Dallas Divorce & Family Attorney
Do you
have to allege fault in order to obtain a divorce in Texas?
What
is my husband or wife committed adultery?
What is the community
estate?
How long do I have to live in Texas before I can file
for divorce?
Is there a waiting period before the divorce
is granted?
What if my husband or wife and I agree on the
division of property?
We have children. How will custody be
decided?
What are geographic restrictions? Do
you have to allege fault in order to obtain a divorce in Texas? No. Texas
is a "no fault" divorce state. In Texas, you may obtain a divorce on
grounds of "irreconcilable differences," what the Texas Family Code
calls "a conflict or discord of personalities without a reasonable chance
for reconciliation."
 Back
to Top What is my husband or wife committed adultery?
A divorce in Texas may be obtained in fault grounds as well. Adultry is
one of these grounds. Other grounds for obtaining a divorce include cruelty and
abandonment. When a fault ground is alleged as a basis for the divorce, along
with a no-fault ground, the court may consider the fault of a spouse in the break-up
of the marriage in dividing the community estate.
Back to Top What is the community estate?
In very general terms, everything accumulated after marriage belongs to
the community estate. Everything owned by the husband or wife before marriage
is their separate property. The relevance of whether something is community or
separate property has to do with a court's powers of division in a divorce proceeding.
A court may only divide community, not separate, property. In Texas, the presumption
is that everything the couple owns upon the filing of a divorce is community property.
If property is, in fact, separate, the burden is on the spouse claiming separate
property to prove the separate nature of the property by clear and convincing
evidence. There are exceptions to the "everything is community property after
marriage" rule. For instance, anything acquired by gift, devise or bequest
after marriage by a spouse is that spouse's separate property. In addition, money
received by one spouse for personal injuries suffered during the marriage (in
a car accident, for instance), is also that spouse's separate property.
Back to Top How long do I have to live
in Texas before I can file for divorce? You have to live in Texas for at
least six months before you can file for divorce. In addition, you have to live
in the county where you actually file for divorce at least ninety days before
you file your divorce petition.
Back to Top Is there a waiting period
before the divorce is granted? Yes. You have to wait at least sixty days
from the date of filing of the divorce petition before you can present the Final
Divorce Decree to the judge for entry.
Back to Top What if my husband or wife
and I agree on the division of property? When spouses agree on the division
of assets, they can have an uncontested divorce. Generally, either the husband
or the wife hires an attorney to prepare the original petition for divorce. The
petition is filed and the sixty day waiting period begins to run. During this
sixty day period, the attorney prepares the final divorce decree granting the
divorce, dividing community assets and establishing custody and possession of
the children. Upon the expiration of the sixty day period, the attorney goes to
court with his client and "proves-up" the divorce. Note that one attorney
cannot represent both the husband and wife in an uncontested divorce. The attorney
represents either the husband or the wife. The unrepresented spouse either hires
his or her own lawyer or proceeds pro se.
Back to Top We have children. How will
custody be decided? Custody of children is decided on the basis of a "best
interest" analysis. In Texas, the presumption in the Texas Family Code is
that it is in the children's best interest for both parents to be appointed joint
managing conservators. This does not mean that the parents will share equal possession
of the children. One parent is always appointed the primary joint managing conservator.
However, the parents, as joint managing conservators have equal rights with respect
to making decisions in their children's lives. The one exception is that the primary
joint managing conservator has the exclusive right to establish the children's
residence. Sometimes courts impose geographic restrictions on a parent's right
to establish the children's primary residence. Sometimes they do not.
Back to Top What are geographic restrictions?
Courts can impose restrictions on a parent's ability to move with the children.
For instance, if the parties are divorced in Dallas,
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