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Texas Divorce FAQs From an Experienced Divorce Attorney in Austin

If you are considering filing for divorce, it's wise to be informed. The following are some frequently asked questions about divorce in Texas. For more information or if you need an Austin divorce lawyer, call Bertolino LLP today at 800-210-0126. 

What are the residency requirements to file for divorce in the state of Texas?

What is the basic process for getting a divorce in Texas?

How long does a divorce take to be finalized in Texas?

What are the grounds for a divorce in Texas?

How is property divided in Texas?

Can I get alimony while our divorce case is on file?

How much does a divorce cost in Texas?

Can I remarry right after my divorce has been finalized?

What is a no fault divorce and does Texas recognizes no fault divorce?

What is separate property under Texas law?

Can I represent myself in a divorce in Texas?

What is a common law marriage and does Texas recognize it?

Can a homosexual or gay couple get married in the state of Texas?

Can a homosexual or gay couple get a divorce in the state of Texas?

Do grandparents have legal rights to visitation in Texas?

1. What are the residency requirements to file for divorce in the state of Texas?

Under Texas law, residency requirements must be met before a Texas court will accept a divorce filing.  Under Section 6.301 of the Texas Family Code, the general residency requirements are as follows:  A suit for divorce may not be maintained in this state unless at the time the suit is filed either the petitioner or the respondent has been: (1) a domiciliary (a resident) of this state for the preceding six-month period; and (2) a resident of the county in which the suit is filed for the preceding 90-day period. If one spouse has been a domiciliary of this state for at least the last six months, a spouse domiciled in another state or nation may file a suit for divorce in the county in which the domiciliary spouse resides at the time the petition is filed.
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2. What is the basic process for getting a divorce in Texas?

A divorce commences the moment one of the parties files a petition for divorce in a Texas court.  The filer of the petition is called the "petitioner" and the other party is called the "respondent."  The petition places the world on notice that the petitioner intends to end the marital relationship.  After filing, the respondent must be served with a copy of the petition for divorce, which is a process called "service of process."   After service, the respondent has about 20 days to file and serve a written Answer in the divorce case.

The next step is a Temporary Orders hearing.  This is a hearing that establishes the status quo during the pendency of the divorce case.  The temporary order hearing is sometimes called mini-trials because it is the first opportunity for the parties to present legal and evidentiary argument before the court with little or no preparation.  It is process that establishes temporary orders on issues such as who stays in the house, who pays temporary child support, who has temporary child custody, etc.

The next procedural step is Discovery.  Generally, Discovery is the process of gathering and exchanging (among the parties) facts, information and evidence about the case.  Five common Discovery devices that are used in Texas include:

  • Interrogatories (a list of written questions propounded on the other party),
  • Request for Admissions (a written list of statements that one party asks the other party to admit or deny)
  • Request for Production (written request for documents, photographs, records, bank statements, logs, emails and other tangible evidence)
  • Request for Disclosure (a written request for basic information about the case.)
  • Depositions (oral questions that are asked and answered under oath in front of a court report or stenographer.)

After the parties have gathered and/or exchanged information about the case, the next step is alternative dispute resolution.  Many divorce courts in Texas encourage, and sometimes require, that the party attempt to mediate their different before a final bench trial or jury trial is set.

Finally, if the parties are unable to resolve their differences regarding property, debts and children then a Final Hearing or Trial is scheduled in open court.
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3. How long does a divorce take to be finalized in Texas?

It depends.  Because this is a somewhat difficult question to answer, I will answer it in ranges.  Generally, a divorce could take anywhere from 60 days to a year and a half to finalize.  At minimum, the parties must wait at least 60 days from the date of filing before they will be able to finalize the divorce.  At maximum, generally, and assuming that a jury trial is requested by one of the parties in the divorce action, the parties must try their case no later than 18 months from the date of filing otherwise the parties risk experiencing a dismissal from the court.  This is called a "Dismissal for Want of Prosecution."
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4. What are the grounds for a divorce in Texas?

Before a party pleads a particular ground for divorce, that party must have sufficient evidence to support the grounds.  Ultimately, a party will have to prove his or her grounds for divorce in open court.  Generally, under Texas law, there are seven grounds for divorce that a party can place in his or her divorce petition (or counter-petition).  The seven (7) divorce grounds are as follows:

* 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.

* The spouses are Living Separate and Apart for Three Years.

* One of the spouses has committed Adultery.

* A spouse has a Conviction of a Felony.

* Cruelty.

* Abandonment.

* Confinement in a Mental Hospital.
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5. How is property divided in Texas?

Under Texas law, a court must order a division of the marital estate of the parties in a manner that is "just and right."   This "just and right" division is often based on a series of factors that the court will analyze.  The court may look, among other things to whether the marital property is considered community or separate.  The court may also look to whether a particular party contributed to the breakdown of the marriage.
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6. Can I get alimony while our divorce case is on file?

Maybe. The court will often make attempts to "level the playing field" by ordering one spouse to pay the other spouse temporary alimony (or temporary spousal maintenance) while the divorce is pending.  Of course, the receiving spouse will still have to prove that the support is necessary and equitable before granting the request.
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7. How much does a divorce cost in Texas?

It depends.  Of course, the answer to this question depends largely on the type of property and debts that are involved in the divorce, the pleaded grounds, whether children are involved in custody disputes and the level of litigation that the case requires.  Also, believe it or not, the cost could also largely depend on what kind of divorce lawyer that your spouse ends up hiring.  If your opposing spouse hires a "bull-dog" litigator then you may need to prepare to pay a considerable amount in fees and costs to your own divorce lawyer.  Likewise, if your opposing spouse hires a "push-over" than expect the fees to be lower.

On average, however, an uncontested divorce costs a flat rate of $3,500.00 to $5,000.00.  A contested divorce (without children) will often require a refundable retainer deposit of at least $7,500.00 and could cost several thousands of dollars.  A contested divorce (with children) often requires a refundable retainer deposit of at least $10,000.00 and could cost several thousands of dollars to litigate to completion.
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8. Can I remarry right after my divorce has been finalized?

It depends.  Assuming you are not remarrying your newly divorced spouse, you must wait at least 30 days from the date of the signing of the Final Divorce Decree before you will be permitted to remarry another person.  You may also ask the Judge to waive the 30-day waiting requirement.
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9. What is a no fault divorce and does Texas recognizes no fault divorce?

Yes.  Texas does recognize no fault divorces.  No fault divorce means that a spouse is permitted to have a divorce for any reason or no reason at all without having to prove fault in the divorce.
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10. What is separate property under Texas law?

Under Texas law, separate property is property that is:

  • owned prior to the marriage,
  • acquired as a gift, or
  • acquired by inheritance.

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11. Can I represent myself in a divorce in Texas?

Absolutely. Under Texas law, you are permitted to represent yourself in a divorce action.  In fact, in 2010, the State Bar of Texas published a manual called "Pro Se Divorce Handbook:  Representing Yourself in Family Court" to assist parties who want to represent themselves in court.
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12. What is a common law marriage and does Texas recognize it?

Yes.  Texas does recognize common law marriage.  However, Texas calls it an "informal marriage."  Under Texas law, the common law married couple must meet the following conditions to qualify as an informal marriage:

  • the couple agrees that they are married;
  • they must live (cohabitate) together in Texas; and
  • They must represent themselves to other individuals that they are married to one another.

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13.  Can a homosexual or gay couple get married in the state of Texas?

Yes. The U.S. Supreme Court ruled the U.S. Constitution protects same-sex marriage in all 50 states. Obergefell v. Hodges, Case No. 14-556.
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14.  Can a homosexual or gay couple get a divorce in the state of Texas?

Yes. The Texas Supreme Court ruled that same-sex married couples can get divorced in Texas. In the Matter of the Marriage of J.B. and H.B., Case No. 11-0024
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15. Do grandparents have legal rights to visitation in Texas?

Maybe.  Under Texas law, grandchild visitation may be granted if the grandparents' child (the parent of the grandchild) has been incarcerated in jail or prison during the three month period preceding the application, has been determined to be legally incompetent, or is dead; if the parents are divorced or have been living apart for the three months period preceding the filing of the application or if a suit for dissolution of the marriage is pending; if the child has been abused or neglected by a parent; the child has been adjudicated to be a child in need of supervision or a delinquent; the grandparents' child has had their parental rights terminated; or if the child has resided with the grandparent for at least six months in the twenty-four month period preceding the filing of the application.
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