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Divorce means different things to different people; for some, it’s a welcome sigh of relief and the first step towards a healthier dynamic between a couple. For others, however, it’s a long, contentious legal battle that inflicts a lot of lasting emotional wounds on the entire family.
The legal definition is a bit drier, though: divorce is the legal dissolution of a marriage in which a petition of complaint is needed to file.
To file for a divorce in Texas, one of the spouses has to be a Texas resident, meaning they have to have lived in the state for a continuous six-month period. Additionally, one of the spouses must be a resident of the county in which they file for divorce.
Like many other states, Texas is a “no-fault” divorce state. In no-fault divorce states, either spouse can file for divorce without having to prove the other spouse was at fault. One of the spouses simply has to declare “insupportability” on their divorce petition, meaning there is interpersonal discord or personality clashes that the marriage cannot withstand.
Fault will only be taken into consideration during asset and property division, where the non-offending spouse may receive a larger portion of the community property.
The statutory grounds for fault divorces are adultery, long-term incarceration for over a year, cruel treatment that makes living together unreasonable, knowing and willing abandonment for at least one year, confinement to a mental institution for at least three years, or living apart for at least three years.
Divorce is often a lengthy process. Here’s how it works in Texas:
One spouse (the petitioner) files an Original Petition for Divorce and has these papers personally delivered to the other spouse (the respondent). If the spouses are opting to work together, then the Respondent can sign a waiver waiving their rights to be personally delivered these papers.
The petitioner can request a temporary restraining order when they initially file for divorce. This order can request that the spouses treat each other civilly, do not harass or threaten each other, and that none of the couple’s assets disappear before a judge can divide them in court.
If the request is granted, the court has two weeks to schedule a hearing. If it is not granted, the respondent has 20 days to file a response legally known as an answer.
Other temporary court orders can be issued during a Texas divorce proceeding, such as temporary child support, child custody, or alimony orders.
Spouses who need more information from each other regarding court orders or property division will then go through a discovery process, where they exchange pertinent information and other documents.
Next, the spouses discuss how to settle the case, whether it’s with a mediator or through the court. Spouses are required to at least attempt mediation before taking their case to trial.
If mediation fails and the case goes to trial, then both spouses’ attorneys will prepare a Final Decree of Divorce that will be presented to the judge for their signature. This legally-binding decree outlines all of the court’s rulings and resolves any miscellaneous issues related to the divorce.
At the outset of a divorce proceeding, the court assumes that all property obtained by either or both spouses during the marriage is community property that is jointly owned by both spouses. The only way you can prove property is separate property (or property acquired and owned by only one spouse) is by proving so with “clear and convincing evidence.” An example of separate property is a family inheritance.
Usually, the court splits community property 50-50 in a “just and right manner.” However, fault and other factors, like unequal earning power, may be considered when dividing community property.
For a spouse to obtain spousal maintenance (also referred to as alimony), they must satisfy one of the following requirements:
Under the first, third, or fourth requirements, alimony orders can legally only last for three years and the monthly amount cannot exceed 20% of the paying spouse’s gross income. Under the second requirement, however, alimony orders can be indefinite.
The Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985 outlines which medical benefits are available to ex-spouses of employees who work for a company of 20 people or more. This federal law states that employers must offer these former spouses “continuation coverage” for the first three years after the divorce.
The employer can charge the ex-spouse for this coverage, but it cannot exceed more than 2 percent of what employees are currently paying.
To see if you can receive COBRA benefits, contact your ex-spouse’s employer and ask for the appropriate forms. You only have a 60-day window from the time of your divorce finalization in which you can make this request, though. Once this deadline has passed, you will no longer be able to obtain these benefits.
As you can see, there’s a lot to consider during a Texas divorce proceeding. What’s more, divorce can be an emotionally taxing and overwhelming process that can leave you mentally and financially drained. For these reasons, you need a bold, yet approachable family law attorney who will both passionately advocate for what’s yours in court and serve as an empathetic guide throughout the entire process.
Fortunately, Attorney Tycha Kimbrough checks both of these boxes. This down-to-earth family law attorney is a fierce courtroom ally whose intricate understanding of Texas family law has been helping her restore peace to her clients’ lives since 2018. To learn more about how we can serve you, call us today.
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Kimbrough Legal, PLLC
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San Antonio, TX 78217