Texas will not grant a divorce until at least 60 days have passed since the petition was filed, and it will not grant one at all unless one spouse has lived in the state for six months and in the filing county for 90 days. Those three numbers, set out in sections 6.301 and 6.702 of the Texas Family Code, decide when and where a case can even begin, and they catch people who separated in one county and moved to another before filing.
Family law in Texas is unusually rule-bound in this way. Much of what people assume is discretionary is actually driven by statutory presumptions, percentage formulas, and default orders that apply unless someone proves a reason to depart from them. Understanding those defaults is the difference between negotiating from knowledge and negotiating from fear. If your matter sits in East Texas, a family lawyer in Smith County will know both the code and how the local district court applies it, which are not always the same thing. Source Our guide to Understanding Family Law covers this in more detail.
What Texas Family Law Actually Covers
The Texas Family Code is broader than divorce. It governs marriage validity, including informal or common-law marriage under section 2.401, which requires an agreement to be married, living together in Texas as spouses, and representing to others that you are married. It governs suits affecting the parent-child relationship, known as SAPCRs, which is the vehicle for custody, support, paternity, and modification whether or not the parents were ever married. It governs protective orders under Title 4, adoption and termination of parental rights, and enforcement of orders already entered.
Grouping them together matters because they interact. A protective order can affect conservatorship. A paternity finding creates a support obligation. A modification filed too soon fails on a technicality unrelated to whether the change is a good idea.
Property: Community, Separate, and Just and Right
Texas is a community property state, and section 3.002 presumes that everything either spouse possesses during the marriage is community property. Separate property under section 3.001 is narrow: what you owned before marriage, what you received by gift, devise, or descent, and personal injury recoveries other than lost earning capacity during the marriage.
The presumption is rebuttable, but only by clear and convincing evidence, which in practice means tracing. If an inheritance was deposited into a joint checking account and spent alongside marital income, proving what remains separate requires account-level records rather than testimony. People who assume a family gift is automatically protected often discover mid-case that commingling makes it harder to establish anything.
Division itself is not automatically equal. Section 7.001 directs the court to divide the community estate in a manner that is just and right, having due regard for the rights of each party and any children. Courts routinely award a disproportionate share based on factors such as earning capacity, education, fault in the breakup, health, and who has primary custody of the children.
No-Fault and Fault Grounds Coexist
Texas permits a no-fault divorce on the ground of insupportability under section 6.001, and most cases are filed that way. The code also retains fault grounds, including cruelty, adultery, conviction of a felony, abandonment, and living apart for at least three years. Fault is not merely symbolic in Texas, because proving it can support a disproportionate property division. That said, pleading fault raises the cost and temperature of a case, so the question is always whether the likely financial gain justifies the additional discovery and trial time.
Children: Conservatorship, Possession, and Support
Texas uses conservatorship rather than custody. Section 153.131 creates a rebuttable presumption that both parents should be named joint managing conservators, which concerns decision-making rights and duties. Separately, the order designates which conservator has the exclusive right to determine the child’s primary residence, usually within a geographic restriction such as a specific county and contiguous counties. That geographic restriction is frequently more contested than the conservatorship label itself, because it determines whether a parent can move.
Physical time is set by the Standard Possession Order, which the code presumes is in the best interest of a child three years or older. Its core pattern is first, third, and fifth weekends of each month, a weekday evening during the school year, alternating holidays, and an extended summer period. An expanded version is available on election and effectively begins the weekend at school dismissal on Friday and ends at school resumption Monday.
Child support follows percentage guidelines in section 154.125, applied to net monthly resources rather than gross pay, and subject to a statutory cap that is adjusted for inflation every six years.
| Children before the court | Guideline percentage of net resources |
|---|---|
| One | 20 percent |
| Two | 25 percent |
| Three | 30 percent |
| Four | 35 percent |
| Five or more | At least 40 percent |
Two practical notes. First, net resources is a defined term that starts with essentially all income, including self-employment income, bonuses, and certain benefits, then subtracts specific items such as social security taxes, federal income tax for a single person claiming one exemption, and the cost of the child’s health insurance. It is not take-home pay. Second, the percentages step down when the obligor supports children in another household, which is why the worksheet matters more than the headline number.
The Procedural Realities Nobody Explains Up Front
- The 60-day waiting period runs from filing, not from separation, and it is a floor rather than an estimate. Contested cases in Texas commonly take six months to well over a year.
- Standing orders. Many Texas counties automatically impose an order at filing that restricts moving the children, canceling insurance, hiding assets, or making unusual expenditures. Violating one before you have read it is a real risk.
- Mediation is close to mandatory in practice. Most family courts require it before setting a contested final trial.
- A mediated settlement agreement is unusually binding. Under section 153.0071, an MSA that meets the statutory formalities is not subject to ordinary revocation, and a party is generally entitled to judgment on it. You should not sign one expecting to reconsider overnight.
- Modification has its own threshold. Section 156.101 requires a material and substantial change in circumstances. For support alone, section 156.401 also allows modification when three years have passed and the guideline amount differs from the order by 20 percent or 100 dollars.
- The Office of the Attorney General can establish and enforce support administratively, but it represents the state’s interest in support, not you personally.
Preparing Before You File
The single highest-value thing a person can do before a family case starts is assemble documents, because discovery fights are expensive and self-inflicted gaps are worse.
- Two to three years of tax returns and W-2 or 1099 forms for both spouses.
- Twelve months of statements for every bank, brokerage, and retirement account, including accounts you believe are separate.
- Mortgage statements, deeds, and vehicle titles, with purchase dates, since date of acquisition drives characterization.
- Documentation tracing any inheritance or premarital asset from its origin to its current form.
- A current household budget reflecting actual post-separation expenses, not historical ones.
- A written calendar of who has actually been doing school pickups, medical appointments, and bedtime routines, kept contemporaneously.
That last item is undervalued. In a contested conservatorship case, a parent who can show a specific, dated pattern of caregiving is in a far stronger position than one offering general assertions.
Frequently Asked Questions
How long does a Texas divorce take?
At least 60 days from filing, and realistically longer. An uncontested case with a signed agreement can finalize shortly after the waiting period ends. Contested cases involving property characterization, a business, or a conservatorship dispute typically run six to eighteen months, driven mostly by discovery, mediation scheduling, and the court’s trial calendar.
Does Texas split everything 50/50?
No. Texas requires a just and right division of the community estate, which is often but not always close to equal. Courts may award a disproportionate share based on earning capacity, fault in the breakup, health, education, and custody of the children. Separate property is not divisible at all, though proving something is separate requires clear and convincing evidence.
Can we have a truly 50/50 possession schedule?
Yes, by agreement or by court order where the evidence supports it. The Standard Possession Order is the statutory presumption, not a ceiling. Equal time arrangements work best where parents live close together, communicate reliably, and the children’s schooling is not disrupted. Courts look closely at distance and at each parent’s actual availability rather than stated intent.
Is Texas common-law marriage real?
Yes. Under section 2.401 an informal marriage exists if the couple agreed to be married, then lived together in Texas as spouses and represented to others that they were married. All three elements are required. If proven, the marriage is fully valid, meaning a formal divorce and a community property division are required to end it.
Do I need a lawyer for an uncontested case?
Not strictly, but the drafting is where uncontested cases fail. Decrees have to divide retirement accounts with the right instrument, describe real property accurately, and set out possession terms clearly enough to enforce later. An agreement that seems complete in mediation often turns out to be ambiguous when someone tries to enforce it three years later.
What to Do Next
Before anything else, confirm that you meet the six-month state and 90-day county residency requirements in the place you intend to file, then start assembling the document list above. Those two steps decide where your case can be heard and how much of it will be spent arguing about records rather than outcomes. For related reading, How a Divorce Lawyer Can Protect and Safeguard Your Financial Interests addresses the financial side in more depth, and additional material is collected under Family Law.
This article is general information about Texas family law, not legal advice about any particular case.
