciliation. Again, it does not mean that one spouse is at fault, or that either spouse did anything wrong.

5. What are the “grounds” for divorce in Texas?

Although Texas is a “no-fault divorce” state, it still recognizes numerous grounds for divorce. Grounds for divorce are reasons why the court may grant a divorce and make certain decisions in favor of one spouse over another, including child custody, child support, and property division. The grounds for divorce in Texas are:
> insupportability
> cruelty
> adultery
> felony conviction
> abandonment
> living apart
> confinement to a mental hospital

6. What is the divorce process in Texas?

Divorce can be a very complicated process, especially if there are minor children involved or if the parties cannot agree on major issues like child custody, support, and property division. In Texas, divorce proceedings begin with the filing of a divorce petition by one spouse and end with a final divorce decree. In contested cases, there are many other steps in between. Below is an overview of the Texas divorce process in contested cases:

* Filing the Divorce Petition
* Providing Your Spouse with Notice
* Respondent’s Answer and Counter-petition
* Temporary Orders
* Discovery
* Negotiations/Mediation
* Trial
* Divorce Decree

7. What should I do if my spouse served me with divorce papers?

If you have been served with divorce papers, you should seek the advice of an experienced divorce attorney as soon as possible. Once you have been served, you only have 20 days to respond. Filing an answer or counter-petition for divorce ensures you will have a voice in the matter. If you do not respond within that time frame, your spouse can proceed with the divorce without your input and you will likely end up with a divorce decree that is not in your best interests.

8. Is there a waiting period for divorce in Texas – and why?

60-day waiting period in Texas before a divorce can be finalized. This waiting period begins on the date the divorce petition is filed. The reason for the waiting period is to give couples time to think things through and possibly reconcile.

9. How quickly can you get divorced in Texas?

Because there is a waiting period, it takes at least 61 days to get divorced in Texas. This is the minimum amount of time that must pass from the date your divorce petition is filed until the date your divorce decree is signed by a judge. However, most divorces take much longer than this, sometimes several months or even a year or more.

10. What is the difference between a contested and uncontested divorce in Texas?An uncontested divorce is one in which the parties have no disagreements about the logistics of their divorce, including child custody, child support, property division, and so on. In these cases, the divorce process is amicable, quicker and less expensive.

A contested divorce is one in which the parties cannot agree on one or more aspects of their divorce, such as child custody, child support, property division, etc. These cases can be much more complicated and often require the help of a mediator and may even need to go to trial. Contested cases are usually much more expensive and time-consuming.

11. What are the divorce laws in Texas?

The divorce laws in Texas are governed by the Texas Family Code. The code is a set of statutes that governs all aspects of family law, including divorce, child custody, support, and property division.

12. Can I get a divorce while my spouse is in jail?

Yes, you can get a divorce while your spouse is in jail and, in fact, a felony conviction is a ground for divorce. Divorcing someone in jail isn’t much different than divorce proceedings when both parties are free. The biggest obstacle you might face is serving your spouse with divorce papers while he or she is in a correctional facility. An experienced family attorney can help you through this process.

If the divorce is contested, inmates can request to attend hearings, which would most likely be held virtually. If the divorce is uncontested and both parties agree to the divorce, the proceedings can be completed by mail.

13. Can I get a divorce if I’m pregnant?

Texas allows you or your spouse to file a divorce if the wife is pregnant. However, the divorce will not be completed until the baby is born. This is because the court will not have jurisdiction over a child until it is born and cannot make final decisions on issues such as child support, custody or paternity.

14. Can I refuse to get a divorce in Texas?

No, you cannot refuse to get a divorce in Texas. If your spouse files for divorce, he or she can proceed with the divorce even if you do not want one. In other words, a divorce can and will be granted even if you don’t agree to it.

 

Varghese Summersett Family Law Group

 

15. Will my spouse’s adultery factor into our divorce?

Possibly. If you can convince a judge that adultery is the ground, or reason, for your divorce, you could be awarded a greater share of the marital property. For example, if your spouse cheated during the message, the judge could divide 60/40 or 55/45 in favor of you.

16. How can family violence affect a divorce?

Family violence is a grounds for divorce in Texas and will likely play a significant role in every other aspect of the case, including child custody, child support, visitation, and property division. For starters, the court can waive the 60-day divorce waiting period in cases of family violence and speed up the divorce process. The court may also issue a protective order prohibiting the abusive spouse from contacting his or her ex or children. Victimized spouses may also end up with full custody of the children and be awarded a greater portion of the couple’s property and assets. To be sure, family violence is taken very seriously in divorce proceedings and can have a significant impact on the outcome.

17. Can I record conversations with my ex without their knowledge?

It’s not illegal to record conversations in Texas as long as you are a party to the conversation. This means that you can record conversations with your spouse or ex-spouse without their consent in Texas. However, this is not true in all states, so you shouldn’t assume that it is legal to do so in another state without checking the law first.

18. Are Texas’ divorces public record?

Yes, Texas divorces are public records. You can access the documents through the district clerk’s office in the county where the divorce was finalized. You may also be able to access them online if the district clerk’s office has a public online portal or you may be able to get them through other Texas public record websites or from third-party, for-profit websites. It’s important to note that, since they are a public record, any interested party will also be able to access them.

19. Can I change my mind after filing for divorce?

Absolutely, as long as both spouses agree and the divorce hasn’t been finalized, you can dismiss a divorce case in Texas. If you filed for divorce and your spouse hasn’t filed a response, you alone can dismiss the suit.

 

 

20. Do I need a divorce if I am common law married in Texas?

Yes, you must get a legal divorce if you want to end a common-law marriage in Texas when property, children and assets are involved. A family court must divide marital property and decide child custody, visitation and support, as well as other divorce-related issues. In some cases, the parties in a common-law marriage simply go their separate ways without any involvement from the court. They just proceed as if the common law marriage never existed. This is fine as a practical matter, but problems often arise down the road.

21. Can I get a legal separation in Texas?

No, there is no such thing as a legal separation in Texas. You are either married or you are divorced. However, you may be able to agree on temporary orders with your spouse which will govern things like child custody, support, and the use of joint property during the divorce process. These orders will become null and void once the divorce is finalized.

22. Can I get a divorce in Texas if I was married in another state?

Yes, you can get a divorce in Texas if you were married in another state. You will need to meet the residency requirements for divorce in Texas, which require that either you or your spouse have lived in Texas for the past six months and be a resident of the county where you are filing for divorce for the past 90 days.

23. Can I get a divorce if I’m not a U.S. Citizen?

Yes, you can get a divorce in Texas even if you are not a U.S. citizen. You just have to meet the same requirements as anyone else getting a divorce in Texas:

* At least one party to the divorce must be a Texas resident for at least six months prior to the filing of the petition for divorce,
* At least one party to the divorce must have lived in the county where the divorce was filed for at least 90 days prior to the filing the petition for divorce.

24. How can I keep my spouse from spending money or hiding assets during the divorce process?

If you are worried that your spouse may try to hide assets or spend money during the divorce process, you can ask the court to enter temporary orders, such as a Temporary Restraining Order (TRO.) A TRO can freeze assets during a divorce and prevent either spouse from dissipating marital funds by selling, transferring or borrowing against the marital property. However, each spouse is allowed to spend money for basic living and business expenses.

25. What are temporary orders?

Temporary orders are made by a judge to prohibit or enforce certain actions until a divorce is finalized. It is a way to maintain the status quo and protect both parties during the divorce process. Simply put, it lays out the rules to live by which to live while the divorce process is pending. For example, a judge may issue temporary orders regarding child custody, visitation, support, or the use of joint property. These orders are typically made at the beginning of the divorce process and remain in effect until the divorce is finalized.

26. What is discovery in a family law case?

Discovery is the process involving the exchange of information or documentation between the parties in a divorce, child custody or other family law case. The purpose of discovery is to allow each party to obtain information from the other party that could be relevant to the case. Discovery can include financial records, property documents, insurance information, etc. In Texas, both spouses must provide discovery within 30 days of entering into divorce proceedings.

27. Can I date during my divorce?

There is no rule against dating during a divorce. However, it could complicate things if you are still living in the same house as your spouse or if there are children involved. Not to mention, you are still technically married during the divorce process, so dating could be considered adultery. Adultery may affect the way that your case is decided. The judge could also look upon it unfavorably when deciding spousal support, property division and child custody.

28. What is community property in Texas?

In Texas, all property acquired during the marriage is considered to be community property, regardless of which spouse actually purchased the property or whose name is on the title. This can include houses, home furnishings, cash, stocks, bonds, etc. Community property is to be divided fairly and equitably between the spouses in a divorce. However, there are some exceptions to this rule, including gifts and inherited property. Gifts and inheritance would be considered separate property and would not be subject to division in a divorce.

29. How does the judge decide how to divide up our community property?

Community property in Texas is subject to a “just and right” division between spouses. That doesn’t mean that everything is an equal 50/50 split. Judges consider several factors when deciding how to divide community property and assets including:

* Financial conditions of both spouses
* Employment status
* Income
* Health and age
* Business opportunities
* Alleged faults
The judge will also consider any prenuptial agreements that may be in place.

30. What is considered separate property in a divorce?

In Texas, any property that was owned by one spouse prior to the marriage or that was inherited or gifted to one spouse during the marriage is considered separate property. This can include jewelry, vehicles, clothing, houses, etc. Separate property is not subject to division in a divorce and will remain with the owner.

J. Turner Thornton
Partner, Varghese Summersett Family Law Group

 

Turner Thornton is a highly-regarded Fort Worth family law attorney who leads Varghese Summersett Family Law Group. A skilled negotiator and experienced litigator, Turner has successfully guided hundreds of individuals and families through the most tumultuous time of their lives.

Divorce, child custody disputes, and property division are among the most contentious and complex cases in the legal system. Turner understands the intricacies and complexities involved in family law and works strategically to find and implement the best strategy for each client. While many cases are resolved through mediation, others require an aggressive courtroom battle. Turner is skilled in all aspects of case resolution and treats every person who walks through his door with honesty, professionalism, and compassion.

In addition to being a highly adept lawyer, Turner is also a family man with deep ties to the community. He was born and raised in North Texas along with his older sister, Katie. He attended Martin High School in Arlington. After high school, Turner attended the University of Texas at Austin, where he graduated in 2009. Afterward, he returned to the Dallas-Fort Worth Metroplex to attend Texas A&M University School of Law (formerly Texas Wesleyan University). There, he obtained his law degree and also met his future wife, Alex – who is a defense attorney at Varghese Summersett. Turner and Alex have a young daughter. They are also the proud parents of two dachshunds, Clifford and Annie. Learn more and contact Turner.

Like this article? Check out, “Divorcing with a Business in Texas”

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