Terminating a Marriage in Texas
Divorce is the legal termination of marriage in Texas from the day the final divorce decree is signed. An annulment is where the court declares that marriage is void from the beginning for a particular reason. The effect of a court granting an annulment is that the court goes back to the beginning of the marriage and from a legal point of view erases the marriage and all the implications arising from that marriage.
A marriage is dissolved when a district court judge signs a final divorce decree. The parties to a divorce can resolve all issues related to their marriage and enter an agreed divorce with the court. Generally the court will approve a decree where both parties are in total agreement. When the parties cannot agree on issues such as the division of property, child custody, child support, visitation or spousal maintenance then the judge or a jury will decide these issues based on the facts presented.
At the time of filing suit for divorce, one of the parties to the divorce must be a domiciliary (place where someone has his permanent home) of Texas for six months and resident of the county in which the suit is filed for preceding 90-day period. A Texas domiciliary outside of the state while in the service of the armed forces or other service of the United States or of Texas is considered a residence of this state.
Parties must wait at sixty days from the time that the divorce petition is filed with the court until the time that the court can sign a divorce decree. When the matter is not agreed and a default judgment is not taken, it generally takes much longer to resolve contested matters.
Grounds for Divorce
Generally the parties plead and court grants most divorces without regard to fault. The court finds that the marriage has become insupportable because of discord or conflict of personalities that destroy the legitimate ends of a marital relationship and prevents any reasonable expectation of reconciliation. At fault grounds for a divorce in favor of one spouse or the other may include the following:
- a. Cruelty;
- b. Adultery;
- c. Conviction of a Felony and has been imprisoned for at least one year;
- d. Abandonment where the spouse left with intention of abandonment and remained away for a year;
- e. Living apart for at least three years without cohabitation; or
- f. Confinement in mental hospital for a least three years and it appears that the disorder is of such a decree and nature that adjustment is unlikely or if it does occur, relapse is probable.
Temporary Orders, as the term implies, involves the Court issuing orders that are intended to resolve any issues that must be resolved prior to the final trial, or other resolution of the divorce case. If the parties are able to cooperate during the pendency of their case, it isn’t necessary for the Court to issue any orders. However, any issue that arises during the pendency of the suit, that the parties cannot agree upon, must be taken before the Court for a decision. Common issues for temporary orders may involve, who lives where, who pays what bills, who uses what property, and of course, with whom will the children reside primarily, and what type of visitation will the other parent have.
Temporary Restraining Order
After filing suit for divorce, on the motion of a party or the court, the court may grant a temporary restraining order without notice to the other party to the divorce for the preservation of the property and for the protection of the parties as the court finds necessary. Some courts in the state have a standing temporary restraining order that goes into effect for both parties when a divorce is filed. After notice to the other party, the in a hearing may issue a temporary injunction to preserve the property and protect the parties as the court deems necessary and equitable. The court can order one or both parties to provide:
- 1. Sworn inventory and appraisement;
- 2. Payments for the support of the other spouse;
- 3. The production of books, papers, documents, and other tangible things;
- 4. Payment of the other spouse’s attorney fees;
Additionally the court can order:
- 1. the appointment of a receiver for the preservation and protection of the property;
- 2. that one spouse will have exclusive use of the residence during the pendency of the divorce;
- 3. that the parties are prohibited from spending funds beyond what the court determines as reasonable and necessary living expense;
- 4. that one spouse will have exclusive control of the party’s usual business or occupation;
- 5. that spouses will not commit certain acts that would frighten, embarrass, harm or harass the other party.
Either party to a divorce may file an application for a protective order to protect the applicant or a child from family violence. An application for family violence may be filed without filing for a divorce, during a divorce and after a divorce is final. Most applications for a protective order will include an ex parte request for a temporary ex parte order before the hearing for a protective order. A temporary ex parte protective order contains a detailed description of the facts and circumstances concerning the alleged family violence and the need for the immediate protective order and the applicant must sign the application under oath stating the facts and circumstances contained in the application are true. A court is required to issue a protective order if it finds that family violence has occurred and is likely to occur in the future.
Division of Property
Marital estate means one of three estates:
- 1. the community property owned by the spouses together;
- 2. the separate property owned individually by the husband; or
- 3. the separate property owned individually by the wife.
The court may order an unequal division of the community property of the marital estate when a reasonable basis exists. The division of property must not be so disproportionate as to be inequitable and the circumstances must justify awarding more than one-half to one party. The court may consider such factors as the spouses’ capacities and abilities, benefits which the party not at fault would have derived from continuation of the marriage, business opportunities, education, relative physical conditions, relative financial condition and obligations, disparity of ages, size of separate estates and the nature of the property. The court has great discretion in deciding whether to award attorney fees to either party and in determining the amount of attorney fees to be so awarded. The allocation of attorney’s fee is a factor to be considered by the court in making an equitable division of the community estate regardless of who is successful in trial or appeal.
The court cannot divide separate property in a divorce. Separate property can arise from several ways such as property owned or acquired prior to marriage, property that is inherited and gifted, property awarded for pain and suffering and property set out in premarital agreements.