This article discusses divorce in Texas, beginning with how Texas compares with other U.S. States in the percentages of divorces. Having assessed the position of Texas in the divorce “league tables” the article also reviews the divorce processes and applicable laws and how the situation differs in details from the equivalent procedures and legislation in other U.S. States.
The article “Divorce Statistics and Divorce Rate in the USA” (5 April 2012) provides a wealth of statistics about divorce in the USA, notably that divorce rates in this country are high, ranging from 41 to 50 percent for first marriages and even higher for second or third marriages. It provides various other data about divorces, including the information that comparing ages at the date of marriage for those now wanting to divorce, the peak age group is 20 to 24 years. Interestingly, recent studies have shown that the divorce rate has fallen since the year 2000 compared with the rate in the 1990’s. However, it is thought likely this may be due in part to the increasing trend for more couples to prefer co-habiting without entering into a marriage. Data provided by U.S. Census Bureau for the year 2009 comparing divorce (filing) rates across U.S. States showed that the southern states generally produced the highest rates regionally, averaging 10.2 percent (men) and 11.1 percent (women). Texas rates are only slightly at variance with those southern region averages, being 10.0 percent and 11.9 percent respectively.
Texas Divorce Law
Because there are differences between the divorce laws in Texas and those prevailing in other U.S. States, it is useful to summarize the Texas situation, as described by Yan (n.d.) in “Dissolution of Marriage in Texas.” That article covers various aspects of Texas divorce law as follows:
Grounds for Divorce: In Texas, divorces are recognized as being based on grounds separated into “fault” or “no-fault” categories. No-fault divorces are granted in the event of declared irreconcilable differences or if the couple have lived totally apart for a minimum period of three years. There are five “faults” that can be used as grounds for divorce. These are: abandonment, adultery, cruelty, a felony conviction or confinement in a mental institution.
Residency Requirement: One spouse must have been a Texas resident for a minimum of six months and to have resided in the Texas county of filing for a minimum of 90 days.
Waiting Period: The divorce cannot be finalized by the court in less than 60 days from the date of the filing.
Division of Property: Because Texas is known as a “community property” state, a divorce judge will divide what is termed “marital property” equally between the two individuals. Marital property can include perhaps less obvious items. For example, it can include retirement benefits, stocks and shares and insurance monies. Also, if a spouse during the marriage was awarded a workers’ compensation payout arising from an injury at work, that too becomes marital property and has to be divided, even if the actual payment arrives after separation. Non-marital property is not subject to division. That includes property a spouse had prior to the marriage such as an inheritance, gifts or even real property (land or buildings). Non-marital property remains in the ownership of that spouse.
Alimony: To be granted alimony by a Texas court, a spouse must:
- Show a disability (mental or physical) that prevents him/her supporting themselves;
- Show they are the responsible carer of a mentally or physically disabled child;
- Must show other reasons why they cannot look after their own basic needs.
In this regard the court assesses the needed financial support based on factors such as the length of the marriage, the needs and resources available (to both spouses), and – if applicable – the existence of any misconduct by either spouse during the marriage.
Child Support: Texas parents have an obligation to support a child until the age of 18 years or until high school graduation. That obligation ends if the child marries (or dies), although if the child is seriously disabled the duration can be indefinite. If the parents divorce, the court determines the required support from each parent after assessing their respective net monthly incomes. In contrast to certain other states, Texas allows that support to be paid in a number of ways. Payments can be periodic, paid as a lump sum, or even paid in the form of income from administered property. If appropriate, a combination of these methods is also permitted.
Child Custody: In Texas, when there are children involved, the court evaluates what would be the child’s best interests in deciding on child custody. Normally, the court will also try to ensure that parents share the duty and responsibility of raising the child, though if there has been a history in the marital home of domestic violence or abuse by one of the parents, that parent may have restricted visitation rights. It is possible for the two parents to make their own child custody agreement (outside of the court) but that is subject to approval by the court. The judge may decide their agreement is not in the best interests of the child and may either ask them to revise their plan, or impose on them a plan determined by the court. Once set, a child custody order can – in certain circumstances – be modified on application to the court, but the change will be granted only if the court decides it is in the best interests of the child. A request to change the child’s primary residence within the first year of the original order will be granted only if the parent not having custody can show that the current residence renders the child unsafe.
A separate article entitled “Texas Laws Address Child Custody In Unusual Way” (n.d.) explains that whereas other states talk about sole or joint/shared child gives custody, in Texas the term used is conservatorship, of which the article defines three variants:
- Sole managing conservatorship: one parent has all the care rights (equivalent to sole custody);
- Sole possessory conservatorship: essentially the same as being a parent that does not have custody, but has some rights during periods of visitation or custody of a temporary nature. The rights generally exclude those associated with needs of medical, educational, or religious aspects, but do apply to the welfare of the child during those periods;
- Joint managing conservatorship: similar to joint custody where both parents share the rights in all decisions for the child’s needs, but the court may decide to award those rights equally or give them to just one parent. The same applies for determining the permanent residence for the child, referred to as “primary possession”.
An available option for divorcing partners in Texas to avoid the courts is the concept of collaborative law. According to an article by Henderson (n.d.) entitled “Understanding a Collaborative Divorce in Texas” the concept became effective in September 2001 when the Texas legislature made an amendment to the family code. The principle of this method of divorce is that both parties to the divorce and their attorneys agree in writing to make every effort to resolve any disputes without becoming involved in litigation. They have to follow defined procedures so that their case may be conducted using the collaborative method, which requires using attorneys who have been trained specifically for this work, so that meetings between the parties avoid hostility and so that any sources of conflicts will be settled calmly by the use of so-called “settlement conferences”. Those conferences may utilize outside mediation facilities or other techniques to help resolve differences. Having made that initial agreement, both parties must abide by ground rules, whereby each party completes an inventory of their property (under oath). Failure to disclose any property in that inventory will mean that the other party will receive that entire undisclosed asset.
The advantage of the collaborative law approach to divorce is that it is likely to be much less costly than going through the courts system. Also, the procedures help the divorcing parties divorce in an orderly manner with the assistance of neutral advisors, plus they are more likely to focus on the future instead of dwelling on past issues.
Same Sex Marriage Divorce
One notable exception to the normal divorce situation in Texas concerns same sex or gay married couples. Texas does not recognize same sex marriages, but a same sex (male) couple who had married in Massachusetts in 2006, applied for divorce in Texas in January 2009. The case is described by Wright (October 2011) in his article entitled “Gay divorce cases before Texas Supreme Court”. Wright relates that in October of 2009, Dallas Judge Tena Callahan not only ruled that she had jurisdiction to deal with the case, but also ruled as unconstitutional the Texas ban on gay marriages. That ruling was appealed by the Texas Attorney General and the Callahan decision was subsequently overturned by the Court of Appeals in 2011. Attorneys for the man who had filed for divorce then filed for a Supreme Court review of the case in February of 2011. At the time of publication Wright’s article that case, plus another involving a lesbian couple, were both awaiting a decision by the Texas Supreme Court on whether the court will review one or both cases.
Note that as of 16 February 2012, there are now eight U.S. States that have legalized same sex marriages. According to Braiker (Feb 2012) in an article for the UK’s Guardian newspaper entitled “Gay marriage in the US, state by state” New Jersey has joined seven other states in recognizing and permitting same sex marriages. Those other states are Connecticut, Iowa, Massachusetts, New Hampshire, New York, Vermont and the District of Columbia.
Missing Spouse Divorce
There are from time to time instances where a partner wants a divorce, but his/her spouse has disappeared, or perhaps relocated to another state and cannot be traced. That situation does not prevent the divorce, but as recounted in “Texas Divorce Procedures for a Missing Spouse” (Lee, n.d.), it changes the required procedure somewhat. Before filing for a missing spouse divorce, Lee writes that there must be attempts to locate the person, beginning with a check with the U.S. Postal Service. Also make enquiries to his/her relatives, the most recent address, last place of work, as well as searching the internet and the Yellow Pages. If all those efforts are unsuccessful, submit to the court an “Affidavit of Diligent Search” along with the petition to file for divorce. Lee lists the following that must also be filed in the local county family law court along with the divorce petition, in cases where there are no children from the marriage:
- an Affidavit for Citation by Publication and Diligent Search,
- a Supporting Affidavit for Citation by Publication,
- a Certificate of Last Known Address, and
- a Statement of Evidence, setting out the reasons for the divorce.
The court then posts this information at the courthouse, which effectively acts as though serving legal notice in person. After 60 days without response from the missing spouse, the judge will finalize the divorce.
In situations where there are children from the marriage, all the above processes and documents apply, but the law in Texas requires that in addition to the search methods previously described, it is necessary to post the notice in a newspaper or similar in the area of the missing spouse’s last address. If there has been no response after the same 60 days period has elapsed, the divorce can be finalized as described earlier.
Another variant of the missing spouse divorce applies if the missing spouse is not a U.S. citizen. Butler describes the procedure in his article “How to Get a Divorce When Your Spouse Isn't a U.S. Citizen and Left the Country” (n.d.). He notes that although the process is no different to a divorce involving a U.S. resident spouse, the notification procedure is. Butler advises as a first step visiting the U.S. State Department website (Service of Legal Documents Abroad) to find the rules pertaining to process service for the country where the missing spouse is now located. For the service to be valid in the American court, it must also be valid in that other country. Dependent on the particular country, the method may be serving through the mail, via a designated agent in that country or by publication there.
Step 2 is to complete the divorce petition. In this instance it should include both your own and your spouse’s names and addresses (if the spouse’s details are known), the date and place of your marriage, the reason the court has jurisdiction in the case, the stated legal grounds for the divorce and “a prayer for relief”. The latter is the legal term for the request made to the court for any specific financial settlement that might be included in the petition.
Step 3 is to file the completed divorce petition with the court and obtain another (file-stamped) copy, then send that copy to the missing spouse by the applicable method. The article cautions that serving such petitions in other countries can take a long time and therefore to have patience. Butler also notes that serving someone overseas needs to be done carefully and properly, otherwise the process may have to be started over. He advises consulting an attorney to ensure it is correctly done. Note that if the spouse does not return to the U.S. for a court hearing, the judge may grant what is called a default judgment of divorce.
The foregoing has highlighted some of the complex issues involved in a divorce. Though some divorces can be amicable and even straightforward, in most cases it would appear to be advisable / preferable to consult an attorney, even if both parties find it possible (in Texas) to follow the path of collaborative law, which may prove to be less stressful as well as less costly than going through the courts.
This article summarized the divorce statistics in the U.S., and in Texas specifically, the general elements of Texas Divorce Law, followed by some information regarding the Collaborative Law concept, the situation in Texas regarding same sex marriage divorces, and the procedures applicable in missing spouse cases.
Some particular variations of laws and procedures applicable to divorce in Texas have been described, including detail differences in respect of child custody and in respect of the rules for division of property. These, where applicable, must be taken into account if the partner filing for the divorce is resident in Texas.
Braiker, Brian. Gay marriage in the US, state by state. (Feb 2012) The Guardian. Retrieved from http://www.guardian.co.uk/world/2012/feb/08/gay-marriage-us-state-by-state
Butler, Michael. How to Get a Divorce When Your Spouse Isn't a U.S. Citizen and Left the Country. (n.d.). Demand Media. Retrieved from http://info.legalzoom.com/divorce-spouse-isnt-us-citizen-left-country-21080.html
Divorce Statistics and Divorce Rate in the USA. (5 April 2012). Divorce Statistics. Retrieved from http://www.divorcestatistics.info/divorce-statistics-and-divorce-rate-in-the-usa.html
Henderson, Patricia, D. Understanding a Collaborative Divorce in Texas. (n.d.). Retrieved from http://www.divorcesource.com/ds/texas/understanding-a-collaborative-divorce-in-texas-3294.shtml
Lee, Kay. Texas Divorce Procedures for a Missing Spouse. (n.d.). Demand Media. Retrieved from http://info.legalzoom.com/texas-divorce-procedures-missing-spouse-23411.html
Texas Laws Address Child Custody In Unusual Way. (n.d.). Fact Expert. Retrieved from http://childcustody.factexpert.com/1382-texas-child-custody-laws.php
Wright, John. Gay divorce cases before Texas Supreme Court. (October 2011). Retrieved from http://www.dallasvoice.com/gay-divorce-cases-texas-supreme-court-1092595.html
Yan, Wen Fei. Dissolution of Marriage in Texas. (n.d.). Divorce Net.com. Retrieved from http://www.divorcenet.com/resources/divorce/divorce-basics/texas-divorce-basics.htm