In Texas there is not a recognized separation agreement under the family code. Premarital agreements do provide in part for division of property and identification of assets as community or separate in the event of a divorce, however premarital agreements are made in contemplation of marriage, not contemplation of divorce. (Reference Texas Family Code Chapter 9). Post marital agreements are dealt with in the same chapter, however, they are also in contemplation of continuation of marriage.
In order to file for divorce in Texas a Petition for Divorce is filed in the County where at least one party has resided for 90 days prior to divorce. If child custody is an issue, the divorce pleading will be filed in the county where the children have resided for 6 months prior to filing. Residency determines the court’s ability to exercise jurisdiction over the parties and children.
Once a divorce is filed, a 60-day waiting period begins. The waiting period is essentially a cooling off period designed to give parties the opportunity to assess their situation, possibly reconcile, and possibly reach agreements in their case. The waiting period is statutory and cannot be shortened
In most cases a temporary hearing will be set during the pendency of a divorce. A temporary hearing is scheduled by a party if there is a need to determine issues of use of property, temporary custody, temporary child and spousal support, interim fees, payment for experts and any injunctions that may be needed. It is common for courts to enter injunctions in order to maintain the status quo during the divorce. The courts do not want people purchasing beach side property in the middle of their case! The court will also typically order the preparation of inventories and appraisals of property.
An inventory and appraisement is a listing of all community and separate property claimed by the parties with the values of each item. Often times husbands and wives do not agree on the value of specific items such as real estate, jewelry, furnishings etc. Both parties have the opportunity to file an inventory indicating what they believe is the value of their estate, item by item. The court will ultimately determine the value based on evidence presented if no agreement is reached in the division of the estate.
The legal standard for division of property is “just and right division.” Case law has established a number of factors a court can consider in determining a just and right division, however the court ultimately has broad discretion in determining an appropriate division. Much to many laypersons surprise, the division does not have to be equal. As indicated in previous issues, the court does not have the discretion to divest a person of separate property. The court can, however, consider the amount of separate property of a party in determining a fair division of the community estate.
If the parties reach an agreement, a divorce decree is drafted setting forth all of the terms of the agreement. Often times in agreed divorces, the divorce decree will be accompanied by an agreement incident to divorce which sets forth contractual terms that might be included in the settlement. If no agreement is reached, the Decree will be prepared after the Judge renders his decision at trial. Once the judge signs the Decree, the divorce is final. But be careful, you cannot get married to another person for at least 30 days after you obtain a divorce, unless the judge waives that 30-day period. This of course is for those who feel the grass is always greener…..”
The information provided here is general in nature to give you a basic understanding of family law in the State of Texas. If you have specific legal questions contact an attorney.