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Divorce
is the legal termination of a marriage. A
marriage is dissolved by a divorce decree
issued by a Texas county court. Some
divorces are called agreed divorces, if
the parties reach agreement on all issues.
The court simply approves the parties'
agreement. If the parties cannot agree on
custody, visitation, child support,
alimony, and division of property, the
court will decide these issues also.
At the time of
filing the petition for divorce, at least
one of the parties must have been a
resident of Texas for six months and a
resident of the county where the action is
filed for 90 days. Once one spouse files
the divorce papers, the petition for
divorce and the summons to appear in court
must be served on the other spouse. After
the papers are served, the parties must
wait 60 days until the hearing at which
the marriage is terminated legally.
In Texas, a
divorce may be granted on any one of seven
grounds. Usually divorces are granted
under the no-fault divorce
law. Under this law, the parties only must
show that the marriage is insupportable
because there is discord or conflict, and
there is no reasonable expectation that
the parties will reconcile. This means
that the spouses cannot work out their
problems, even with counseling. Because
divorce is no-fault, a court cannot
consider either spouse's fault in causing
the divorce when making its determinations
of custody, visitation, or other issues.
Other grounds for
divorce under Texas law are:
- Confinement in
a mental institution
People who are
going through a divorce may agree with one
another how to handle many of the issues
that arise. Matters on which the parties
disagree, however, must be decided by a
court. Court-ordered guidelines generally
include instructions on child custody,
visitation rights, child support, alimony,
and division of marital property.
Child custody is
determined by a court based on the best
interests of the children. There are two
different types of child custody: sole
custody and joint custody. Sole
custody gives one parent primary
responsibility for raising the children.
Under a sole custody arrangement, the
person with custody is called the "managing
conservator" and the parent who
does not have custody but has visitation
rights is called the "possessory
conservator." In joint custody,
both parents share the parental
responsibilities. If the parents have joint
legal custody the children reside
mostly with one parent who is responsible
for the routine decisions affecting the
children, but both parents share the
responsibility for making important
decisions regarding the children. If they
have joint physical custody, both
parents are involved even in the
day-to-day decisions affecting their
children, and the children spend time with
both parents, although not necessarily an
equal amount of time with each.
Typically, the
possessory conservator, or non-custodial
parent, is granted visitation rights
unless the court feels that such visits
would be detrimental to the children.
Parents may make child visitation
agreements themselves, but if a friendly
agreement cannot be reached, the court
sets a schedule for visitation, or it
orders that the possessory conservator be
allowed reasonable visitation. Although
the visitation schedule depends on the
circumstances of the children and the
parents, a typical schedule may include
alternating weekends, alternating
holidays, and a portion of the children's
summer vacation months. Certain other
people who have close relationships with
the children, such as grandparents, also
may be allowed some form of visitation.
Child support is
financial assistance provided by the
possessory conservator to help support the
children. Factors affecting the amount of
child support a court orders include the
needs and income levels of the parents,
the children's needs, and the number of
children. Child support is an independent
obligation and must be maintained despite
any other problems between the parents,
such as disagreements about visitation. A
recently enacted federal law requires
employers to withhold wages from employees
who are under a court order to provide
child support after January 1, 1994. Texas
courts also are authorized to garnish
wages to collect child support payments.
Some courts have ordered the employer of a
parent who is required to pay child
support to take the child support amount
out of the employee's salary, if the child
support has gone unpaid for one month.
Alimony is
financial support provided by one
ex-spouse to the other. Either spouse may
seek alimony. Factors that a court
evaluates in setting alimony include the
standard of living enjoyed during the
marriage, the relative incomes or earning
potentials of the parties, and the needs
of each party. Alimony may be either
temporary or permanent. If the parties do
not need alimony at the time the marriage
is dissolved, they will not have the
opportunity to request it later, unless
the parties both agree to an alimony
arrangement. After they are divorced, the
court no longer has authority to award
alimony payments.
Courts attempt to
divide marital property on a fair,
although not always equal, basis. Most
property acquired by either spouse during
the marriage is community property,
including real estate, furniture,
appliances, vehicles, cash, life insurance
policies, retirement accounts, stocks, and
businesses, as well as debts. One-half of
all community property is owned by each
spouse. At the time of dissolution, this
property is divided equally, unless both
parties agree in writing to divide it
unequally. In the case of a business or
another kind of property that cannot be
split, the court will award the property
to one spouse and order that party to pay
the other for the lost interest in the
property. Community debts must be divided
equally between the parties as well.
Property belonging solely to one spouse
prior to the marriage, or a gift or an
inheritance given to only one spouse
during marriage, is separate property.
Separate property stays with the party who
had it originally and is not included in
the division of marital assets.
An annulment is a
court decree that a couple's marriage
never legally existed. An annulment may be
granted only if the marriage is voidable.
A marriage is considered voidable if one
of the parties:
- Was a minor
and proper consent for the marriage
was not obtained
- Was under the
influence of alcohol at the time of
the marriage, so proper consent was
not obtained, and the parties did not
cohabitate after the effects of the
alcohol passed
- Was
permanently impotent at the time of
the marriage, and the parties have not
cohabitated
- Obtained the
marriage by fraud, force, or duress
- Concealed that
he or she obtained a divorce within
the 30-day period prior to the
marriage
Under certain
conditions, a marriage is considered void
from the start. If there is bigamy,
polygamy, or incest, a court will annul
the marriage by a judgment that it was
void.
It is important
to note that a legal annulment is
different from an annulment granted by a
church. A religious annulment is
spiritual, rather than legal, in nature,
and does not impact the legal status of
the marriage. Likewise, a legal annulment
may not satisfy the requirements for a
religious annulment.
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