DIVORCE

Void Marriages

Certain marriages between parties are "void" and not enforceable. The following marriages between close relatives are void:
1.      An ancestor or decedent, by blood or adoption;
2.      A brother or sister;
3.      A parent's brother or sister; and
4.      A son or a daughter of a brother or sister.

A marriage is also void if either party was previously married and the marriage is not dissolved.

Voidable Marriages

Other marriages are "Voidable" by the filing of a lawsuit to void or "Annul". A marriage can be "Annulled" if it is voidable for one of the following reasons:

1.       Underage - One of the spouses is under fourteen (14) years old unless a court order has been obtained consenting to the marriage;  
2.        Underage - One of the spouses is between the age of fourteen (14) to eighteen (18) without parental consent;
3.       Under Influence of Alcohol or Narcotics - One of the spouses at the time of the marriage was under the influence of alcoholic beverages or narcotics and, as a result, did not have the capacity to consent to the marriage and has not voluntarily cohabited with the other party to the marriage since the effects of the alcoholic beverages or narcotics ended; 4. Impotency - One of the spouses was permanently impotent at the time of the marriage and the other party did not know of the impotence at the time of the marriage and has not voluntarily cohabited with the other spouse since learning of the impotence;
4.        Fraud, Duress, or Force - One of the spouses used fraud, duress, or force to induce the other spouse to enter into the marriage and they have not voluntarily cohabited with the other party since learning of the fraud or since being released from the duress or force;
5.       Mental Incompetency - One of the spouses did not, at the time of the marriage, have the mental competency to consent to marriage or understand the nature of the marriage ceremony and since the marriage ceremony, the spouse has not voluntarily cohabited with the other spouse when that spouse possessed the mental competency to recognize the marriage relationship.
6.       Concealed Divorce - One of the spouses was divorced from a third party within the thirty (30) day period proceeding the day of the marriage ceremony and at the time of the marriage ceremony, the other spouse did not know of the divorce and since discovering it, the other spouse has not voluntarily cohabited with that spouse; or
7.      Marriage License 72 Hours After Issuance of License - The spouses marry within 72 hours following the issuance of the marriage license and thirty (30) has not passed after the date of marriage.

Texas Divorce

RESIDENCY REQUIREMENTS AND WHERE TO FILE: One of the spouses must have resided in Texas for 6 months prior to filing and 90 days prior to filing in the county where the divorce is filed. In addition, there is a 60-day waiting period after filing before a divorce will be granted. [Texas Codes Annotated; Family Code, Chapter 6.301].

LEGAL GROUNDS FOR DIVORCE: No-Fault: (1) The marriage has become insupportable because of discord or conflict of personalities that has destroyed the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation or (2) living separate and apart without cohabitation for 3 years. [Texas Codes Annotated; Family Code, Chapters 6.001 and 6.006].

General: (1) Adultery; (2) abandonment; (3) confinement for incurable insanity for 3 years; (4) conviction of a felony and imprisonment for over 1 year; and (5) cruel and inhuman treatment.

Service of Process

After processing at the Courthouse, the Original Petition for Divorce must be delivered to your spouse. The most common means of delivery is by having a Sheriff, Constable, or private process server hand your spouse the petition and a Citation. Citation is essentially a cover sheet that tells your spouse a lawsuit has been filed, and there is a limited number of days in which a response must be made. In some instances, you may wish to deliver or mail the papers to your spouse. However, this cannot be done if you have requested a Temporary Restraining Order or a hearing. Additionally, if your spouse does not waive service or file an answer in Court, your delivery does not constitute effective service, and this would have to be accomplished before your case could proceed.

E. Temporary Orders

There may be a need for court orders between the date the divorce is filed and granted. You may need a temporary restraining order (TRO) and temporary injunction to prevent the transfer or disposition of property and/or to prevent harassment. A TRO and a temporary injunction give the same relief which, often times is intended to maintain the "status quo" and preserve property. A TRO is only good for 14 days, and is granted without notice to your spouse or a hearing. A temporary injunction is granted after notice and hearing (or agreement), and remains in effect until your divorce is granted. Realistically, temporary injunctions are routinely granted upon request, and are made mutual as to the parties.

Temporary orders may also be needed to determine which spouse shall remain in the family home, payment of bills, conservatorship and support of the children, attorney's fees, and the filing of inventories, production of documents, and other matters.

If you have obtained a Temporary Restraining Order or requested a hearing for temporary orders, the Court will set a hearing within days of the date of filing. If an agreement is not reached with your spouse concerning temporary matters before the scheduled hearing, it will be necessary for you to appear in Court at that time and give testimony. Your lawyer will give you a form entitled "Financial Information Statement" for use at that hearing, and will explain to you what your court appearance may be like. A special judge called a "Master" will hear evidence and make the appropriate orders.