Do I Have To Go To Court For My Divorce?

Whether or not you will be required to appear in court at any point during your divorce depends on two things.

First, if you file the petition for divorce you are more likely to have to appear in court.

Second, if your divorce is contested, then you are more likely to appear in court.

Appearing In Court When The Parties Are Amicable

If your divorce case is relatively amicable and you and your spouse are able to come to an agreement on all of the issues in your case, then you will end up presenting an Agreed Final Decree of Divorce to the court.

In that case, one of the spouses will have to appear at a prove up hearing to provide the necessary testimony for the judge to sign the proposed final decree. The other spouse may appear at the hearing but is usually not required to do so.

The prove up hearing is a relatively quick and straight forward hearing with a dozen or so standard questions depending on the issues in the case.

In most cases, the spouse who filed for divorce will make that appearance at the prove up hearing. However, in some situations the other spouse may appear and if the parties wish, both spouses can appear and testify at that hearing.

Appearing In Court In Contested Cases

It is much more likely that you will appear in court at least twice for a contested divorce case.

The first time will be early in the case when you appear at a temporary orders hearing. Since you and your spouse are likely unable to agree on any of the issues in your case, even small ones such as who pays the utilities, the judge will issue temporary orders.

At the temporary orders hearing the judge will issue orders on things such as who has access to the house, who gets to drive which car, who will pay the bills each month, what the temporary child custody schedule will be, temporary child support, and any temporary maintenance.

You will have to appear at that hearing to produce financial information on your income and expenses as well as offer testimony on each of these issues.

The second time you appear will either be at a trial or at a hearing on a final decree that results from settlement discussions or mediation.

What Are Grounds For A Fault Divorce In Texas?

Texas is a no-fault divorce state which means that a divorce can be granted without fault by either spouse. Indeed, most divorces in Texas are granted on no-fault grounds.

However, in appropriate cases, a spouse may seek divorce based on the other spouse’s fault in causing the breakup of the marriage.

Fault Divorce Grounds

There are four fault grounds for divorce in Texas:

  1. Cruelty
  2. Adultery
  3. Conviction of a Felony
  4. Abandonment

The spouse seeking divorce on one (or more) of those fault grounds must provide proof of misconduct by the other spouse to establish that fault.

But it is important to note that each law authorizing a fault ground for divorce begins with “The court may grant a divorce in favor of one spouse if…”

That word “may” is key. Even if a spouse proves that the other spouse committed one of these fault grounds for divorce, the court can grant the divorce on other grounds.

The complaining spouse will generally have to tie the misconduct to the breakup of the marriage.

We will review each fault ground in more detail below.

Cruelty

Cruelty is a relatively rare ground for divorce these days, however, the Texas Family Code provides that:

The court may grant a divorce in favor of one spouse if the other spouse is guilty of cruel treatment toward the complaining spouse of a nature that renders further living together insupportable.

TFC Section 6.002

To rise to the level of cruel treatment necessary to support a finding granting divorce on the grounds of cruelty, a spouse must show that the other spouse’s conduct rises to a level sufficient to render the couples’ living together insupportable.

“Insupportable” in this context, as opposed to no fault divorce, means that one spouse’s actions have rendered the couple’s living together incapable of being borne, unendurable, insufferable, or intolerable.

Mere trivial matters or disagreements do not support a divorce on the grounds of cruel treatment.

While physical abuse can support a finding of cruelty, it is not necessary.

Adultery

The Texas Family Code provides that:

The court may grant a divorce in favor of one spouse if the other spouse has committed adultery.

TFC Section 6.003

Adultery means voluntary sexual intercourse by a married person with someone who is not the spouse.

It is always important for spouses in a divorce to remember that a court can grant a divorce based on adultery even if that conduct occurred after the spouses separated.

Proving adultery as a ground for divorce does not require direct evidence.

Adulterous conduct may be proved through circumstantial evidence so long as you can show that there is clear and positive proof of adultery.

In other words – you don’t need a smoking gun to prove adultery – just enough evidence to make it clear to any reasonable person that adultery likely occurred.

Conviction of a Felony

Conviction of a Felony is another uncommon fault ground for divorce.

In order to seek a divorce on this fault ground, the spouse seeking divorce must show that the other spouse has been convicted of a felony during the marriage, has been in jail for at least one year, and that the other spouse has not been pardoned.

There is also one more important limitation to this ground of divorce. It is not available if the jailed spouse was convicted of the felony with the use of testimony from the spouse seeking divorce.

Abandonment

Abandonment is another relatively rare ground for at fault divorce in Texas.

The spouse seeking divorce on the basis of abandonment must show that the other spouse intended to abandon the complaining spouse and did in fact abandon him or her for over one year.

Can The Amount of Child Support I Receive Change After My Divorce?

Yes – the amount of child support that you receive can change after your final decree of divorce.

However, it does not change automatically just because your former spouse gets a new job, the two of you agree on a difference amount, or for any other reason.

Child support obligations may only be modified after divorce by filing a petition to modify the child support obligation.

Who Can File a Petition to Modify Child Support

You could file a petition to modify if you think that your former spouse should be paying more than he or she currently is paying for child support.

Alternatively, your former spouse could file a petition to modify if he or she believes they are paying too much in child support.

Legal Standard To Modify Child Support

In Texas, there are two possible legal grounds for modifying child support after a final decree of divorce.

The first is if there has been a materially and substantial change in circumstances affecting the children or a parent since the date of the prior order.

This is a very fact specific inquiry but the change in circumstances requiring a change in the amount of child support must be substantial and it must be something that was not contemplated in the prior order.

The second ground for modifying a child support obligation has two components. First, at least 3 years must have elapsed since the prior order. Second, the amount of child support that would be ordered under the statutory guidelines now differs by 20% or $100 from the amount of child support in the prior order.

However, if the original order was an agreed order between the spouses as to the amount of child support, then the child support obligation may only be modified by proving a material and substantial change in circumstances of the children or the parent.

An Outline of the Divorce Process in Texas

While the facts and issues are different in every divorce, the process of getting a divorce in Texas is similar in most every case. This article provides an overview of the divorce process from filing a Petition for Divorce through to a Final Decree of Divorce. This article does not address those things that you… Continue Reading