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Hardy Law Group, PLLC

Divorce FAQs

A: Simply put, a divorce petition may be filed in the county where you or your spouse live, so long as either one of you have been domiciled in Texas for at least the past six months, and a resident of that county for at least 90 days. If you or your spouse satisfy this general residency rule, you may file for divorce in that county.
A: In Texas, there is a mandatory 60-day waiting period, often referred to as the “cooling off” period. The time begins at the time the suit for divorce is filed. After that period has expired, the parties may obtain their divorce. However, unless your divorce is uncontested, it is unlikely your divorce will be finalized at or near day 61. An exception to the waiting period is when it is shown that family violence has occurred.

In most cases, it is very difficult to predict exactly how long a divorce will take. Many factors are at play, the most important being the complexity of the issues involved in the case. If a divorce is not settled and is set for a final trial, a date for the trial will be scheduled. That date will depend on the court’s docket and availability. A very rough estimate may be anywhere from six months up to a year.

A: Nothing. Because Texas is a “no-fault divorce” state, a spouse seeking a divorce has no burden to prove fault. This means that if a spouse wants a divorce, that spouse can obtain a divorce. In the majority of filings, the divorce petition simply alleges “insupportability” as grounds for divorce. The language commonly used is, “The marriage has become insupportable because of a discord or a conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.”

A: Texas is a community property state. The presumption is that all property acquired during the marriage is community property. It encompasses all the property that the spouses own. Therefore, any property obtained by either spouse after the date of marriage is subject to division on divorce. This presumption applies regardless of whether ownership of property reflects the name of only one of the spouses. Property may include real estate, personal property items, cash, accounts, investments, etc.

The community property presumption applies equally to debts.

Conversely, any property obtained by a spouse prior to the marriage is presumed to be that spouse’s separate property. Separate property may also include property acquired during the marriage by gift, devise, or descent. It also may include property obtained with that spouse’s separate property money. In this case a spouse must overcome the community property presumption by clear and convincing evidence. This may involve the daunting task of “tracing” the source of those funds.

A: The standard for dividing community property in Texas is based on principles of fairness and equity. Specifically, a court will divide the property in a manner that it deems is “just and right.” A “just and right” division can mean different things to different folks. The Texas Family Code does not mention a 50/50 split, although it is a fair starting point when beginning the process of property division. The parties may divide their property however they see fit, but a court will consider certain factors in making its decision, such as:
  • Fault in the breakup of the marriage
  • Disparity in earning power and potential of the spouses
  • Amount of separate property of the spouses
  • Health of the spouses
  • Unusual Gifts and waste of community assets by a spouse
  • Fraud on the community estate committed by a spouse
A: The petitioner is the term used for the spouse who begins the divorce proceedings by filing an Original Petition for Divorce.
A: The Respondent is the other spouse who responds to the Original Petition for Divorce. The respondent will file an answer and typically file a counter-petition for divorce. The purpose of the counter-petition is so the spouse has pleadings on file with the court which ask for relief.

A: Like any lawsuit, principles of due process require that a spouse be served with a copy of the divorce petition. The most common method of service is by personal service, whereby a process server delivers the petition to the spouse. If that fails or is not possible, the Texas Family Code allows for alternate methods of service, as well as service by publication in some cases.

Sometimes traditional service is not necessary. When the other spouse agrees to accept the petition for divorce without service, that spouse may sign what is known as a “waiver of service.” Once the waiver is properly executed and on file with the court, the divorce proceedings may begin. This happens often in uncontested divorce cases.

A: You may still obtain a divorce. But, as stated above, a spouse in a divorce proceeding must always be served. Where the address of a spouse is unknown, traditional service by a process server is impossible. In this case your attorney will ask the court to allow service by publication. This rule will allow you to effectively “serve” your spouse by filing a notice in an appropriate section of a newspaper.

The court will then appoint an attorney to stand in as legal counsel for the missing spouse. That attorney will attempt to locate the missing spouse and notify the court and make a report. When the court is satisfied that all procedures have been followed, the court will then be able to grant the divorce.

A: The fact that your spouse may object to the divorce has no effect on your legal right to obtain a divorce. Because Texas is a “no-fault” divorce state, it is simply a matter of pleading insupportability, or irreconcilable differences, which is sufficient for a judge to ultimately grant the divorce.
Hardy Law Group, PLLC

Call For A Free Consultation
(817) 857-4111