Houston Divorce Lawyer Guide
Texas Residency Requirements
The divorce laws in Texas govern who might be eligible for filing a divorce in the state. Meeting the Texas residency requirements is vital to ensure that the court accepts a divorce case and does not dismiss it. If the court finds out that it has no jurisdiction over the case, it will not accept it.
A divorce lawsuit in Texas is not likely to be maintained unless at the time of its filing either the divorce petitioner or the respondent spouse has been: (a) domiciled in Texas for at least the preceding 6 months; and (b) a resident of the particular Texas County where the divorce lawsuit has been filed for the preceding 90 days.
When one spouse has been domiciled in Texas for the previous 6 months or more, a spouse who is a domiciliary in another state (or country) may file a divorce lawsuit in the particular Texas County where the Texan domiciliary spouse is residing at the time of the filing of the divorce petition.
Armed Forces Personnel
A resident of Texas who is serving in the military and is stationed either outside the state or the U.S. could still be considered by law as a Texas resident.
Armed forces personnel who have not previously been Texas residents, but have been stationed in a Texas military installation for the past 6 months or more and at a military installation in a Texas County for at least the past 90-day period, will be considered as the residents of Texas as well as residents of the particular county for the purpose of filing for a divorce.
If one of the parties is married, it may be better to wait for the baby’s birth before seeking a divorce. The courts in Texas will usually not finalize the divorce if the wife is currently pregnant – irrespective of whether the husband is the father of the baby or not. The courts prefer to wait until after the baby is born. This ensures that any order related to the child also get included in the divorce decree.
Options to Consider if You Fail to Meet One or More Residency Requirements in Texas
If you find that you are not able to meet one or more residency requirements for filing a divorce in Texas, you may consider the following options:
- Make an attempt to save the marriage and avoid proceeding with a divorce.
- Establish your residency in Texas at least for the minimum time period set forth under the state law. (This, however, does not imply that you need to delay the process of preparing documentation anyway.)
- If your spouse meets the Texas residency requirements, have them file for the divorce.
- Select a state other than Texas where you meet the local residency requirements. (Check out the state where you got married as one of the potential options.)
Filing of a Divorce Petition in Texas
In Texas, you can file the divorce petition with the District Court in the county where you or your spouse resides. The Petitioner is required to issue a legal notice to the other spouse, the Respondent.
The Respondent is required to file an Answer to the Petition within 21 days after it has been officially served, failing which the case is default. In such a situation, it could be possible to complete the divorce proceeding without the Respondent.
A waiting period of 60 days is usually observed from the date of the filing of the divorce petition before the judge grants a final decree. However, if the Court discovers that the Respondent is a convicted offender, having caused domestic violence against the Petitioner or their family members, the waiting period may be waived.
The waiting period may also be waived, if the Petitioner obtains an active magistrate’s order or an active protection order against the Respondent because of the acts of domestic violence in the marriage.
Both parties in a divorce in Texas are prohibited from re-marrying (except each other) prior to the 31st day after the final divorce decree has been issued. An exception could be when a party is able to show good cause to the court.
Collaborative Divorce in Texas
In a collaborative divorce, following a written agreement between the parties and their lawyers, the proceeding for marriage dissolution may be carried out under the collaborative law procedure in Texas.
As part of collaborative divorce procedure, the parties and their lawyers agree in writing to make a good faith attempt and use their best possible efforts to resolve their marriage dissolution in a mutually agreeable manner without requiring judicial intervention.
In this procedure, the only judicial involvement would be where the court approves the agreement of settlement, makes a legal pronouncement, and signs the order required under Texas law.
If the parties fail to reach a settlement of their marriage dissolution dispute under collaborative divorce, the parties’ attorneys will be required to withdraw from the case, and not represent the parties during the divorce court proceedings.
Change of the Name of Spouse
If a party makes a specific request for changing their name to the one they were using before the marriage, a Texas court may change the party’s name in the final divorce decree or annulment, except when the court specifies a reason for denying the party’s request for name change.
The court may not deny the name change request, when it is made simply to ensure that the last name of all family members remains the same.
Texas Divorce vs. Legal Separation
A divorce signifies dissolution of a marriage, while a legal separation is defined as a court-recognized separation in which the couple continues to maintain the marital status while they may be pursuing a divorce.
Legal separations are not recognized under Texas law. However, couples who may separate prior to their divorce could take approach the court for the protection of their rights during the period they are separated.
Difference between a Divorce and a Separation in Texas
While a separation is not legally recognized in Texas, it does not have to mean that a couple in this state cannot separate. An informal separation between them is possible in Texas.
Court rulings during a separation in Texas may be required to resolve issues such as:
- Property division
- Determination of alimony
- Determination of child custody
- Any other issues that are typically address in divorce cases
A trial separation occurs when a couple makes a decision to live apart from each other for a period of time. This allows them the opportunity to evaluate if they wish to permanently separate, seek a divorce, or reconcile their marriage. During a trial separation, the assets continue to be a marital property.
Couples also have the option of permanent separation. This too has no legal recognition in Texas, but some couples may choose this method over a divorce due to financial or religious reasons. For example, even when a couple has permanently separated, this arrangement might allow one spouse to be a party to the other’s health insurance plan.
Remaining legally wedded (while permanently separated) may also make sense in some cases for other reasons. Some couples may have a tax benefit when they file joint returns. It may also enable them to retain certain Social Security or military benefits.
Following a separation in Texas, if the couple decides at some point to end their marriage, the informal separation agreement (and court-recognized decisions related to property division and alimony) can be carried over into the divorce.
Domestic Partnership Agreements in Texas
Some counties in Texas maintain the Registry of Domestic Partnerships and accept the filing of a Domestic Partnership Agreement. This Agreement is a legal document that specifies the rights and responsibilities shared by two people of any gender who are in a long-term relationship.
This Agreement can be used for multiple purposes. For instance, an employer may choose to use this Agreement to grant health insurance or other benefits to an individual.
While a Domestic Partnership Agreement in Texas is legal, it is not a civil union, common law marriage, or marriage under the Texas law.
Informal Marriage in Texas
A man and a woman in Texas may enter into an informal marriage by signing a declaration to this effect. Registration of an informal marriage differs from that of a marriage license.
It could be closely compared to a common law marriage in Texas that has been registered. The common law marriage assumes that a couple has been married based on what they state, what the surrounding circumstances may be, and how they socially present themselves.
If a couple in an informal marriage separates, the regular divorce proceeding will follow.
Legal Grounds for a Divorce in Texas
Under the Texas law, seven statutory grounds exist for divorce. Most of these involve fault-finding on part of a spouse. However, one of the legal grounds (insupportability), which is used most commonly, is considered no-fault. These are the grounds on which a divorce in Texas may be granted:
- The marriage has turned insupportable due to personality conflicts or discord that thwarts the legitimate objectives of a marital relationship as well as prevents any reasonable chance of reconciliation.
- One spouse acts with cruelty towards the other in a way that makes living together insupportable.
- Adultery committed by spouse.
- A felony committed by a spouse, where the spouse was sent to prison for one year or longer in the federal penitentiary, state penitentiary, or the Texas Department of Criminal Justice, and who has not received a pardon (this will not apply if the spouse’s conviction was based on the other spouse’s testimony).
- Abandonment of the spouse for one year or more.
- The couple has lived apart without any cohabitation for three years or more.
- At the time of the filing of the divorce lawsuit, one of the spouses is admitted to a state or private mental hospital in Texas (or another state) for three years or more, and it appears that the degree of mental order is such that adjustment may be unlikely, or the possibility of a relapse exists even if an adjustment occurs.
Annulment and Void Marriages
Under the Texas law, a marriage could void or voidable. A void marriage is one that simply could not have been valid under any circumstances, and cannot be said to exist. Therefore, it may be declared legally void by a court in Texas.
A voidable marriage, on the other hand, is considered to be a marriage that should not have taken place, but happened typically because of some kind of deception or trick at the time of the marriage. Annulment may be sought by the parties in a voidable marriage, which will declare that the marriage was invalid.
Annulment in Texas
Filing for an annulment in Texas requires that one of the parties resides in the state or the couple’s marriage occurred in Texas.
Annulment may be granted by a Texas court when one of the parties is at least 16 years old, but below 18 years, and entered into a marriage without obtaining the consent of parents or a court order.
To grant an annulment for such reason, the judge could use their discretion, after considering all the facts pertaining to the welfare of both the parties, including whether the wife is currently pregnant. After the formerly underage party attains the age of 18, they may no longer file an annulment suit.
Other grounds for annulment in Texas may include:
- The petitioner, at the time of marriage, was under the influence of drugs or alcohol, and as a result, had no capacity to give his or her consent to marriage.
- For any mental or physical reasons, either of the parties was permanently impotent at the time the marriage occurred, and the petitioner was unaware of the impotency.
- The petitioner was induced into entering into the marriage because the other party used force, duress or fraud.
- The petitioner had a mental defect or disease, as a result of which, he or she didn’t have the mental capacity to give consent to the marriage, or to comprehend the nature of the marriage proceedings.
- One of the parties hid from the petitioner a divorce that took place less than 30 days prior to the marriage (in this case the annulment suit must be filed within a year of the date of marriage).
- The parties got married within 72 hours or less following the granting of the marriage license, and the annulment suit was filed within 30 days or less after the date of marriage.
Declaring a Marriage Void in Texas
In order to file a suit to have a marriage in Texas declared void, the pre-condition is that one of the parties must be residing in the state, or the alleged marriage must have occurred in Texas.
These conditions will lead to a marriage being declared void:
- If one party in the marriage is related to the other by one of these relationships: a descendant or ancestor by blood or by adoption, as a sibling, as an uncle or aunt, or as a nephew or niece (all of these relationships may refer to whole or half or by adoption).
- Both the parties are of the same sex.
- Either party is below 16 years of age, except when a court order is obtained.
- One party in the marriage is a former or current stepparent or stepchild of the other party.
Civil unions as well as same-sex marriages are invalid and not recognized in Texas.
Spousal support or alimony in Texas comes in three different forms.
Temporary Spousal Support
As part of temporary spousal support, a spouse is eligible to receive financial support on the basis of what the court deems reasonable and necessary during the period before the final divorce decree is signed.
One spouse will continue to pay this support to the needing spouse till the time the divorce is finalized. Depending on the situation, the court may terminate temporary spousal support in some cases even before the divorce is final.
Spousal Support through Contract
Spousal support through contract, also known as ‘contractual alimony’ in Texas, permits both spouses to agree to financial support payments as part of the final divorce decree. In many cases, this type of spousal support is viewed as a preferred choice by both parties involved in the divorce settlement because it provides better flexibility on the frequency and amount of payments.
In addition, under this option, one spouse can have a monthly income source for an agreed time period after the divorce while permitting the other spouse to benefit by way of tax deductions on such monthly payouts.
Just like contractual alimony, this type of financial support enables a spouse to receive payments periodically from the other spouse’s income after the finalizing of the divorce. But the difference here is that spousal maintenance will be a court-ordered payment. Secondly, spousal maintenance can only occur in certain circumstances, which are discussed in the next section.
Spousal Maintenance in Texas
Chapter 8 of the Texas Family Code defines spousal maintenance as an award in a divorce or annulment to declare a marriage void from one spouse’s future income for the other spouse’s support. Spousal maintenance is not valid for unmarried cohabitants.
Spousal maintenance is aimed at providing temporary support for a spouse who may lack the ability to financially support herself or himself. But this award is only ordered by the court in specific situations.
Spousal Maintenance Eligibility
The requesting spouse may be eligible to receive spousal maintenance if they can show that they lack adequate property or income to provider for their minimum reasonable needs. Importantly, the statute says that the requesting spouse must have diligently tried to seek suitable employment during the time the divorce lawsuit is pending. This requirement is waived if the requesting spouse suffers from a physical or mental disability.
Evidence showing that the requesting spouse has been actively trying to seek employment could include resume, evidence of job interviews given, proof of enrollment in a training school, and so on. It is notable that if the spouse experiences a disability after the divorce is final, Texas court will not consider it as a circumstance for allowing spousal maintenance.
Spousal Support or Maintenance: Calculation by the Court
Once the court in Texas determines that spousal support should be granted in a particular case, the court will then determine the duration and amount of the spousal support. The court may consider the following factors, among others:
- Financial assets and income of both parties
- Employability and education level of both parties
- Time and effort that may have to be invested for a requesting spouse to obtain adequate skills, training or education to support themselves
- How long the marriage lasted
- Age of the spouses
- Spouse’s financial ability to pay
- History of employment
- Health status of the requesting spouse
- Amount of child support that is being paid
- Contribution of the spouse as a homemaker
- Overall financial conduct of both parties
Spousal Maintenance – Duration and Amount
Texas law limits spousal maintenance to the shortest possible but reasonable period of time. In the absence of a disability, the courts in Texas may not order spousal maintenance of continue for more than 10 years. The time period of spousal maintenance is usually determined by these two factors:
- Spousal maintenance may continue for an indefinite time period if the spouse has a physical or mental disability that prohibits them from working, or if the requesting spouse is the caretaker of a physically or mentally disabled child. There are no duration limits for the court in such cases.
- How long the marriage lasted is the second key factor. Texas law imposes statutory limits on the duration of spousal maintenance.
- If the marriage lasted for 10 years, the requesting spouse is usually eligible for support for up to five years.
- If the marriage last for 20 to 30 years, the requesting spouse can get support for up to seven years.
- If the marriage last for 30 years or more, the requesting spouse can receive payments for up to 10 years.
It is noteworthy that in certain circumstances, the court may terminate spousal maintenance. The new marriage or cohabitation of the beneficiary spouse (who is receiving maintenance) or the death of either spouse will lead to termination of spousal maintenance.
The law in Texas also imposes limits on the spousal maintenance amount that a court may order. The paying spouse is not obligated to pay higher than 20 percent of their income or $5,000 (whichever of the two is lesser). Income in this computation will include almost every conceivable form of income, including retirement and overtime, but will not include social security or veteran benefits.
Enforcement of Spousal Support in Texas
Texas law makes a distinction between the enforcement of contractual alimony and enforcement of spousal maintenance. Contractual alimony, unlike temporary spousal support and spousal maintenance, cannot be enforced by contempt.
Wage withholding orders can enforce spousal maintenance, but not contractual alimony (unless the divorce decree contains a specific provision for this). Further, after the finalizing of the contractual alimony, the final decree provisions become enforceable under the Texas contract law.
Contractual alimony under the Texas contract law is not modifiable in the same as spousal maintenance is. Payments under spousal maintenance can be reduced or terminated if the requesting party can show that following the signing of the divorce decree, there has been a materially significant change in circumstances.
Contractual alimony, on the other hand, can be modified only by the contract. Some contractual alimony agreements may permit modification through both parties’ written consent (which is a new contract).
Additionally, certain defenses are available under Texas law in case of spousal maintenance, which are not possible in contractual alimony. These may include: the paying spouse lacks the property or the ability to make payments, or is unable to take out a loan and has no alternative financial means to make such payments.
Property and Debt Division in a Divorce in Texas
Division of property and debt is usually one of the more contentious and stressful aspects of a divorce proceeding. Individuals considering a divorce in Texas should try to gain some familiarity with the basic legal rules and principles that may apply when the assets and debts are divided during divorce.
Types of Property in Texas
Married spouses could have two types of property in Texas: community property (owned by both spouses) and separate property (only by one spouse). It is notable that in Texas, during property and debt division at the time of divorce, it does not matter the property or debt is in whose name. (Many people are surprises to learn this after they have decided to divorce.)
The law presumes that everything that is owned or owed by either spouse is the couple’s community property or community debt, except when a spouse is able to prove otherwise with convincing proof.
- Everything that a spouse owned before marriage and any increase or appreciation in the value of that asset
- Gifts or inheritances (from a spouse or from others)
- Compensation award for personal injury (except for loss of income)
- A property that is exchanged for another separate property
- Every property other than separate property that may have been acquired by either spouse after marriage (this includes wages)
- Any rent, interest or other income earned on separate property
Dividing Property and Debt in Texas
At first divorce attorneys in Texas may encourage divorcing couples to negotiate a settlement of property and debt out of court. However, sometimes a mutually agreement resolution may not be arrived. In such situations, the matter will be decided by a family court judge.
Steps involved in property and debt division in Texas
Step 1: Characterize the property and debt as community or separate
Step 2: Determine the value of the property and debt
Step 3: Divide the property and debt between the spouses
In a Texas divorce, correctly characterizing a property as community or separate property is vital because the judge will apply different legal principles and rules for each when dividing the assets and debts between divorcing spouses.
According to Texas law, each spouse will typically retain the ownership of their own separate property and debt, while the couple’s community property and debt will be between them.
The judge in Texas will determine the division based on the circumstances of each case. The community property and debt may be divided equally in some cases, while in others it may be divided according the legal principle of equity or fairness.
To determine what is equitable or fair, the judge in a Texas family court could consider various factors, including:
- The employment prospects and income earning capacity of each spouse
- The age and health condition of each spouse
- Value of separate property of each spouse
- Whether either spouse committed marital fraud or wasted assets
- Unique needs of the children involved, if any
The community debt of the couple will also be divided during a divorce. Here again the principle of equity will apply, but the process of division may be a little different compared to the property division.
Common Misconceptions to Avoid about Property Division
In a Texas divorce, it is important to avoid some of the common misconceptions, such as:
Equitable means equal
Community property and debt in Texas must be done by way of equitable distribution, as per the Texas Family Code. Equitable does not necessarily mean equal. The family law court may order an unequal (uneven) distribution of assets and debts based on the specific facts of the case.
Retirement assets are divided easily
Texas law requires divorcing spouses to draft a “Qualified Domestic Relations Order,” which is a special legal document to ensure the correct division of retirement funds and benefits. A Texas divorce attorney with experience in the division of complex marital assets can help in such cases.
Mixed property is not recoverable
Spouses may sometimes contribute separate property (during their marriage) for buying community property or for reducing the separate debts of the other spouse. At the time of divorce, spouses may mistakenly assume that this mixed property will not be recoverable. However, under the Texas Family Code, spouses are allowed to file a claim for the reimbursement of mixed property in various situations.
Child Custody and Support in Texas
Child custody in Texas is called conservatorship, and joint legal custody is called Joint Managing Conservatorship (where both parents have shared powers, rights, privileges and duties concerning the child).
If the court decides against Joint Managing Conservatorship, it will instead appoint one spouse as the child’s Sole Managing Conservator. The child’s custody will be awarded to this parent. The other party will be called the child’s Possessory Conservator, which means a parent with visitation rights.
In determining child custody, the judge’s primary consideration will be what is in the child’s best interest. Texas public policy encourages:
- Continuing and frequent contact between parents and children, where the parents have demonstrated the ability to act in the child’s best interest
- Providing the child with a safe, non-violent and stable environment
- Sharing of rights and duties between parents with regard to child-raising following a divorce or separation
In a case where the parents are unable to mutually agree with regard to the child’s custody and fail to file in the court a written parenting plan, the judge could award joint legal custody depending on the following factors:
- Whether the joint custody will support the child’s physiological, emotional and psychological needs and development
- The parents’ ability to prioritize the child’s welfare and arrive at shared decisions that are in the best interest of the child
- Whether a parent is able to accept and encourage the child’s positive relationship with the other parent
- Whether prior to filing the divorce suit, both parents played an active role in child rearing
- Geographical proximity between the residences of the parents
- Where the child is 12 years old or above, the child’s preference (if any) with regard to which parent they may choose for primary residence
- Other relevant factors, if any
For joint legal custody in Texas, it is not necessary for both parents to provide equal (or almost equal) parenting time.
The Tender Age Doctrine in Texas is applied, which says that in case of a child below the age of three, their best interests are served when they live full-time with the primary parent, along with regular but short visits from the other parent (non-custodial parent). Standard custody and visitation rules in Texas do not apply until the child attains the age of three.
Child Custody and Visitation in case of Domestic Violence
While determining child custody and visitation in Texas, the court will consider any evidence of family violence and/or physical abuse of one spouse against the other, a parent of the child, or any other individual below 18 years, committed during pendency of the divorce suit or within a 24-month period of the suit’s filing.
Sole custody or joint custody will not be awarded if the court determines there is credible evidence of present or past child neglect, or physical/sexual abuse by one parent directed against the other parent, spouse or child.
Where the court finds evidence of a pattern or history of family violence during the pendency of the divorce suit or during the 24-month period before the filing of the suit, the court in Texas may not permit a parent to get access to a child.
Access may be granted only if the court determines that it will not endanger the physical well-being or emotional welfare of the child, and is in the child’s best interest.
Child Support in Texas
Under the Texas law, child support obligations are computed using the Varying Percentage of Income Model. The model is based on the net income of the Obligor (the parent who has the obligation to pay) and the number of children that the couple has. If the monthly net income or resources of the obligor are up to $6,000, the following schedule will apply:
- 1 child = 20% of the net income/resources of the Obligor
- 2 children = 25% of the net income/resources of the Obligor
- 3 children = 30% of the net income/resources of the Obligor
- 4 children = 35% of the net income/resources of the Obligor
- 5 children = 40% of the net income/resources of the Obligor
- 6 or more children = At least the amount for 5 children
Where the monthly net income/resources of the Obligor are more than $6,000, the Texas court will apply the percentage guidelines up to the amount of $6,000, and could recommend an additional amount as it deems appropriate in the situation.
Enforcement of Child Support in Texas
If a spouse who is obliged to make child support payments in Texas falls behind the payment schedule, the following enforcement steps are available under the law:
The Child Support Evaders program run by the Texas Attorney General’s Office will make public the photographs of the Obligor who has failed to make the child support payments.
Texas family courts can order a person’s employer to deduct the amount owed for child support from his or her paycheck.
Suspending a license
A non-custodial parent that has not made child custody payments may also be penalized by way of suspension of their driver’s license, and the license of their professional practice, if any.
If the non-custodial parent is supposed to receive any funds, the Texas Child Support Division could intercept the payment. Federal income taxes and lottery winnings, for instance, are payments that could be intercepted.
Filing of a lawsuit
A lawsuit could be filed asking a court to enforce the child support order.
Texas Child Visitation
A visitation order in Texas is known as a “possession order.”
This order specifies when a parent (or in a few cases a non-parent) may be able to visit or spend time with a child.
Different types of possession orders in Texas include:
- Standard Possession Order
- Modified Possession Order
- Possession Order for a Child Under 3
- Supervised Possession Order
Standard Possession Order
The law in Texas presumes that the best interest of a child who is at least 3 years old is served by the Standard Possession Order. According to this Order, the parents can have the child’s possession whenever they are both agreeable to it. If the parents do not agree, as per the Standard Possession Order, the non-custodial parent will have the right to possession at the following times:
If the parents reside within 100 miles of each other, the non-custodial parent will have the right to the child’s possession:
- Every Thursday evening during the school year
- First, third and fifth weekend of every month
- Alternating holidays
- 30 days of extended-time period during summer vacation
If the parents reside more than 100 miles of each other, the non-custodial parent’s time period for the child’s possession will be modified as follows:
- There will be no mid-week visit
- The weekend schedule could remain the same or could be reduced to one weekend a month
- Holidays remain the same
- During summer vacation and spring breaks, the non-custodial parent will have the child’s possession for a longer time period of 42 days
Modified Possession Order
Both of the parents (or, the judge, if the case is contested) may decide the Standard Possession Order is inappropriate or unworkable for the family. Anything divergent from the Standard Possession Order is known as a Modified Possession Order. An experienced Texas divorce attorney could assist in drafting a modified possession order.
Possession Order for a Child below Three Years of Age
If the child is less than three years of age, the legal presumption that the best interest of the child is served by the Standard Possession Order will not apply.
However, both parents may still agree to make use of the Standard Possession Order, or they may agree to utilize a different possession schedule. If the parents are unable to agree on a schedule, the family court judge in Texas will make an order after considering all necessary factors.
Supervised Possession Order
When the judge has any concerns about the child’s safety, they may order that a non-custodial parent’s time spent with the child be supervised. The supervision, as per the judge’s order, may be done by a family member, agency, or a neutral third party. If a private agency is hired, their fee may have to be borne by the non-custodial parent.
Paternity in Texas
Paternity simply means fatherhood. Establishing of paternity in the legal context involves determining who may be the “legal” father of the child and what may be his rights and obligations as a father towards the child.
While every child will have a biological father, not every child will have a “legal” father. When paternity is established, it means that an individual has been determined as the child’s “legal” father.
If the parents are married to each other at the time of the child’s birth, paternity is established automatically. The husband is considered the legal father and the child’s birth certificate will carry his name.
In Texas, if at the time of the child’s birth the parents are not married to each other, it is important to establish paternity in order to determine the child’s legal father. Until then, the child is without a legal father. Following the establishment of paternity, the name of the father will be added to the child’s birth certificate, and the father will receive some rights to the child.
Establishing Paternity in Texas
Paternity in Texas can be established in two ways: (a) voluntarily, which is done by signing a form of “Acknowledgement of Paternity”; or (b) involuntarily, through the order of the court
Paternity gets established voluntarily in Texas if both parents agree that the father is indeed the biological father of the child. In this case, both the mother and father will have to sign the “Acknowledge of Paternity” form. This is usually done at the hospital itself at the time of the child’s birth, but the parents may also sign the form later and mail it to the Vital Statistics Unit, Austin, TX.
Paternity can be established involuntarily through a court proceeding when the court makes an order adjudicating parentage. It is termed as an involuntary procedure because someone would have disputed paternity, resulting in court intervention.
The court process can be initiated by the father, mother, child, or the state of Texas (if the child is getting public assistance). For this purpose, a “Petition to Adjudicate Parentage” must be filed in the county of the child’s residence.
If the father fails to appear in court following receipt of a notice about the court proceeding, the judge may enter a “default order” in the father’s absence, declaring him to be the legal father. However, if the father appears in court and both parents agree that he is the biological father, the court will issue an order adjudicating parentage immediately.
If either parent is uncertain of or denies paternity, the judge may order DNA testing. Nowadays, DNA testing involves taking swabs from the inside of the cheeks of the child and both parents. The DNA is then sent for lab analysis.
Following DNA testing, if the judge determines the father to be the biological father, they will enter an order adjudicating parentage, establishing the father as the legal father. His name will then get added to the birth certificate of the child.
As part of the paternity proceeding, Texas courts may also issue orders related to child custody, child support, and visitation. During a paternity related court proceeding, both parents have the right to have representation from a lawyer at any stage of the process.
Texas Senate Bill 785
The Texas Family Code was amended by Texas Senate Bill 785, which lets an individual challenge the parent-child relationship if he mistakenly believed that he was the biological father (following some misrepresentation or misleading information).
This law will apply if the person signed the Acknowledgement of Paternity form, or was adjudicated to be the father without having first undergone DNA testing. The suit in this regard must be filed within 12 months from the date the person learns about the relevant facts.
Benefits of Establishing Paternity
When paternity gets established in Texas, the child, the father and the mother will all have certain benefits.
Establishing paternity will help a child:
- Develop a relationship with both the parents
- Learn more about his or her family history (including medical history)
- Receive health insurance and other benefits such as inheritance, life insurance, Social Security, and Veteran’s benefits
Establishing paternity will help a mother to:
- Have someone who can share the parental responsibilities
- Have some who can share the costs involved in raising the child (the mother may also seek court-ordered child support once the paternity has been established)
Establishing paternity will help a father to:
- Get a legal right to his child (such as, having the right to seek court-ordered custody or visitation rights)
- Demonstrate that he cares for the child
- Develop a bond of love with the child
- Participate proactively in the child’s life
Establishing paternity means a lot more than just having the father’s name added to the child’s birth certificate. Both parents should recognize this important fact.
Prenuptial Agreements in Texas
A prenuptial agreement (commonly called a “prenup”) is an agreement that prospective spouses make with each other in contemplation of marriage. In general, a prenup controls the division of assets, such as building, land, vehicles, and retirement accounts.
A prenuptial agreement must be finalized before the marriage takes place. It will come into force the moment the parties are legally married. In certain jurisdictions, a prenup is also known as an antenuptial or premarital agreement.
Who Should Seek a Prenuptial Agreement?
It is a good idea for a couple to consider obtaining a prenuptial agreement in Texas, if one or more of the following scenarios apply:
- Either or both spouses would bring a substantial debt into the marriage
- Either or both spouses would bring property into the marriage
- One spouse is significantly poorer or wealthier compared to the other
- Either or both spouses are remarrying
- Either or both spouses have children
- Either or both spouses are interested in securing their estates
Issues Covered in a Texas Prenuptial Agreement
A prenup in Texas may cover some or all of these issues:
- Each spouse’s rights and obligations with regard to property and debt
- Who will have what rights to buy, sell, exchange, transfer, use, lease, abandon, assign, mortgage, create a security interest in, dispose of, encumber, or otherwise control or manage Property
- Property allocation in the event of the death of one of the spouses, or their divorce or separation
- Rights to alimony
- Having a trust, will, or another arrangement to ensure the prenup’s provisions are facilitated
- Rights to the death benefit from life insurance policies
- Any other matters that do not violate the criminal laws or public policy of Texas
Can Custody, Child Support, and Alimony be determined by a Prenup in Texas?
A prenuptial agreement in Texas cannot limit the amount of child support a parent may have to pay to the other when there is a change in child custody. (Under Texas laws, the right to child support does not belong to the parents, but to the child.)
In a technical sense, the child support payment may be made by one parent to another. However, in a legal sense, the money is meant for the child and can be used only to support the child. Further, if the financial situation changes, the child support award will be modified. The judge will award an amount of child support that is reasonable and fair in the given circumstances, irrespective of the prenuptial agreement between the parents.
In the same way, under Texas law, child custody cannot be decided in advance through a prenup. The family law court exclusively decides the child custody award after evaluating the facts of an individual case and rendering a decision that is in the best interest of the child at the time. In Texas, a judge is likely to give little or no consideration to anything mentioned in the prenuptial agreement regarding child custody and support.
The Texas statutes, on the other hand, specifically provide that alimony aspect can be a binding part of the prenuptial agreement. The prospective spouses could agree to a certain amount of alimony, give up or waive alimony, to adjustments related to cost of living, and to any other factors that may affect alimony. The family court in Texas will enforce the alimony part of the prenup.
Enforcing a Prenuptial Agreement in Texas
Texas follows the UPAA (Uniform Premarital Agreement Act), which outlines the elements that ought to be present in a prenuptial agreement to be legally enforceable. To be legally valid in Texas, a prenuptial agreement should satisfy all of these requirements:
- The agreement must be made in writing (oral agreements are not legally enforceable in Texas.)
- The agreement must not have any “consideration” (which is something of value which is given by one party to the other to show their support for a contract)
- The agreement must be finalized “in contemplation of marriage.” This means the agreement must be negotiated and signed with a view toward an upcoming marriage.
A prenuptial agreement in Texas is legally unenforceable if any of the following is true:
- The agreement was not signed voluntarily by one of the spouses.
- The agreement is considered “unconscionable.” This means the agreement is so severely unfair that it will be against the principles of justice to enforce it. The judge will determine whether the agreement is unconscionable, which may be the case if any of the following is true:
- Either spouse did not make a reasonable and fair disclosure of all of the property owned by them and/or their debt obligations.
- Either spouse failed to expressly and voluntarily waive (in written) any right to such disclosure.
- Either spouse didn’t or couldn’t reasonably have obtained sufficient knowledge of the property interests and debt obligations of the other spouse
Premarital agreements in Texas and elsewhere often are perceived as being an unromantic, pessimistic and self-serving legal document. However, in real life, they may serve the best interests of both parties involved in certain circumstances.
Alternatives to Traditional Divorce in Texas
Divorce cases in Texas are now increasingly getting resolved with the help of alternative dispute resolution mechanisms. Using these mechanisms, both parties can resolve disagreements without having to pursue litigation or make formal court appearances.
These key alternative approaches to traditional divorce in Texas are: (a) divorce mediation (b) collaborative divorce (c) divorce arbitration. It is important to understand the differences between these approaches.
Divorce by Mediation in Texas
The approach of mediation is designed to encourage both parties to work mutually towards resolution, instead of pursuing a traditional divorce that typically is adversarial. Many judges in Texas, in fact, may order mediation if the parties have a disagreement related to children (subject to the condition that there is no history of domestic violence.)
In the process of mediation, a mediator will assist both parties to arrive at a resolution. The goal will be to ensure an equitable resolution for both sides, which can ensure a far more peaceful divorce.
The mediator in a divorce will always have to be a neutral third party. The mediator will neither advise the parties nor make any final decisions. The parties will choose a mediator by agreement.
Although the parties in divorce mediation may be able to reach an agreement without any help from a divorce attorney, having an attorney by your side to take care of the drafting and filing of the divorce decree is usually a good idea. The flexibility of the divorce model allows it to work efficiently both as an independent event and as part of a litigated case.
Collaborative Divorce in Texas
One of the relatively newer techniques of alternative dispute resolution in Texas is collaborative divorce. This approach requires the parties to sign an agreement to finalize their divorce without litigation. That secures the first step towards the peaceful settlement of divorce.
In a collaborative divorce, both parties will usually hire lawyers, but the information exchange is conducted without the necessity of a formal process. The efficiency of the process is ensured through a serious of amicable meetings and honoring deadlines. Collaborative divorce (just like divorce mediation) is aimed at encouraging both parties to work together in a cooperative way.
Unlike litigation or arbitration where one party makes the final decisions, the collaborative approach requires both parties and their lawyers to resolve disputes without the intervention of courts. If the collaborative process fails, the parties can re-start the divorce process with new lawyers.
Divorce Arbitration in Texas
Divorce arbitration in Texas comes closest to the traditionally litigated marriage dissolution. The arbitrator is typically an attorney or a retired judge, who will serve as an acting judge. They will review the evidence and the supporting testimonies provided by both the parties, and then pass a ruling.
Divorce arbitration could be binding or non-binding. This must be agreed upon in advance by both parties, and they should also agree upon who should be hired to arbitrate. As divorce arbitration operates quite like traditional divorce litigation, it is a good idea for both parties to hire lawyers to represent them through various stages of the arbitration process.
Divorce arbitration has an advantage over courtroom litigation in the sense that it is usually more efficient, faster, and provides for greater privacy.
This can relieve some of the stress that a litigated divorce might produce. But it should be noted that unlike collaborative divorce and mediation, divorce arbitration does not unequivocally favor the adoption of a cooperative approach by the involved parties.
When the parties are considering a divorce in Texas, they should seriously evaluate the pros and cons of alternative dispute resolution – mediation, collaborative divorce, and arbitration.
Divorce mediation, as well as collaborative divorce, are more appealing alternatives for parties who are relatively more amicable, parties who have children, and parties who may have to work together in future (even after their divorce).
Arbitration may be a more effective choice for parties that have to deal with more complex and contested asset and debt division, but for whom privacy and speed are a priority.