Are you looking to divorce but not sure where to start?

This guide will tell you everything you need to know before you start your divorce. We will guide you through every step of the process from when you should start to what it costs all the to preparing you to file.

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About the author Chris Jackman

Chris is one of Aberdeens founding partners and a recognized Divorce Lawyer in Washington

Chapter One What Are the Grounds for Divorce?

Divorce is something that people don’t usually know a lot about until they end up facing one themselves. The laws regarding divorce are different in every state, but they are designed to ensure that the marriage is dissolved for the right reasons and in the right ways. While many people will hire a divorce lawyer to assist them, it doesn’t hurt to also do some research and learn about what to expect during the divorce process, including whether you have grounds for divorce.

What does “grounds for divorce” even mean, though? Here’s what you need to know

At-Fault vs. No-Fault Divorces

Divorce laws and guidelines vary from one state to the next. All states have changed to allow people to file no-fault divorces, which simply means there doesn’t necessarily need to be a designated “reason” given for the divorce. No-fault divorces are growing to become more common and they offer a simpler, quicker option for divorce in many cases. If people can agree that it’s time to get divorced, they can usually agree on things like separation of property and assets, custody arrangements, and other factors of the divorce.

Those who are filing an at-fault divorce will need to have proof of whatever fault they are citing. If there is an accusation of adultery, there needs to be proof of the extramarital relationship—one partner can’t simply say the other is cheating. In the event of desertion, it’s usually required to be proven that all attempts have been made to locate and contact the spouse, to no avail.

If you are trying to get a divorce in an at-fault state, there are some common factors or grounds, that may be considered reasons to approve a divorce. Talk to your attorney to make sure that you know what to expect depending on where you live.

Examples of Grounds for Divorce

As mentioned, the legal reasons for getting a divorce may vary from one state to the next. However, here are a few common examples:

  • Adultery (cheating, etc.)
  • Bigamy
  • Mental or physical abuse
  • Mental illness
  • Marriage between close relatives
  • Mental incapacity at the time of the marriage
  • Fraud or force in getting the marriage
  • Alcohol or drug addiction
  • Desertion

If you’re required to provide grounds for divorce, you will usually find them in these examples. If not, you can ask your lawyer if your situation qualifies. If you go the no-fault divorce route, you can file for divorce simply due to “irreconcilable differences” and don’t need a specific reason. This simply tells the courts that you have serious relationship issues that cannot be resolved and the best option is now divorce.

How to Decide Which Way to File

Each divorce case is as unique as the marriage and the two people involved in it. Therefore, it’s going to take a little research to determine exactly how you want to file for divorce. If you live somewhere where you have the choice between at-fault and no-fault divorces, you will want to consider a few things before you decide.

For starters, do you have hard proof, and plenty of it, that some type of misconduct has occurred? If you cannot prove the grounds for divorce, you will not be able to file an at-fault case, let alone stand a chance at winning it. The second thing to consider is whether you want to go through the long, often drawn-out process of a lengthy court case and divorce battle.

Not only does this take time and energy, but it can get quite costly, too. The only real reason to choose at-fault divorce is if the actions of the other spouse warrant being a factor in the division of assets, custody, child support, alimony, etc.

As mentioned, no-fault divorces can often be swift and painless, which is part of what makes them so desirable. And they’re also more affordable when they take less time, so that’s worth considering.

The Next Step

Once you have decided that it’s time to file for divorce, you need to be prepared for all that lies ahead. At this point, you have a better understanding of the grounds for divorce and the benefits of having an attorney at your side. That will help you in more ways than you can anticipate as you move through the phases of the divorce process, including the actual filing of the divorce with the courts.

Chapter Two How Do I File for Divorce?

No one plans for divorce. When you get married, you’re happy and in love, and you both vow to live that way until “death do you part.” Unfortunately, sometimes that doesn’t always work out. There are several reasons that couples could find themselves facing divorce, from serious issues like adultery, addiction, or abuse, to simpler things like growing apart and realizing that the marriage is broken beyond repair.

The exact process for filing for a divorce varies from one state to the next. Some counties may even have different filing requirements or documents that need to be submitted as part of the divorce process. Be sure to look up the filing process for your state specifically so that you can get the exact details. You can also touch base with your attorney, and they will help you get an idea of what to expect.

How to File for Divorce

Depending on the state that you live in, the paperwork required will vary. You can obtain divorce forms from the courthouse. Many state and county courts also have forms available online for download if you don’t want to make the trip. You need to make sure that you use the right forms, including:

  • A cover sheet for family court that lists all the basic information about the spouses, the marriage, and the children involved, if any.
  • The Petition for Divorce explaining why the divorce is sought, as well as what the petitioner wants out of the divorce, including custody, support, and assets.
  • A Summons filed with the court and served to your spouse with the rest of the divorce paperwork.

Once these forms have been completed, as well as any others required in your state, you can file them with the court clerk. They will be stamped and entered into the court record, and the divorce process will officially begin.

Filing Requirements

These will again vary from one state to the next, but these factors will impact when and whether you can file for divorce.

You don’t have to get divorced in the state in which you were married. You simply need to meet the residency requirements of the state where you live at the time of the divorce. Some states require people to be residents for just three months, while others might require residency for a year before they can file for divorce, for example.

Waiting Periods
Some states may have a waiting period that must lapse before a divorce can be finalized. Texas, for example, has a 60-day waiting period from the time of filing until the divorce can be finalized. California’s waiting period is much longer, at six months. Those who have minor children may have longer waiting periods imposed, too, to allow emotions to settle and ensure that divorce is the absolute best option.

Grounds for Divorce
As discussed in chapter one, some people may decide to file for divorce based on specific grounds, or something that happened to lead to the divorce. These could include things like cheating, abuse or addiction, desertion, imprisonment, etc. The important thing to remember is that you must have proof to file this way.

Service and Response

Once you file the divorce, you must also serve notice to the other spouse of your court filing. This official notice can be performed by a professional process server, which will cost $30-$100, on average. You may also have someone you know serve the papers, so long as they’re familiar with the rules. Some people have their lawyers take care of it. Make sure that you know the service requirements and follow them to ensure that you don’t delay or derail the process.

Once the divorce papers are served, the served spouse will usually have 21 days to respond. Some states have longer or shorter response times; this is also usually listed on the documents that are served. The response will include whether the spouse agrees with the divorce petition or wants to contest the things in the divorce filing.

Contested vs. Uncontested Divorces

In some cases, divorces are amicable and can be filed as uncontested. This essentially means that both spouses agree on the terms of the divorce and are willing to settle to speed up the process and avoid a lengthy court battle. However, there are plenty of contested divorces that may require further mediation or court intervention, and there’s no guarantee as to how your case will go.

Chapter Three What Is the Process for Getting a Divorce?

The process of getting a divorce takes careful planning and understanding. There are many steps involved and it will be important that spouses are following all the laws and requirements of the state they live in. Each state has its own laws regarding divorce cases, including the process, steps involved, filing requirements, and other elements. Fortunately, the process is also generally the same everywhere.

The best thing to do in a divorce is to start by hiring a reputable divorce attorney. They can walk you through the process of divorce and help you decide on the best way to handle things. If you are divorcing and the split is mutually agreeable, you might be tempted to forego a lawyer, but that’s not recommended for several reasons. If nothing else, a lawyer can educate you on what to expect and make sure that nothing gets overlooked. If things go sour, they can be there to help you fight for what you deserve.

Here are the basic steps involved in the process of divorce. The actual process will vary for each person, but all these elements must be completed for a divorce to be finalized.

Step One: Filing for Divorce

This is the process discussed in the last chapter in-depth, and it is the first one that will get the divorce process rolling. There is paperwork that needs to be filed with the courts, which will include a Petition for Divorce so that your case can be put on the official court record. The filing process may be different in each state, so be sure to see what’s required where you live

Step Two: Serving the Papers

The spouse that files for divorce will need to serve papers to the other spouse to notify them that the official documents have been filed and the process has been started. This is best done by a professional and is typically easier when divorces are agreeable between both parties. Sometimes, serving divorce papers can be a challenge and require some extra investigation work.

Step Three: Attempting Mediation and Settlement

Many courts and states will ask couples to attempt to settle first to avoid a lengthy court battle. They may require a certain number of mediation sessions to try to resolve issues amicably. Even if this isn’t a requirement, it could be a good choice in divorce cases that are more amicable and have less contention.

Step Four: Going to Court

If things can’t be worked out in mediation, couples may find themselves in front of a judge. The judge will be responsible for hearing the details of the case, asking questions of each spouse, and determining a divorce settlement that is “fair” in the eyes of the court. This can and will include:

  • Personal property
  • Financial assets (and debts)
  • Child custody
  • Alimony
  • Child support

Courts would rather couples work these things out among themselves, but if they can’t, the judge is ready to intervene and determine what’s fair for all those involved. This will be based on the individual circumstances of the case, as well as other factors.

Step Six: Finalizing the Divorce

Once all the court hearings or mediation sessions are over and all the elements of the divorce have been settled, it can be finalized. States may require a certain waiting period before they will finalize a divorce, so even if the court process is complete, some people may have to wait a little longer. When filing for divorce, it helps to check out the waiting period laws in your state so that you know what to expect from start to finish.

What’s Next?

Once a divorce is finalized, you’re done. You and your former spouse can go your separate ways, split up your assets and property, and start living with the new custody arrangement for the kids if you have them. This is an emotionally charged time and you might find yourself experiencing a bit of a comedown as the dust settles, but that will pass with time.
Keep yourself busy and start looking for new ways to spend your time so that you’re not sitting at home thinking about your recent divorce. Even when the situation is amicable, it can still take a toll on all of those involved.

Chapter Four How Long Does Divorce Take?

The divorce process doesn’t really have a set timeline. In addition to the fact that every case is different, there are varying requirements and factors involved based on where you live. Some states require a “cooling off” period that allows people to settle their emotions and make sure that divorce is the right choice. All this can impact the time that it takes for you to get a divorce.

To best prepare for your case, it’s a good idea to learn about the timeline involved and what to expect for your divorce. Consider the circumstances of your situation, including whether the divorce is contested or not, and talk to your divorce attorney to get a better idea of what your timeline might look like. Most importantly, be prepared for changes to that timeline because there are almost always hiccups in the legal process.

Factors Affecting the Timeline

Several factors can impact the timeframe of your divorce.

  • Residency: States often have residency requirements that are factored into who can and can’t file for divorce. Some may be as short as 90 days, while some may require residency of six months to a year.
  • Waiting Periods: The “cooling off” periods mentioned earlier also factor into the divorce. You may have to wait 30 or 60 days to file your divorce or to proceed with the process once you make the decision, which can add time to the overall process.
  • The Process: The type of divorce that you get and whether it goes to court, as well as whether there are any arguments or contested items that need to be addressed, will all impact how long it takes. That’s why you can’t pinpoint exactly how long it will be—there are too many variables.

These are just a few of the most common factors that affect how long divorce takes.

Contested vs. Uncontested Divorces

Whether you are filing a contested divorce or an uncontested divorce will also impact the time it takes to complete. In uncontested divorces, both spouses agree upon all the asset division and custody issues, as well as other elements of the divorce. This means no court and that there will probably only be a single mediation meeting to hammer out the terms of the settlement.

Contested divorces will take longer because they will either require further mediation or the intervention of the judge, which could turn into a full divorce trial rather quickly. However, you shouldn’t let the timeline dictate whether you want to fight for what’s yours in the divorce, especially when it comes to the kids.

Mediation and Settlement Are Usually Faster

Mediation and settlement usually only take a few meetings and won’t be drawn-out processes. The courts are busy, and they have enough to deal with. Divorce cases only add to their workload. Therefore, they like to get people through mediation quickly and get the divorce finalized so that they can move their attention to the next case that requires it. Some people go through mediation and end up not being able to settle, which then leads to a trial and that can make the process immensely longer.

No-Fault vs. Fault-Based Divorces

If you are filing a no-fault divorce, which says that no one is really at fault, it’s just not working out, that will usually go much more quickly than a fault-based divorce. When you aren’t claiming fault, you have nothing to prove. You and your spouse are just telling the courts that you tried, but the marriage wasn’t meant to be. This means there’s less back-and-forth about the division of assets in many cases, too.

Fault-based divorces are those filed because something happened. It could be an affair, drug abuse, mental or physical abuse, or even something like desertion. Whatever the fault is, you need to have plenty of proof to bring with you to court. If you cannot provide proof, you will not be able to win your case or get things to work in your favor. The court may throw the divorce case out entirely or require you to re-file it as a no-fault divorce.

The Average Divorce Duration

On average, divorces will take 12 months when they are filed and able to be settled amicably. If the case becomes contentious or if the divorce is contested, it could last for 18-24 months. Some high-profile cases and those with lots of assets or children can drag on even longer because there are so many details to work out. Although you can’t change the legal process, you can help your divorce go more quickly and smoothly by knowing what to expect and being prepared for the next steps as they come.

Chapter Five How Much Does a Divorce Cost?

The duration of the divorce process is just one of the factors involved in how much a divorce costs. For example, a divorcing couple that settles quickly and amicably may complete the process in a matter of weeks, which means they’ll spend less on lawyers and legal fees as opposed to two people who have a highly volatile and contentious divorce and who spend months, or even a year or more, trying to sort things out.

Of course, there’s more to the cost of divorce than how long it takes. You have to consider the court fees and legal costs, as well as divorce lawyer fees, and what you lose in the divorce—that last one is often the real cost of divorce.

Texas Divorce Filing Costs

In the state of Texas, each county is responsible for setting its own filing fees and other costs. Therefore, the exact cost will vary depending on where you live and where you file for divorce, but it’s usually around $300 in most counties. Whether kids are involved will impact the filing costs, as well.

Texas also has the option to ask for a waiver. Anyone who can’t afford the filing fees can fill out an Affidavit of Inability to Pay Court Costs and file it with the courts. These are just the fees related to filing for divorce—you’ll also have to consider what you’re spending on a divorce lawyer, which has its own variables involved.

How Much Does a Divorce Lawyer Cost?

There’s no single, simplified answer to this question. Most divorce lawyers charge hourly for contested divorces, but some will charge a retainer and then work on a percentage-based structure depending on how long the divorce takes, how complicated it is, etc.

When searching for a qualified divorce lawyer, you’ll want to make sure that not only are they experienced with Texas divorce cases, but that you understand how they charge for their services and what to expect. Some lawyers will work with you to come up with an arrangement if you can’t afford to pay their typical rates, too, so don’t be discouraged by the potential for legal fees.

Not having a divorce lawyer on your side can often cost you far more. People who attempt to represent themselves in divorce cases often end up not getting their preferred outcome when it comes to things like:

  • Custody of children
  • Asset and debt division
  • Determination of property division
  • Alimony (spousal support)

Even if you think that your divorce is agreeable and going to be straightforward, you should still consider consulting a Texas divorce lawyer to make sure that you know what you’re getting into. This will also allow you to have someone on call when you decide to enlist their services.

Does Mediation Cost Extra?

Couples who are divorcing on a somewhat amicable basis may opt for mediation before they consider having an all-out court case. Mediation is not going to cost “extra” or be charged as a separate process. Anyone who files for divorce in Texas and pays the court filing fee has a right to mediation as part of their divorce proceedings.

In some cases, the judge may opt to mandate mediation so that two people can work out as many of their own issues as possible before taking it to court. For example, if children are involved, a family court judge might order mediation to work out a custody arrangement that’s in the best interests of both parents and the children, rather than leaving it to the courts to decide.

In any case, it doesn’t come at an additional cost or with any fees to be concerned with. The court-appointed mediator is paid by the courts, not by the people involved in the case. The only way mediation will impact the costs is if it increases the duration of the divorce proceedings, which can drive up legal fees and other costs.

Contested vs. Uncontested Divorces

While lawyers typically charge hourly for contested divorce cases, many law firms have more affordable flat rates for uncontested cases. If you and your soon-to-be-ex agree on things and want to settle quickly and amicably, you can often do it for under $2,000 in legal fees, which is a fraction of what you’ll spend on a contested case.

Not only do you save time this way, but you save a lot of stress, and a small fortune on the cost of a lawyer and the rest of the divorce process.

Chapter Six What Happens to Our Property During a Divorce?

During the divorce process, a lot is going on. It’s no doubt that both spouses have questions, and for good cause. You have likely acquired a lot during your marriage, including property like a home, vehicles, and perhaps even a vacation home or some land. It’s natural to wonder what happens to all your property during a divorce. However, that’s not a question with a simple answer.

Every divorce case is different. What happens to property depends on several factors, including things like whether people are filing a contested or uncontested divorce (the latter of which is far more contentious and therefore, complicated). Whether people go through mediation or have a full court hearing to determine the various facets of the divorce will also impact what decisions are made regarding any property that is owned by either or both parties.

Texas Is a Community Property State

Texas is one of many states that is known as a community property state. That simply means that property is typically equally divided, based on Chapter 3 of the Family Code. This applies to any property acquired during the marriage. The courts will determine a “just and equitable” way to divide everything, which may include selling certain assets and dividing the profits instead of just dividing the assets.

For example, if the only physical property is a house and two vehicles, it would make sense that each spouse gets one vehicle. However, there’s no real way to “divide” the house as it is. The courts may determine whether the house should be sold and the profits divided. They may also allow one spouse to keep the house and pay the other for their half of the property’s value,

There are a lot of variables, but the goal of the court is to ensure that everyone gets a fair outcome, no matter how contentious the divorce may be.

Separate Property

In Texas, separate property refers to any property acquired and owned by one of the spouses before the marriage. It can also include any gifts or inheritances acquired during the marriage, as well as personal injury settlements that are unrelated to income or earning capacity. If an asset can be proven to be separate and owned by only one spouse, it can be deemed separate property. This means it won’t be subject to community property laws.

Conversion of Property

There is also the option for spouses to file an agreement that lists property that was initially separate, but that they want to be converted into community property. For example, if one spouse owns a home at the time of the marriage, they may opt to add the spouse to the deed and make it community property instead of keeping it in their name.

Any property that is converted will be subject to the standard community property division guidelines and cannot be reclaimed as separate property. The same happens when property is so comingled that determining the original acquisition of the asset is impossible. Thus, it is deemed community property and subject to those rules.

Mediation vs. Court Decisions

The biggest factor as to what happens with property in a divorce is whether the two divorcing spouses can actually agree on anything. If they can work through mediation or file an uncontested divorce, they will have a much simpler process of dividing property. It will also ensure that both parties get what they want in terms of property and assets and that no one is compromising or losing out on something of value that may be hard to prove as theirs during the division of property process.

Court decisions are best saved for those situations where two people absolutely cannot agree on what should happen with property in the divorce. This will give the judge the capacity to divide property and dictate what happens with all physical property, assets, debts, custody, child support, and alimony matters. They will review the details of the case and each party’s argument, and then decide what they think is “fair and equitable” based on the circumstances.

If you leave it up to a judge, you may not be satisfied with what happens to your property in the divorce process, so make sure that you think twice about trying to work it out with the other person. The same is true for your assets and debts.

Chapter Seven What Happens to Our Debts During a Divorce?

Just like with property division, Texas has certain rules regarding the division of debts in a divorce case. Several circumstantial factors come into play, along with the way that the divorce proceeds—people who go through mediation often have a better outcome than those who leave it up to the courts. Texas is a community property state, and those rules apply to debt division, too. That means the courts will do what they believe to be “fair and equitable” for both parties when it comes to dividing their debts and bills.

Community vs. Separate Debts

If one spouse acquires a debt before the marriage, it can remain a separate entity that only they are responsible for. However, if debts are acquired during the marriage, even in one person’s name, they may be considered community property. There are exceptions, of course, such as if one spouse got a lot of credit cards and racked up $50,000 in debt without telling the other spouse—the court can see that it’s not “fair” to make them pay this debt.

Joint debts could include anything from credit cards to mortgage payments, car payments, outstanding loans and credit lines, and even utility bills and tax debt. There are a lot of finances involved in a marriage and when you comingle everything, it immediately changes the situation for both of you.

Mediation vs. Court Rulings

The other big factor that determines what happens to your debts is whether you can work it out between the two of you or if the courts have to get involved. In some cases, courts may even suggest or mandate mediation first. This is in the hopes that people will be able to work most of the details out on their own, thereby relieving the court of the responsibility of dividing everything up equitably.

No one wants to be stuck with a bunch of debt after a marriage ends. It’s bad enough that you’re starting over as a single person and have to try to build a new life. You don’t need to have a bunch of bills on top of it. However, if you can discuss these with the other person and come to some type of agreement, it will be much better for both of you than letting the court decide.

Once the court does make a ruling, it will make sure that all the debts are transferred and accounted for properly. This includes making schedules of required payments, if necessary, a list of responsibilities for each party, and so forth. If they feel that certain debts should be handled as community property even if they were separate, or vice versa, they may rule on that, as well.

The point is that while the court works toward “fair and equitable” distribution, you don’t want to leave it up to them unless you have to. It’s always better if you can work things out. Of course, there are some divorces where this just isn’t possible and the courts might be the best decider of what happens to assets, debts, property, and more.

What if I Can’t Pay?

Some people end up in a situation where they are given a “fair” division of assets that they can’t actually afford. Perhaps they have a high-earning job now, but after the divorce, they’ll have to change jobs to be able to take care of the children, as well. Therefore, it might not be fair to ask them to pay the same amount of debt that they could have afforded before the divorce.

Granted, both parties decided to take on this debt, so they should both be held responsible. However, there are several factors at play here, as well as several ways that courts can get creative to help people take care of their marital debts after their financial situation changes. They might be able to work out new payment plans, offer support for payment arrangements with creditors and lenders, and so forth.

The bottom line? A court isn’t going to assign you a load of debt that will drive you into financial ruin. They’re looking out for the best interests of both parties, and that includes their financial situation. If there’s an issue with paying debts, the court may even decide that it’s better to sell off some assets and property instead of keeping them.

For example, instead of staying in the marital home when you have a ton of equity, you could sell it, find smaller or more affordable places, and then use the profits to pay off some of the debts. All this complexity makes it wise to have a seasoned divorce lawyer on your side to help navigate the process, including what happens to that marital home that we mentioned.

Chapter Eight Who Gets to Stay in the Family Home During the Divorce?

While the home will typically be divided among the assets in the divorce, many people wonder who has the legal right to stay in the home during the actual divorce process. If things become contentious, it might not be a good idea for the spouses to continue living together. And as with anything in a divorce, it might be a battle to try to decide who gets to stay and who has to find somewhere else to live.

There are legal elements to consider, of course. Texas is a community property state, so even if only one spouse is on the title, the home is usually considered to be jointly owned if it was purchased during the marriage. Unless there is an order of protection or restraining order, both spouses will have a legal right to be in the home.

There are also pros and cons to consider with staying versus finding a new place to live. For example, with children, it’s often easiest to keep them in the family home to cause as little disturbance to their lives as possible. If there are no children, it might just be a matter of who’s willing to move out. In cases where spouses cannot agree, the courts may intervene in other ways.

Should You Keep the House?

Some people wonder if they should even keep the house in the first place—it can be a source of emotional pain or even financial struggle, and there are several reasons that people choose to sell the house and divide the profits (if there are any) once the mortgage is paid in full. There are also plenty of people who keep the house and are happy to do so.

Consider whether you can afford to keep the house, first and foremost. For example, if you have a $2,000 mortgage and you only make $4,000 a month, it might be a little tight unless you are also getting child support and/or alimony out of the divorce.

The answer to this question also depends on whose name is on the mortgage and the deed. The deed is fairly simple to modify once a divorce has been finalized, but if there’s a mortgage in one spouse’s name or both, the spouse awarded the home may have to refinance. Can you qualify for this?

There are so many considerations involved in whether you should even keep the house after a divorce, but since you can’t do anything until the proceedings are complete, someone might as well continue living there. If it’s going to be you, make sure that it’s the right choice.

Pros and Cons of Staying in the Family Home During Divorce

If you’re going to stay in your Texas home during the divorce proceedings, you’ll want to consider the pros and cons. Each case is unique, of course, so there may be circumstances that you need to consider that don’t apply to others. However, here are some general pros and cons to keep in mind.


  • It provides stability for the children.
  • It allows you to continue to live uninterrupted.
  • It can be cheaper and easier than trying to find a new place to live.
  • You won’t have to stay with family, which can sometimes be stressful.


  • You may not be able to afford the house payments alone.
  • Maintenance and upkeep can become taxing for a single spouse.
  • The emotional attachment and associated pain could be difficult (such as in the case of an affair).

Some people feel that emotions shouldn’t play a role in important decisions like this, but the reality is that they always will, at least to a small degree. Make sure that you do what is best for your emotional and mental health, as well as for your life, children, etc.

Get a Few Opinions

If you’re not sure what to do about living in the house during the divorce or whether you should keep it or sell it, you’ll want to ask around and get some insight. You can talk to family and friends, and you might even want to consult a real estate agent to see what’s best.

You should also talk to your divorce lawyer and get their input. They’ll be able to take a look at your case and determine what’s best based on your unique circumstances, including whether there are kids, etc.

Chapter Nine How Is Child Custody Determined During a Divorce?

Child custody matters are one area of divorce that many parents worry about. No one wants to lose custody of their children, let alone make their lives more difficult because their parents couldn’t make the marriage work. Fortunately, Texas has some very helpful laws and guidelines in place and like most states in the U.S., the primary focus is always on determining what is in the best interests of the child.

Several factors influence how parenting time is awarded during a divorce, including which parent is staying in the family home (if any), both parents’ careers or work demands, family support, the disruption to the children’s lives caused by custody arrangements, etc. Each case is unique and several variables could be involved, so it’s always best to hire a family lawyer with experience in custody and divorce cases to ensure that you get the best outcome for everyone involved and especially the children.

Joint Custody is Preferred

Texas prefers parents to be able to get along at least enough to allow for a joint custody situation, which the state believes is in the best interests of the children. This is, of course, assuming that there are no issues preventing custody, such as domestic violence, abuse or neglect, or other parental misconduct.

Shared custody includes legal decision-making and physical custody. It means that both parents have a say in making decisions, including medical care, education, and more. If there is a question of capability or other concerns, the judge may determine that sole custody is the best option. Shared custody arrangements include at least 35% of the year spent with each parent, and may not always be divided 50/50.

Mandatory Parenting Classes

Texas courts may also require parents to complete a parenting class before they are granted a divorce with a custody arrangement. This is designed to help the parents and the children cope better with divorce or separation. There are some instances where the court will waive this requirement, but that’s not common. Make sure that the course chosen meets the laws of Texas courts. They will usually provide parents with a list of acceptable classes or courses that they can attend.

Legal Decision-Making and Physical Custody

There is also an important designation between who gets legal decision-making power and who gets physical custody of the children. In some states, these two things can be separate. Texas courts prefer to allow both parents to retain legal and physical custody when possible, but if not, they will award it to the parent that is most likely to deliver the best interests of the child.

Legal decision-making refers to things like schools, medical treatments, and the day-to-day lives of children. Physical custody refers to which parent the child resides with on a full- or part-time basis.

Defining the “Best Interests” of the Child

In determining the best interests of the children, the Texas Family Code requires that the court evaluate:

  • The home environment of each parent
  • The distance between homes
  • The parent’s ability to be a caretaker
  • Whether amicable co-parenting is possible
  • Financial circumstances
  • Employment circumstances
  • Children’s preferences (for children over age 12)

There is a lot of discretion in this aspect of the ruling, but the courts are ultimately looking to do what is in the best interest of the wellbeing of the child, both emotionally and physically. If a home environment is unstable or a parent works 12-hour night shifts and is largely unavailable, the courts may give more custody to the other parent, for example.

Third-Party Custody

If one or both biological parents have had their parenting rights revoked or if they present any current or future danger to the child’s physical or emotional well-being, the court may deny them custody entirely. Courts may remove children from parents who:

  • Have a history of domestic violence
  • Have a history of drug or alcohol addiction
  • Have a history of criminal behavior
  • Has a history of abuse or neglect toward children
  • Have a felony conviction

In this instance, the courts may grant custody to a state-appointed agent, or the next closest biological relatives, such as biological grandparents, aunts and uncles, or older (adult) siblings.

Chapter Ten How Is Child Support Calculated During a Divorce?

Texas has its own guidelines for child support, just like any state. In Texas, the rule is pretty simple: the net income of the parent who pays support will determine how much child support is paid. Of course, it’s also not really that simple when it comes to determining the details of that arrangement.

Physical custody determines which parent will pay support. Usually, the primary parent takes care of daily expenses and receives a child support payment from the non-custodial parent. If the children split their time 50/50 with both parents, it may be deemed that the higher earner should pay support. In the same regard, a spouse that was staying home to raise the kids may get support payments from the other spouse, regardless of the custody outcome.

Texas Child Support Factors

In Texas, income that can be included in determining child support includes:

  • All salary and wages, including commission, tips, overtime, bonuses, etc.
  • Military pay
  • Self-employment income
  • Interest and dividends
  • Rental income (net)
  • Severance pay
  • Unemployment or disability benefits
  • Retirement benefits
  • Veterans’ benefits
  • Workers’ compensation benefits

Judges may also make another determination of how much support is to be paid if a parent is not working or working fewer hours so that they can avoid making support payments. Most people will be able to look at their income statements or pay stubs and see the “net payment” that is made. That’s what the percentage will be taken from for child support payments.

Texas Child Support Calculator
You can visit the Monthly Child Support Calculator that is available on the Texas Office of the Attorney General’s website. However, this calculator is only designed for those who have a single source of income. If there are any other sources of income or extenuating circumstances, you’ll have to calculate it yourself to get an idea of what to expect.

Calculating Child Support

If you must calculate your own child support payments, you will need to take the gross income that you earn and subtract:

  • Social Security taxes
  • Federal and state income taxes
  • Union dues
  • Benefit plan premiums
  • Medical expenses

This will give you an estimate of your net income. If you already pay support for another child or children, you can also claim a credit for those payments. The net monthly income will then be multiplied by a percentage based on the number of children being supported:

  • 20% – One child
  • 25% – Two children
  • 30% – Three children
  • 35% – Four children
  • 40% – Five children

For parents who make less than $1,000 a month, five percent is taken off of each figure above. When parents make more than a certain amount, they may be required to pay additional support based on the children’s needs and the other parent’s income.

Who Pays for Health Insurance?

Health insurance and other benefits are also considered in child support determination. Usually, the noncustodial parent will provide this coverage (as they are usually the primary or higher wage earner). However, the custodial parent may have better insurance and in that case, they could opt to provide the coverage. Usually, as long as the parents can agree on this, the courts will leave it to them. If they can’t make a decision, the courts will intervene.

As with financial support, this is also determined based on the best interests of the child.

What Factors Affect Child Support

The judge uses the base calculation as a starting point for determining child support. This may change, based on several other factors that are considered along the way. For starters, if paying a certain amount would put one parent in a financially strenuous situation, the judge would likely reduce the amount owed. Even though it’s the child’s best interests they are concerned with, it’s not at the cost of bankrupting a parent. That could put its own stress on the children.

Some factors that impact the amount of child support include:

  • The child’s age and needs
  • The parent’s ability to pay
  • How much time each parent spends with the child
  • Whether parents have other children or post-secondary expenses for a child
  • Child care expenses
  • Alimony
  • Travel expenses (if parents live further apart)
  • Other expenses (education, healthcare, etc.)

If parents can’t agree, a judge will determine the appropriate amount based on these factors. However, there must be a reason why the guideline amount needs to be modified in the first place to get more support.

What if Parents Don’t Pay?

Like all states, Texas also has rules and laws in place regarding the payment (or non-payment) of child support. You can apply for assistance from the Attorney General or hire a family lawyer to help you navigate the process and get the support you are owed.

Chapter Eleven How Is Alimony/Spousal Support Determined During a Divorce?

Much like child support, spousal support is calculated during the divorce process based on the court’s unique guidelines. This is additional money, not funds that are part of child support or the asset division that happens during a divorce. It is awarded to one spouse, generally to protect against future income disparities and ensure that someone can maintain their standard of living.

Alimony is also available to help spouses pay for education or training so they can return to work, or it can be paid so that a parent can stay home with the children or a special needs child that needs full-time attention, for example. However, there’s a difference between alimony and spousal maintenance in Texas. There are also several reasons that the courts may award these types of payment. Let’s take a look at the basics.


In Texas, alimony payments are only allowed if both parties agree to the payments between themselves. This allows them to decide how much the payments are, what the frequency will be, and other factors. This gives them a lot of flexibility and saves the court from having to make all of the decisions. However, alimony is not included in the family code, which means that it is not enforceable in the family court system, either. Therefore, if payments aren’t made, the only recourse is contract law.

Spousal Maintenance

In Texas, spousal maintenance is money that can be awarded to one spouse as a part of the divorce process. The obligor is the one required to make the payments, while the obligee is the one that receives payments. To be awarded this type of arrangement, it must meet the requirements of the Texas Family Code. That includes, most importantly, the spouse seeking support cannot meet their minimum care and living needs after the divorce.

Other eligibility factors include:

  • If the spouse from whom payment is sought has committed or is convicted of family violence during the marriage or the divorce process.
  • If the spouse seeking support cannot provide income to provide for themselves because of a disability.
  • If the spouses have been married for 10 years or more and one doesn’t have the means to earn sufficient income to care for their needs.
  • Is responsible for caring for a child that has a physical or mental disability and that prevents the spouse from working to earn income.

How is Spousal Maintenance Determined?

The process for determining how much spousal support or maintenance is paid will be the same, no matter the case. The factors involved are numerous, including things like a history of family violence, abuse, or neglect, as well as:

  • Each spouse’s capability to independently provide for their own needs
  • Each spouse’s education, employment skills, etc. (or the need for additional training/education to obtain skills).
  • The duration of the marriage.
  • The age, earning ability, employment history, and health of the spouse seeking maintenance.
  • The effect of child support payments on the spouses’ ability to care for themselves.
  • The contributions to education or training from one spouse to another.
  • The marital property and assets.
  • Contributions of a spouse that is a homemaker or stay-at-home parent.
  • Marital misconduct or any kind.
  • Acts resulting in fraud, concealment, destruction of community property, excessive spending, etc.

Mind you, this is not an exhaustive list. The court can and will use any factors they see fit to determine who pays spousal maintenance and how much they pay.

Calculating Spousal Maintenance

In Texas, the maximum amount for spousal maintenance is 20% of the obligor’s monthly gross income, or $5,000 per month (whichever is less). There’s also a good explanation of what constitutes “gross income” in the Texas Family Code regarding spousal support payments.

Usually, the courts award spousal maintenance based on general guidelines that include:

  • 5 years of spousal maintenance for couples married for less than 10 years with a conviction of violence or for those married at least 10 years but less than 20.
  • 7 years of maintenance for spouses married 20 to 30 years.
  • 10 years of maintenance for spouses married 30+ years.

Modification and Termination

Once a divorce is finalized, the courts will require that a motion be filed if a spouse wants to change a spousal maintenance payment amount or other terms of the arrangement. Payments must be made until or unless the modification order has been processed through the court system and entered as a judgment on record.
Spousal maintenance also terminates if one of the spouses dies or if the recipient of the maintenance chooses to remarry. If the one receiving payments is living with another partner and the paying spouse wants to stop payments, they can take the issue back to court and present it to the judge. All these complex details are why it’s a good idea to have a Texas family law expert on your side through the divorce process.

Chapter Twelve How Do We Divide Our Retirement Accounts During a Divorce?

Retirement accounts are another essential financial asset for many people. These are often hard-earned funds that have built up over time and are designed to make retirement more comfortable. For some, these accounts are the only way retirement is even possible. Therefore, it makes sense that people would want to protect these assets during a divorce.

Of course, it’s often easier said than done to navigate the division of retirement accounts and related assets during a divorce. In Texas, retirement assets can be considered marital property, which makes them part of the property division in most divorce cases. The way funds are divided will depend on several factors, including:

  • When the asset began accruing
  • The type of retirement asset
  • The marital cut-off date (to establish account value)

Texas is a community property state, which means that retirement assets will be split 50/50 and the valuation of the account will determine exactly how much each party gets.

Defined Contribution vs. Defined Benefit Plans

When determining the type of retirement asset involved, you will have two main categories to choose from: defined contribution plans and defined benefit plans. Here’s what you need to know.

Defined Contribution Plans
These are also commonly called savings plans and include the well-known 401(k). However, there are other retirement savings plans under this umbrella, including, 403(b), 457(b), Profit Sharing, IRAs, and so forth. Their common feature is that they accrue funds from the employer or the employee, or both, making contributions to the plan.

Defined Benefit Plans
These are company-sponsored retirement plans, or government-sponsored plans for government workers, designed to provide retirement funds based on the employee’s years of service, salary history, and other elements. These plans will start paying a monthly benefit once an employee retires and will continue throughout their life. Some plans may also include survivor benefits for a spouse after the employee dies.

Negotiations and Trades

In some cases, divorcing spouses may decide that they want to trade equal assets rather than splitting up all of them individually. For example, one spouse may decide that the other spouse can keep their entire 401(k) as long as they can have the marital house without a huge mortgage payment.

Perhaps one spouse has a pension and a life insurance policy with cash value. The other spouse may agree to split the accrued cash value of the life insurance policy and forego any collection of pension payments or a division of those assets. It depends on the people involved and the state of assets, as well as what the court will allow.

Qualified Domestic Relations Orders

After the divorce decree is issued, it will be necessary to execute a Qualified Domestic Relations Order or QDRO. This is a court-ordered judgment that is given to a retirement account administrator that provides direction for splitting assets into two accounts. QDROs are only applicable for accounts and plans that are tax-qualified by the IRS and covered as part of ERISA (the Employee Retirement Income Security Act).

QDROs do not apply to military or government pensions. They are also not necessary for the separation of IRAs. IRAs are governed under section 408 of the Internal Revenue Code, which states that transferring an IRA can only be nontaxable if the transfer is related to a divorce or separation.

For defined contribution plans, the QDRO will establish the execution of separating the funds into two accounts, allowing half to be delivered to the other party per their preferred instructions. Defined benefit plans will create a separate account for each spouse and pay lifetime benefits to both partners.

What if One Spouse Remarries?

If a retirement account is being used to “pay” spousal support or child support, the payments will usually end when one spouse remarries. However, when the retirement benefits are related to the division of marital assets, they are usually unaffected.

There may be an impact on survivor benefits for some arrangements, but that will depend on the individual retirement plan or divorce decree and the terms that were agreed upon.

Hire an Attorney to Navigate the Turbulent Waters of Asset Division and More

The best thing that spouses can do when they are divorcing is to hire a qualified Texas divorce lawyer or family law expert to assist with the process. They can advise on the best practices for asset division, help people understand the legal process and what to expect, and more. They can even work with the courts on your behalf to make sure that the division of assets and all other terms of the divorce are fair and equitable.

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