FAQs about Divorce and Related Family Issues

Texas Family Law Attorney Milissa Barrick answers questions her clients frequently ask about divorce, child custody, visitation, property and spousal maintenance.

1. My spouse and I were married outside of Texas. Can I get a divorce here?
2. If I am not permitted visitation, may I stop making child support payments?
3. If I'm not receiving the child support as ordered, may I deny visitation from my ex?
4. What steps are involved in a Texas divorce?
5. How long does it take to finalize a divorce in Texas?
6. When is temporary spousal support awarded?
7. What is a marriage of long duration?
8. How do I qualify for spousal maintenance?
9. What if my spouse will not grant me a divorce?
10. Do I lose property rights if I move out of my residence?

1. My spouse and I were married outside of Texas. Can I get a divorce here?

   No matter where the marriage ceremony took place, you may file for a divorce in Texas as long as you have been a resident of this state for at least six months and of the county of filing for a continuous 90-day period before the filing of your divorce petition.

2. If I am not permitted visitation, may I stop making child support payments?

   No. The payment of child support is not a condition for your visitation privileges. However, your attorney can file a motion for contempt to enforce your visitation rights.

3. If I'm not receiving the child support as ordered, may I deny visitation from my ex?

   No. Payment of child support is not tied to visitation. Contact your attorney to enforce a child support payment order.

4. What steps are involved in a Texas divorce?

   • Original Petition for Divorce

     The spouse initiating the divorce files the original petition for divorce with the court. The petition is served personally unless service is waived in writing, for instance, when the couple is working together to settle. (Waiver saves costs.) Unless a temporary restraining order has been issued, the respondent has 20 days plus the following Monday to answer the petition.

   • Temporary Restraining Order

     Not every divorce calls for a temporary restraining order, but when needed, it is requested when filing for divorce. (In extreme cases, an extraordinary order may be requested.) A temporary restraining order stops all activity; maintains the status quo, such as freezing assets; and demands that spouses treat each other civilly. Actions prohibited by a temporary restraining order may include making threats, stealing mail, stealing the other spouse’s car, turning off utilities, cancelling credit cards or insurance policies, and hiding the children.

   • Temporary Orders

     The court must set a hearing 14 days after a temporary restraining order is issued. In the hearing, the court usually turns the temporary restraining order into a temporary injunction and considers whether to issue temporary orders. Temporary orders establish temporary arrangements during divorce for:

     • child custody, support and visitation;
     • property use;
     • debt servicing;
     • spousal support;
     • payment of interim attorney’s fees.

   • Discovery

     During discovery, spouses exchange information pertinent to the divorce case. Discovery may include:

     • depositions (oral interrogatories under oath),
     • interrogatories (written questions),
     • requests for admission (admitting to actions through true/false statements),
     • requests for documents (tax returns, insurance policies, investment statements, etc.).

   • Settlement

     Though a case may be settled at any stage of the divorce process, settlement attempts typically are made after discovery is completed. If all issues are resolved, one attorney will prepare an Agreed Decree of Divorce. Spouses ensure that all terms of the agreement are included. Both spouses and their lawyers sign the decree and submit it to the court for the judge’s signature. If not all issues are settled, then a trial date may be set.

   • Mediation

     Before proceeding to trial, the court usually requires the use of mediation to resolve disputes. During mediation, a neutral third party (mediator) will assist spouses with a goal of settling issues. In an informal setting, parties have more latitude to engage in creative solutions than courtroom procedures allow. Communications are held confidential and are not admissible during trial.

   • Trial & Final Decree of Divorce

     If matters are not settled through mediation, the case proceeds to trial. The court will rule on issues in dispute, and one of the attorneys will prepare a Final Decree of Divorce, which contains all final court rulings for judge signature.

5. How long does it take to finalize a divorce in Texas?

   From the date the petition for divorce is filed with the court, there is a 60-day waiting period before the divorce may be finalized. If both spouses settle on all issues during the 60-day waiting period and draft a Final Decree of Divorce, the decree may be submitted to the court on the 61st day. A judge will declare the divorce final and sign the decree in open court, at which point the divorce becomes final. Based on the complexity and intensity of disputed issues, contested divorces may take more than a year to finalize.

6. When is temporary spousal support awarded?

   When one spouse earns substantially less than the other or is unemployed, the court may award temporary spousal support. The spouse seeking spousal support must convince the court of the need and the other spouse’s ability to pay while the divorce is pending.

7. What is a marriage of long duration?

   In Texas, a marriage of long duration lasts 10 years or more. When deciding property division and spousal maintenance, the court gives extra consideration to marriages of long duration.

8. How do I qualify for spousal maintenance?

   The spouse requesting maintenance must meet one of the following requirements:

   • establish that within two years of the date of the divorce petition, the other (paying) spouse was convicted of domestic violence

   • married for 10 or more years and inadequate award of property through divorce settlement to provide for minimal needs because of lacking the earning ability to work in the labor market to cover minimal needs

     In the latter instance, maintenance may not go beyond 20 percent of the paying spouse’s gross income or $2,500 (whichever is less) and has a three-year maximum term of payment.

     If the following requirements are met, maintenance may be indefinite:

     • married for 10 or more years and inadequate award of property through divorce settlement to provide for minimal needs because of: - being the conservator of a child who requires personal supervision and considerable care, which requires the spouse to stay home with the child; - being incapable of self-support through appropriate employment based on physical or mental disability
     .

9. What if my spouse will not grant me a divorce?

   Because Texas is a no-fault–divorce state, divorce may be obtained without the consent of your spouse. Your attorney will submit an Original Petition for Divorce on your behalf, requiring your spouse to respond within 20 days plus the following Monday. If your spouse fails to respond or appear in court before issue of the final judgment, you lawyer may move for default.

10. Do I lose property rights if I move out of my residence?

    No, you will still maintain your property rights and may be entitled to reimbursed expenses/credit in property division if you continued to pay on the mortgage and contributed to maintaining the property.