Frequently Asked Questions - Family Law

To get divorced, one spouse (called the petitioner) will file a petition for divorce. This can be done in the county where either spouse lives, so long as 1) that spouse has lived in Texas for at least six months and 2) that spouse has lived in that county for the preceding 90 days. If children are involved, the divorce should be filed in the county where the children currently reside, even if they may live with the other parent or if the parents will share equal custody following divorce.

Once the divorce petition is filed, the spouse who did not file for divorce (called the respondent) must receive notice of the divorce. This can be done either by having the local sheriff or a professional process server deliver notice of the divorce to the respondent, by the respondent signing a Waiver of Service and filing the waiver with the court, or by having the respondent file an answer/counterpetition for divorce. The petition (and counterpetition, if the respondent files one) will be each spouse's initial opportunity to state why they want to get divorced and why, if at all, they're entitled to some share of the marital estate beyond the default 50/50 split.

After that, the divorce will proceed as a normal civil case, with the exchange of discovery (typically a full accounting of every asset and every debt owned by each spouse) and opportunities for negotiation and settlement, or a trial which may be done in front of a jury or just in front of the judge (also known as a bench trial).

Divorce in Texas can be granted 60 days after one of the spouses files for divorce. However, due to the court's schedule, communication and negotiation between spouses, and other factors, it is often four to six months before a divorce is finalized, and hotly-contested divorces can last for a year or more. The two exceptions to the 60-day requirement are if your spouse was convicted of family violence against you or a member of your household, or if you have an active protective order against your spouse. For more information, see Section 6.702 of the Texas Family Code.

Texas allows no-fault divorce (referred to as "insupportability" in the law), which essentially just means no one is blaming anyone else, the marriage just isn't working out. The six reasons you can list for an at-fault divorce are: adultery (cheating); cruelty (physical and/or mental abuse); a felony conviction which led to your spouse's imprisonment for a year or more as long as they weren't convicted on your testimony; abandonment by your spouse of one year or more; if the spouses have voluntarily lived apart for three years or more; or if your spouse has been confined in a mental hospital for three years or more and is unlikely to be released. These reasons are all listed in Sections 6.001 - 6.007 of the Texas Family Code.

When you list a reason for an at-fault divorce, you're taking on the burden of proving that your spouse did something wrong and that, because of your spouse's wrongful action(s), you're entitled to a larger share of the community estate than your spouse. You will have to prove the bad acts occurred by a preponderance of the evidence, which means convincing the judge or jury that it's more likely than not and which is a standard that will generally require more evidence than just your word. Pictures, texts between you and your spouse discussing the incident(s), or the testimony of witnesses can be enormously helpful.

If you are successful, you may be awarded more of the marital property than your spouse. However, it's important to consider and to speak with an attorney about the strength of your claims and how much more of the marital estate you may stand to gain. For example, an unfortunate fact of life in America, in 2024, is that cheating even amongst married couples simply doesn't raise many eyebrows, so a judge isn't likely to give you a much bigger share of the marital estate even if you spend the time, money, and emotional energy required to prove in court that your spouse cheated on you. It's also important to remember that whoever decides your case, whether it's settled between you and your spouse, the judge, a jury, or an arbitrator, is given a very wide range of discretion by law, which makes it much harder to put an exact dollar number or percentage of the assets that you're likely to be awarded in any given situation. 

Yes! Sections 6.601 - 6.604 of the Texas Family Code provide all the different methods of alternative dispute resolution that are available to spouses going through a divorce, and Texas courts often strongly encourage, if not outright require, parties to make formal settlement efforts outside of court before bringing their case in front of a judge or jury.

Settling a divorce case is often the best option because it's when you have the most control over how your divorce case will end. Bringing your case to court may mean a big victory for you, but it could also mean a major loss even if the judge or jury stays within the wide zone of discretion they're given by law. It's important to go into negotiations with a lawyer you trust, who knows you, knows your case, and can give you a fair assessment about not only the strength of your claims but the strength of your spouse's claims. Choosing an attorney who knows the law, knows your rights, and knows how to be an aggressive but fair negotiator is the best way of ensuring that your divorce ends on your terms. If your spouse is unable or unwilling to negotiate, then Dalworth Legal will be with you every step of the way in court.