Suits for dissolution of marriage in Texas include divorces, annulments, and suits to declare a marriage void. Issues addressed in divorces and annulments can include child custody, possession, access and child support, which are discussed in separate sections, and division of debt and property, which are discussed herein.
To be able to file for divorce in Texas, one spouse must have been a resident of Texas for at least six months prior to filing, and must have been a residence of the county in which the suit is filed for 90 days prior to the date of filing. If one spouse resides outside of Texas, he or she can still file for divorce in Texas if the other spouse meets the residence requirements. Texas Family Code Section 6.303 provides that for military members serving outside of Texas, that time outside of Texas can be counted as time in Texas for purposes of divorce jurisdiction. “Time spent by a Texas domiciliary outside this state or outside the county of residence of the domiciliary while in the service of the armed forces or other service of the United States or of this state, or while accompanying the domiciliary's spouse in the spouse's service of the armed forces or other service of the United States or of this state, is considered residence in this state and in that county.” Even if a military member who was not a Texas domiciliary prior to being stationed in Texas, if he or she meets the six residency months in Texas and ninety days residency in the county filing requirement, the divorce can be filed in Texas in the county of domicile. Texas Family Code Section 6.304.
There is a mandatory sixty day waiting period (with an exception for some cases involving domestic violence) after the date of filing in Texas before a divorce case can be finalized. If there are no custody, child support, property or debt division issues, usually a divorce can be finalized soon after the passage of sixty days. However, if there are issues other than the divorce itself to be dealt with, and the spouses are not in agreement on the issues, it usually takes somewhat longer to finalize a divorce. If one party is pregnant, El Paso County courts will not typically grant the divorce until the birth of the baby so that the divorce decree will include custody and child support provisions, or, in the event that the husband is disputing paternity, so that a determination of paternity can be made prior to the issuance of the final decree of divorce.
Once a divorce is finalized, the parties are prohibited from remarrying for thirty days except for good cause shown to the court.
NOTE THAT TEXAS IS A COMMON LAW MARRIAGE STATE
That means that if the parties have an intent to be married, have held each other out as married (such as by introducing themselves to other as husband and wife or by filing income taxes together), and have cohabited, they are considered to be married in Texas. A divorce might be necessary upon the end of the relationship for the division of property and debt that the parties consider to be community property. The presumption that the parties were married ends once two years following the end of the relationship have passed.
GROUNDS FOR DIVORCE
Grounds for divorce are set forth in Texas Family Code Chapter 6. They include insupportability, which is the equivalent of no fault, commonly referred to as irreconcilable differences in some other states. Specifically, the statute states “On the petition of either party to a marriage, the court may grant a divorce without regard to fault 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” Texas Family Code Section Section 6.001.
Fault grounds for divorce in Texas include the following:
Texas Family Code Sec. 6.002. CRUELTY. The court may grant a divorce in favor of one spouse if the other spouse is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable.
Texas Family Code Sec. 6.003. ADULTERY. The court may grant a divorce in favor of one spouse if the other spouse has committed adultery.
Sec. 6.004. CONVICTION OF FELONY. The court may grant a divorce in favor of one spouse if during the marriage the other spouse:
- has been convicted of a felony;
- 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
- has not been pardoned.
- The court may not grant a divorce under this section against a spouse who was convicted on the testimony of the other spouse.
Texas Family Code Sec. 6.005. ABANDONMENT. The court may grant a divorce in favor of one spouse if the other spouse:
- Left the complaining spouse with the intention of abandonment; and
- Remained away for at least one year.
Texas Family Code Sec. 6.006. LIVING APART. The court may grant a divorce in favor of either spouse if the spouses have lived apart without cohabitation for at least three years.
To be able to file for annulment in Texas either the marriage must have occurred in Texas or one party must be domiciled in Texas.
GROUNDS FOR ANNULMENT
Texas Family Code Section 6. 102 Annulment of Marriage of Person Under Age 18
The court may grant an annulment of a marriage of a person 16 years of age or older but under 18 years of age that occurred without parental consent or without a court order. The petition for annulment under this section may be filed by a next friend for the benefit of the underage party, if filed within 90 days after the date of the marriage, a parent, or the managing conservator (the person or agency who has legal custody of the underage party through an order of the Family Court) of the underage party), a guardian of the person of the underage party (the person or agency who has guardianship of the underage party ordered through the Probate Court).
Texas Family Code Section 6.105. Under the Influence of Alcohol or Narcotics
The court may grant an annulment of a marriage to a party to the marriage if:
at the time of the marriage the petitioner was under the influence of alcoholic beverages or narcotics and as a result did not have the capacity to consent to the marriage; and
the petitioner has not voluntarily cohabited with the other party to the marriage since the effects of the alcoholic beverages or narcotics ended.
Texas Family Code 6.106 Impotency. The court may grant an annulment of a marriage to a party to the marriage if:
either party, for physical or mental reasons, was permanently impotent at the time of the marriage, the petitioner did not know of the impotency at the time of the marriage; and
the petitioner has not voluntarily cohabited with the other party since learning of the impotency.
Texas Family Code Section 6.107. Fraud, duress or force
The court may grant an annulment of a marriage to a party to the marriage if:
the other party used fraud, duress, or force to induce the petitioner to enter into the marriage; and the petitioner has not voluntarily cohabited with the other party since learning of the fraud or since being released from the duress or force.
Texas Family Code Section 6.108 Mental Incapacity. The court may grant an annulment of a marriage to a party to the marriage on the suit of the party or the party's guardian or next friend, if the court finds it to be in the party's best interest to be represented by a guardian or next friend, if:
- At the time of 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; and
- Since the marriage ceremony, the petitioner has not voluntarily cohabited with the other party during a period when the petitioner possessed the mental capacity to recognize the marriage relationship.
The court may grant an annulment of a marriage to a party to the marriage if:
- At the time of the marriage the other party 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 the marriage the petitioner neither knew nor reasonably should have known of the mental disease or defect; and
- Since the date the petitioner discovered or reasonably should have discovered the mental disease or defect, the petitioner has not voluntarily cohabited with the other party.
Texas Family Code Section 6.109 Concealed Divorce
The court may grant an annulment of a marriage to a party to the marriage if:
- The other party was divorced from a third party within the 30-day period preceding the date of the marriage ceremony;
- At the time of the marriage ceremony the petitioner did not know, and a reasonably prudent person would not have known, of the divorce; and
- Since the petitioner discovered or a reasonably prudent person would have discovered the fact of the divorce, the petitioner has not voluntarily cohabited with the other party.
A suit may not be brought under this section after the first anniversary of the date of the marriage
Texas Family Code Section 6.110 Marriage Less than 72 Hours After Issuance of License
- The court may grant an annulment of a marriage to a party to the marriage if the marriage ceremony took place in violation of the 72-hour waiting period immediately following the issuance of the marriage license.
- A suit may not be brought under this section after the 30th day after the date of the marriage.
SUIT TO DECLARE MARRIAGE VOID
To be able to file a suit to declare a marriage void, either the marriage must have occurred in Texas or one party must be domiciled in Texas.
GROUNDS FOR SUIT TO DECLARE MARRIAGE VOID
Texas Family Code Sec. 6.201. CONSANGUINITY.
A marriage is void if one party to the marriage is related to the other as:
- An ancestor or descendant, by blood or adoption;
- A brother or sister, of the whole or half blood or by adoption;
- A parent's brother or sister, of the whole or half blood or by adoption; or
- A son or daughter of a brother or sister, of the whole or half blood or by adoption
Texas Family Code Sec. 6.202. Marriage during existence of prior marriage
- A marriage is void if entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse.
- The later marriage that is void under this section becomes 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.
Texas Family Code Sec. 6.205. Marriage to a Minor
A marriage is void if either party to the marriage is younger than 16 years of age, unless a court order has been obtained allowing such marriage.
Texas Family Code 6.206. Marriage to stepchild or stepparent
A marriage is void if a party is a current or former stepchild or stepparent of the other party.
SERVICE OF LEGAL PROCESS UPON THE OTHER PARTY
In a suit to dissolve a marriage, the other party has to be served with the legal papers filed with the court. That means the petitioning party has to make a good faith effort to find the other party to have him or her served with citation and with legal papers by the Sheriff or by a private process server.
However, if a party has made a good faith effort to find his or her spouse and is unable to do so, the party can serve his or her spouse through substituted service after submitting an affidavit to the court detailing efforts that have been made to find your spouse, and after obtaining the court’s permission to proceed with substitute service. Substitute service can be serving a family member or friend of one’s spouse, or someone likely to have communication with the spouse, or service by publication in a newspaper; in El Paso County our office typically uses the El Paso Inc. newspaper for service by publication.
Also, if a spouse is evading service or hiding from the Sheriff or process server, the court can order alternative service, such as service by posting the legal paperwork on the door at the spouse’s residence, or by serving a coworker.
Typically, a person has until the “Monday next” after the passage of twenty-one days from the date of service to filed an answer to the petition, or he or she risks a default judgment being taken against him or her. In the context of sports, this means, for example, that if two teams are scheduled to play a game, and one team doesn’t show up on game day, that the other team automatically wins. That is why, if you are served with process in a case for dissolution of marriage, or in any legal case for that matter, you should consult with an attorney as soon as possible to be advised of your rights, such as your right to file a counterpetition in addition to an answer.
In the dissolution of marriage context, even if the other party doesn’t respond after being timely served, the court would have to approve the proposed terms of the dissolution of marriage pursuant to the principles set forth in the Texas Family Code.
Also, if your spouse fails to timely answer, but before the passage of sixty days from the date of filing the spouse files an answer in a suit for divorce specifically, the court will typically not grant a default judgment for divorce after the passage of sixty days without notice to the spouse of the hearing.
There is no such thing as legal separation in Texas. A party that requires court orders such as orders for support and for payment of household bills during the pendency of a divorce should upon the filing of the divorce petition or counterpetition request a temporary restraining order, and an order setting hearing on whether the temporary restraining order should be made an injunction and for temporary orders. At a temporary orders hearing the court will determine what orders need to be made during the pendency of the divorce, and whether temporary injunctions should be imposed.
CLASSES REQUIRED PRIOR TO FINALIZATION OF DIVORCE WHERE CHILDREN ARE INVOLVED
Most El Paso County Courts require you to take the Children Cope With Divorce Class offered by the YWCA prior to finalizing a divorce. One court requires parties to take a class offered by the El Paso County Domestic Relations Office regarding understanding your decree prior to allowing a divorce to be finalized.
CHANGE OF NAME
A petitioner or respondent can ask the court to restore his or her name in the final decree to the name he or she held before the marriage. In some cases, we have even been able to change the name of a party to a different name in the divorce decree. A court cannot deny a change of name for the purpose of ensuring that everyone in the family has the same surname, as in the case of a mother who wants her surname to be restored to her maiden name, which would be a different surname from that of her children.
In some cases, we have successfully been able to combine a request for the change of a child’s name with suits for dissolution of marriage. Situations where this has happened include where the child preferred the last name of one parent over the other and one parent agreed to this, and another where the child had the last name of the husband, who was not the biological father of the child, and the mother wanted to change the child’s name concurrent with the divorce proceedings.
DIVISION OF PROPERTY AND DEBT IN DIVORCE AND ANNULMENT
Texas Family Code Section 7.001 provides as the general rule for division of marital property and debt that “In a decree of divorce or annulment, the court shall order a division of the estate that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” Texas case law provides that the courts have wide discretion, and while a division of property and debts must be equitable, it does not have to be equal. However, there must be some reasonable basis for an unequal division of the property. Among other factors, fault in breakup of the marriage and a disparity of earning power and potential between the spouses can be taken into account as factors in determining an equitable division of the property.
Texas is a community property state. In Texas the property and earnings acquired by spouses during the marriage is considered to be community property subject to division by agreement of the parties or by order of the court at the time the divorce is finalized. Regardless of which spouse’s earnings paid for property acquired during the marriage, and regardless of which spouse’s name is on the title, contract, note or account, if the property was not obtained prior to the marriage, as a gift, or inheritance, or as a personal injury settlement by one spouse, it is regarded as community property subject to division upon divorce. Community property can include income earned during the marriage, compensation for lost incomes, homes and real property acquired during the marriage, vehicles acquired during the marriage, insurance policies, balance of checking and savings accounts, and the parts of pensions, retirement plans, annuities, IRAs, employee stock option plans, and profit sharing plans, which were acquired during the marriage. Also, property obtained during the marriage in states outside of Texas, if it would have been regarded at that time under Texas law as community property, is treated as community property by Texas courts. In contrast, separate property is not subject to division between the parties at the time of the divorce. It should be noted that while increases in value to separate property are regarding as separate property, that interest or income earned from separate property during the marriage is regarded as community property.
DEFINITIONS OF SEPARATE AND COMMUNITY PROPERTY UNDER TEXAS FAMILY CODE
Texas Family Code Section 3.001 Separate Property
A spouse's separate property consists of:
- The property owned or claimed by the spouse before marriage;
- The property acquired by the spouse during marriage by gift, devise, or descent; and
- The recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.
Texas Family Code Section 3.002 Community Property
Community property consists of the property, other than separate property, acquired by either spouse during marriage.
PRESUMPTION UPON DISSOLUTION OF MARRIAGE THAT PROPERTY IS COMMUNITY PROPERTY
Pursuant to Texas Family Code Section 3.003 property possessed by either spouse during or on dissolution of the marriage is presumed to be community property. A spouse making a claim that property is actually separate property must prove so by clear and convincing evidence.
CLAIMS FOR REIMBURSEMENT
While property purchased before a marriage is considered separate property, if payments on the property were made after the marriage with community funds, such as the earnings of the parties, a party to a divorce can ask the court to order that the community estate be reimbursed for those community funds used to make payments on separate property. A court in assessing the size of amount of the community estate subject to division can take into account those payments made on separate property with community property when assessing how to divide the community property.
Likewise, a marital separate property estate that contributed to improvements of the marital community estate can seek a reimbursement from the community estate when the court is assessing how to divide the community estate.
Regarding reimbursement, Texas Family Code Sec. 7.007, entitled “Disposition for Claim for Reimbursement” provides that “In a decree of divorce or annulment, the court shall determine the rights of both spouses in a claim for reimbursement …and shall apply equitable principles to:
- Determine whether to recognize the claim after taking into account all the relative circumstances of the spouses; and
- Order a division of the claim for reimbursement, if appropriate, in a manner that the court considers just and right, having due regard for the rights of each party and any children of the marriage.
FRAUD ON THE COMMUNITY AND DIVISION AND DISPOSITION OF RECONSTITUTED ESTATE
Texas Family Code Section 7.009 defines “reconstituted estate” as the total value of the community estate that would exist if an actual or constructive fraud on the community had not occurred. If the Court determines that a spouse has committed actual or constructive fraud on the community (depleting the assets of the community property through fraudulent conduct), the Court shall determine the value by which the community estate was depleted as a result of the fraud on the estate and calculate the amount of the reconstituted estate; divide the value of the reconstituted estate in a manner the Court deems just and right; and grant any legal or equitable relief necessary to accomplish a just and right division. The statute goes on to provide that the Court can award the wronged spouse an appropriate share of the community property remaining after the actual or constructive fraud on the community, awarding the wronged spouse a money judgment, or do both.
Marital debt is debt that is acquired during the marriage. It includes things such as car loans, mortgages, credit card debt, loans, medical debts and other liabilities. Because Texas is a community property state, marital debt can even include student loans. The Court is required to make a just and right division of the debt. It is important to note that third party creditors are not bound by the court’s decision regarding martial debt. Thus, if there was a community debt that upon divorce is awarded to one party, and that party does not pay the debt, then the creditor can go after the innocent spouse for payment of the debt. One party’s credit can be adversely effected by the other party’s failure to pay. Thus, it may be in the innocent party’s best interest to pay the debt and to proceed after the divorce with a Motion for Enforcement to recoup the amount of the debt paid from the
Texas Family Code Chapter 8 sets out the law for spousal maintenance. The code specifically states that maintenance can be available in suits for dissolution of marriage, as opposed to just stating divorce, so maintenance, if the criteria are satisfied, can be awarded in cases of annulment or suits to declare a marriage void.
A court which has jurisdiction over both spouses can order spousal maintenance only if the spouse seeking maintenance will lack sufficient property, including the spouse's separate property, on dissolution of the marriage to provide for the spouse's minimum reasonable needs and:
- The spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence, as defined by Section 71.004, committed during the marriage against the other spouse or the other spouse's child and the offense occurred:
- Within two years before the date on which a suit for dissolution of the marriage is filed; or
- While the suit is pending; or
- The spouse seeking maintenance:
- Is unable to earn sufficient income to provide for the spouse's minimum reasonable needs because of an incapacitating physical or mental disability;
- Has been married to the other spouse for 10 years or longer and lacks the ability to earn sufficient income to provide for the spouse's minimum reasonable needs; or
- Is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse's minimum reasonable needs.
Texas Family Code Section 8.052 sets out the factors in determining maintenance:
A court that determines that a spouse is eligible to receive maintenance under this chapter shall determine the nature, amount, duration, and manner of periodic payments by considering all relevant factors, including:
- Each spouse's ability to provide for that spouse's minimum reasonable needs independently, considering that spouse's financial resources on dissolution of the marriage;
- The education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to earn sufficient income, and the availability and feasibility of that education or training;
- The duration of the marriage;
- The age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;
- The effect on each spouse's ability to provide for that spouse's minimum reasonable needs while providing periodic child support payments or maintenance, if applicable;
- Acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;
- The contribution by one spouse to the education, training, or increased earning power of the other spouse;
- The property brought to the marriage by either spouse;
- The contribution of a spouse as homemaker;
- Marital misconduct, including adultery and cruel treatment, by either spouse during the marriage; and
- Any history or pattern of family violence, as defined by Section 71.004 of the Texas Family Code.
The Texas Family Code provides that it is a rebuttable presumption that maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in earning sufficient income to provide for the spouse's minimum reasonable needs; or developing the necessary skills to provide for the spouse's minimum reasonable needs during a period of separation and during the time the suit for dissolution of the marriage is pending.
Texas Family Code Section 8.054 sets out the duration of Spousal Maintenance Orders.
Except as provided by Subsection, a court:
- May not order maintenance that remains in effect for more than:
Five years after the date of the order, if:
- The spouses were married to each other for less than 10 years and the eligibility of the spouse for whom maintenance is ordered is established under Section 8.051(1); or
- The spouses were married to each other for at least 10 years but not more than 20 years;
Seven years after the date of the order, if the spouses were married to each other for at least 20 years but not more than 30 years; or
10 years after the date of the order, if the spouses were married to each other for 30 years or more; and
- Shall limit the duration of a maintenance order to the shortest reasonable period that allows the spouse seeking maintenance to earn sufficient income to provide for the spouse's minimum reasonable needs, unless the ability of the spouse to provide for the spouse's minimum reasonable needs is substantially or totally diminished because of:
- Physical or mental disability of the spouse seeking maintenance;
- Duties as the custodian of an infant or young child of the marriage; or
- Another compelling impediment to earning sufficient income to provide for the spouse's minimum reasonable needs.
The court may order maintenance for a spouse who is unable to earn sufficient income to provide for the spouse’s minimum reasonable needs because of an incapacitating physical or mental disability or is the custodian of a child of the marriage who requires substantial care and supervision because of a physical or mental disability that prevents the spouse from earning sufficient income to provide for the spouse’s minimum needs for as long as the spouse continues to satisfy the eligibility criteria.
On the request of either party or on the court's own motion, the court may order the periodic review of its order for maintenance under Texas Family Code Section 8.054(b) to determine if the spouse continues to satisfy the eligibility criteria for spousal maintenance.
The continuation of maintenance ordered under Texas Family Code Section 8.054(b) is subject to a motion to modify as provided by Section 8.057, which permits the court to consider a reduction to the amount of the maintenance.
The amount of spousal maintenance which a court can order is set forth in Texas Family Code Section 8.055 which follows:
AMOUNT OF MAINTENANCE
A court may not order maintenance that requires an obligor to pay monthly more than the lesser of:
- $5,000; or
- 20 percent of the spouse's average monthly gross income.
For purposes of this chapter, gross income:
- 100 percent of all wage and salary income and other compensation for personal services (including commissions, overtime pay, tips, and bonuses);
- Interest, dividends, and royalty income;
- Self-employment income;
- Net rental income (defined as rent after deducting operating expenses and mortgage payments, but not including noncash items such as depreciation); and
- All other income actually being received, including severance pay, retirement benefits, pensions, trust income, annuities, capital gains, unemployment benefits, interest income from notes regardless of the source, gifts and prizes, maintenance, and alimony; and
does not include:
- Return of principal or capital;
- Accounts receivable;
- Benefits paid in accordance with federal public assistance programs;
- Benefits paid in accordance with the Temporary Assistance for Needy Families program;
- Payments for foster care of a child;
- Department of Veterans Affairs service-connected disability compensation;
- Supplemental security income (SSI), social security benefits, and disability benefits; or
- Workers' compensation benefits.
The obligation to pay future maintenance terminates on the death of either party or on the remarriage of the obligee, or, if the court finds after a hearing that the obligee cohabits with a person with whom she or he has a romantic relationship in a permanent place of abode on a continuing basis it is also terminated. Termination of the obligation to pay does not terminate an obligee’s obligation to pay sums that were order up through the date of the order termination the requirement for payment.
A court can order that spousal maintenance be garnished through the obligee’s employer.