Divorce is an emotional process, and Texas family court laws can sometimes be confusing. In this article, we answer some of your frequently asked questions about Texas divorce.
Texas law requires a 60-day waiting period from the date of filing before the court can officially grant your divorce. Tex. Fam. Code § 6.702
Some divorces may be granted as soon as those 60 days are up. Others may take longer. Contested divorces, in which the spouses do not agree on how the issues of their case should be handled, will usually take much longer.
Texas is a community property state. Specifically, the law reads:
“property possessed by either spouse during or on dissolution of marriage is presumed to be community property.” Tex. Fam. Code § 3.003
What this means: The courts assume that any property acquired by either spouse during the marriage belongs to both spouses equally. Therefore, all property must be divided during the divorce.
If you want to claim that something you own is separate property and should not be divided, you must prove that claim with clear and convincing evidence.
Legally, your separate property consists of:
Not necessarily. Spousal maintenance, also referred to as spousal support or alimony, is difficult to get in Texas. Courts may order one spouse to pay maintenance to the other only if the spouse seeking it lacks sufficient property to meet his or her reasonable needs after the divorce is final and if one of the following is true:
a. within two years before the date on which the divorce was filed.
b. while the suit is pending
2. the spouse seeking maintenance:
Tex. Fam. Code § 8.051
Texas courts make child custody decisions with the best interests of the child in mind. Tex. Fam. Code § 153.002
Typically, courts presume that it is in the child’s best interests to grow up with both parents playing an active role in their life. This does not mean, however, that the child’s time will be evenly split between both parents.
Possession and Access
A parent has possession of a child when the child is under his or her care. Access is a blanket term referring to any communication a parent has with a child, as well as that parent’s presence at the child’s activities.
Types of Conservatorships
In Texas, a person who has custody of a child is called a conservator. There are three types of conservators:
- joint managing conservator
- sole managing conservator
- possessory conservator
Joint Managing Conservatorship
In a joint managing conservatorship, two people (preferably parents) will share the rights and responsibilities to make decisions concerning the child. Texas Family Code § 101.016
However, the court may still award one parent the exclusive right to make certain decisions. A court order will spell out which decisions both parents must agree upon, which decisions are left exclusively to one parent, and which decisions can be made by either.
A Joint Managing Conservatorship Does Not Mean Equal Parenting Time
A joint managing conservatorship does not mean the child’s time is split equally between the parents. A possession order will spell out when each parent has the right to spend time with the child.
Sole Managing Conservatorship
Texas family law courts prefer to name both parents joint managing conservators. However, the court will designate one parent as the sole managing conservator if it is best for the child. This usually happens when there is a history of family violence, child abuse or neglect, or substance abuse by one parent. A parent may also be named sole managing conservator if the other parent has been largely absent from the child’s life.
The Rights of a Sole Managing Conservator
Unless limited by a court order, a parent appointed as sole managing conservator has the exclusive right to:
- designate the primary residence of the child
- consent to medical, dental, and surgical treatment involving invasive procedures
- consent to psychiatric and psychological treatment for the child
- receive periodic child support payments, and to hold or disburse these funds for the benefit of the child
- represent the child in legal action and to make other significant legal decisions concerning the child
- consent to the child’s marriage and military enlistment
- make decisions about the child’s education
- apply for, renew, and maintain possession of the child’s passport
Tex. Fam. Code § 153.132
If one parent is named the managing conservator, the court will typically appoint the other parent as possessory conservator:
When a trial court appoints a parent possessory conservator, it can conclude that unrestricted possession would endanger the physical or emotional welfare of the child, but that restricted possession or access would not. In re Marriage of Patel, 643 S.W.3d 216, 218 (Tex. App. 2022)
Essentially, a possessory conservator has visitation rights (“access”) to the child. Texas child custody courts have previously held that a possessory conservator has the following rights while the child is in their custody:
- the duty to care, control, protection, and reasonable discipline of the child
- the duty to provide the child with clothing, food, and shelter; and
- the power to consent to medical and surgical treatment during an emergency involving immediate danger to the health and safety of the child.
Davis v. Davis, 734 S.W.2d 707, 708 (Tex. App. 1987)
As with most Texas child custody issues, this is subject to any limitations expressed in the divorce decree.
Both parents are still obligated to meet their children’s financial and emotional needs, even after a divorce. The court may order one parent — typically the non-possessory conservator — to pay child support to his or her former spouse.
Texas courts take child support very seriously. If you miss a court-ordered child support payment, the other parent can ask the court to enforce that payment by contempt, which can result in jail time.
Equitable — Not Equal
Texas courts must distribute marital property in a manner that is “just and right,” taking into consideration the rights of both spouses and any children of the marriage. Tex. Fam. Code § 7.001
This essentially means that a Texas divorce court must equitably divide the property between spouses — not necessarily equally. Therefore, the property may not necessarily be split 50/50.
Factors Considered in Marital Property Division
A judge can divide marital property based on various factors, including:
- fault in breaking up the marriage
- the spouses’ capacities and abilities
- business opportunities
- each spouse’s physical condition
- each spouse’s financial condition and obligations
- age disparity
- sizes of separate estates
- the nature of the property; and
- disparity in spouses’ earning capacities or incomes.
In re Martinez, No. 14-19-00250-CV, 2021 Tex. App. LEXIS 3779, at *1 (Tex. App. May 13, 2021)