Grounds (Texas Family Code § 6.001-6.007)
- Cruelty (Texas Family Code § 6.002);
- Adultery (Texas Family Code § 6.003);
- Conviction of felony (Texas Family Code § 6.004);
- Abandonment for at least one year (Texas Family Code § 6.005);
- Spouses have lived apart for at least three years (Texas Family Code § 6.006);
- Spouse has been confined in a mental hospital for at least
three years and “adjustment is unlikely or that, if adjustment occurs, a
relapse is probable” (Texas Family Code § 6.007); or - Insupportability (essentially no-fault – exists if “if the
marriage has become insupportable because of discord or conflict of
personalities that destroys the legitimate ends of the marital
relationship and prevents any reasonable expectation of reconciliation”)
(Texas Family Code § 6.001).
Case Law:
To show that a marriage has become insupportable, a spouse must prove three things: “(1) that the marriage has become insupportable because of discord or conflict[;] (2) that discord or conflict destroys the legitimate ends of the marriage[;] and (3) [that] there is no reasonable expectation of reconciliation.” In re Richards, 991 S.W.2d 32 (1999).
Whether there is enough evidence to show that a marriage is insupportable is a determination for the trial court. The court has broad discretion in making this determination, and its decision will not be reversed on appeal unless the trial court abused its discretion. Baxla v. Baxla, 522 S.W.2d 736 (1975). A court abuses its discretion if “it acts without reference to any guiding rules or principles.” Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (1985).
Where To File
A divorce action can be filed in the district court of the county where either spouse lives (Texas Family Code § 6.301).
Residency Requirement(s)
At least one of the spouses must have been a Texas domiciliary within
the six month period immediately preceding the filing; and a resident
of the county where the suit is filed within the 90 day period
immediately preceding the filing (Texas Family Code § 6.301).
Case Law:
The residency requirement must be satisfied as of the day the suit is filed, not as of the day the divorce is granted. In re Rowe, 182 S.W.3d 424 (2005).
Service
Service must conform with Texas’s Rules of Civil Procedure (Texas
Family Code § 6.408). Accordingly, the petition can be served either
personally on the answering spouse, or by registered or certified mail,
return receipt requested (Texas R. Civ. P. 106). If served personally,
the petition must be served by an “authorized” person, usually a sheriff
or constable (Texas R. Civ. P. 103). The answering spouse can waive
service of process by filing a waiver, and receipt of the action, with
the clerk of court (Texas Family Code § 6.4035).
Property Distribution
Texas is a “community property” state. The court will divide property
“in a manner that the court deems just and right,” taking into
consideration the rights of both spouses and their children. Only
marital property – whether or not acquired in the state – is subject to
division. Separate property is not subject to division (Texas Family
Code § 7.002).
Case Law:
The court is not required to divide property equally; however, the distribution must be equitable. If the court does decide to divide property unequally, it must have a reasonable basis for doing so. Sandone v. Miller-Sandone, 116 S.W.3d 204 (2003).
Spousal Support
When eligible: The court will order support for either spouse
only if the marriage lasted at least 10 years, the petitioning spouse
has insufficient property to meet his/her minimum needs, and one of the
following (Texas Family Code § 8.051):
- The petitioning spouse is unable to meet his/her own needs due to an “incapacitating physical or mental disability”;
- Is the custodian of a child of the marriage who requires
supervision due to “a physical or mental disability [which] makes it
necessary, taking into consideration the needs of the child, that the
spouse not be employed outside the home”; or - The petitioning spouse “clearly lacks earning ability in the
labor market adequate to provide support for the spouse’s minimum
reasonable needs.”
Relevant factors: In determining “the nature, amount,
duration, and manner of periodic payments,” the court must consider “all
relevant factors,” including (Texas Family Code § 8.052):
- The financial resources of the petitioning spouse, including property apportioned in the dissolution proceeding;
- The spouses’ respective education and employment skills, as
well as “the time necessary to acquire sufficient education or training,
… [and] the availability [and feasibility] of that education”; - The duration of the marriage;
- The petitioning spouse’s age, employment history, earning ability, and physical and emotional condition;
- The responding spouse’s ability to meet his/her own needs, as
well as that of a child (if applicable), while simultaneously meeting
the petitioning spouse’s needs; - “[A]cts by either spouse resulting in excessive or abnormal
expenditures or destruction, concealment, or fraudulent disposition of
[relevant property]”; - The spouses’ comparative financial resources of the spouses;
- Whether one spouse contributed to the other spouse’s “education, training, or increased earning power”;
- The property that each spouse brought to the marriage;
- Whether either spouse contributed as a homemaker;
- Whether the spouse seeking maintenance committed “marital misconduct”; and
- Whether the spouse seeking maintenance pursued available employment.
Duration: A court will not award maintenance for longer than
three years. Additionally, the court should limit such award to “the
shortest reasonable period that allows the spouse seeking maintenance to
meet the spouse’s minimum reasonable needs by obtaining appropriate
employment or developing an appropriate skill,” unless that spouse’s
ability to obtain employment, etc., is limited by physical/mental
disability, his/her role as the custodian of a minor child, or “another
compelling impediment to gainful employment” (Texas Family Code §
8.054).
Amount: The amount of maintenance per month is limited to
the lesser of $2,500, or 20 percent of the spouse’s average monthly
gross income (Texas Family Code § 8.055).
Case Law:
The 10-year durational requirement is deemed met so long as the spouses have been married for at least 10 years on the date of the trial. This is true even if the marriage was not yet 10 years old on the date that the petition was filed, or the date that the couple separated. Hipolito v. Hipolito, 200 S.W.3d 805 (2006).
There is a presumption that a spouse is not entitled to maintenance “unless [he or she] has been diligent in seeking suitable employment or is developing skills necessary to become self-supporting.” This presumption is not applicable if the spouse has an incapacitating physical or mental disability that prevents him or her from obtaining employment. Smith v. Smith, 115 S.W.3d 303 (2003).
As noted above, in order to receive maintenance, a spouse must show that he is unable to meet his minimum needs. Determining what constitutes “minimum needs” varies from case to case, and is an individual determination for the trial court. 22-362 Dorsaneo, Texas Litigation Guide § 362.07.
In order to receive maintenance, a spouse must show that he is either actively seeking employment or developing skills that will enable him to become self-supporting. If he fails to show at least one of these two things, it is presumed that he is not entitled to maintenance. 22-362 Dorsaneo, Texas Litigation Guide § 362.07.
Child Support
The court can order either parent to pay child support until the
child’s 18th birthday, or his death or adoption. If the child is
disabled, child support can be ordered indefinitely (Texas Family Code §
154.001).
Case Law:
“Child support payments are for the benefit of the children, not the parents.” Hill v. Hill, 819 S.W.2d 570 (1991). As a result, in determining the amount of child support, the court considers not only the parent’s ability to pay, but also the child’s needs. Bailey v. Bailey, 987 S.W.2d 206 (1999).
Child Custody
In determining custody and visitation, “[t]he best interest of the
child shall always be the primary consideration of the court” (Texas
Family Code § 153.002). The state “encourage[s] parents to share in the
rights and duties of raising their child” (Texas Family Code § 153.001).
In determining custody, the court will consider whether there is
a history of domestic violence (either against the other spouse or
against the child) (Texas Family Code § 153.004).
Custody/visitation rights cannot be conditioned on the payment of child support (Texas Family Code § 153.001).
Case Law:
When determining the best interests of the child, courts consider the following factors (Patterson v. Brist, 236 S.W.3d 238 (2006)):
- The child’s desires;
- The child’s present and future emotional and physical needs;
- Present and future emotional and physical danger to the child;
- Each spouse’s parenting abilities;
- Programs available to help promote the child’s best interests;
- Each parent’s (or agency’s) plans for the child;
- The stability of the proposed home(s);
- Any act(s) or omission(s) by the parent, which indicates that the parent-child relationship is improper; and
- Any excuse for parent’s the act(s) or omission(s).
A court does not have to find that all of the above exist in order to determine that placing the child in a particular home is in his or her best interest. Conversely, the above list is not exhaustive, and the court may consider other factors that are not listed. In re D.W.K., 2005 WL 2002464 (2005).
Special Provisions
Legal separation: There is no court-ordered legal separation in Texas.
Arbitration: On written agreement of the parties, the court
can refer a case to an arbitrator. The spouses must agree whether they
want the arbitration to be binding or non-binding (Texas Family Code §
6.601).
