Generally, legal separation involves a formal court order allowing for spouses to live legally separate lives even though they remain married. Texas does not offer legal separation, instead spouses can only file for fault or no-fault divorce. While a divorce is pending, couples can seek temporary orders or contractual separation agreements regarding urgent matters such as custody and support.

There is no requirement that a couple be separated for a certain length of time before a petition for divorce is filed. However, under Texas’ residency requirement, at least one spouse must have lived in the state for a minimum six months prior to the filing, and 90 days in the county in which the petition was filed. Generally, there is a 60-day waiting period before a court can grant a divorce. 

Further, the court may require the couple attend counseling with a court appointed counselor. If it is determined there is a possibility of reconciliation, the court may direct counseling for up to 60 days. If the couple has minor children, the counseling must address how they will be impacted by divorce. 

What Paperwork Do You Need to File for Divorce?

A petition for divorce is generally filed with the county’s District Clerk’s Office. Under Texas law, the party who files for divorce must notify his/her spouse through service of process.

The Texas Supreme Court has requires individuals to file separate forms, depending on their situation. Like if the divorce is uncontested and does not involve minor children or property. The Texas State Law Library provides links to other do-it-yourself forms, including couples with children and property, as well as same-sex couples.

Community Property vs. Separate Property

Texas is a community property state. In issuing a divorce decree, a court will not necessarily divide community property (also known as marital property) equally. It will look at various factors, such as education and earning capacities, who has custody of the children, and, if applicable, fault.      

Any property acquired before the marriage or a gift during the marriage (such as inheritance) is separate property. A couple can also agree that certain property is separate property. In addition, personal injury settlements are considered separate property. If community funds are used to pay for separate property (for example, a home or car purchased before the marriage), the spouse who does not own the property may request reimbursement of any mortgage or car payments made during the marriage.

What Should You Do if There are Children Involved?

The battle over child custody and support can become highly emotional, and the parties involved may need a lawyer to help resolve sensitive issues. In determining custody, a court will look to the “best interest” of the child, and presume that joint legal custody is best unless proven otherwise. In deciding which parent will have primary physical custody, the court will look at many factors, some are the overall welfare of the child, any history of child abuse, and the personal preference of the child.

In determining child support, the court looks at the number of children and total monthly resources of the person paying the support.

Do You Need to Pay Alimony?

Alimony, also known as “spousal maintenance” in Texas, is not automatic. The court has specific requirements, centered around financial need, domestic violence, and/or the spouse or child has a disability. Ultimately, the spouse seeking alimony must show they cannot provide for their “minimal reasonable needs.” The court also has limits to the amount of alimony that can be awarded. It is important to discuss with your lawyer, at the beginning of the divorce proceeding, any questions you might have about alimony.

Where Can You Find the Right Divorce Lawyer?

Divorce is messy, stressful, and can take a long time. But it can be easier. If you are considering filing for divorce or you have been served with divorce papers, it’s in your best interest to contact a local Texas divorce lawyer today.