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here are a lot of “myths” out there about getting a divorce in Texas. These misunderstandings can lead to ill-informed decisions during separation or a reluctance to get divorced in the first place. Here are some of the common myths we hear all the time.
- I would like to get a legal separation. Texas does not recognize a legal separation. In Texas, you are either married or divorced, regardless of how long you live apart. This means that starting a new relationship or spending money without your spouse’s input before divorce can cause potential problems down the road.
- My spouse is only entitled to 50% of our assets. Texas does not have any requirement about how the Court has to divide property. Under Texas law, the property must be divided in a “just and right” manner. This allows for the consideration of the length of the marriage, who caused the marriage to end, and the employment and educational backgrounds of the spouses. An equal property division is often the starting point for negotiations, but it is not required under Texas law.
- I have to prove “fault” to get a divorce. Texas is a no-fault state, and you can obtain a divorce without proving any kind of fault. Texas has a short waiting period before you can get divorced, but that is the only requirement. Some spouses do attempt to show their spouse is guilty of things such as cruelty or adultery, but this is not necessary to get a divorce.
- As the mother, I should have custody of the children. Texas law prohibits the Court from making any child custody decisions based on the gender of the parent.
- Texas does not recognize same-sex marriage. The United States Supreme Court legalized same-sex marriage in the landmark Obergefell case several years ago. Because this decision recognized the right to marriage as a Constitutional right, it applies in all states within the United States, including Texas.
- Since I have separated from my common-law spouse, I don’t have to get divorced. Texas is one of the few states that recognizes common law marriage. Once you enter into a common law marriage, you are married for all purposes. This means that to end this marriage, you have to get a divorce.
