Divorce Process
Written in plain language for general understanding. This is educational content, not legal advice. Based on federal statutes and official sources.
What is this right?
Divorce is the legal process of ending a marriage. Every state now allows no-fault divorce, which means you do not need to prove your spouse did something wrong. You can simply state the marriage is "irretrievably broken" or cite "irreconcilable differences."
Some states also allow fault-based divorce on grounds like adultery, cruelty, or abandonment. In fault states, proving fault may affect how property is divided or whether you receive alimony.
Property division follows one of two systems depending on where you live:
- Community property (9 states including California and Texas) — assets acquired during the marriage are split 50/50
- Equitable distribution (41 states and D.C.) — assets are divided fairly based on factors like length of marriage, each spouse's income, and contributions to the household
Federal law does not directly govern divorce, but federal statutes affect related issues like the tax treatment of alimony (Tax Cuts and Jobs Act of 2017), division of military pensions (Uniformed Services Former Spouses' Protection Act, 10 U.S.C. § 1408), and division of employer retirement plans through a Qualified Domestic Relations Order (QDRO) under ERISA.
When does it apply?
This right applies when:
- You want to legally end your marriage
- You and your spouse need to divide property, debts, and assets
- You are seeking or being asked to pay alimony (spousal support)
- You need to divide retirement accounts or pensions
- You need to understand residency requirements before filing
Common misconceptions:
- "I need my spouse's permission to get divorced" — No. Every state allows one spouse to file for divorce on their own. Your spouse does not have to agree. You may need to meet residency requirements first.
- "Everything gets split 50/50" — Only in the 9 community property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin). Most states use equitable distribution, where the court divides assets based on what is fair, not necessarily equal.
- "Alimony lasts forever" — Most modern alimony awards are temporary or "rehabilitative," meant to help the lower-earning spouse become self-supporting. Permanent alimony is increasingly rare and usually reserved for very long marriages.
- "Fault doesn't matter anymore" — While no-fault divorce is available everywhere, some states still consider fault when dividing property or deciding alimony.
What should you do?
Step 1: Make sure you meet the residency requirement. Most states require you to have lived there for a certain period (usually 6 months to 1 year) before you can file for divorce.
Step 2: Gather financial documents. Collect tax returns (at least 3 years), bank statements, retirement account statements, mortgage documents, and credit card statements. You need a complete picture of marital assets and debts.
Step 3: File a petition for divorce with your county court. You will be the "petitioner" and your spouse will be the "respondent." There is usually a filing fee ($100-$400 depending on the state).
Step 4: Try to reach a settlement agreement. About 95% of divorces settle out of court. Mediation or collaborative divorce can save thousands of dollars in attorney fees and resolve things faster.
Step 5: If retirement accounts are involved, you will need a Qualified Domestic Relations Order (QDRO) to divide employer-sponsored plans like 401(k)s and pensions without triggering tax penalties. This is a separate legal document — consult an attorney or QDRO specialist.
Step 6: Update your estate plan after the divorce is final. Change your will, power of attorney, health care proxy, and beneficiary designations on insurance policies and retirement accounts.
What should you NOT do?
Don't hide assets. Courts require full financial disclosure in divorce. Hiding assets is fraud and can result in severe penalties, including the court awarding a larger share to your spouse.
Don't make major financial changes. Avoid large purchases, asset transfers, or closing joint accounts after filing. Most courts issue automatic temporary restraining orders that prevent either spouse from wasting marital assets.
Don't use children as leverage. Threatening to withhold custody to gain a financial advantage will destroy your credibility with the court and could hurt your custody case.
Don't represent yourself in a complex divorce. If you have significant assets, retirement accounts, business interests, or contested custody issues, hire a family law attorney. The cost of mistakes often far exceeds legal fees.
Don't sign a settlement agreement you don't fully understand. Once a divorce decree is finalized, it is very difficult to reopen property division. Get independent legal advice before agreeing to terms.
How Texas differs from federal law
Texas is a community property state with both no-fault and fault grounds:
- Community property (Family Code § 3.002): All property acquired during the marriage is presumed to be community property, owned equally by both spouses. The court divides it in a manner that is "just and right" — which can be unequal if fault is proven.
- Grounds: No-fault ("insupportability" — the marriage has become insupportable due to discord or conflict). Fault grounds include cruelty, adultery, felony conviction, abandonment, living apart for 3+ years, and confinement in a mental hospital.
- 60-day waiting period: Texas requires a mandatory 60-day waiting period after filing before the divorce can be finalized (Family Code § 6.702).
- Restrictive spousal maintenance: Texas is one of the most restrictive states for alimony. Maintenance is available only in limited situations and for limited durations: up to 5 years for marriages of 10-20 years, 7 years for 20-30 years, and 10 years for 30+ years (Family Code §§ 8.051-8.054).
Additional Steps in Texas
File an Original Petition for Divorce in the Texas District Court where you or your spouse has lived for at least 90 days. There is a mandatory 60-day cooling-off period. Free divorce forms and guides are available at TexasLawHelp.org.
Relevant Law: Texas Family Code § 3.002 (community property), §§ 6.001-6.007 (grounds), § 6.702 (60-day waiting period), §§ 8.051-8.054 (spousal maintenance)
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