Divorce

Divorce

Divorce, even under the best of circumstances is hard on everyone involved including the impact on children and therefore it is important that everything go as smoothly as possible. Your legal team should have your best interests at heart and help you through the divorce process in an efficient manner.

We will help lay out your Grounds For Divorce, terms regarding custody, and other aspects that are generally included in a divorce. However, there are many times when one party contests the terms of the suit, which means one of the parties involved may get in the way of the dissolution of the marriage by legal means. In plain and simple terms, one of the parties fights over the terms of the divorce because they do not agree with the terms.

If you’d like to learn more about your particular situation whether it involves temporary injunction, restraining order or general questions, contact us and we will help you determine the best way to handle your divorce.

Divorce Is Tough and We Understand That

It is always recommended that couples seeking a divorce should try to use whatever means possible to resolve these issues without going to court. However, if the spouses hit an impasse and simply cannot work things out on their own, arbitration and mediation with a Tough San Antonio Divorce Lawyer is recommended.

In addition, in this time of financial uncertainty, we strive to reduce fees and costs for my clients wherever possible. Call our office today to arrange a free consultation to discuss your divorce.

Mediation

Mediation and Settlement Agreements

Probably more than 90% of all dissolution cases are settled prior to trial in Texas. The traditional means of memorializing a settlement is a writing called a “Mediation, Agreement” or a “Settlement Agreement”. These agreements, drafted by the parties’ counsel, and then executed and acknowledged by the parties, provides for all of the financial arrangements . (spousal support, child support, property division, counsel fees, etc.) to which the parties have agreed, as well as for the child custody and visitation of children, waiver of rights in future property (including estate rights), and other matters.

If the parties have settled their case by agreement, the case is claimed for the “Uncontested” (collaborative) list, and a hearing is scheduled. At the hearing, the court inquires into such matters as jurisdiction, whether the grounds for dissolution of marriage have been proven (which they always are!), and whether the agreement is fair and equitable to both parties in light of their resources and needs. Since public policy favors private resolution of disputes, the parties’ agreements are almost always approved.

Sec. 6.601.  ARBITRATION PROCEDURES.  (a)  On written agreement of the parties, the court may refer a suit for dissolution of a marriage to arbitration.  The agreement must state whether the arbitration is binding or nonbinding.

(b)  If the parties agree to binding arbitration, the court shall render an order reflecting the arbitrator’s award.

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

Sec. 6.602.  MEDIATION PROCEDURES.  (a)  On the written agreement of the parties or on the court’s own motion, the court may refer a suit to mediation.

(b)  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 legal representative, if any, who is present at the time the agreement is signed.

(c)  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.

(d)  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 divorce 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 Contested is referred to mediation, the court shall order appropriate temporary injunction, & restraining order 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.

Contested

Contested dissolution of marriage   (210) 299-4777

As humans, we are emotional beings and often as a marriage dissolves, hurt and angry feelings arise getting in the way of coming to terms with the dissolution of marriage suit. Tearing down a relationship brings up lots of painful issues and usually addresses material aspects such as voidable marriage, annulment, property division, or your standard questions. Situations get even harder when custody is involved.  It’s normal to go through a wide range of emotions when dealing with dissolution of marriage.

When a suit is not agreed upon it is called contested.  When the partners agree it is considered an uncontested dissolution of marriage (collaborative).  A Contested dissolution of marriage is one where the two partners cannot agree on several major issues related to the ending of the marriage.  Contested divorces are very common since we each have our own perception of a situation. When this occurs, the couple takes their issues to a court where the court decides on the resolution.

Submit your case today to  learn about more in-depth information about the dissolution of marriage process.

Issues Regarding A Contested dissolution of marriage

The issues that generally arise in a divorce typically focus on custody and support, property division and allocation of debts and alimony/spousal support. These are all complex issues that involve high financial stakes as well as legal procedures that must be addressed in a court of law. These are issues that speak to the subject of dividing community property, which parent will have custody of the children and how much child support and spousal support should be paid. These are great areas of concern and often require the assistance of an experienced legal mind.

The Results of a Contested dissolution of marriage

More often than not, a contested dissolution of marriage will contribute to further resentment, anger and fear, between two people who at one time cared enough to marry and have a family. Unfortunately, while it is common, contested divorces potentially result in a great deal of loss such as loss of business, loss of income, loss of family support, legal bills and seriously impact the children. The cost of a contested dissolution of marriage is far more expensive than just money; the cost affects innocent lives and takes a toll on everyone concerned. One of the reasons a pre-nuptial agreement is used is because it may alleviate the possibility of a dissolution of marriage being contested, but asking someone to sign a property agreement can cause resentment before the marriage ever gets started.

Hiring a legal mind to represent you in court is easy to do, but finding a San Antonio Divorce Attorney Board Certified by the Texas Board Of Legal Specialization can be difficult. I’ll make it simple, I’m anAttorneyBoard Certified by the Texas Board of Legal Specialization.  With more than 20 years experience in Bexar County family courts.  Unlike most, “my consultations are absolutely free” Stephanie Bandoske.

Property Division

Don’t Risk Your Home, Savings Or Retirement

Following a divorce, the court must the division of property the spouses own. Before legislatures equalized property allocation between both spouses, many dissolution of marriage statutes substantially favored property allocation to the wage-earning spouse. These statutes greatly disadvantaged women disproportionately because during the 18th, 19th, and early-20th centuries, the participation of women in the workplace was much less than it has become during the latter-half of the 20th century and early part of the 21st century. The statutes failed to account for the contributions of the spouse as homemaker and child-raiser.

Modern courts recognize two different types of property during property division proceedings –marital property and separate property. Marital property constitutes any property that the spouses acquire individually or jointly during the course of marriage. Separate property constitutes any property that one spouse purchased and possessed prior to the marriage and that did not substantially change in value during the course of the marriage because of the efforts of one or both spouses.

If the separate property-owning spouse trades the property for other property or sells the property, the newly-acquired property or funds in consideration of the sale remain separate property.

Modern division of property statutes strive for an equitable division of the marital assets. An equitable division does not necessarily involve an equal division but rather an allocation that comports with fairness and justice after a consideration of the totality of the circumstances. By dividing the assets equitably, a judge endeavors to effect the final separation of the parties and to enable both parties to start their post-marital lives with some degree of financial self-sufficiency.

While various jurisdictions permit recognition of different factors, most courts at least recognize the following factors: contribution to the accumulation of marital property, the respective parties’ liabilities, whether one spouse received income-producing property while the other did not, the duration of the marriage, the age and health of the respective parties, the earning capacity and employability of the respective parties, the value of each party’s separate property, the pension and retirement rights of each party, whether one party will receive custodial and child support provisions, the respective contributions of the spouses as a homemaker and as a parent, the tax consequences of the allocations, and whether one spouse’s marital misconduct caused the dissolution of marriage.

Most jurisdictions also give the family court judge broad jurisdiction by providing judges with the right to consider any other just and proper factor.

When assigning property, judges cannot transfer the separate property of one spouse to another spouse without the legislature having previously passed an enabling statute. Whether such an enabling statute exists varies between jurisdictions.

What’s the general rule of property division (equitable distribution, community property, or legal title) & dissolution of marriage in Texas?

Texas is a community property state.  However, the rules about marital property are different in Texas than those of other community property states.

The dissolution of marriage court can divide the community property in a “just and right” fashion – that means whatever the judge thinks is fair under the circumstances.

A 50-50 division of the marital property is not required by Texas law.  It is common to have an unequal division of the property in cases involving children.  A multitude of factors can justify a lopsided division, including: a) disparity in the earning capacities of the parties, b) differences in educational backgrounds, c) primary responsibility for raising the children, d) differences in age and/or health of the parties, e) needs of the spouse and children after the dissolution of marriage.

Any special rules for the marital home?

Not related to the division of property.  However, the judge will usually attempt to leave the children in their home.  That being the case, the parent with primary possession of the children can expect the judge to award him/her the marital home if it is financially feasible to do so.

The Texas homestead laws are very strong, but issues related to protection of the marital home are related to claims by creditors rather than the property allocation in a dissolution of marriage case.

How do retirement plans get divided?

Usually the judge will divide them equally between the parties.

A number of factors can affect the value of a retirement plan (income taxes, penalties for withdrawal, etc.) and dividing the plans down the middle avoids those issues.  On the other hand, the judge will always approve an agreement of the parties whether it involves an equal division of the plans or not.

Settlement

It is common for cases to settle prior to trial

A reasonable settlement agreement may allow you and your spouse more control over the final terms of your divorce. Additionally, considerations of cost and time may lead to a settlement.
Cases can be settled though informal settlement procedures or through formal settlement procedures such as mediation.

Like any challenging situation, some divorces are protracted and complicated, while others may be resolved quickly.  Whether or not a case is finalized by settlement may depend upon whether children are involved, child custody is an issue and if there are a number of debts and assets to be divided & property division becomes an issue. A legal expert can lead you through the process easily and quickly.

Waiting Period

Dissolution of marriage Waiting Period

Now that you’ve gone through the dissolution of marriage proceedings and handled all the emotional upheaval, you are probably ready for it all to be over, but unfortunately, there’s still the waiting period. Waiting for a dissolution of marriage to be finalized is almost as draining on the nerves as the process itself. Although, you want it to be over, regrettably, a dissolution of marriage does not become final until a mandatory waiting period has passed. Waiting periods vary from state to state but in the State of Texas, there is currently a 60-day waiting period after the initial dissolution of marriage petition has been filed. Some state laws can go as high as up to a year or more if some of the issues have not been resolved. Contact us today and find out about the waiting period in your area.

Waiting Period Effects on Children

In some states, there is consideration of extending dissolution of marriage waiting periods particularly for those individuals with children. Obviously, when a couple is immersed in dissolution of marriage proceedings, they don’t always take into account the impact on the children, which is why it’s so important to speak with an impartial legal expert. Far too often dissolution of marriages are granted before child custody, visitation, and child support issues are resolved and we will always steer you in the right direction.

The dissolution of marriage Waiting Period in Your State

Because the length of time for the dissolution of marriage to be final is different in every state, the length of time it will take for your divorce to become final depends on where you live. And since changes often occur in the legal arena, it is important to be check with a San Antonio Divorce Attorney to gain insight into any changes in your state regarding dissolution of marriage-waiting periods, particularly because changes could potentially affect the process. Before taking any action even filing your own dissolution of marriage, it’s best to get answers from a skilled legal mind.

Dissolution of marriage Rulings By a Judge

A judge, not an attorney, can make a final ruling on the dissolution of marriage prior to the dates mentioned and the order can be effective immediately, however, the marriage is not dissolved, and spouses may not remarry until the judge rules. Finally, during the periods between the judge’s order and the expiration of the 60-day waiting period, any action taken by either party during this period is a separate act, and will not be considered community property.

Grounds For Annulment

GROUNDS FOR ANNULMENT IN TEXAS

Sec. 6.102.  ANNULMENT OF MARRIAGE OF PERSON UNDER AGE 18.  (a)  The court may grant an annulment of a marriage of a person 16 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.

(b)  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.

(c)  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, Sec. 1, eff. April 17, 1997.

Amended by:

Acts 2005, 79th Leg., Ch. 268, Sec. 4.16, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch. 52, Sec. 3, eff. September 1, 2007.

Sec. 6.103.  UNDERAGE ANNULMENT BARRED BY ADULTHOOD.  A suit to annul a marriage may not be filed under Section 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, Sec. 1, eff. April 17, 1997.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 52, Sec. 4, eff. September 1, 2007.

Sec. 6.104.  DISCRETIONARY ANNULMENT OF UNDERAGE MARRIAGE.  (a)  An annulment under Section 6.102 of a marriage may be granted at the discretion of the court sitting without a jury.

(b)  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, Sec. 1, eff. April 17, 1997.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 52, Sec. 5, eff. September 1, 2007.

Sec. 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, Sec. 1, eff. April 17, 1997.

Sec. 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, Sec. 1, eff. April 17, 1997.

Sec. 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, Sec. 1, eff. April 17, 1997.

Sec. 6.108.  MENTAL INCAPACITY.  (a)  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.

(b)  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, Sec. 1, eff. April 17, 1997.

Sec. 6.109.  CONCEALED DIVORCE.  (a)  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.

(b)  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, Sec. 1, eff. April 17, 1997.

Sec. 6.110.  MARRIAGE LESS THAN 72 HOURS AFTER ISSUANCE OF LICENSE.  (a)  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.

(b)  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, Sec. 1, eff. April 17, 1997.

Sec. 6.111.  DEATH OF PARTY TO VOIDABLE MARRIAGE.  Except as provided by Section 47A, Texas Probate Code, a marriage subject to annulment may not be challenged in a proceeding instituted after the death of either party to the marriage.

Residency Requirements

General Texas Residency Rule For dissolution of marriage

Speak To A Local Expert Now About Texas Residency Requirements, Texas courts have subject matter jurisdiction when one of the parties has been a resident of the state of Texas for at least six months and a resident of the county for ninety days.

Personal jurisdiction is not required for a divorce, since the court is deemed to have “in rem” jurisdiction over the marriages of residents of the state. However, the court must have personal jurisdiction over the respondent if financial orders are to be imposed on him or her.

All dissolution actions require that the respondent, even if absent from the state, be given notice and an opportunity to be heard. If the respondent cannot be found, a notice is required to be published in a newspaper pursuant to court order.

Sec. 6.301.  GENERAL RESIDENCY RULE FOR dissolution of marriage SUIT.  A suit for divorce may not be maintained in this state unless at the time the suit is filed either the petitioner or the respondent has been:

(1)  a domiciliary of this state for the preceding six-month period;  and

(2)  a resident of the county in which the suit is filed for the preceding 90-day period.

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

Sec. 6.302.  SUIT FOR dissolution of marriage BY NONRESIDENT SPOUSE.  If one spouse has been a domiciliary of this state for at least the last six months, a spouse domiciled in another state or nation may file a suit for dissolution of marriage in the county in which the domiciliary spouse resides at the time the petition is filed.

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

Sec. 6.303.  ABSENCE ON PUBLIC SERVICE.  Time spent by a Texas domiciliary outside this state or outside the county of residence of the domiciliary while in the service of the armed forces or other service of the United States or of this state is considered residence in this state and in that county.

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

Sec. 6.304.  ARMED FORCES PERSONNEL NOT PREVIOUSLY RESIDENTS.  A person not previously a resident of this state who is serving in the armed forces of the United States and has been stationed at one or more military installations in this state for at least the last six months and at a military installation in a county of this state for at least the last 90 days is considered to be a Texas domiciliary and a resident of that county for those periods for the purpose of filing suit for dissolution of a marriage.

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

Sec. 6.305.  ACQUIRING JURISDICTION OVER NONRESIDENT RESPONDENT.  (a)  If the petitioner in a suit for dissolution of a marriage is a resident or a domiciliary of this state at the time the suit for dissolution is filed, the court may exercise personal jurisdiction over the respondent or over the respondent’s personal representative although the respondent is not a resident of this state if:

(1)  this state is the last marital residence of the petitioner and the respondent and the suit is filed before the second anniversary of the date on which marital residence ended;  or

(2)  there is any basis consistent with the constitutions of this state and the United States for the exercise of the personal jurisdiction.

(b)  A court acquiring jurisdiction under this section also acquires jurisdiction over the respondent in a suit affecting the parent-child relationship.

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

Sec. 6.306.  JURISDICTION TO ANNUL MARRIAGE.  (a)  A suit for annulment of a marriage may be maintained in this state only if the parties were married in this state or if either party is domiciled in this state.

(b)  A suit for annulment is a suit in rem, affecting the status of the parties to the marriage.

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

Sec. 6.307.  JURISDICTION TO DECLARE MARRIAGE VOID.  (a)  Either party to a marriage made void by this chapter may sue to have the marriage declared void, or the court may declare the marriage void in a collateral proceeding.

(b)  The court may declare a marriage void only if:

(1)  the purported marriage was contracted in this state;  or

(2)  either party is domiciled in this state.

(c)  A suit to have a marriage declared void is a suit in rem, affecting the status of the parties to the purported marriage.

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

Sec. 6.308.  EXERCISING PARTIAL JURISDICTION.  (a)  A court in which a suit for dissolution of a marriage is filed may exercise its jurisdiction over those portions of the suit for which it has authority.

(b)  The court’s authority to resolve the issues in controversy between the parties may be restricted because the court lacks:

(1)  the required personal jurisdiction over a nonresident party in a suit for dissolution of the marriage;

(2)  the required jurisdiction under Chapter 152;  or

(3)  the required jurisdiction under Chapter 159.

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

Dealing With Divorce

How To Deal With Divorce 210-299-4777

“This can be one of the most traumatic experiences that a person can go through no mater what your grounds are.”  Arthur Augustine. No one enters a marriage believing that it will end, yet almost half of all marriages do end that way. Whether you are facing a contested, uncontested (collaborative), annulment, or you have a voidable marriage dealing with a breakup is never easy. However, there are some things that you can do to make the process and property division go as smooth as it possibly can.

You may find my article “When Marriage is Over” to be very helpful. We always offer free consultations which allows us to answer all of your questions.

This can be hard if you are waiting to meet residency requirements but the first and perhaps most important thing to do in dealing with a breakup is to try & maintain a positive self image. Even if you are the one that initiated the suit, the feelings of failure and betrayal that accompany can overwhelm the sense of who you are. It is important to keep these feelings in perspective.

Don’t put yourself down; what is done is done, and it cannot be undone. Going forward, you need to have your bearings about you. Stop comparing yourself to others. Try to focus on the things that you can do, even the small things. Every day that you get out of bed is one more day that you are further in the recovery process, and one more sign that you are learning how to deal with your breakup.

After all of this, it is important to take charge of your own life. Stop seeing yourself as a victim. Recognize that you alone are responsible for your fate; however circumstances may treat you, it is still up to you how you will go forward. It is up to you to decide whether you will learn from mistakes, or whether you will be crippled by them. Create an action plan that includes all areas of your life. Commit to your physical well-being by taking care of your body through a healthy, balanced diet, and exercise.

If you have kids, don’t let them become pawns in a struggle between your ex and you.  The impact on children can be severe.  Often, by focusing on the needs of others, we are able to move past our own problems. Don’t overcompensate, but make sure that you are being a good parent by taking care of your children and by making sure that they know that, no matter what happens, you love them and have their best interests at heart.

Get out of the house from time to time. Isolation only leads deeper into depression; get out with your friends and your family. When you get invited to an activity, force yourself to go if you have to; in the end, time that you spend with other relationships will very much help you deal with divorce.

If you are having an extremely difficult time, you should seek professional help. A therapist, psychologist, psychiatrist, social worker, or religious leader may be able to help you work through some of your needs and feelings.

The journey to recovery after divorce is a long one, and it is not easy. However, by dealing with your breakup, you can ultimately find yourself in a much better place.

Discovery

Discovery is a process of investigation and information gathering that is necessary in most cases. This process allows you to gather information in many areas, including, assets, liabilities, and income information.  Discovery also allows you to seek information regarding your opponent’s witnesses, expected to be called at trial. Discovery is an important part of preparing and strengthening your case.

Petition For Divorce

The legal process involved for filing divorce begins with the filing of the Petition for Divorce. If you are the one filing the petition, you are recognized as the “Petitioner.” The spouse being served is the “Respondent.” Once the Petition for Divorce is filed, it will be served upon the Respondent. If the Respondent not be easily accessible, special options are available to make sure the process is completed.

After the Petition for Divorce is Filed

Texas requires a minimum 60 day waiting period before your divorce can be completed.  If you need more immediate relief, such as temporary child support, temporary spousal support, or provisions regarding use of community property, you may request temporary orders.

Contact Us

It is the goal and responsibility of Bandoske, Butler, & Reuter, PLLC to offer you the finest in legal representation, and to assist through the challenges of transition.

Financial Consequences

Financial Consequences Related to dissolution of marriage

When marriage is over, they end more than just a relationship; they end the joint sharing of finances. Unfortunately, in our society, when it comes to anything having to do with money, people act differently than even they expect, especially when divorce is involved. One of the greatest consequences that occur to the parties involved in dissolution of marriage is the debt that remains after dissolution of marriage. Whether the dissolution of marriage is contested or uncontested (collaborative), when finances and debts are involved, few people get off without fighting over finances. Since neither one of the parties wants to be left with all the debts, we can help sort out the property division, child support, child custody and alimony issues.

Financial Management and dissolution of marriage

Every year, more than one million people find themselves facing dissolution of marriage and more often than not, after years of marriage, couples that have built a stable financial life find themselves facing financial difficulties. Those that have experienced a comfortable life, often have to give up a lot. And while the dissolution of marriage originates from incompatibility, dissolution of marriage is usually viewed from a financial and legal standpoint with money usually becoming one of the greatest issues.

Generally speaking, when a couple initially marries, one person takes on the responsibility for financial management. And while this may be a necessary component towards keeping the finances running smoothly, it could also leave the other party in a vulnerable position. Since one person has maintained the majority of financial responsibility, it means the other person should spend time understanding the finances, especially if dissolution of marriage occurs. To make sure that no one loses, it’s best to have a San Antonio Divorce Attorney that cares about what happens to you and your finances.

Impact On Finances

The Impact of dissolution of marriage on Finances

No matter how equitable, the emotional pain coupled with the impact on finances, makes divorce a very challenging and difficult experience. And of course, no one in his or her right mind finds dissolution of marriage a pleasant experience, but when a person wants out, they put aside those challenges and forge ahead. If you are uncertain about the future, you may want to prepare by protecting your financial security today so that anything that may happen in the future doesn’t turn your finances upside down tomorrow. By gaining insight regarding finances, you learn how to protect your assets and can continue living a reasonably comfortable life even after divorce. By taking the time to understand your finances, you’ll be far more prepared if dissolution of marriage happens.

Many people are angry and spend time hiding assets.  In many cases going as far as selling property purchased during the marriage.  I remember when one of my friends ran around selling all of his household furniture, appliances and even his wife’s clothes in an attempt to seek revenge on his wife.  If you ask him today, he will tell you that was one of the biggest mistakes of his life.

Spousal Maintenance

1) “Maintenance” means an award in a suit for dissolution of a marriage of periodic payments from the future income of one spouse for the support of the other spouse.

(2) “Notice of application for a writ of withholding” means the document delivered to an obligor and filed with the court as required by this chapter for the nonjudicial determination of arrears and initiation of withholding for spousal maintenance.

(3) “Obligee” means a person entitled to receive payments under the terms of an order for spousal maintenance.

(4) “Obligor” means a person required to make periodic payments under the terms of an order forspousal maintenance.

(5) “Writ of withholding” means the document issued by the clerk of a court and delivered to an employer, directing that earnings be withheld for payment of spousal maintenance as provided by this chapter.

Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.  Amended by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.

SUBCHAPTER B. COURT-ORDERED MAINTENANCE

§ 8.051. Eligibility for Maintenance; Court Order

In a suit for dissolution of a marriage or in a proceeding for maintenance in a court with personal jurisdiction over both former spouses following the dissolution of their marriage by a court that lacked personal jurisdiction over an absent spouse, the court may order maintenance for either spouse only if:

(1) the spouse from whom maintenance is requested was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence under Title 4 and the offense occurred:

(A) within two years before the date on which a suit for dissolution of the marriage is filed; or

(B) while the suit is pending; or

(2) the duration of the marriage was 10 years or longer, the spouse seeking maintenance lacks sufficient property, including property distributed to the spouse under this code, to provide for the spouse’s minimum reasonable needs, as limited by Section 8.054, and the spouse seeking maintenance:

(A) is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability;

(B) is the custodian of a child 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

(C) clearly lacks earning ability in the labor market adequate to provide support for the spouse’s minimum reasonable needs, as limited by Section 8.054.

Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.  Amended by Acts 1999, 76th Leg., ch. 62, § 6.05, eff. Sept. 1, 1999; Acts 1999, 76th Leg., ch. 304, § 1, eff. Sept. 1, 1999. Renumbered from § 8.002 and amended by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.

§ 8.052. Factors in Determining Maintenance

A court that determines that a spouse is eligible to receive maintenance under this chapter shall determine the nature, amount, duration, and manner of periodic payments by considering 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, Labor Code.

Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.  Renumbered from § 8.003 by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.

§ 8.053. Presumption

(a) Except as provided by Subsection (b), it is presumed that maintenance is not warranted unless the spouse seeking maintenance has exercised diligence in:

(1) seeking suitable employment; or

(2) developing the necessary skills to become self-supporting during a period of separation and during the time the suit for dissolution of the marriage is pending.

(b) This section does not apply to a spouse who is not able to satisfy the presumption in Subsection (a) because of an incapacitating physical or mental disability.

Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.  Renumbered from § 8.004 by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.

§ 8.054. Duration of Maintenance Order

(a) Except as provided by Subsection (b), a court:

(1) may not order maintenance that remains in effect for more than three years after the date of the order; and

(2) shall limit the duration of a maintenance order to the shortest reasonable period that allows the spouse seeking maintenance to meet the spouse’s minimum reasonable needs by obtaining appropriate employment or developing an appropriate skill, unless the ability of the spouse to provide for the spouse’s minimum reasonable needs through employment is substantially or totally diminished because of:

(A) physical or mental disability;

(B) duties as the custodian of an infant or young child; or

(C) another compelling impediment to gainful employment.

(b) If a spouse seeking maintenance is unable to support himself or herself through appropriate employment because of an incapacitating physical or mental disability, the court may order maintenance for an indefinite period for as long as the disability continues. The court may order periodic review of its order, on the request of either party or on its own motion, to determine whether the disability is continuing. The continuation of spousal maintenance under these circumstances is subject to a motion to modify as provided by Section 8.057.

Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.  Renumbered from § 8.005 and amended by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.

§ 8.055. Amount of Maintenance

(a) A court may not order maintenance that requires an obligor to pay monthly more than the lesser of:

(1) $2,500; or

(2) 20 percent of the spouse’s average monthly gross income.

(b) The court shall set the amount that an obligor is required to pay in a maintenance order to provide for the minimum reasonable needs of the obligee, considering employment or property received in the dissolution of the marriage or otherwise owned by the obligee that contributes to the minimum reasonable needs of the obligee.

(c) Department of Veterans Affairs service-connected disability compensation, social security benefits and disability benefits, and workers’ compensation benefits are excluded from maintenance.

Added by Acts 1997, 75th Leg., ch. 7, § 1, eff. April 17, 1997.  Renumbered from § 8.006 and amended by Acts 2001, 77th Leg., ch. 807, § 1, eff. Sept. 1, 2001.

§ 8.056. Termination

(a) The obligation to pay future maintenance terminates on the death of either party or on the remarriage of the obligee.

(b) After a hearing, the court shall terminate the maintenance order if the obligee cohabits with another person in a permanent place of abode on a continuing, conjugal basis.

Marriage Really Over?

Is it time to speak to a divorce attorney?

Speaking with a divorce attorney will help you evaluate your options during this difficult transition. Prior to seeking a divorce, you may want to evaluate your options in regard to property division, spousal support, child custody, and child support.

Marriage & Dissolution of Marriage Definitions

Texas Marriage & Dissolution of marriage Definitions 210-299-4777

FAMILY CODE

TITLE 1. THE MARRIAGE RELATIONSHIP

SUBTITLE A. MARRIAGE

CHAPTER 1. GENERAL PROVISIONS

SUBCHAPTER A. DEFINITIONS

Sec. 1.001.  APPLICABILITY OF DEFINITIONS.  (a)  The definitions in this subchapter apply to this title.

(b)  Except as provided by this subchapter, the definitions in Chapter 101 apply to terms used in this title.

(c)  If, in another part of this title, a term defined by this subchapter has a meaning different from the meaning provided by this subchapter, the meaning of that other provision prevails.

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

Sec. 1.002.  COURT.  “Court” means the district court, juvenile court having the jurisdiction of a district court, or other court expressly given jurisdiction of a suit under this title.

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

Sec. 1.003.  SUIT FOR DISSOLUTION OF MARRIAGE.  “Suit for dissolution of a marriage” includes a suit for dissolution of marriage or annulment or to declare a marriage void.

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

SUBCHAPTER B. PUBLIC POLICY

Sec. 1.101.  EVERY MARRIAGE PRESUMED VALID.  In order to promote the public health and welfare and to provide the necessary records, this code specifies detailed rules to be followed in establishing the marriage relationship.  However, in order to provide stability for those entering into the marriage relationship in good faith and to provide for an orderly determination of parentage and security for the children of the relationship, it is the policy of this state to preserve and uphold each marriage against claims of invalidity unless a strong reason exists for holding the marriage void or voidable.  Therefore, every marriage entered into in this state is presumed to be valid unless expressly made void by Chapter 6 or unless expressly made voidable by Chapter 6 and annulled as provided by that chapter.

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

Sec. 1.102.  MOST RECENT MARRIAGE PRESUMED VALID.  When two or more marriages of a person to different spouses are alleged, the most recent marriage is presumed to be valid as against each marriage that precedes the most recent marriage until one who asserts the validity of a prior marriage proves the validity of the prior marriage.

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

Sec. 1.103.  PERSONS MARRIED ELSEWHERE.  The law of this state applies to persons married elsewhere who are domiciled in this state.

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

Sec. 1.104.  CAPACITY OF SPOUSE.  Except as expressly provided by statute or by the constitution, a person, regardless of age, who has been married in accordance with the law of this state has the capacity and power of an adult, including the capacity to contract.

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

Sec. 1.105.  JOINDER IN CIVIL SUITS.  (a)  A spouse may sue and be sued without the joinder of the other spouse.

(b)  When claims or liabilities are joint and several, the spouses may be joined under the rules relating to joinder of parties generally.

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

Sec. 1.106.  CRIMINAL CONVERSATION NOT AUTHORIZED.  A right of action by one spouse against a third party for criminal conversation is not authorized in this state.

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

Sec. 1.107.  ALIENATION OF AFFECTION NOT AUTHORIZED.  A right of action by one spouse against a third party for alienation of affection is not authorized in this state.

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

Sec. 1.108.  PROMISE OR AGREEMENT MUST BE IN WRITING.  A promise or agreement made on consideration of marriage or nonmarital conjugal cohabitation is not enforceable unless the promise or agreement or a memorandum of the promise or agreement is in writing and signed by the person obligated by the promise or agreement.

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

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FAQS

FAQ’s  210-299-4777

This page will answer some of the frequently asked questions regarding Divorce.

If you have any questions or would like to discuss these issues in more detail, please call Bandoske, Butler, Reuter, PLLC. for a free consultation.

When dealing with family issues, an experienced San Antonio Divorce Attorney can help you navigate the legal system during this time of difficult transition. Making the process as simple as possible, we are  available for consultation by calling at (210)299-4777.

Questions:  If I abandon my home, will I lose it in the divorce?

Answer: No. Leaving your home during separation from your spouse does not waive your interest in the property.

Question: Who is responsible for paying health insurance for the children?

Answer: Typically, the parent obligated to pay child support will be required to provide health insurance for the children as additional child support.

Question: My Ex’s Income Has Increased, Can I Have My Child Support Increased

Answer: Yes, you can file a motion to modify child support.  A motion to modify child support can be filed if there has been a significant change in the circumstances of the parties or if it has been three years or more since the last order.

Question: How long do I have to live in Texas to file for Divorce in Texas.  

Answer: Yes, can file file for dissolution of marriage in the state of Texas as long as you have lived here for 6 months or longer.

Question: How long do I have to be married to qualify for spousal support.

Answer: You have to be married for ten years or longer. There are exceptions to this rule, if you meet requirements regarding disability or family violence.

Question: Is Texas a 50/50 state when dividing marital assets.

Answer: Texas law requires that the court divide property in a manner that is “just and right”.

LGBT Friendly

We are thrilled to live in the age of marriage equality. However, along with marriage equality comes divorce equality.

Of course, non-heterosexual couples have been separating for a long time. However, the addition of legal marriage means that couples of all sorts now have to navigate the legal system as part of their separation. Divorce brings an additional level of complication, during what is already an emotionally difficult time.

Gay or Straight, Divorce is Difficult

Legally, divorce is the same for heterosexual and homosexual couples. No matter what your orientation, or who initiated the separation, ending a marriage is a challenging time. You once planned to spend your entire life with this person, imagining yourself with them for decades into the future. Even if it is the best choice, the end of a marriage forces you to reimagine the rest of your life. You definitely don’t want to add judgment and homophobia to that environment.

That is why you should make sure to work with a gay-friendly divorce lawyer, someone who will respect your orientation and not imply that the end of your marriage has anything to do with your sexuality. We believe that every relationship is equally valid, and would never discriminate against any of our clients. We have worked with gay and lesbian couples, as well as transgender people and non-binary individuals. Regardless of your gender identity or sexuality, we are here to support you and help you figure out what comes next.

You Deserve Respect

Divorce can come at any time. You may have been with your partner for five years or 50. You may have instigated the separation, or it may have come as a complete surprise. Perhaps the end of this relationship is amicable, and you and your partner believe you can separate smoothly and remain friends. Perhaps you have been fighting for months or years, and you expect the divorce to be contentious and difficult. Whatever your circumstances, our thoughtful and respectful gay-friendly legal team is there to help you.

The divorce process can be lengthy. By the time you speak to a lawyer, you have probably already gone through months of difficult arguing, trying to solve your problems with your partner and then moving out of the home you shared. You still need to figure out how assets will be split up, which is almost always contentious. If there are children involved, you need to determine a custody arrangement. Going through this process is difficult logistically, and difficult emotionally as you process the end of a relationship you once hoped would last forever.

When you are divorcing, the last thing you want to worry about is a lawyer who doesn’t respect your relationship. Regardless of the fact that your marriage is ending, we share a deep respect for your relationship and your love life. You can count on our gay-friendly legal team to help you through this difficult process so that you can move on to the next phase of your life.

Knowledgeable and Caring

As you are dissolving your marriage, you are probably processing many painful things. You may be thinking through important past moments in the history of your relationship, which may also include your experience of coming out to other loved ones in your life, which could have been a negative experience. You probably remember the “highlight reel” of your relationship, good and bad. You may be wondering if you made the wrong choice by marrying this person in the first place. While you are going through all of these painful thoughts, you want to make sure that you come out the other side of the divorce in the best possible place.

Our divorce lawyers are both compassionate (to you) and competitive (to other lawyers). They will help you determine what you want to get out of this divorce and make sure all the legal challenges are dealt with. When you are able to come up for air, you will feel that things are in place for you to move forward. We provide this service for all our clients, regardless of their sexual orientation. If you identify as LGBTQ and are getting a divorce, Bandoske, Butler, & Reuter, PLLC should be your first call.

Grounds For Annulment

GROUNDS FOR ANNULMENT IN TEXAS

Sec. 6.102.  ANNULMENT OF MARRIAGE OF PERSON UNDER AGE 18.  (a)  The court may grant an annulment of a marriage of a person 16 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.

(b)  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.

(c)  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, Sec. 1, eff. April 17, 1997.

Amended by:

Acts 2005, 79th Leg., Ch. 268, Sec. 4.16, eff. September 1, 2005.

Acts 2007, 80th Leg., R.S., Ch. 52, Sec. 3, eff. September 1, 2007.

Sec. 6.103.  UNDERAGE ANNULMENT BARRED BY ADULTHOOD.  A suit to annul a marriage may not be filed under Section 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, Sec. 1, eff. April 17, 1997.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 52, Sec. 4, eff. September 1, 2007.

Sec. 6.104.  DISCRETIONARY ANNULMENT OF UNDERAGE MARRIAGE.  (a)  An annulment under Section 6.102 of a marriage may be granted at the discretion of the court sitting without a jury.

(b)  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, Sec. 1, eff. April 17, 1997.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 52, Sec. 5, eff. September 1, 2007.

Sec. 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, Sec. 1, eff. April 17, 1997.

Sec. 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, Sec. 1, eff. April 17, 1997.

Sec. 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, Sec. 1, eff. April 17, 1997.

Sec. 6.108.  MENTAL INCAPACITY.  (a)  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.

(b)  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, Sec. 1, eff. April 17, 1997.

Sec. 6.109.  CONCEALED DIVORCE.  (a)  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.

(b)  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, Sec. 1, eff. April 17, 1997.

Sec. 6.110.  MARRIAGE LESS THAN 72 HOURS AFTER ISSUANCE OF LICENSE.  (a)  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.

(b)  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, Sec. 1, eff. April 17, 1997.

Sec. 6.111.  DEATH OF PARTY TO VOIDABLE MARRIAGE.  Except as provided by Section 47A, Texas Probate Code, a marriage subject to annulment may not be challenged in a proceeding instituted after the death of either party to the marriage.

Voidable Marriage

DECLARING A TEXAS MARRIAGE VOID

Sec. 6.201.  CONSANGUINITY.  A marriage is void if one party to the marriage is related to the other as:

(1)  an ancestor or descendant, by blood or adoption;

(2)  a brother or sister, of the whole or half blood or by adoption;

(3)  a parent’s brother or sister, of the whole or half blood or by adoption;  or

(4)  a son or daughter of a brother or sister, of the whole or half blood or by adoption.

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

Sec. 6.202.  MARRIAGE DURING EXISTENCE OF PRIOR MARRIAGE.  (a)  A marriage is void if entered into when either party has an existing marriage to another person that has not been dissolved by legal action or terminated by the death of the other spouse.

(b)  The later marriage that is void under this section becomes valid when the prior marriage is dissolved if, after the date of the dissolution, the parties have lived together as husband and wife and represented themselves to others as being married.

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

Sec. 6.203.  CERTAIN VOID MARRIAGES VALIDATED.  Except for a marriage that would have been void under Section 6.201, a marriage that was entered into before January 1, 1970, in violation of the prohibitions of Article 496, Penal Code of Texas, 1925, is validated from the date the marriage commenced if the parties continued until January 1, 1970, to live together as husband and wife and to represent themselves to others as being married.

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

Sec. 6.204.  RECOGNITION OF SAME-SEX MARRIAGE OR CIVIL UNION.  (a)  In this section, “civil union” means any relationship status other than marriage that:

(1)  is intended as an alternative to marriage or applies primarily to cohabitating persons;  and

(2)  grants to the parties of the relationship legal protections, benefits, or responsibilities granted to the spouses of a marriage.

(b)  A marriage between persons of the same sex or a civil union is contrary to the public policy of this state and is void in this state.

(c)  The state or an agency or political subdivision of the state may not give effect to a:

(1)  public act, record, or judicial proceeding that creates, recognizes, or validates a marriage between persons of the same sex or a civil union in this state or in any other jurisdiction;  or

(2)  right or claim to any legal protection, benefit, or responsibility asserted as a result of a marriage between persons of the same sex or a civil union in this state or in any other jurisdiction.

Added by Acts 2003, 78th Leg., ch. 124, Sec. 1, eff. Sept. 1, 2003.

Sec. 6.205.  MARRIAGE TO MINOR.  A marriage is void if either party to the marriage is younger than 16 years of age, unless a court order has been obtained under Section 2.103.

Added by Acts 2005, 79th Leg., Ch. 268, Sec. 4.17, eff. September 1, 2005.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 52, Sec. 6, eff. September 1, 2007.

Sec. 6.206.  MARRIAGE TO STEPCHILD OR STEPPARENT.  A marriage is void if a party is a current or former stepchild or stepparent of the other party.

Added by Acts 2005, 79th Leg., Ch. 268, Sec. 4.17, eff. September 1, 2005.

Collaborative Law

Sec. 6.603.  COLLABORATIVE LAW.  (a)  On a written agreement of the parties, a dissolution of marriage proceeding may be conducted under collaborative law procedures.

(b)  Collaborative law Call (210) 299-4777 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 divorce 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.

(c)  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.

(d)  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.

(e)  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.

(f)  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.

(g)  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.

(h)  The provisions for confidentiality of alternative dispute resolution procedures as provided in Chapter 154, Civil Practice and Remedies Code, apply equally to collaborative law procedures under this section.

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

Amended by:

Acts 2005, 79th Leg., Ch. 916, Sec. 1, eff. June 18, 2005.

Sec. 6.604.  INFORMAL SETTLEMENT CONFERENCE.  (a)  The parties to a suit for dissolution of a marriage may agree to one or more informal settlement conferences and may agree that the settlement conferences may be conducted with or without the presence of the parties’ attorneys, if any.

(b)  A written settlement agreement reached at an informal settlement conference is binding on the parties if the agreement:

(1)  provides, in a prominently displayed statement that is in boldfaced type or in 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.

(c)  If a written settlement agreement meets the requirements of Subsection (b), a party is entitled to judgment on the settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or another rule of law.

(d)  If the court finds that the terms of the written informal settlement agreement are just and right, those terms are binding on the court.  If the court approves the agreement, the court may set forth the agreement in full or incorporate the agreement by reference in the final decree.

(e)  If the court finds that the terms of the written informal settlement agreement are not just and right, the court may request the parties to submit a revised agreement or set the case for a contested hearing.

Divorce Suit

Divorce in Texas

      PLEADINGS

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Legal Pleadings

Sec. 6.401.  CAPTION.  (a)  Pleadings in a suit for dissolution of marriage or annulment shall be styled “In the Matter of the Marriage of __________ and __________.”

(b)  Pleadings in a suit to declare a voidable marriage shall be styled “A Suit To Declare Void the Marriage of __________ and __________.”

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

Sec. 6.402.  PLEADINGS.  (a)  A petition in a suit for dissolution of a marriage is sufficient without the necessity of specifying the underlying evidentiary facts if the petition alleges the grounds relied on substantially in the language of the statute.

(b)  Allegations of grounds for relief, matters of defense, or facts relied on for a temporary order that are stated in short and plain terms are not subject to special exceptions because of form or sufficiency.

(c)  The court shall strike an allegation of evidentiary fact from the pleadings on the motion of a party or on the court’s own motion.

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

Sec. 6.403.  ANSWER.  The respondent in a suit for dissolution of a marriage is not required to answer on oath or affirmation.

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

Sec. 6.4035.  WAIVER OF SERVICE.  (a)  A party to a suit for the dissolution of a marriage may waive the issuance or service of process after the suit is filed by filing with the clerk of the court in which the suit is filed the waiver of the party acknowledging receipt of a copy of the filed petition.

(b)  The waiver must contain the mailing address of the party who executed the waiver.

(c)  The waiver must be sworn but may not be sworn before in the suit.

(d)  The Texas Rules of Civil Procedure do not apply to a waiver executed under this section.

Added by Acts 1997, 75th Leg., ch. 614, Sec. 1, eff. Sept. 1, 1997.

Sec. 6.404.  INFORMATION REGARDING PROTECTIVE ORDERS.  At any time while a suit for dissolution of a marriage is pending, if the court believes, on the basis of any information received by the court, that a party to the suit or a member of the party’s family or household may be a victim of family violence, the court shall inform that party of the party’s right to apply for a protective order under Title 4.

Added by Acts 2005, 79th Leg., Ch. 361, Sec. 2, eff. June 17, 2005.

Sec. 6.405.  PROTECTIVE ORDER.  (a)  The petition in a suit for dissolution of a marriage must state whether a protective order under Title 4 is in effect or if an application for a protective order is pending with regard to the parties to the suit.

(b)  The petitioner shall attach to the petition a copy of each protective order issued under Title 4 in which one of the parties to the suit was the applicant and the other party was the respondent without regard to the date of the order.  If a copy of the protective order is not available at the time of filing, the petition must state that a copy of the order will be filed with the court before any hearing.

Added by Acts 1997, 75th Leg., ch. 7, Sec. 1, eff. April 17, 1997.  Amended by Acts 1999, 76th Leg., ch. 62, Sec. 6.04, eff. Sept. 1, 1999.

Sec. 6.406.  MANDATORY JOINDER OF SUIT AFFECTING PARENT-CHILD RELATIONSHIP.  (a)  The petition in a suit for dissolution of a marriage shall state whether there are children born or adopted of the marriage who are under 18 years of age or who are otherwise entitled to support as provided by Chapter 154.

(b)  If the parties are parents of a child, as defined by Section 101.003, and the child is not under the continuing jurisdiction of another court as provided by Chapter 155, the suit for dissolution of a marriage must include a suit affecting the parent-child relationship under Title 5.

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

Sec. 6.407.  TRANSFER OF SUIT AFFECTING PARENT-CHILD RELATIONSHIP TO DIVORCE COURT.  (a)  If a suit affecting the parent-child relationship is pending at the time the suit for dissolution of a marriage is filed, the suit affecting the parent-child relationship shall be transferred as provided by Section 103.002 to the court in which the suit for dissolution is filed.

(b)  If the parties are parents of a child, as defined by Section 101.003, and the child is under the continuing jurisdiction of another court under Chapter 155, either party to the suit for dissolution of a marriage may move that court for transfer of the suit affecting the parent-child relationship to the court having jurisdiction of the suit for dissolution.  The court with continuing jurisdiction shall transfer the proceeding as provided by Chapter 155.  On the transfer of the proceedings, the court with jurisdiction of the suit for dissolution of a marriage shall consolidate the two causes of action.

(c)  After transfer of a suit affecting the parent-child relationship as provided in Chapter 155, the court with jurisdiction of the suit for dissolution of a marriage has jurisdiction to render an order in the suit affecting the parent-child relationship as provided by Title 5.

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

Sec. 6.408.  SERVICE OF CITATION.  Citation on the filing of an original petition in a suit for dissolution of a marriage shall be issued and served as in other civil cases.  Citation may also be served on any other person who has or who may assert an interest in the suit for dissolution of the marriage.

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

Sec. 6.409.  CITATION BY PUBLICATION.  (a)  Citation in a suit for dissolution of a marriage may be by publication as in other civil cases, except that notice shall be published one time only.

(b)  The notice shall be sufficient if given in substantially the following form:

“STATE OF TEXAS

To (name of person to be served with citation), and to all whom it may concern (if the name of any person to be served with citation is unknown), Respondent(s),

“You have been sued.  You may employ an attorney.  If you or your attorney do not file a written answer with the clerk who issued this citation by 10 a.m. on the Monday next following the expiration of 20 days after you were served this citation and petition, a default judgment may be taken against you.  The petition of __________, Petitioner, was filed in the Court of __________ County, Texas, on the ______ day of __________, against __________, Respondent(s), numbered ______, and entitled  ‘In the Matter of Marriage of __________ and __________. The suit requests __________ (statement of relief sought).’

“The Court has authority in this suit to enter any judgment or decree dissolving the marriage and providing for the property division that will be binding on you.

“Issued and given under my hand and seal of said Court at __________, Texas, this the ______ day of __________, ______.

“…………………………

Clerk of the __________ Court of

____________ County, Texas

By _______, Deputy.”

(c)  The form authorized in this section and the form authorized by Section 102.010 may be combined in appropriate situations.

(d)  If the citation is for a suit in which a parent-child relationship does not exist, service by publication may be completed by posting the citation at the courthouse door for seven days in the county in which the suit is filed.

(e)  If the petitioner or the petitioner’s attorney of record makes an oath that no child presently under 18 years of age was born or adopted by the spouses and that no appreciable amount of property was accumulated by the spouses during the marriage, the court may dispense with the appointment of an attorney ad litem.  In a case in which citation was by publication, a statement of the evidence, approved and signed by the judge, shall be filed with the papers of the suit as a part of the record.

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

Sec. 6.410.  REPORT TO ACCOMPANY PETITION.  At the time a petition for divorce or annulment of a marriage is filed, the petitioner shall also file a completed report that may be used by the district clerk, at the time the petition is granted, to comply with Section 194.002, Health and Safety Code.

Added by Acts 2003, 78th Leg., ch. 1128, Sec. 4, eff. Sept. 1, 2003.

Sec. 6.411.  CONFIDENTIALITY OF PLEADINGS.  (a)  This section applies only in a county with a population of 3.4 million or more.

(b)  Except as otherwise provided by law, all pleadings and other documents filed with the court in a suit for dissolution of a marriage are confidential, are excepted from required public disclosure under Chapter 552, Government Code, and may not be released to a person who is not a party to the suit until after the date of service of citation or the 31st day after the date of filing the suit, whichever date is sooner

Conduct

What effect does the conduct of the parties have?

Very little, unless the conduct was intended to harm the other party.

Some judges will punish a party for adultery, psychological abuse of the spouse, or other misconduct that is morally improper; however, the number of jurists who do so is falling.

On the other hand, fraud, squandering money, spending money for the benefit of paramour’s and activities of that nature are frowned upon by virtually every judge and such misconduct will usually be punished via a lopsided division of property.

What effect does the length of the marriage have on property division?

Although the “length of the marriage” is frequently cited as a reason to grant a disproportionate division of the marital estate, the real reasons are more economic or financial in nature.

Differences in earning capacity become more significant as the ages of the parties advance.  For example, it is less likely that a 50 year old housewife can find gainful employment than her 50 year old corporate executive husband can do so.  Likewise, the physically impaired spouse may incur significant ongoing expenses for treatment that the physically fit spouse does not have in his/her budget.

Generally speaking, realistic predictions of what the future holds for a person after the divorce are more important factors than the length of the marriage.

Is there such a thing as separate property? What does it take?

The distinction between separate property and community property is important because separate property can not be divided or awarded to the other party in a divorce case.

Separate property is most commonly defined as something: a) owned prior to the marriage, b) acquired as a gift, or c) acquired by inheritance.  There are other categories of separate property, but they are less frequently encountered.

The judge must assume that everything the parties own at the time of divorce is community property and, therefore, can be divided.  If either party claims something as separate property, that person must identify the item and prove that falls within one of the definitions of separate property.

Texas marital property is rather complicated and only an experienced divorce attorney can provide advice concerning a particular set of facts.

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