Texas Divorce Laws
Question: Is any property inherited by my spouse subject to division in our divorce? Do I have a right to any of that in the divorce?
Answer: In a Texas divorce, the court has jurisdiction to divide community property of the parties, which is presumed to be all property or liability obtained during the marriage.
The short answer to your question about inherited money is that it would be the SEPARATE property of the person who inherited it. Divorce courts can only divide COMMUNITY property, which is any property accumulated during marriage except for gifts or inheritances.
Question: What is a Waiver of Citation?
Answer: Whenever a person is sued, they are entitled to be given actual notice of the lawsuit by “service of citation”, which is a person, the process server, personally delivering the citation of the lawsuit to the person being sued. Then the process server files a return of service with the clerk of the court to evidence the actual delivery of the paperwork to the sued person. Any person may waive their right to be personally served, and they do that by signing a Waiver of Citation. A Waiver of Citation is an affidavit in which the sued person essentially says, “I waive my right to be personally served, and enter my appearance in this case”.
Question: What is the difference between a divorce and an annulment?
Answer: Annulments differ from divorce in that in a divorce, the marriage is valid but request is made to end it. In an annulment the marriage itself is void or voidable, and declared to not be valid.
Question: How long does a divorce take?
Answer: Texas law requires that a divorce may not be granted until 60 days have passed from the date of filing. In most cases, divorces average from 90-180 days. There is no legal limit for longer periods.
Question: What issues are involved in divorce?
Answer: The issues you will address in your divorce include, but are not limited to, child support, visitation schedule for the child, property division (which includes debts) and possibly a name change. The retainer depends on the issues in play and how complicated your circumstances may be. Generally it is most productive to set up an appointment to evaluate your scenario.
Question: Where can military or civil service personnel get a divorce?
Answer: If the person is on public service from elsewhere here in Texas, as soon as the person is in Texas for 6 months and in a county for 90 days, a divorce may be sought in that county. If a Texan is overseas or elsewhere on public or military service, the Texan may pursue a divorce in the Texas home county.
Question: Can I file for divorce from my military spouse while he/she is stationed overseas?
Answer: If both want a divorce, this is very simple. If you both are not agreeable to the idea and have no agreements about the divorce, it can be very expensive and time consuming. You may file the case, but if the military spouse is not agreeable to service of citation, it is costly and difficult just to do that. Secondly, if the military spouse invokes the Servicemembers Civil Relief Act, neither of you will be obligated to appear in court until the military spouse is ready.
Question: Why am I still responsible on a car note, when my spouse was ordered to pay for it in the divorce decree?
Answer: Since the car was community debt, the bank is now looking to you to pay the outstanding balance. They can do this because your name is also on the note, and therefore you agreed to be responsible on the note. The bank was not involved in the divorce proceeding, and the agreements about who pays for the car are just between you and your spouse.
Question: How long must I be in Texas before my divorce can be filed here? In which county must the case be filed?
Answer: You must live in Texas for six months and reside in a county for ninety days to file for a divorce in that county. The ninety-day residency requires actual, physical, continuous living in the county of suit by one of the parties to the suit with an intention to make that county home. The law requires also that you be a “domiciliary” of the state for six months. Tex. Fam. Code 6.301. There are other factors that may need to be considered.
Question: What is the minimum length of time for a divorce to last in Texas?
Answer: The 60 day waiting period is the minimum jurisdictional period of time for a divorce to last in Texas. In other words, the court cannot grant a divorce sooner than 60 days after filing. There is no length limit beyond 60 days.
Question: We have had a trial, but the other side won’t give the court any paperwork. What should happen now?
Answer: At this point you must set the case for a Motion to Enter the Judgment. You must file an order along with the motion that complies with the court’s order and an Employer’s Order to Withhold Income if there are orders for child support. You set it for hearing and send your version of the order to opposing counsel to review. If you cannot agree to the language in the order, then you are on the court’s docket for a hearing, and the court will help you finish the case.
Question: The divorce is long over, but the retirement asset has not been divided according to the decree. How do I get what was awarded to me in the divorce?
Answer: In a Texas divorce, the court has jurisdiction to divide community property of the parties, which is presumed to be all property or liability obtained during the marriage. This includes retirement assets. Many corporate retirement plans require a Qualified Domestic Order (otherwise known as a QDRO) from the court in order to set aside the asset to the non-employee spouse.
It is not uncommon for the divorce decree to be entered without the necessary QDRO. This is true because the husband and wife are anxious to finish the divorce, and it can be tedious waiting for the company QDRO department to approve of the form of the QDRO order.
The QDRO should not require the signatures of the parties to be entered. If one party attempts to hold up the process, by not signing off, then you may file a Motion to Enter the QDRO. That way, the judge reviews the requirements of the decree, the company has already approved of the FORM of the QDRO and the hold up from the other spouse is nullified.
Question: We have settled everything, but my spouse will not sign the agreement. What do I do now?
Answer: At this point you must set the case for trial. The court will likely then order you to mediation. If an agreement is reached in mediation, the court can enter a final order based on the terms of the mediated settlement agreement. If not, then you are on the court’s docket for trial.
Question: Having already been divorced, may I also now get an annulment of that same marriage?
Answer: Since there is already a divorce, there is no annulment available through the court. You must contact the church for that. The court, after a divorce has already been granted, cannot grant an annulment, would not have the jurisdiction to annul that same marriage. The legal choice of approach at the time of the end of the marriage is divorce OR annulment.
Question: If I am pregnant, can I file for divorce?
Answer: You can file for divorce if you are pregnant, but the divorce cannot be finalized until the child is born. This is true so that appropriate orders may be made for support and access, and sometimes the paternity, of the child.
If the father of the child is not the husband, the court will require that the biological father be joined as a party to the divorce. This is necessary because the law presumes that a pregnancy during marriage is a child of the husband of the marriage. This process insures that the correct person is named as the father of the child.
Question: What is the difference between Community and Separate Property?
Answer: In a divorce, the court has jurisdiction to divide community property of the parties, which is presumed to be all property or liability obtained during the marriage. Property acquired before marriage is characterized as separate property, and therefore is not subject to division by the court. Separate property may also be obtained during marriage by gift, inheritance, or through personal injury damages (but lost wages obtained through a personal injury suit are community). However, income to separate property during the marriage is a community asset. Obviously, this gets a bit complicated, and there are numerous rules for particular kinds of assets.
Question: My spouse is using drugs and I want to get a divorce. Will this affect my spouse’s ability to visit the children?
Answer: When a parent is using illegal drugs or abusing prescription drugs, a divorce court will almost always require that access to children of the marriage be supervised. Supervised visitation is performed by family or friends (by agreement or court approval) or there are paid services.
Question: Can I divorce my spouse who is in the military and stationed overseas when my spouse is disagreeable to the divorce?
Answer: If you both are not agreeable to the idea it can be very expensive and time consuming. You may file the case, but if he is not agreeable to service of citation, it is costly and difficult just to do that. Secondly, if he invokes the Servicemembers Civil Relief Act, neither of you will be obligated to appear in court until he is ready.
Question: What is necessary to divide property not divided at divorce?
Answer: Under Texas law, undivided property remains the property of both spouses. If the divorce decree does not address a piece of property, then either spouse may file a motion to divide property not divided by the decree, as contemplated by Texas Family Code section 9.201 and 9.202.
Question: How are pets dealt with in a Texas divorce?
Answer: Under Texas law, animals are property, subject to division just like money or other property. This makes sense when you think in terms of livestock, horses and cattle, for example. However, most people regard their pets as a member of the family. In Dallas county, it is quite likely that animals as pets will be treated as property.
Question: How long must I wait to remarry after my divorce in Texas?
Answer: In most cases, you must wait thirty days after the divorce to remarry because the divorce decree is just like any judgment. It may be granted on a particular day, but it is not final until thirty days have passed. This is necessary because this is the time period within which a Motion for New Trial may be filed. Consequently, it is wise to avoid conflict with the former spouse to prevent inviting a spiteful Motion for New Trial.
However, the court may grant a waiver to allow remarriage earlier than thirty days upon proper request.
Question: Can I get an appointed attorney in a divorce case?
Answer: Attorneys are not appointed in regular family matters. Only in a family case involving contempt can an attorney be appointed, and only then if you are indigent. Most judges find no indigency exists if you have a job or a vehicle – therefore no appointed attorney.
Question: How does the court deal with community debt like credit cards and medical, during the divorce?
Answer: With regard to debts, as spouses we have a duty to provide “necessaries” for each other, shelter, food, clothing, and medical care. Therefore, a first example is you should keep the spouse covered with health insurance during the divorce. Without the medical coverage, since you are married to this person, if anything happens to them-car wreck, etc-you could be tagged for 100% of outstanding medical expenses. So, the short version is, keep them covered! A second example involves credit card debt. In theory, a spouse could be liable for charges involving the “necessaries”, but most credit card companies do not pursue this avenue of recovery, unless it is a large amount of money. Plus, even if only one spouse can sign for charges on the card, the charges are technically community debt during marriage. However, as a practical matter, courts usually divide property in such a way to require the card account owner to pay it.
Question: What is the purpose of a Deed of Trust to Secure Assumption after a divorce?
Answer: This property circumstance arises because the bank that has the note on the marital house is not part of your divorce negotiation. Since the house was community debt, meaning you are both obligated on the loan for the house to the bank, if you fail to pay the note, the bank would then seek payment on the deficiency from the former spouse. That would adversely affect your former spouse’s credit. In this situation you are awarded the house in the divorce, so your spouse signs a Special Warranty Deed in your favor, transferring his interest in the house to you. In return, the law in Texas requires that you sign a Deed of Trust to Secure Assumption (“DOTSA”), promising that you will timely pay the note on the house. If you fail to pay the note, your former spouse can pay the note and seek for you to repay him. Ultimately, he could foreclose on you before the bank. But you would have the opportunity to pay him back before any foreclosure could take place. Remarkably, a bad outcome in which one spouse forecloses on the other with a DOTSA is rare. In over 20 years of practice, I have only seen this twice.
Question: If a marriage engagement is broken off, who gets the wedding ring?
Answer: The wedding ring is not treated the same as other property. A different analysis is required. The result depends on how the relationship ends. It is often the case that before marriage or even during divorce that people argue over who should be awarded the wedding ring. If the parties marry, the gift of the wedding ring is absolute, and the recipient may keep the ring.
Of course the starting point in any conversation about property and marriage is the character of property as separate or community in nature. Initially, any gift or property owned before marriage is the separate property of the owner before marriage. Any gift or inheritance of property to a married person is also SEPARATE in character. Then, the COMMUNITY property presumption applies to any property acquired after marriage other than by gift or inheritance.
So where does the wedding ring fit? What happens if the couple breaks up before the marriage? As often is true in the law, the short answer is “it depends”. The result depends on who ends the engagement. In Curtis v. Anderson, 106 S.W.3d 251, (Tex. App. Austin, 2003, writ denied), the Court explained the conditional gift rule. In that case, Mr. Curtis gave Ms. Anderson a ring for their engagement. Id. At 253. Curtis and Anderson broke up less than two months later, and Anderson refused to return the ring. Id. Historically, if the recipient of the conditional gift in contemplation of marriage had ended the relationship before the marriage, the gift could be recovered. Id. at 253 citing McLain v. Gilliam, 389 S.W.2d 131 (Tex.Civ.App.-Eastland 1965, writ ref’d n.r.e.)($4200 conditional gift woman to the man. He paid his debts, then ended the relationship. Woman recovered the money.)
Curtis is a Texas case of first impression, determining what happens when the giver of the ring, the donor, breaks the engagement. Id. at 256. In Texas, the conditional gift rule involves an element of fault. Id. at 255. More simply stated, the circumstances of the end of the relationship provide the result. After reviewing the opinions of various other jurisdictions, the Curtis court stated, “On principle, an engagement ring is given, not alone as a symbol of the status of the two persons engaged, the one to the other, but as a symbol or token of their pledge and agreement to marry. As such pledge or gift, the condition is implied that if both parties abandon the projected marriage, the sole cause of the gift, it should be returned. Similarly, if the woman, who has received the ring in token of her promise, unjustifiably breaks her promise, it should be returned. When the converse situation occurs, and the giver of the ring, betokening his promise, violates his word, it would seem that a similar result should follow, i.e., he should lose, not gain, rights to the ring. In addition, had he not broken his promise, the marriage would follow, and the ring would become the wife’s absolutely. The man could not then recover the ring.” Id. at 256.
Since Mr. Curtis terminated the relationship before the wedding, Ms. Anderson could keep the ring. This must have been quite a ring, because these parties tried to take this question to the Texas Supreme Court, but the petition for review was denied. 2003 Tex. LEXIS 395.