Legal Separation in Texas

Texas law does not recognize legal separation. Couples generally can, however, enter into a separation agreement. Such an agreement should be drafted by an attorney. It is always best to consult an attorney when dealing with legal issues related to divorce and separation.

Initial considerations for Divorce in Texas

To file for divorce in Texas, at least one party has to be domiciled (you can have multiple residences but only one domicile) in Texas for six months. Additionally one of the parties has to live in the county where the divorce is filed for ninety days. Once you know the appropriate county in which to file the case, you must then find the appropriate court. In Texas, divorce actions are filed in District Courts. In sparsely populated parts of the state, several counties are served by a single District Court. In urban areas, a county may have more than one District Court. In the higher populated counties the action may be assigned to a subsidiary Family Law District Court, if one is available.

Grounds for Divorce

“Grounds for divorce” are the legal reasons for a divorce. Grounds for divorce are the legal reasons or basis for the divorce.

One no fault basis is that the spouses have lived apart for at least three years. The other no fault basis is called “insupportability.”

A court may grant a no fault divorce on the basis of insupportability if a marriage “has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation” (see section 6.001 of the Texas Family Code).

A divorce may also be granted in Texas under the following fault grounds:

• Cruelty
• Adultery
• Convicted of Felony and incarcerated at least one year
• Abandonment
• Confinement in a Mental Hospital for at least three years.

For more information about these fault grounds for divorce in Texas, see sections 6.002 to 6.007 of the Texas Family Code.

Division of Property

Texas is a “community property” state, meaning that property acquired by either spouse during marriage, except that considered to be “separate property,” will generally be divided equally between the spouses, unless a court finds such equal division to be unjust.

“Separate property” in Texas is generally considered to be property owned by one spouse prior to the marriage or acquired by one spouse by gift or inheritance during the marriage. Separate property is generally awarded to the spouse who originally owned it.

Maintenance/ Spousal Support/ Alimony in Texas

In Texas, “alimony” is generally referred to as “maintenance.” It is the court-ordered financial support of one spouse by the other spouse as part of a divorce. “Temporary spousal support” is similar, except that it is only effective while a divorce is pending. When spousal support is agreed to by the parties as part of a final court order it is referred to as “contractual alimony.”

The laws of Texas governing court-ordered maintenance are generally contained in Chapter 8 of the Texas Family Code, which may be found at the following link.

In Texas, court-ordered maintenance (but not temporary spousal support or contractual alimony) is generally limited in duration and amount. This is because maintenance in Texas is designed to simply help a recipient spouse become self supporting; it is not intended as a method to distribute property or allocate debt (though contractual alimony could be used to obtain those ends). Court-ordered maintenance cannot exceed three years in duration, unless the recipient spouse cannot become self supporting due to an incapacitating physical or mental disability. Court-ordered maintenance additionally cannot exceed the lesser of (1) $2,500 per month, or (2) 20% of the paying spouse's average monthly gross income. Again, these limits only apply to court-ordered maintenance and not to temporary spousal support or contractual alimony.

Additionally, courts generally may only order maintenance in one of the following two scenarios: (See Section 8.051 of the Texas Family Code at this link)

• (1) The duration of the marriage was 10 years or longer,
• AND the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under the Texas Family Code, to provide for the spouse's minimum reasonable needs,
• AND the spouse seeking maintenance:
• • is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability, OR
• • is the custodian of a child of the marriage of any age who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse not be employed outside the home, OR
• • clearly lacks earning ability in the labor market adequate to provide support for the spouse's minimum reasonable needs.
• (2) In certain cases involving domestic violence (see the statute, linked above, for additional detail).

In determining the nature, amount, duration, and manner payments for a maintenance award, courts in Texas consider “all relevant factors,” including:

• (1) the financial resources of the spouse seeking maintenance, including the community and separate property and liabilities apportioned to that spouse in the dissolution proceeding, and that spouse's ability to meet the spouse's needs independently;
• (2) the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to find appropriate employment, the availability of that education or training, and the feasibility of that education or training;
• (3) the duration of the marriage;
• (4) the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;
• (5) the ability of the spouse from whom maintenance is requested to meet that spouse's personal needs and to provide periodic child support payments, if applicable, while meeting the personal needs of the spouse seeking maintenance;
• (6) acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;
• (7) the comparative financial resources of the spouses, including medical, retirement, insurance, or other benefits, and the separate property of each spouse;
• (8) the contribution by one spouse to the education, training, or increased earning power of the other spouse;
• (9) the property brought to the marriage by either spouse;
• (10) the contribution of a spouse as homemaker;
• (11) marital misconduct of the spouse seeking maintenance; and
• (12) the efforts of the spouse seeking maintenance to pursue available employment counseling as provided by Chapter 304 of the Texas Labor Code.

(See Section 8.052 of the Family Code at this link).

Tax Consequences of Alimony/Maintenance

A court may increase or decrease the amount of money paid as alimony if either spouse requests it from a court and if circumstances have changed since the original judgment for support. Some examples of a change in circumstances that might warrant a modification of a support order would be remarriage, cohabitation, changes in need, changes in ability to pay, retirement, or the death of the payor.

If a court determines that a change of circumstances has occurred, it considers all of the circumstances to determination the nature of the support modification.

When do Alimony Payments End?

In general, permanent alimony terminates when either party dies or when the recipient remarries.

Tax Consequences of Alimony

It is important to understand that there may be tax implications for individuals who pay or receive alimony. According to Section 71 of the Internal Revenue Code, alimony must be included in the recipient’s gross income and can be excluded from the payer’s gross income.

However, it is critical that payments actually qualify as alimony under the law. To qualify as alimony (also according to Section 71 of the Internal Revenue Code), payments must generally meet five conditions:

• (1) The payment is be a cash payment (such as a check or money order)
• (2) The payment is received by (or on behalf of) a spouse under a “divorce or separation instrument”
• (3) The divorce or separation instrument does not designate the payment as a payment which is not includible in gross cross income as alimony and not allowable as a deduction for the payee spouse (under Section 215 of the Internal Revenue Code).
• (4) The payer and payee are not members of the same household at the time payments are made
• (5) There is no liability to make payments after the death of the recipient spouse

Sometimes it is difficult to determine whether a payment qualifies under the law as alimony. There also may be state and local tax implications for individuals who pay or receive alimony. Therefore, it is best to consult with an attorney or qualified tax professional.

Child Support in Texas

Child support is the court-ordered payment by one parent to the custodial parent of a minor child, generally after divorce or separation. The amount of child support that a non-custodial parent should pay is determined by a court using guidelines established for this purpose by the State of Texas

If a parent's net monthly income is under $7,500, then the guidelines indicate that the parent must generally the following amount of your net income each month as child support:

• • 20 percent for one child
• • 25 percent for one child
• • 30 percent for one child
• • 35 percent for one child
• • 40 percent for one child
• • Not less than 40 percent for six children

Other special rules do apply in cases of split or joint placement or multiple children in different households.

If a court determines that you should be making more money than you are making, it might set the child support amount according to your earning potential.

Although the guidelines above provide a court with a starting point in determining a child support amount, the above guidelines are not necessarily the end of the story. Although a court starts with a presumption that the above guidelines provide the correct amount of child support, a court may use its discretion to set a different child-support amount if evidence is provided that shows that it would be “in the best interests of the child” to vary from the standard child-support guidelines

This is a very important legal standard: “the best interests of the child.”

If evidence is presented to a court that shows that “the best interests of the child” would be served by varying from the standard child support guidelines, then a court has discretion to decide an “equitable” amount of child support and to use that amount to set the actual amount of periodic child support payments that must be made.

A court may look at a multitude of factors when considering “the best interests of the child” for the purpose of determining child support, including:

• (1) the age and needs of the child
• (2) the ability of the parents to contribute to the support of the child
• (3) any financial resources available for the support of the child
• (4) the amount of time of possession of and access to a child
• (5) the amount of the obligee's net resources, including the earning potential of the oblige if the actual income of the obligee is significantly less than what the obligee could earn. This could be because of intentional unemployment or underemployment
• (6) child care expenses incurred by either party in order to maintain gainful employment
• (7) whether either party has the managing conservatorship or actual physical custody of another child
• (8) the amount of alimony or spousal maintenance actually and currently being paid or received by a party
• (9) the expenses for a son or daughter for education beyond secondary school (high school)
• (10) whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity
• (11) the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties
• (12) provision for health care insurance and payment of uninsured medical expenses
• (13) special or extraordinary educational, health care, or other expenses of the parties or of the child
• (14) the cost of travel in order to exercise possession of and access to a child
• (15) positive or negative cash flow from any real and personal property and assets, including a business and investments
• (16) debts or debt service assumed by either party
• (17) any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents

A court may generally order one or both of a child’s parents to pay child support until one of the following occurs:

• (a) the child is 18 years of age or graduates from high school, whichever occurs later
• (b) until the child is emancipated through marriage, through removal of the disabilities of minority by court order, or by other operation of law
• (c) until the death of the child
• (d) if the child is disabled, a court may, in certain cases, order child support to be paid for an indefinite period.

Child Custody in Texas

If parents are unable to reach an agreement on their own regarding child custody, a court may determine it for them. A court can award sole custody or joint custody of a child.

The standard for granting custody in Texas (as with most states) is “the best interest of the child.” This means that a court makes its decision regarding custody based on the question of what is in the best interest of the child involved.

Texas family courts follow basic guidelines in determining what is in a child’s best interests. Factors that a court would consider include:

• • the desires of the child
• • the emotional and physical needs of the child now and in the future
• • the emotional and physical danger to the child now and in the future
• • the parenting abilities of the individuals seeking custody
• • the programs available to assist these individuals in promoting the best interest of the child
• • the plans for the child by these individuals or by the agency seeking custody
• • the stability of the home or proposed placement
• • the acts or omissions of the parent, which may indicate that the existing parent-child relationship is or is not a proper one
• • any excuse for the acts or omissions of the parent.

Child Visitation in Texas

The laws of Texas governing visitation are generally contained in Chapter 153 of the Texas Family Code, available at this link.

Under Texas law, a parent who does not have primary custody of a child will generally be allowed reasonable visitation unless a court determines that visitation would endanger the child’s physical health or significantly impair the child’s emotional development.

Under Texas law, a parent who does not have primary custody of a child will generally be allowed reasonable visitation unless a court determines that visitation would endanger the child’s physical health or significantly impair the child’s emotional development.