Texas Divorce Laws: Filing for Divorce and Dividing Assets

Editorial Note: The content of this article is based on the author’s opinions and recommendations alone and is not intended to be a source of investment advice. It may not have not been reviewed, commissioned or otherwise endorsed by any of our network partners or the Investment company.

Written By

Reviewed By

Updated on Friday, July 16, 2021

If you want a divorce in Texas, you should know that the Lone Star State’s laws can have wide-ranging effects. Texas divorce laws allow either fault or no-fault grounds, for instance. Yet courts may view fault negatively when dividing spousal assets, so the choice often has financial repercussions, as well as legal and emotional ones.

Finances are so intertwined with divorce that a financial advisor in Texas — particularly one with a specialization in divorce — may be helpful in navigating the process, and can also serve as a resource for revising your financial plan afterwards.

How to file for divorce in Texas

Residency requirements for divorce in Texas

At least one spouse must have resided in Texas for six continuous months before filing divorce papers. In addition, at least one spouse must have resided in the county where the divorce is being filed for 90 days before filing.

Filing fees vary according to the county, and typically range from $260 to $320.

Grounds for divorce in Texas

Texas law allows fault or no-fault grounds for divorce. You can choose from the following grounds when you file.

No-Fault

  • Insupportability (if conflicts between you and your spouse are not resolvable)

Fault

  • Abandonment (for a minimum of one year)
  • Adultery
  • Cruelty
  • A spouse in a mental institution (for a minimum of three years)
  • A spouse imprisoned on a felony conviction
  • Living apart (for a minimum of three years)

Divorce process in Texas

The divorce process in Texas can be lengthy and complicated, depending on how much you and your spouse agree during the process. In general, however, the divorce process in Texas begins by following the below steps:

  1. One spouse must file a document known as the Original Petition for Divorce with the district court in the spouse’s county of residence. The person who files is also responsible for seeing that the papers are legally served on the other spouse.
  2. The other spouse must file a document known legally as an “Answer,” unless they sign a waiver indicating that the spouses are working together.
  3. If spouses want more information, the legal discovery process begins, with exchanges of documents and data between the spouses and their lawyers.
  4. The spouses then discuss a divorce settlement, directly or with attorneys or mediators.
  5. If an agreement on all matters is reached, an Agreed Decree of Divorce is drawn up and signed by all parties.

If an agreement cannot be reached, the process will move toward a trial. In this case, following will then occur:

  1. A trial date will be set — however, Texas law requires mediation before it begins.
  2. A trial commences only if mediation isn’t successful.
  3. When the trial concludes, an attorney prepares a document known as the Final Decree of Divorce.
  4. The divorce becomes final when the judge signs the Decree and says in open court that the divorce is final. The Decree encompasses all court rulings and is legally binding.

Texas divorces can be lengthy — up to a year or even longer, especially if there’s no agreement between the spouses. A divorce can’t be finalized until at least 60 days after the initial filing for divorce.

Because of the length of the Texas divorce process, you need to establish what will happen to your finances during that period and work out any temporary issues, such as living arrangements and child care. You can address these by filing a temporary restraining order when the initial petition is filed. The restraining order protects assets by mandating that no assets be “disappeared” before the court divides them in the divorce. It also mandates that the spouses act civilly toward each other.

The court will consider temporary orders on issues such as custody, visitation and support, as well as payment of debt service and use of property while the divorce is ongoing.

Texas also allows uncontested divorces, if you and your spouse agree on all issues and agree not to go to court. You’ll need to meet specific criteria, however, such as not having children who are minors.

Division of assets and debts in Texas

Dividing assets in a divorce in Texas

Texas is a community property state. This means that all assets earned and acquired by you and your spouse during the marriage are considered joint property.

However, the law also provides for separate property. If assets belonged to you before the marriage and were kept separate during the marriage, they may be considered separate property. Contributions to a 401(k) retirement account made before the marriage and kept in that account, for example, are likely separate property, while contributions to that same 401(k) made during the marriage are likely considered community property.

Property or assets given to one spouse during the marriage are also separate property. As such, if a deceased relative leaves you jewelry in their will, that property is considered yours. Gifts given directly to you are also considered separate property.

Although community property laws mean that all property and assets of the marriage belong to both spouses, that doesn’t mean a court simply hands each spouse 50%. The court takes into account equitable and fair treatment in dividing property and assets. To make its determination, the court considers multiple factors in allocating assets fairly between spouses, including earnings capacity, education, age, health, fault in the divorce, child care and any separate assets.

The worth of property and assets needs to be assessed independently before equitable distribution can be completed.

Who gets the house in a divorce in Texas?

Houses are divided under community property laws in a divorce in the state of Texas. Generally, the house may be sold and the proceeds divided, or one spouse can get the house and the other spouse can receive assets equal to the home’s value, to maintain equal distribution.

If children are involved, the court will consider the best interest of the child in determining living arrangements.

Dividing debt in a divorce in Texas

Debts follow the principles of community property in divorce, just as assets do. In other words, debts occurring during a marriage are community debts, regardless of who incurred them. This applies to all types of debt: mortgages, credit card debt, personal loans, student loans, medical debt and more. Debt is divided equitably in a divorce, just as assets are.

If you incurred debts before the marriage and kept them separate, however, they can be considered separate debts. Student loans incurred before the marriage, for example, are separate debts, but are community debt if you incurred them during the marriage.

Estate planning in Texas

It’s important to revisit your estate plan in a divorce, as estate plan components like wills and trusts determine the disposition of your assets when you die. Divorce can change both your assets and your wishes. Estate planning also includes child care plans should a parent die, and divorce can trigger significant changes in child care.

Powers of attorney also play a role in a comprehensive estate plan. They designate individuals to make financial and medical decisions for you should you become ill or incapacitated. The individuals you want to make these decisions might change in a divorce.

401(k) plans, retirement plans and IRAs in divorce

Retirement plans — such as 401(k) plans, individual retirement accounts (IRAs), pensions, profit-sharing plans and other similar retirement plans — are often the largest asset that people divide in a divorce. If you contributed to a retirement plan or received one during the marriage, these assets are considered community property. Plans held by a person before marriage and kept separately throughout the marriage, on the other hand, are separate assets.

Valuing these assets is complex. If you or your spouse contributed both before and during the marriage, for example, the division between community and separate property will need review and evaluation by the court.

Child support and alimony under Texas divorce laws

Child custody: Child custody is known in Texas as “conservatorship.” It can be joint, or one spouse can have sole conservatorship. The court can make a parenting plan agreed upon by you and your spouse legally binding.

If you and your spouse can’t agree on a plan, the court makes decisions based on the best interest of the child. Texas public policy supports frequent contact between children and parents who are able to care for them appropriately and can get along with the other parent.

If one parent gets sole conservatorship, the other parent may have visitation rights, known in Texas as “possession and access.” But beware of issues that can affect your rights: Child abuse, for example, is defined very broadly in the Lone Star State, and includes acts such as “mental or emotional injury” and use of a controlled substance that leads to any kind of harm.

Alimony: Financial support of a spouse — commonly known as “alimony” — is referred to as “maintenance” in Texas. Courts determine maintenance requirements by looking at factors like length of the marriage and ability to earn a living. Maintenance is always limited to the lesser of 20% of the spouse’s gross income per month, or $5,000.

A spouse ordered to pay maintenance can request a modification if circumstances warrant, such as the other spouse obtaining a job. Maintenance is a legally binding court order, and failure to pay it can result in jail and liens on accounts.

529 plans in divorce: Financial issues pertaining to the children’s future can be complex as well. If you set up a 529 tax-advantaged college savings plan for your child’s eventual use, for instance, the court will consider it community property of the spouses; it does not belong to the child.

But community property in a 529 plan can raise multiple issues — might a remarried spouse want to use a 529 plan for children of the new marriage, for example? Because of scenarios like this, you can consider dividing 529 plan assets into two accounts or working with an advisor toward other strategies that ensure control over the funds until your child uses them.

Divorce in Texas FAQs

Filing costs for divorce in Texas generally run from $260 to $320. Costs go up from there, and vary depending on how much the spouses dispute the divorce — and thus need lawyers, mediators and the like. Average costs for a lawyer alone range between $11,000 and $13,000, according to an estimate from Lawyers.com.

Yes, you can legally annul a marriage in Texas. The state requires specific legal grounds to do so, such as bigamy, incest or fraud. You must file a legal document known as “A Suit to Declare Void the Marriage of [Petitioner] and [Respondent]” (the person filing is the petitioner and the other spouse is the respondent).

You can file for divorce in Texas when you or your spouse has lived in the state for six consecutive months. One spouse must also have lived in the specific county where divorce papers are filed for 90 consecutive days.

You need to file a document called Original Petition for Divorce with the district court of the county in which you reside. The spouse must then file a document legally known as an Answer, or sign a waiver saying that the two of you have agreed to work together.

An uncontested divorce in Texas means that you and your spouse agree on the divorce and all related issues, and thus agree not to go to court. An uncontested divorce must be no-fault; you cannot allege fault grounds such as adultery or cruelty. Note that this option is only open if you meet certain conditions (you can’t have children under 18, for example).

The divorce rate is 2.10% for every 1,000 Texans, according to data from the CDC.

Texas legally recognizes divorce, but does not legally recognize separation. That said, there is no law against separating from your spouse, either to think through the state of a marriage or while a divorce is pending. The state law on community property remains in effect when you separate, so it can be a good idea to draw up legal agreements on assets and debts.

The “Find a Financial Advisor” links contained in this article will direct you to webpages devoted to MagnifyMoney Advisor (“MMA”). After completing a brief questionnaire, you will be matched with certain financial advisers who participate in MMA’s referral program, which may or may not include the investment advisers discussed.