Texas

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In analyzing the distribution of property, the court will divide your property into two primary categories:

1. Community property
2. Separate Property

Community Property:

Community property consists of the property, other than separate property, acquired by either spouse during marriage. This is true even if only one spouse has possession of the property. Just because one spouse is named on the title, deed, or account; one person receives the asset as payment for personal services (ie: salary); or the asset will not be paid until a future date (ie: retirement) do not make it separate property. There is a presumption that all property possessed by either spouse is community property. Separate property ownership must be proven by clear and convincing evidence. The most common way of proof is by tracing the asset from the date of acquisition to present date.

Tracing how funds were acquired can be particularly difficult if funds have been deposited into an account which also contains monies which would be considered community property (ie: salary) has been deposited, the separate property may become commingled to the point that it is not possible or cost-effective to prove its continued existence.

Separate Property:

Briefly stated, Separate Property consists of:

1. Property owned prior to marriage;
2. Property acquired at any time by gift or inheritance;
3. Recoveries for personal injuries sustained by a spouse during marriage (except for loss of earnings); and
4. Property exchanged for above items 1 – 3

Division of Community Property:

Community property is divided in a just and right manner. This does not necessarily mean equally. However, an equal division is a good rule of thumb. The value of all the property is to be determined as near as possible to the date your divorce. “Value” usually means the price at which the item could be sold currently on the open market. Insurance appraisals are at replacement value, which is usually higher. It is also necessary to determine current debts. It may be necessary to retain an appraiser to value your home, business, or retirement plan.

1. Grounds For Divorce

   § 6.001. INSUPPORTABILITY. On the petition of either party to a marriage, the court may grant a divorce without regard to fault if the 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.

   § 6.002. CRUELTY. The court may grant a divorce in favor of one spouse if the other spouse is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable.

   Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.

   § 6.003. ADULTERY. The court may grant a divorce in favor of one spouse if the other spouse has committed adultery.

   Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.

   § 6.004. CONVICTION OF FELONY.

   1. The court may grant a divorce in favor of one spouse if during the marriage the other spouse:
      1. has been convicted of a felony;
      2. has been imprisoned for at least one year in the state penitentiary, a federal penitentiary, or the penitentiary of another state; and
      3. has not been pardoned.
   2. The court may not grant a divorce under this section against a spouse who was convicted on the testimony of the other spouse.

   Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.

   § 6.005. ABANDONMENT. The court may grant a divorce in favor of one spouse if the other spouse:

   1. left the complaining spouse with the intention of abandonment; and
   2. remained away for at least one year.

   Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.

   § 6.006. LIVING APART. The court may grant a divorce in favor of either spouse if the spouses have lived apart without cohabitation for at least three years.
   Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.

   § 6.007. CONFINEMENT IN MENTAL HOSPITAL. The court may grant a divorce in favor of one spouse if at the time the suit is filed:

   1. the other spouse has been confined in a state mental hospital or private mental hospital, as defined in Section 571.003, Health and Safety Code, in this state or another state for at least three years; and
   2. it appears that the hospitalized spouse’s mental disorder is of such a degree and nature that adjustment is unlikely or that, if adjustment occurs, a relapse is probable.

   Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.

   § 6.008. DEFENSES.

   1. The defenses to a suit for divorce of recrimination and adultery are abolished.
   2. Condonation is a defense to a suit for divorce only if the court finds that there is a reasonable expectation of reconciliation.
2. Grounds For Annulment
   § 6.101. ANNULMENT OF MARRIAGE OF PERSON UNDER AGE 14.

   1. The court may grant an annulment of a licensed marriage of a person under 14 years of age unless a court order has been obtained as provided in Subchapter B, Chapter 2.
   2. A petition for annulment under this section may be filed by a next friend for the benefit of a person under 14 years of age or on the petition of the parent or the judicially designated managing conservator or guardian, whether an individual, authorized agency, or court, of the person.
   3. A suit by a parent, managing conservator, or guardian of the person may be brought at any time before the person is 14 years of age.
   4. A suit under this section to annul the marriage of a person 14 years of age or older that was entered into before the person was 14 years of age is barred unless the suit is filed within the later of:

      1. 90 days after the date the petitioner knew or should have known of the marriage; or
      2. 90 days after the date of the 14th birthday of the underage party.

   Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 1997, 75th Leg., ch. 1362, § 3, eff. Sept. 1, 1997.

   § 6.102. ANNULMENT OF MARRIAGE OF PERSON UNDER AGE 18.

   1. The court may grant an annulment of a licensed or informal marriage of a person 14 years of age or older but under 18 years of age that occurred without parental consent or without a court order as provided by Subchapters B and E, Chapter 2.
   2. A petition for annulment under this section may be filed by:

      1. a next friend for the benefit of the underage party;
      2. a parent; or
      3. the judicially designated managing conservator or guardian of the person of the underage party, whether an individual, authorized agency, or court.
   3. A suit filed under this subsection by a next friend is barred unless it is filed within 90 days after the date of the marriage.

   Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.

   § 6.103. UNDERAGE ANNULMENT BARRED BY ADULTHOOD. A suit to annul a marriage may not be filed under Section 6.101 or 6.102 by a parent, managing conservator, or guardian of a person after the 18th birthday of the person.
   Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.

   § 6.104. DISCRETIONARY ANNULMENT OF UNDERAGE MARRIAGE.

   1. An annulment under Section 6.101 or 6.102 of a marriage may be granted at the discretion of the court sitting without a jury.
   2. In exercising its discretion, the court shall consider the pertinent facts concerning the welfare of the parties to the marriage, including whether the female is pregnant.

   Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.

   § 6.105. UNDER INFLUENCE OF ALCOHOL OR NARCOTICS. The court may grant an annulment of a marriage to a party to the marriage if:

   1. at the time of the marriage the petitioner was under the influence of alcoholic beverages or narcotics and as a result did not have the capacity to consent to the marriage; and
   2. the petitioner has not voluntarily cohabited with the other party to the marriage since the effects of the alcoholic beverages or narcotics ended.

   Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.

   § 6.106. IMPOTENCY. The court may grant an annulment of a marriage to a party to the marriage if:

   1. either party, for physical or mental reasons, was permanently impotent at the time of the marriage;
   2. the petitioner did not know of the impotency at the time of the marriage; and
   3. the petitioner has not voluntarily cohabited with the other party since learning of the impotency.

   Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.

   § 6.107. FRAUD, DURESS, OR FORCE. The court may grant an annulment of a marriage to a party to the marriage if:

   1. the other party used fraud, duress, or force to induce the petitioner to enter into the marriage; and
   2. the petitioner has not voluntarily cohabited with the other party since learning of the fraud or since being released from the duress or force.

   Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.

   § 6.108. MENTAL INCAPACITY.

   1. The court may grant an annulment of a marriage to a party to the marriage on the suit of the party or the party’s guardian or next friend, if the court finds it to be in the party’s best interest to be represented by a guardian or next friend, if:

      1. at the time of the marriage the petitioner did not have the mental capacity to consent to marriage or to understand the nature of the marriage ceremony because of a mental disease or defect; and
      2. since the marriage ceremony, the petitioner has not voluntarily cohabited with the other party during a period when the petitioner possessed the mental capacity to recognize the marriage relationship.
   2. The court may grant an annulment of a marriage to a party to the marriage if:

      1. at the time of the marriage the other party did not have the mental capacity to consent to marriage or to understand the nature of the marriage ceremony because of a mental disease or defect;
      2. at the time of the marriage the petitioner neither knew nor reasonably should have known of the mental disease or defect; and
      3. since the date the petitioner discovered or reasonably should have discovered the mental disease or defect, the petitioner has not voluntarily cohabited with the other party.

   Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.

   § 6.109. CONCEALED DIVORCE.

   1. The court may grant an annulment of a marriage to a party to the marriage if:

      1. the other party was divorced from a third party within the 30-day period preceding the date of the marriage ceremony;
      2. at the time of the marriage ceremony the petitioner did not know, and a reasonably prudent person would not have known, of the divorce; and
      3. since the petitioner discovered or a reasonably prudent person would have discovered the fact of the divorce, the petitioner has not voluntarily cohabited with the other party.
   2. A suit may not be brought under this section after the first anniversary of the date of the marriage.

   Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.

   § 6.110. MARRIAGE LESS THAN 72 HOURS AFTER ISSUANCE OF LICENSE.

   1. The court may grant an annulment of a marriage to a party to the marriage if the marriage ceremony took place in violation of Section 2.204 during the 72-hour period immediately following the issuance of the marriage license.
   2. A suit may not be brought under this section after the 30th day after the date of the marriage.

   Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.

   § 6.111. DEATH OF PARTY TO VOIDABLE MARRIAGE. A marriage subject to annulment may not be challenged in a proceeding instituted after the death of either party to the marriage.

3. Mediation Procedures in Divorce Matters
   § 6.602. MEDIATION PROCEDURES.

   1. On the written agreement of the parties or on the court’s own motion, the court may refer a suit for dissolution of a marriage to mediation.
   2. A mediated settlement agreement is binding on the parties if the agreement:

      1. provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation;
      2. is signed by each party to the agreement; and
      3. is signed by the party’s attorney, if any, who is present at the time the agreement is signed.
   3. If a mediated settlement agreement meets the requirements of this section, a party is entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law.
   4. A party may at any time prior to the final mediation order file a written objection to the referral of a suit for dissolution of a marriage to mediation on the basis of family violence having been committed against the objecting party by the other party. After an objection is filed, the suit may not be referred to mediation unless, on the request of the other party, a hearing is held and the court finds that a preponderance of the evidence does not support the objection. If the suit is referred to mediation, the court shall order appropriate measures be taken to ensure the physical and emotional safety of the party who filed the objection. The order shall provide that the parties not be required to have face-to-face contact and that the parties be placed in separate rooms during mediation.

   Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997. Amended by Acts 1999, 76th Leg., ch. 178, § 2, eff. Aug. 30, 1999; Acts 1999, 76th Leg., ch. 1351, § 1, eff. Sept. 1, 1999.

   § 6.603. COLLABORATIVE LAW.

   1. On a written agreement of the parties and their attorneys, a dissolution of marriage proceeding may be conducted under collaborative law procedures.
   2. Collaborative law is a procedure in which the parties and their counsel agree in writing to use their best efforts and make a good faith attempt to resolve their dissolution of marriage dispute on an agreed basis without resorting to judicial intervention except to have the court approve the settlement agreement, make the legal pronouncements, and sign the orders required by law to effectuate the agreement of the parties as the court determines appropriate. The parties’ counsel may not serve as litigation counsel except to ask the court to approve the settlement agreement.
   3. A collaborative law agreement must include provisions for:

      1. full and candid exchange of information between the parties and their attorneys as necessary to make a proper evaluation of the case;
      2. suspending court intervention in the dispute while the parties are using collaborative law procedures;
      3. hiring experts, as jointly agreed, to be used in the procedure;
      4. withdrawal of all counsel involved in the collaborative law procedure if the collaborative law procedure does not result in settlement of the dispute; and
      5. other provisions as agreed to by the parties consistent with a good faith effort to collaboratively settle the matter.
   4. Notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule or law, a party is entitled to judgment on a collaborative law settlement agreement if the agreement:

      1. provides, in a prominently displayed statement that is boldfaced, capitalized, or underlined, that the agreement is not subject to revocation; and
      2. is signed by each party to the agreement and the attorney of each party.
   5. Subject to Subsection (g), a court that is notified 30 days before trial that the parties are using collaborative law procedures to attempt to settle a dispute may not, until a party notifies the court that the collaborative law procedures did not result in a settlement:

      1. set a hearing or trial in the case;
      2. impose discovery deadlines;
      3. require compliance with scheduling orders; or
      4. dismiss the case.
   6. The parties shall notify the court if the collaborative law procedures result in a settlement. If they do not, the parties shall file:

      1. a status report with the court not later than the 180th day after the date of the written agreement to use the procedures; and
      2. a status report on or before the first anniversary of the date of the written agreement to use the procedures, accompanied by a motion for continuance that the court shall grant if the status report indicates the desire of the parties to continue to use collaborative law procedures.
   7. If the collaborative law procedures do not result in a settlement on or before the second anniversary of the date that the suit was filed, the court may:

      1. set the suit for trial on the regular docket; or
      2. dismiss the suit without prejudice.

   Added by Acts 2001, 77th Leg., ch. 1022, § 1, eff. Sept. 1, 2001.

1. Decision-Making:Texas has adopted presumptive Joint Managing Conservatorship. The court is required to appoint both parents as Joint Managing Conservators, unless it finds that the appointment would significantly impair the child’s physical health or emotional development. Joint Managing Conservatorship means the sharing of the rights, privileges, duties and powers relating to their child by two parties, even if the exclusive power to make certain decisions may be awarded to one party. Joint Managing Conservatorship does not mean that there will be equal or nearly equal periods of physical possession or access to the child by each parent.
2. Visitation (Possession and Access):

Visitation in Texas is referred to as “possession and access.” Typically, the Texas courts permit the natural parents to work out an arrangement between themselves that they believe is best for the child. However, if the parents are unable to reach an agreement, the courts will issue an order.

In Texas, the terminology used to describe parenting time/access is different than in other jurisdictions. The parent exercising visitation is referred to as the "Possessory Conservator." The parent whose home is the child's primary residence is referred to as the "Managing Conservator."

Under the Standard Possession Order, visitation arrangements can have many variations. If parents cannot agree, child visitation will generally follow a schedule developed by the Texas legislature that is intended to be fair and workable for both parents in a wide variety of circumstances.

The Standard Possession Order is common in the State of Texas. There is a standard visitation order for parents who live less than 100 miles from each other. There is another standard visitation order for parents who live more than 100 miles from each other.

Under the standard order for parents who live less than 100 miles from each other, the non-custodial parent has access/visitation as follows:

• Every 1st, 3rd and 5th weekend, beginning on Friday either at 6:00pm, or when school gets out, and ending on Sunday at 6:00pm or on Monday morning when school starts.
• Every Wednesday, from either 6:00pm-8:00pm, or when school gets out until school starts on Thursday.
• Spring Break in even-numbered years (2004, 2006, etc.).
• 30 days in the summer (there are a lot of details about when this 30 days is, and when the other parent can visit with the kids during the 30 days).
• The first half of Christmas vacation (ending at noon on December 26) in even-numbered years (2004, 2006, etc.).
• The second half of Christmas vacation (beginning at noon on December 26) in odd-numbered years (2003, 2005, etc.).
• Thanksgiving vacation in odd-numbered years (2003, 2005, etc.).
• 6:00-8:00pm on the child’s birthday.
• Mother’s Day and Father’s Day weekends go to the mother and father, respectively.

For parents who live more than 100 miles from each other, the non-custodial parent has access/visitation as follows:

• Either every 1st, 3rd and 5th weekend of each month, beginning on Friday at 6:00 pm and ending on Sunday at 6:00 pm OR one weekend per month, with 14 days notice.
• Every Spring Break.
• 42 days in the summer (there are a lot of details about when this 42 days is, and when the other parent can visit with the kids during the 42 days).
• The first half of Christmas vacation (ending at noon on December 26) in even-numbered years (2004, 2006, etc.).
• The second half of Christmas vacation (beginning at noon on December 26) in odd-numbered years (2003, 2005, etc.).
• Thanksgiving vacation in odd-numbered years (2003, 2005, etc.).
• 6:00-8:00pm on the child’s birthday.
• Mother’s Day and Father’s Day weekends go to the mother and father, respectively.

An order which deviates from the aforementioned possession schedules is referred to as a "Modified Possession Order." This means the terms of possession are changed from the typical standard possession order (explained above). The modified possession order terms will vary depending on the needs of the parents, the age of the child, and specific issues of the case.

The court considers the age and needs of the child, including the child's normal structure and routine, as well as the history of each parent's involvement with the child. If the visiting parent has already established a schedule of caring for the child overnight, it is unlikely the court will put new limitations on the visiting parent's schedule. If such limitations are put in place until a child reaches a certain age, the parent who has primary possession of the child is expected to cooperate with the visiting parent to insure the visiting parent has ample visitation time without unfairly disrupting the child's routine and environment. Both parents should also provide the other with a list of the child's schedule and routine while the child has been with him or her so the schedule may be maintained.

You may download a Texas Visitation Agreement (also known as a Joint Conservatorship and Possession Agreement) from our Texas Divorce Forms page.

February 2010