Divorce Laws in Texas: Most Important Things to Know - SmartAsset (2022)

Divorce Laws in Texas: Most Important Things to Know - SmartAsset (1)

Sometimes, it just doesn’t work out. While you’d like to think that your marriage will last forever, there may come a time when you and your spouse want to call it quits. That scenario brings with it a series of legal and financial challenges that you’ll have to work your way through. If you’re living in Texas, this guide will walk you through all of the intricacies of severing a marriage in the Lone Star State so that you can hopefully avoid having a Texas-sized mess on your hands. Working with a financial advisor can also be helpful during a divorce.

How to File for Divorce in Texas

Eligibility

Before you go any further, you’ll want to make sure that you are eligible to file for divorce in Texas or if, for some reason, there is another state you should be filing in. To be eligible to file for divorce in Texas, at least one of the spouses must have been a continuous resident of the state for at least six months. Additionally, you’ll have to file in a specific county within the state. To be eligible to file for divorce in any county in Texas, at least one spouse must have been a resident of that county for at least 90 days.

Grounds for Divorce in Texas

Texas allows for no-fault divorces. This means that the person requesting the divorce does not have to present any evidence that the other party has done something wrong. In Texas, though, judges do consider fault when making decisions regarding property division. If you are the one filing for divorce include fault if you can. Legally recognized reasons for a fault divorce include: adultery, cruel treatment, abandonment for at least a year, incarceration for more than a year, confinement to a mental hospital for more than three years or estrangement by living apart for at least three years.

Process for a Divorce

The process for a divorce in Texas is fairly straightforward. First, one spouse files with the court and has the other spouse served with papers. The petitioner is the spouse who files with the court. The other spouse is the respondent. The petitioner has the option of getting a standard temporary restraining order, which will prevent either party from disappearing assets before the court can divide them. It also effectively requires that both parties act civilly toward each other.

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From there, the respondent must file an answer. Then the court will issue rulings on matters like child custody, property and outstanding debt. After that, the spouses can engage in discovery if they believe they do not have all the facts. They can also try to settle the case at this point, either alone or with the assistance of a lawyer. If they can’t, the judge sets a trial date. The law requires mediation for both parties before the trial begins.

Once the trial is over, an attorney prepares a Final Decree of Divorce for the judge to sign. This document will contain all of the rulings that the court has made.

How to Split Up Assets During a Divorce in Texas

In Texas, the courts presume that all property and income that either spouse obtained during the course of the marriage belongs equally to both spouses. This means that the state will equally divide the couple’s assets between them in the divorce process. On the flip side, the state will also evenly split all debts incurred during the marriage between the two spouses.

The judge will determine what property is separate property — that is, property that belongs only to one spouse, not both. Property acquired before the marriage falls into this category. A party to the divorce can also argue that certain property obtained during the marriage is separate property. For instance, one person could argue that a gift given specifically to him or her is not the property of that person’s spouse. However, the spouse must present clear evidence in order for something to be declared separate rather than community property.

In Texas, the court can distribute community property however it sees fit. It may consider factors like age, health and each spouse’s earning potential, as well as which spouse will be primarily responsible for taking care of any children.

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How to Divide Property in Texas After Divorce

Divorce Laws in Texas: Most Important Things to Know - SmartAsset (2)

You’ll need to figure out how to divide property — not just financial assets but also physical assets like houses, cars and jewelry. Remember, all property acquired during the marriage is communal in Texas. For instance, cars purchased by one spouse during the marriage are still community property

The court considers a number of factors when dividing property. They include:

  • Fault
  • Any benefits the innocent spouse will lose because of the divorce, if it is case where one party is at fault
  • Differences in earning potential
  • The health of both parties
  • Age differences
  • The total size of the community estate
  • The size of each party’s separate estate
  • Any anticipated inheritance one party may receive
  • Gifts given between spouses (if one spouse uses community funds to purchase a gift for the other, it becomes separate property)
  • Gifts from one party to a paramour (someone with whom a spouse is committing adultery) or the wasting of community funds by one party
  • Property holdings in jurisdictions outside of Texas
  • Custody of children
  • Spousal support obligations during the divorce proceedings

Parties can agree to property division during mediation. Otherwise, the court makes these decisions.

How to Manage Child Support and Alimony Under Texas Divorce Laws

Both child support and alimony could be part of a divorce settlement in Texas. The court can order the noncustodial parent to pay a percentage of their assets. The guidelines for the child support level is as follows:

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  • 20% of net resources for one child
  • 25% of net resources for two children
  • 30% of net resources for three children
  • 35% of net resources for four children
  • 40% of net resources for five children

For alimony, Texas allows the court to order spousal support in the event that one of the spouses will not have enough assets to support himself or herself and at least one of the following conditions is also met:

  • Family violence convictions
  • The spouse who will receive alimony has a physical or mental disability
  • The couple was together for at least 10 years and the spouse seeking support can’t earn a basic income to support themselves
  • The spouse who will receive alimony has custody of a child from the marriage who needs special care or supervision due to a mental or physical disability, thus making it more difficult for the spouse to earn enough money to cover the child’s needs

Remember that you’ll need to consider both child support and alimony when you file taxes after divorce.

401(k) and IRA Plans and Divorce in Texas

Many people use either a workplace retirement plan like a 401(k) or a personal plan like an IRA to save for retirement. Those plans can cause some stress, though, if a couple ends up divorcing. If the couple planned to fund their retirement together with one of these plans, both parties will now have to figure out how to distribute the plan to fund two separate retirements.

As stated above, any property accumulated during the marriage is considered community property, and that includes any retirement savings. This means that even if only one spouse contributed his or her salary toward a 401(k) or IRA during the marriage, any funds deposited into the account— and any gains made from those investments — are eligible to be divided between both spouses. Retirement savings won’t automatically be split 50/50, though. The exact split is decided either in mediation between the two parties or by a judge during the divorce trial.

After your retirement plan assets are divided, you’ll need to send a Qualified Domestic Relations Order to your plan administrator. This is a document explaining the court’s decision on how to divide the retirement plan.

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Divorce and Estate Planning in Texas

Divorce Laws in Texas: Most Important Things to Know - SmartAsset (3)

Even if you hope you have many years of life ahead of you, it is a good idea to have an estate plan in place in case the unexpected happens. This is especially true once you have kids, as they’ll need to be provided for after you die. Divorced couples often need to rethink their estate and legacy plans.

There a few things to keep in mind in terms of estate planning when you are going through a divorce in Texas:

  • Property you inherit while your divorce is pending is considered separate property. Thus, it is not subject to the court rules on community property. This means that the beach house on the Gulf of Mexico that you inherit from your grandmother does not have to be split with your soon-to-be-ex spouse if you get it during your divorce proceedings.
  • Your ex-spouse and any relatives of your ex-spouse are no longer considered your survivors unless you expressly state so in your will.
  • Make sure to keep your kids in mind here. You’ll need to figure out guardianship and any trusts you have set up for your children. Your divorce may impact those plans.

Bottom Line

Texas is a no-fault state for divorces. Issues of fault, though, may come into play when the court decides how to divide property. Community property includes all assets amassed during the marriage, with some exceptions. Even if you earned much more than your spouse, the court will consider any income made during the marriage as community property for the purpose of divorce proceedings.

Financial Planning Tips

  • If you are in the midst of a divorce, you may want to hire a financial advisor to help you sort out your financial life.SmartAsset’s free tool matches you with up to three financial advisorswho serve your area, and you can interview your advisor matches at no cost to decide which one is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
  • Dividing up your 401(k) can be a tough part of a divorce because you don’t know exactly how much it will be worth as you approach retirement. Gain some insight with our 401(k) calculator.

Photo credit: ©iStock.com/RoschetzkyIstockPhoto, ©iStock.com/PeopleImages, ©iStock.com/Pattanaphong Khuankaew

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Ben Geier, CEPF® Ben Geier is an experienced financial writer currently serving as a retirement and investing expert at SmartAsset. His work has appeared on Fortune, Mic.com and CNNMoney. Ben is a graduate of Northwestern University and a part-time student at the City University of New York Graduate Center. He is a member of the Society for Advancing Business Editing and Writing and a Certified Educator in Personal Finance (CEPF®). When he isn’t helping people understand their finances, Ben likes watching hockey, listening to music and experimenting in the kitchen. Originally from Alexandria, VA, he now lives in Brooklyn with his wife.

FAQs

What assets are protected in a divorce in Texas? ›

Protecting Your Assets During a Divorce
  • Checking and savings accounts.
  • Investment accounts.
  • Life insurance policies.
  • Business entities, professional practices, partnerships, or interests in closely held corporations.
  • Pension, retirement or executive compensation packages.
  • Trust funds.
  • Real estate, furniture and automobiles.

Is a wife entitled to half of everything in Texas? ›

Texas is one of nine states that is a community property jurisdiction. In general, this means that any property acquired by a couple during their marriage (with a few exceptions) is equally owned by both spouses. This can have a profound effect on the dissolution of property during divorce proceedings.

How is property split in a divorce in Texas? ›

How Do Texas Courts Divide Assets in a Divorce? When a couple gets married, Texas law presumes that all the property they collect doesn't belong specifically to any one spouse. Instead, all property that a couple acquires during their marriage presumptively belongs to the marital community estate.

What to know about getting a divorce in Texas? ›

Texas requires a 60-day “cooling off” period once a petition for divorce has been filed. Once the 60-day period has passed, a divorce order may be entered. Therefore, if the parties have come to a full agreement, they could be divorced in as little as two months. Typically, even uncontested cases take 90 to 120 days.

What can be used against you in a divorce? ›

Spending marital money on extramarital affairs. Transferring marital funds to another person before a separation. Spending unreasonable amounts on business expenditures. Selling marital assets below the market value.

Who gets the house in a divorce in Texas? ›

During a divorce, who gets the house? Generally, both spouses have a right to live in the house while a divorce is pending, but there are times when one spouse can exclude the other from the house. After you initiate a divorce, you or your spouse can file a motion for a temporary injunction.

Is alimony required in Texas? ›

Alimony in Texas

As mentioned above, the law in Texas does not provide for alimony as a right, although that does not mean that it is prohibited. While Texas has not codified the right to alimony for either spouse, it allows for parties to agree between themselves to include it as an agreed term in divorces.

What qualifies you for spousal support in Texas? ›

In order to qualify for court-ordered spousal maintenance, Texas law says that one spouse must prove that after divorce he or she will lack sufficient property, including the community property the spouse receives in the divorce and the spouse's separate property, to meet his or her minimum reasonable needs.

How long do you have to be married to get half of retirement in Texas? ›

To be eligible, you must have been married 10 years or longer and meet other requirements.

Does it matter who files for divorce first in Texas? ›

In Texas, it generally does not matter which party files first. However, it may still be beneficial to be the filing party. This depends on your circumstances, and every case is different. If you have any questions, you should speak with your divorce attorney about what is best for you.

What are the five stages of divorce? ›

There are two processes in divorce.

The emotional process can be broken down into 5 stages: Denial, Anger, Bargaining, Depression, and Acceptance.

What does a judge consider in a divorce? ›

The judge considers factors specified in the state statute, such as the earning capacity, work history, age and health of both spouses in order to determine whether spousal support should be awarded and in what amount.

What is the husband entitled to in a divorce in Texas? ›

In Texas, the courts presume that all property and income that either spouse obtained during the course of the marriage belongs equally to both spouses. This means that the state will equally divide the couple's assets between them in the divorce process.

Can I get half of my husband's pension in a divorce Texas? ›

The family laws in Texas have it that a pension that you or your spouse has earned during your marriage is considered a part of the community estate. This means that the pension is mainly subject to being divided up in your Divorce- either by a judge or by you and your spouse in mediation.

How can I avoid alimony in Texas? ›

However, there are a few legal ways that you might be able to initially forego alimony payments:
  1. Make lifestyle changes. ...
  2. Ask for an evaluation of your spouse's employability. ...
  3. Prove that your spouse does not need the money. ...
  4. Pay property taxes. ...
  5. End your marriage sooner.
5 Feb 2019

Can text messages be used against you in a divorce? ›

Can My Texts Be Used Against Me in a Divorce? The short answer is “Yes.” The court usually allows the person receiving the text to testify that he or she recognizes the phone number the text was sent from. The court might also ask about the sender's identity and the context of the message.

How is a house buyout calculated in a divorce? ›

To determine how much you must pay to buy out the house, add your ex's equity to the amount you still owe on your mortgage. Using the same example, you'd need to pay $300,000 ($200,000 remaining mortgage balance + $100,000 ex-spouse equity) to buy out your ex's equity and take ownership of the house.

Is my wife entitled to half my house if it's in my name? ›

It depends on who is named on the mortgage. This is called joint and several liability. You are both responsible and liable for paying the mortgage. That doesn't mean you are both liable for half each though – if one person doesn't pay their share, the other can still be held responsible for the whole mortgage.

How does adultery affect divorce in Texas? ›

In Texas, adultery is one cause for a fault divorce. Unless your spouse admits to adultery, you will have to offer proof to a court showing that they are at fault for the breakdown of the marriage because they had an affair. You do not have to prove that sexual intercourse occurred.

How many years do you get alimony in Texas? ›

Up to 7 years of post-divorce support. This is the maximum duration allowed if the marriage lasted at least 20 years but less than 30 years. 3. Up to 10 years of post-divorce support.

Can a working wife get alimony? ›

Even though your spouse has a full-time job, they are still entitled to ask for spousal support. They can ask for support once a legal separation or divorce is filed with the court. If the judge deems it necessary, he or she can order you to pay spousal support even while your divorce is pending.

Can a working woman get alimony? ›

A working woman is eligible to get alimony depending on her income and living conditions. So, even if the woman is working and there is a substantial difference between her and her husband's net worth, she will still be granted alimony to provide for the same living standards as her husband's.

Do I have to support my wife after divorce? ›

As long as the couple remains married, the court does not set a time limit on spousal support. Maintenance on the other hand, is support the higher-earning spouse pays after the divorce is finalized.

Does a husband have to support his wife during separation? ›

If you're in the process of filing for divorce, you may be entitled to, or obligated to pay, temporary alimony while legally separated. In many instances, one spouse may be entitled to temporary support during the legal separation to pay for essential monthly expenses such as housing, food and other necessities.

How does a wife get alimony? ›

You can ask for alimony as part of a divorce proceeding. If you and your spouse reach an agreement about alimony, you can ask the judge to make the agreement a part of the court order. If you cannot reach an agreement, the judge will decide whether you are entitled to alimony.

Do I get half of my husband's 401K in a divorce? ›

A 401(k) account allows employees to set aside a portion of their monthly paycheck for their golden years. If you decide to get a divorce from your spouse, you can claim up to half of their 401(k) savings. Similarly, your spouse can also get half of your 401(k) savings if you divorce.

Who pays taxes on 401K in divorce? ›

If the person who owns the account chooses to tap into 401K funds to pay alimony, the spouse who receives the money will be responsible for taxes. Again, the QDRO would need to detail the exact amount of payments to be made and the recipient could elect to reinvest the money into another type of retirement plan.

What happens to a 401K in a divorce? ›

During a divorce, it is likely that in many states the judge involved will split the 401(k) funds through a qualified domestic relations order. These funds are typically split equally if one spouse has a 401(k) and the other does not.

How much does it cost to get a divorce if both parties agree in Texas? ›

How Much Does an Uncontested Divorce Cost in Texas? The average cost of uncontested divorce in Texas ranges between $300 and $5,000, depending on whether lawyers are involved. In general, it is the cheapest and the quickest option available in any state.

How long do you have to be separated before you can file for divorce in Texas? ›

How long do you have to be separated before you can file for divorce in Texas? There are no requirements for marriage separation in Texas prior to filing for divorce. As long as one spouse has been a domiciliary of the state for six months and a resident of the county for 90 days, the divorce can be filed.

Who gets the kids in a divorce Texas? ›

The best interest of the child is paramount, and the presumption in Texas is that a standard or expanded standard possession schedule—where the parents share custody of the child—is in the best interest of the child. The age of the child may also play a role in who gets the kids in a divorce.

What is the most difficult stage of divorce? ›

Perhaps the most difficult period of divorce is the “separation period.” That is the time between when you decide to get a divorce, and the date when you are actually divorced.

How long does divorce depression last? ›

Individuals may go through several stages of mourning or grief. The emotional intensity of this period usually reaches a peak within the first six months of separation. However, the grieving process may take as long as two years.

What is an emotional divorce? ›

An emotional divorce occurs when one partner is so fed up, he or she simply disconnects. At this point that spouse will generally be apathetic about their partner as well as about the relationship.

Who makes house payment during divorce? ›

The person liable for paying the mortgage during a separation is the person whose name appears on the mortgage note. If both your names are on the mortgage, then you are both legally responsible for making the payments. Even though you're separated, you need to continue to make your mortgage payments on time.

What is a fair split in divorce? ›

The Court will normally consider a 50/50 split of the matrimonial assets when dealing with a long marriage following the 'yardstick of equality'. With short marriages, capital contributions become more relevant in deciding how assets are divided in a divorce. Age is also an important consideration.

How many years do you have to be married to get half of everything in Texas? ›

The Lone Star State has one of the narrowest spousal support laws in the country. Typically, to qualify for alimony in Texas, the marriage must have lasted at least ten years and the obligee (person requesting support) must be unable to earn enough to meet basic needs.

Is Texas A 50 50 state when it comes to divorce? ›

Myth #1: Texas law requires property to be divided 50/50 in a divorce case. This is perhaps the most common myth. Many believe that, in a Texas divorce case, a 50/50 property split is automatic and unchangeable. This is not true.

Can a Trust protect assets from divorce Texas? ›

Trusts do not always protect assets in the event of a divorce, however, and it is prudent for anyone considering a divorce to speak with legal counsel regarding the impact a divorce may have on any trust involving the person or his or her spouse.

Is spousal support mandatory in Texas? ›

Is Spousal Support Mandatory in Texas? No, spousal support is not mandatory in Texas. In the case of a divorce where a spouse is seeking spousal support, the judge will ensure that the situation meets the requirements laid out in Texas law in order to qualify for spousal support.

Who pays taxes on 401k in divorce? ›

If the person who owns the account chooses to tap into 401K funds to pay alimony, the spouse who receives the money will be responsible for taxes. Again, the QDRO would need to detail the exact amount of payments to be made and the recipient could elect to reinvest the money into another type of retirement plan.

Do I get half of my husband's 401k in a divorce? ›

A 401(k) account allows employees to set aside a portion of their monthly paycheck for their golden years. If you decide to get a divorce from your spouse, you can claim up to half of their 401(k) savings. Similarly, your spouse can also get half of your 401(k) savings if you divorce.

Does a husband have to support his wife during separation? ›

If you're in the process of filing for divorce, you may be entitled to, or obligated to pay, temporary alimony while legally separated. In many instances, one spouse may be entitled to temporary support during the legal separation to pay for essential monthly expenses such as housing, food and other necessities.

Can my wife get my 401k in a divorce? ›

1. You Need a Court Order to Divide a 401(k) Pulling money out of a 401(k) to finalize your divorce isn't something you can do on a whim. First, a judge has to sign off on a Qualified Domestic Relations Order (QDRO), which confirms each spouse's right to a portion of the money.

What qualifies you for spousal support in Texas? ›

In order to qualify for court-ordered spousal maintenance, Texas law says that one spouse must prove that after divorce he or she will lack sufficient property, including the community property the spouse receives in the divorce and the spouse's separate property, to meet his or her minimum reasonable needs.

How is alimony calculated Texas? ›

Spousal Support in Texas: Calculating the Amount

The maximum amount of spousal maintenance that a court may order is 20% of the paying spouse's average monthly gross income, or $5,000.00 per month, whichever is less. Tex. Fam. Code § 8.055.

Does marriage override a trust in Texas? ›

In Texas, marriage does not revoke a valid preexisting will. That means if you made a will before you were married, and did not name your spouse as a beneficiary, or provide for your spouse in the way you would want to, it will be necessary for you to revoke your old will and make a new one.

Can I transfer all my money before divorce in Texas? ›

Transferring Marital Assets

This is unlawful under state law, which prohibits divorcing spouses from intentionally mishandling, hiding, or wasting marital property. This includes selling or spending assets and funds, as well as transferring property to a third party without the other spouse's consent.

How can community property be avoided in Texas? ›

In general, Texas Community Property is property acquired by either spouse during the marriage. There is a rebuttable presumption that all property owned at marriage is community property. To rebut this presumption, spouses must provide clear and convincing evidence that a asset is separate property in Texas.

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