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FAQs About Divorce in Texas. Part Two

This article is a continuation of our discussion of Frequently Asked Questions about divorce in Texas. This article answers questions about the divorce process. Subsequent articles will focus on property division, spousal support, child custody, and child support.

The questions are general in scope. For questions about your marital situation, you do need to speak with an experienced divorce lawyer. At Lyttle Law Firm PLLC, our caring family lawyers guide spouses and parents through each stage of the divorce process.

What are the Requirements for “Separation” in Texas?

There are many practical reasons why couples live apart before the divorce is granted. You may need breathing room from your spouse. You may need to move out of the marital home because of physical abuse concerns. Your spouse may move in with someone he/she is having a new relationship with.

Texas does not formally recognize the concept of a legal separation. When you live apart, any property either spouse acquires is still considered marital property. You can’t file for temporary alimony/spousal support until divorce papers are filed.

There is one legal reason to separate. Living apart for at least three years is one of the divorce grounds in Texas. You can’t cohabit any time during that three year period. Separation/living apart means living in a different residence. It doesn’t mean living in different rooms in the same house.

What’s the Shortest Amount of time I need to Wait in Order to Divorce in Texas?

All Texas divorces have a minimum 60-day waiting period. This means your divorce decree can’t be granted until, at least 60 days after you file for divorce. The 60-day waiting period is mandatory. You and your spouse can’t agree to waive the 60-day period.

There are requirements for completing the divorce at the end of the 60-day waiting hearing. You need to show your spouse has legal notice of the divorce – either through service of the divorce papers or if your spouse signs a “waiver of citation.” If there are any open issues such as child custody or division of marital property, you and your spouse must agree to these issues - in writing – before your divorce will be granted.

Do I Need to go to Court to Obtain my Divorce?

If there are contested issues, then you will need to appear in court. Even if you and your spouse agree to all the contested issues in writing, then either you or your spouse must attend a final court hearing in front of a family law judge.

In uncontested divorces, the hearing judge will likely just ask you a few questions. The whole process, once you’re actually in front of the judge, will likely just take several minutes – especially if your family lawyer helps prepare you for the questions that will be asked.

There may be some judges who are willing to waive the hearing requirement especially during COVID-19 and the pandemic, hearing requirements have now changed.

Can You Terminate the Divorce Proceedings if You Change Your Mind About Divorcing – After the Divorce is Started.

Yes. The Texas family courts prefer it if couples stay married – especially if you have children. You can request that the divorce be dismissed if you and your spouse reconcile. The spouse who files the divorce normally has to consent to the dismissal. If your spouse has responded, by filing court documents, then your spouse must also consent to the dismissal. If your spouse doesn’t consent to the dismissal but you do – then the divorce proceeding will continue.

How Does Adultery Affect a Divorce?

First, let’s be clear on what adultery is. Adultery is when your spouse has intimate relations with someone other than you while you are married. Adultery is an issue in divorce cases in several ways:

  • Adultery is a ground for divorce in Texas. If your spouse has an intimate affair, you have the right to a divorce. What is difficult is proving that your spouse committed adultery. If your husband/wife admits the adultery, then you can demand a divorce. If he/she doesn’t admit adultery, then you need evidence to support your claim. Often the evidence is circumstantial – which means evidence based on secondary facts as opposed to a video or photograph of the affair. Phone calls, text messages, lipstick on a collar, and other evidence can indicate adultery.
  • Spousal support. Section 8.052 of the Texas Family Code provides that “marital misconduct, including adultery and cruel treatment, by either spouse during the marriage” is a factor in awarding spousal maintenance. If your spouse committed adultery, then you may be entitled to spousal support or more spousal support than is standard. If your spouse committed adultery, his/her claim for support may be denied.
  • The division of marital property. If your spouse commits adultery, you may be entitled to a larger share of the marital property – especially if your spouse spent a lot of money to support the adulterous relationship.
  • Child custody. Courts may consider adultery in determining conservator arrangements. The court has the right to question how the adulterous relationship affects your children.

A lot depends on the judge and the circumstances around the adulterous relationship. Some judges are more accepting of spouses not being faithful than other judges.

What can I do if My Spouse isn’t Cooperating During the Divorce Process?

Your spouse may try to drag out/delay the divorce for several reasons. He/she may not be ready to admit the divorce is over. Some spouses are just jerks. They want to delay the divorce because they’re angry or bitter. Some spouses think that by delaying the divorce, they can force you into accepting a horrible settlement. A spouse can delay the proceedings by contesting every filing. They can refuse to negotiate and force every issue to be heard by a judge.

At Lyttle Law, we work to move your divorce while protecting your interest in several ways. We may seek to resolve your case through mediation or through a collaborative divorce. We may seek temporary support while the divorce is pending. In some cases, we may seek legal fees.

We also present your case before a judge and explain, through your testimony, how your spouse is being uncooperative.

Make the Call to an Experienced Texas Family Lawyer Today.

It’s natural to have many questions if you’re considering a divorce. Rest assured, that our experienced family lawyers will take the time to answer all your questions. You can ask questions at any phase of the divorce proceeding. At Lyttle Law Firm, our Austin and San Marcos family lawyers represent spouses and parents who live in Travis, Hays, Comal, Williamson, Bell, Caldwell, Burnett, Llano, and Guadalupe Counties. Call us at 512.215.5225 or use our online form to schedule an appointment.

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