Sometimes, it just doesn’t work out. While you’d like to think that your marriage will last forever, there may come a time when you and your spouse want to call it quits. That scenario brings with it a series of legal and financial challenges that you’ll have to work your way through. If you’re living in Texas, this guide will walk you through all of the intricacies of severing a marriage in the Lone Star State so that you can hopefully avoid having a Texas-sized mess on your hands. Finding a financial advisor can be a good idea during a divorce — try finding one using SmartAsset’s free financial advisor matching service.
How to File for Divorce in Texas
Before you go any further, you’ll want to make sure that you are eligible to file for divorce in Texas or if, for some reason, there is another state you should be filing in. To be eligible to file for divorce in Texas, at least one of the spouses must have been a continuous resident of the state for at least six months. Additionally, you’ll have to file in a specific county within the state. To be eligible to file for divorce in any county in Texas, at least one spouse must have been a resident of that county for at least 90 days.
Grounds for Divorce in Texas
Texas allows for no-fault divorces. This means that the person requesting the divorce does not have to present any evidence that the other party has done something wrong. In Texas, though, judges do consider fault when making decisions regarding property division. If you are the one filing for divorce include fault if you can. Legally recognized reasons for a fault divorce include: adultery, cruel treatment, abandonment for at least a year, incarceration for more than a year, confinement to a mental hospital for more than three years or estrangement by living apart for at least three years.
Process for a Divorce
The process for a divorce in Texas is fairly straightforward. First, one spouse files with the court and has the other spouse served with papers. The petitioner is the spouse who files with the court. The other spouse is the respondent. The petitioner has the option of getting a standard temporary restraining order, which will prevent either party from disappearing assets before the court can divide them. It also effectively requires that both parties act civilly toward each other.
From there, the respondent must file an answer. Then the court will issue rulings on matters like child custody, property and outstanding debt. After that, the spouses can engage in discovery if they believe they do not have all the facts. They can also try to settle the case at this point, either alone or with the assistance of a lawyer. If they can’t, the judge sets a trial date. The law requires mediation for both parties before the trial begins.
Once the trial is over, an attorney prepares a Final Decree of Divorce for the judge to sign. This document will contain all of the rulings that the court has made.
How to Split Up Assets During a Divorce in Texas
In Texas, the courts presume that all property and income that either spouse obtained during the course of the marriage belongs equally to both spouses. This means that the state will equally divide the couple’s assets between them in the divorce process. On the flip side, the state will also evenly split all debts incurred during the marriage between the two spouses.
The judge will determine what property is separate property — that is, property that belongs only to one spouse, not both. Property acquired before the marriage falls into this category. A party to the divorce can also argue that certain property obtained during the marriage is separate property. For instance, one person could argue that a gift given specifically to him or her is not the property of that person’s spouse. However, the spouse must present clear evidence in order for something to be declared separate rather than community property.
In Texas, the court can distribute community property however it sees fit. It may consider factors like age, health and each spouse’s earning potential, as well as which spouse will be primarily responsible for taking care of any children.
How to Divide Property in Texas After Divorce
You’ll need to figure out how to divide property — not just financial assets but also physical assets like houses, cars and jewelry. Remember, all property acquired during the marriage is communal in Texas. For instance, cars purchased by one spouse during the marriage are still community property
The court considers a number of factors when dividing property. They include:
- Any benefits the innocent spouse will lose because of the divorce, if it is case where one party is at fault
- Differences in earning potential
- The health of both parties
- Age differences
- The total size of the community estate
- The size of each party’s separate estate
- Any anticipated inheritance one party may receive
- Gifts given between spouses (if one spouse uses community funds to purchase a gift for the other, it becomes separate property)
- Gifts from one party to a paramour (someone with whom a spouse is committing adultery) or the wasting of community funds by one party
- Property holdings in jurisdictions outside of Texas
- Custody of children
- Spousal support obligations during the divorce proceedings
Parties can agree to property division during mediation. Otherwise, the court makes these decisions.
How to Manage Child Support and Alimony Under Texas Divorce Laws
Both child support and alimony could be part of a divorce settlement in Texas. The court can order the noncustodial parent to pay a percentage of their assets. The guidelines for the child support level is as follows:
- 20% of net resources for one child
- 25% of net resources for two children
- 30% of net resources for three children
- 35% of net resources for four children
- 40% of net resources for five children
For alimony, Texas allows the court to order spousal support in the event that one of the spouses will not have enough assets to support himself or herself and at least one of the following conditions is also met:
- Family violence convictions
- The spouse who will receive alimony has a physical or mental disability
- The couple was together for at least 10 years and the spouse seeking support can’t earn a basic income to support themselves
- The spouse who will receive alimony has custody of a child from the marriage who needs special care or supervision due to a mental or physical disability, thus making it more difficult for the spouse to earn enough money to cover the child’s needs
Remember that you’ll need to consider both child support and alimony when you file taxes after divorce.
401(k) and IRA Plans and Divorce in Texas
Many people use either a workplace retirement plan like a 401(k) or a personal plan like an IRA to save for retirement. Those plans can cause some stress, though, if a couple ends up divorcing. If the couple planned to fund their retirement together with one of these plans, both parties will now have to figure out how to distribute the plan to fund two separate retirements.
As stated above, any property accumulated during the marriage is considered community property, and that includes any retirement savings. This means that even if only one spouse contributed his or her salary toward a 401(k) or IRA during the marriage, any funds deposited into the account — and any gains made from those investments — are eligible to be divided between both spouses. Retirement savings won’t automatically be split 50/50, though. The exact split is decided either in mediation between the two parties or by a judge during the divorce trial.
After your retirement plan assets are divided, you’ll need to send a Qualified Domestic Relations Order to your plan administrator. This is a document explaining the court’s decision on how to divide the retirement plan.
Divorce and Estate Planning in Texas
Even if you hope you have many years of life ahead of you, it is a good idea to have an estate plan in place in case the unexpected happens. This is especially true once you have kids, as they’ll need to be provided for after you die. Divorced couples often need to rethink their estate and legacy plans.
There a few things to keep in mind in terms of estate planning when you are going through a divorce in Texas:
- Property you inherit while your divorce is pending is considered separate property. Thus, it is not subject to the court rules on community property. This means that the beach house on the Gulf of Mexico that you inherit from your grandmother does not have to be split with your soon-to-be-ex spouse if you get it during your divorce proceedings.
- Your ex-spouse and any relatives of your ex-spouse are no longer considered your survivors unless you expressly state so in your will.
- Make sure to keep your kids in mind here. You’ll need to figure out guardianship and any trusts you have set up for your children. Your divorce may impact those plans.
The Bottom Line
Texas is a no-fault state for divorces. Issues of fault, though, may come into play when the court decides how to divide property. Community property includes all assets amassed during the marriage, with some exceptions. Even if you earned much more than your spouse, the court will consider any income made during the marriage as community property for the purpose of divorce proceedings.
Financial Planning Tips
- If you are in the midst of a divorce, you may want to hire a financial advisor to help you sort out your financial life. SmartAsset can match you with an advisor who is a good fit for you with our free financial advisor matching service. You’ll answer a few questions about your financial situation and goals. We’ll then match you with up to three advisors. We’ve fully vetted the advisors on our platform, and they are free of disclosures. Each of your matches will reach out to you so you can ask any questions you may have.
- Dividing up your 401(k) can be a tough part of a divorce because you don’t know exactly how much it will be worth as you approach retirement. Gain some insight with our 401(k) calculator.
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