If you’re considering a divorce or have already been served with divorce papers, you’d probably like to resolve the matter as efficiently as possible – while protecting your financial and parental rights in the process. Generally, this means seeking a no-fault divorce and resolving the matter out of court.
The vast majority of Texas divorces are no-fault, and having a better understanding of what this means for you can afford to handle your own case better. If you are facing a divorce or think it’s time to explore the possibility, reach out for the skilled legal guidance of an experienced Round Rock divorce attorney.
When a Texas Divorce Is Based on Fault
When you seek a divorce that’s based on your spouse’s fault, you are responsible for proving their wrongdoing. Because your spouse is unlikely to agree with your assessment of the matter, you can expect your divorce to go to court and, in the process, to be more costly, to be more time-consuming, and to be more contentious overall.
Nevertheless, there are instances when seeking a fault-based divorce is worth the additional effort, and your dedicated divorce attorney will help to ensure that you make the right decision for you regarding this important matter.
When an individual does pursue a divorce that’s based on their spouse’s fault, the potential grounds include all the following:
Adultery
Cruelty
Abandonment
Living apart
Confinement to a mental health facility
Felony conviction
Most Texas divorces are based on what’s called insupportability – or irreconcilable differences – which amounts to a no-fault divorce and means that neither spouse needs to prove the other’s fault in the matter.
Your No-Fault Divorce and Court
Many people believe that obtaining a no-fault divorce means resolving the matter outside of court, but that’s not how things work. If you and your divorcing spouse are able to negotiate each divorce term that applies to your case between yourselves – with your respective divorce attorneys’ trusted counsel – your divorce is uncontested and is almost certainly no-fault.
If, however, your divorce is no-fault, but you have one or more terms that you and your spouse aren’t able to resolve between yourselves – regardless of how much negotiating you do – you’ll need the court’s intervention, and your divorce is contested.
One of the following scenarios generally applies:
Your divorce is no-fault and uncontested, which means you, your spouse, and your respective divorce attorneys are able to hammer out each divorce term that applies to your case.
Your divorce is no-fault and contested, which means you and your spouse need the court’s intervention on at least one of your divorce terms.
Your divorce is fault-based, which almost certainly means that it is also contested and requires the court’s intervention.
Your Divorce Terms
Every divorce is as unique as the people involved, but the divorce terms that need to be resolved do not vary from case to case. The primary terms that apply across the board – as applicable – include:
Your child custody arrangements
Child support
The division of your marital property
Alimony – or spousal maintenance
Let’s take a closer look at each.
Your Child Custody Arrangements
Child custody in Texas is addressed in terms of both legal custody and physical custody, or parenting time.
Legal Custody
Legal custody determines how you and your children’s other parent will address primary decisions that guide your children’s upbringing. The kind of decisions involved relate to topics like the following:
Your children’s schooling
Your children’s healthcare
Your children’s religious upbringing
Your children's participation in extracurricular activities and travel
Where your children make their primary residence
Upon divorce, you and your ex can continue sharing this parental decision-making authority, but other options include:
Making the decisions together while one of you has the ability to break a tie if it becomes necessary to do so
Dividing the decisions between you according to the category of decision that needs to be made
One of you taking on sole legal custody and making each of these decisions on your own
For decisions that need to be made regularly, the parent responsible for the children at the time is called upon to do so. And for any emergency decisions that must be made, the responsibility falls to the parent who is most readily available.
Physical Custody
Physical custody determines the parenting time schedule, which determines when your children are with you and when they’re with their other parent.
Texas courts are always motivated by the children's best interests, and it’s universally accepted that children’s needs are best served when they can continue spending a significant amount of time with both parents – barring a serious reason for ruling otherwise.
As such, parenting is either divided somewhat evenly between both parents or one parent takes on the primary custodial role while the other has a fairly generous parenting time schedule.
When making parenting time determinations, Texas courts look to best interest factors like the following:
The children’s ages
The children’s needs, including any special needs, and each parent’s ability to adequately address these needs
Each child’s overall physical and mental health
Each parent’s age and overall physical and mental health
The preferences of those children who are considered mature enough to weigh in
The level of closeness between each parent and each child
The degree to which each parent has been involved in raising the children so far
Each parent’s level of commitment in terms of supporting the other’s close and ongoing relationship with the children and in terms of effective co-parenting
The distance the parents live from one another
Whether domestic violence, child abuse, or child neglect is a concern
Child Support
Strict state guidelines determine the child support obligation in a Texas divorce. While a wide range of variables are factored in, the parent with higher earnings generally makes the child support payments.
The Division of Marital Property
The division of marital property and child custody arrangements are the two divorce terms that are most likely to become hotly contested. Property division refers to the fair division of those assets that you, your spouse, or you and your spouse together acquired while you were married.
If you came to own it while you were married, it’s almost certainly marital property and will need to be addressed in the division of your marital assets.
Generally, the only exceptions include:
Any inheritance that either spouse receives in their name alone
Any gifts that either spouse receives in their name alone
The pain and suffering component of either spouse’s personal injury claim filed during the marriage
A Just and Right Division
In Texas, marital property must be divided fairly – or in a just and right manner – which may or may not be evenly. Texas courts take a wide range of factors into account when making determinations regarding the fair division of marital assets, including:
Each spouse’s overall education and earning potential
Each spouse’s age and overall health
The size of the community estate and the size of each spouse’s separate estate
The extent of the marital debts and of each spouse’s separate debts
Each spouse’s contribution to the marriage, including in the form of homemaking and childcare
Wrongdoing, which can affect even a no-fault divorce – such as when one spouse squanders marital assets on an affair
Any hiding, spending down, giving away, or otherwise dissipating marital assets in the buildup to divorce
The tax consequences of the proposed division
Whether fault played a role in the dissolution of the marriage
The terms included in a legally binding prenuptial agreement
Separate Property
The assets that either spouse owed prior to the marriage and kept separate throughout the marriage is considered separate property that won’t be addressed in the division of marital property. It’s important to understand, however, that when a separate asset’s financing becomes intermingled with marital financing, it can weaken its separate nature.
Further, when a separate asset increases in value over the course of a marriage, that increase will very likely be considered marital. This means that the retirement account that follows you into your marriage is likely marital, but the amount it increases in value over the years of your marriage is probably marital.
In other words, it’s complicated, and proceeding with caution – and with skilled legal representation in your corner – is always in your best interest.
Factors that tend to complicate the division of marital property include all the following:
High assets
Complicated assets that are difficult to disentangle
Business ownership
Alimony
Alimony is called spousal maintenance in Texas, and it is reserved for those divorces that cause one spouse to experience a financial downturn while the other has the means to help. The requirements related to alimony orders in Texas are exacting, and to begin, the spouse requesting it must demonstrate that they are unable to meet their own reasonable financial needs.
Alimony is generally set for a duration and amount that allows the recipient to gain the education, job skills, or job training needed to obtain greater financial independence.
FAQ
The answers to the following frequently asked questions related to no-fault divorce may help you with your own.
What does it mean if my spouse is seeking a fault-based divorce?
If your spouse is seeking a fault-based divorce, it means that they blame you for the dissolution of your marriage. While the matter of your fault can directly affect your divorce terms, your spouse must prove your fault in the matter and should be prepared to face a more contentious, more costly, and more time-consuming legal process.
In the end, most divorces in Texas are no-fault, and yours will likely follow suit. The most important point to keep in mind is that – just because your spouse claims you are the responsible party – does not make it true, and your skilled divorce attorney will help to ensure your case’s best possible resolution.
When is seeking a fault-based divorce a good idea?
There are unique instances when seeking a fault-based divorce is the best means of supporting your financial or parental rights, which can make the additional effort worthwhile.
For example, if your spouse was pouring marital assets into another romantic relationship for a considerable amount of time, your attorney may advise you to seek a fault-based divorce, which could allow you a surer means of recovering your financial losses.
Does a no-fault divorce mean my case will be resolved out of court?
If your divorce goes to trial, it is contested, and this is true whether it is fault-based or no-fault. If your divorce is contested, it means you need the court’s intervention regarding one or more terms. Most couples ultimately resolve the terms of their divorces outside of court, which means their divorces are uncontested.
Are all no-fault divorces speedier?
The bottom line when it comes to how long it will take for your divorce to be finalized is how long it takes you and your divorcing spouse to resolve the involved terms. If you have one or more terms that take considerable time to hammer out, your no-fault divorce can drag on. Generally, a no-fault divorce takes significantly less time to finalize than a fault-based divorce.
An Experienced Round Rock Divorce Attorney Can Help
Brett Pritchard at The Law Office of Brett H. Pritchard is an accomplished Round Rock divorce attorney who appreciates your desire to move your divorce along with your rights intact. He has the skill and legal insight to help make that happen.
Learn more by contacting or calling us at 254-781-4222 and scheduling a free consultation today.