A gavel banging near two wedding rings, signifying division of a house and money

The Basics of Divorce in Texas

What to Know

Divorce can be scary, especially if you have no knowledge of how the process works. Here are the basic steps of the divorce process and the typical issues that arise.

The Divorce Process

A Texas divorce begins when one spouse files an original petition for divorce with the local court. You or your spouse must have been a resident of Texas for at least 6 months and a resident of the county in which you or your spouse resides for at least 90 days prior to filing for the divorce.

Once the lawyer has filed divorce papers, the other spouse must then be given official notice of the pending divorce. Simply informing the other spouse or delivering a copy of the divorce papers to the other spouse is not sufficient to meet this requirement; the recipient should either be served legal papers by a Constable or private process server, or alternatively, if willing, the recipient may sign a Waiver of Service document prepared by the lawyer who filed the divorce papers.

Property Division

In a divorce, the court will divide the property of the marriage according to state law. Texas is a community property state. The Texas community property laws require a court to decide which property is the community property of the parties and which property is the separate property of the husband or the wife. Under the Texas community property system, a divorce court divides all property of the community estate on the day of divorce and additionally notes what property the spouses prove to be their separate property and sets that property aside to that spouse. Separate property is property that either party can prove they owned prior to marriage as well as any property received by gift or inheritance. Separate property must be proved by clear and convincing evidence. For the property that is not proven to be separate, the court will presume that property is community and divide it.

Property typically must also be valued by the court upon divorce so that the court can divide the property in a just and right manner as Texas divorce law requires. For some assets, such as bank accounts, statements can easily do the job, but for other assets, such as privately held stock in a business, stock options, collectibles, and other assets that are harder to price, the valuation may prove to be more tricky. But the lawyers at Holmes, Diggs & Sadler have resources to assist with difficult valuation issues.

Your role in achieving the best possible property division is to provide documentation and other proof of the character and value of the property. Your lawyer will ask you for documentation related to all property, no matter which spouse has that property in their name or in their possession so that your property claims may be properly evaluated and presented in court.

Custody

Child custody in Texas can be a complex issue but it helps to know that there are a few straightforward over-arching concepts that rise above all others. These concepts include 1) the child’s best interest is the touchstone for all of the court’s decisions, 2) the court will make it possible for good parents to remain involved in the lives of their children after divorce, and 3) the desirability of shared parenting.

The first concept, the child’s best interest, is the court’s guiding principle in divorce. If a party focuses on what is best for the patent, or “fair” for them as a parent, that will not be persuasive to the court in making custody decisions. What is best for one parent or the other should only come into play when it also contributes to the child’s best interest or has no impact on the child’s best interest.

The second principle --that good parents should remain involved in a meaningful way in the lives of their children after divorce-- is a more recent, but very strong concept for Texas divorce courts. It guides the court in placing restrictions on the residence of a child so that the party who is awarded the right to determine the child’s residence will most likely be restricted geographically in designating that residence. These restrictions are often to geopolitical subdivisions such as the city limits of the town in which the parties reside, or the county, but can be in geographically larger or smaller areas too. This ensures that the child will live close enough to the other parent to ensure the meaningful continuation of their relationship. If the parent who does not have the right to designate the child’s residence moves away from the designated area, however, then the other parent will usually be permitted to move elsewhere with the child.

The third┬áconcept – that of shared parenting—again is more recent than the concept of the best interest of the child but again is an important one. Texas, like many other states, once had a system that focused on just one parent having custody rights to make meaningful decisions about the child’s life, such as educational decisions and decisions about non-emergency invasive medical treatment, but now, joint custody is favored under Texas law, and as a result, the court may decide that one parent or the other is more qualified to make such decisions, or the court may allow both parents to make such decisions.

The issue of child custody may be addressed early in the case on a temporary basis, if necessary, at a temporary orders hearing, and again later in the case at the final trial if the case is not settled.

Do You Need An Attorney to Fight for What Is Yours?

The attorneys at Holmes, Diggs & Sadler will take the fear out of divorce. Our attorneys know the law and have the experience to present your case in the best possible light to preserve your rights and reach a good outcome in both custody and property division. We will fight for you and if there is a chance of a reasonable compromise, we will ensure that your rights are protected in settlement. With our lawyers by your side, the divorce process is much less frightening.


If you have questions about your pending divorce, don’t hesitate to reach out to our team of Houston and Round Rock divorce attorneys. To schedule a consultation, call us at (713) 766-5355 or visit us online.

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