A contested divorce in Texas is one where spouses cannot agree on at least one major issue — property, children, support, or the divorce itself — and need a judge to resolve it. Before anyone files, at least one spouse must have lived in Texas for the previous six months and in the filing county for at least 90 days.1State of Texas. Texas Family Code 6.301 – General Residency Rule for Divorce Suit Once the petition is filed, Texas imposes a mandatory 60-day waiting period before any divorce can be finalized, which gives both sides time to negotiate or prepare for a fight.2State of Texas. Texas Family Code FAM 6.702 – Waiting Period The only exception is cases involving family violence, where a protective order or conviction can let the court act sooner.
Grounds You Can File On
Most Texas divorces are filed on the no-fault ground of “insupportability,” which means the marriage has broken down because of conflict and there is no realistic chance the spouses will reconcile.3State of Texas. Texas Family Code 6.001 – Insupportability Neither spouse has to prove the other did anything wrong.
Fault-based grounds exist too, and alleging fault matters strategically because a judge can weigh it when dividing property or making custody decisions. The recognized fault grounds are cruelty,4State of Texas. Texas Family Code FAM 6.002 – Cruelty adultery, abandonment for at least one year, a felony conviction with at least a year of imprisonment and no pardon, living apart without cohabitation for at least three years, and confinement in a mental hospital for at least three years with little likelihood of recovery.5State of Texas. Texas Family Code 6.007 – Confinement in Mental Hospital
Proving fault takes real evidence, not accusations. If you allege cruelty or adultery, expect to back it up with documentation, witness testimony, or both. The payoff is that a judge who finds one spouse at fault can award the other a larger share of the marital estate.
How Property Gets Divided
Texas is a community property state. Anything either spouse earned or acquired during the marriage is presumed to belong to both of them equally,6State of Texas. Texas Family Code 3.003 – Presumption of Community Property including wages, retirement contributions, real estate bought with marital funds, and debts taken on by either spouse. The court must divide the community estate in a way it considers “just and right,” which is not necessarily 50/50.7State of Texas. Texas Family Code FAM 7.001 – General Rule of Property Division Fault in the breakup, each spouse’s earning capacity, and the needs of any children can tilt the division.
Separate property stays with the spouse who owns it. Under Texas law, that includes anything owned before the marriage, anything received as a gift or inheritance during the marriage, and most personal injury recoveries.8State of Texas. Texas Family Code 3.001 – Separate Property The catch is that you must prove an asset is separate by clear and convincing evidence, a high bar.6State of Texas. Texas Family Code 3.003 – Presumption of Community Property This is where fights erupt. A spouse claims the down payment on the house came from an inheritance; the other says it was commingled with marital funds; suddenly you need bank records going back a decade.
Valuing complex assets like a family business, stock options, or retirement accounts adds another layer of conflict. Both sides may hire appraisers or forensic accountants who reach very different numbers, and the judge decides whose figures are more credible.
Joint Debt After the Decree
A divorce decree can assign a joint credit card or loan to one spouse, but the creditor is not bound by that order. If your ex stops paying a joint account, the lender can still come after you, and the missed payments can still damage your credit. The safer move is to close or refinance joint accounts before the divorce is finalized so each spouse carries only individual obligations afterward.
Children: Conservatorship and Support
Texas uses the term “conservatorship” instead of “custody,” and the court’s overriding concern in every conservatorship decision is the best interest of the child.9State of Texas. Texas Family Code 153.002 – Best Interest of Child Most contested cases turn on which parent gets the exclusive right to decide where the child lives. In a typical joint managing conservatorship, both parents share decision-making, but one is named the primary conservator with the right to establish the child’s residence.
The other parent receives a possession and access schedule. Texas has a Standard Possession Order as the default, and parents frequently argue over modifications for holidays, summer, and school calendars. Geographic restrictions are another flashpoint: courts often limit the primary conservator to a specific county or group of counties, and the width of that boundary can be intensely disputed.
Child support is calculated as a percentage of the paying parent’s monthly net resources:
- One child: 20% of net resources
- Two children: 25%
- Three children: 30%
- Four children: 35%
- Five or more children: at least 40%
These percentages apply to net resources up to a statutory cap, currently $11,700 per month.10State of Texas. Texas Family Code FAM 154.125 – Application of Guidelines to Net Resources Net resources is not the same as take-home pay. It starts with all income sources and then subtracts social security taxes, income taxes, union dues, and health insurance premiums for the child.
The biggest support disputes involve self-employed parents whose actual income is hard to pin down. A parent who runs cash through a business, writes off personal expenses, or underreports earnings can turn the calculation into a real battle. Courts can impute income to a parent they believe is intentionally underemployed.
When Spousal Maintenance Is on the Table
Spousal maintenance in Texas is harder to get than many people expect. A court will only order it if the requesting spouse lacks enough property, including separate property, to meet their minimum reasonable needs, and meets at least one of these conditions:
- The other spouse was convicted of or received deferred adjudication for family violence during the marriage.
- The requesting spouse has a physical or mental disability that prevents them from earning enough income.
- The marriage lasted at least 10 years and the requesting spouse cannot earn enough to meet their minimum reasonable needs.
- The requesting spouse is the primary caretaker of a child with a physical or mental disability requiring substantial care.11State of Texas. Texas Family Code 8.051 – Eligibility for Maintenance
Even when a spouse qualifies, the amount and duration are capped. Monthly maintenance cannot exceed $5,000 or 20% of the paying spouse’s average monthly gross income, whichever is less.12State of Texas. Texas Family Code 8.055 – Amount of Maintenance Duration depends on the length of the marriage: up to five years for marriages under 10 years in family violence cases and marriages of 10 to 20 years, up to seven years for marriages of 20 to 30 years, and up to 10 years for marriages of 30 years or more.13State of Texas. Texas Family Code FAM 8.054 – Duration of Maintenance Order
These limits mean the real fight is usually over clearing the eligibility hurdle at all. In many contested divorces, the spouse hoping for ongoing payments ends up pushing for a larger share of the property division instead.
Taxes That Affect the Deal
Property transfers between spouses as part of a divorce are generally tax-free. Federal law treats them as gifts for tax purposes, so no one owes capital gains tax at the time of the split.14Office of the Law Revision Counsel. 26 U.S. Code 1041 – Transfers of Property Between Spouses or Incident to Divorce The transfer must occur within one year of the divorce or be directly related to ending the marriage. The detail most people miss is that the receiving spouse inherits the original cost basis. If you receive a stock portfolio your ex bought for $50,000 and it is now worth $200,000, you will owe capital gains on the full $150,000 gain when you sell. An asset’s market value and its tax basis can be very different numbers, and ignoring that during negotiations means a smaller after-tax share than you expected.
Children add tax complications. Generally, only one parent can claim a child as a dependent for purposes of the child tax credit, head of household filing status, and the earned income tax credit. The custodial parent, the one the child lives with for more than half the year, holds these rights by default. The custodial parent can sign a written declaration allowing the noncustodial parent to claim the child tax credit and the dependency exemption, but that transfer does not extend to the earned income tax credit or head of household status, which always stay with the custodial parent.15Internal Revenue Service. Divorced and Separated Parents Who claims which child in which year is a negotiating chip worth real money and belongs in the settlement discussions.
Stages of a Contested Case
Filing and Service
The process starts when one spouse, the petitioner, files an Original Petition for Divorce in the district court of the county where the residency requirement is met. The petition identifies the grounds and lays out what the petitioner wants on property, children, and support. The other spouse, the respondent, must be formally served, typically by a process server or constable who delivers the papers in person.
After being served, the respondent has until 10:00 a.m. on the Monday following the 20th day after service to file a written answer. Missing that deadline is a serious mistake. If no answer is filed, the petitioner can ask the court for a default judgment and the judge can grant the divorce largely on the petitioner’s terms. The court still reviews the proposed property division and any child-related orders to make sure they are fair and comply with Texas law, but the absent spouse loses the ability to argue for a different outcome.
Temporary Orders
Either side can request a temporary orders hearing shortly after filing. This hearing addresses urgent issues that cannot wait: who stays in the family home, who pays the mortgage and utilities, temporary custody and visitation, and temporary child support. Temporary orders stay in effect until the divorce is finalized or the court modifies them. They happen quickly and set the tone for the entire case, so treating them as an afterthought is a common and costly mistake.
Discovery
Discovery is the formal exchange of information between the spouses. Common tools include requests for production (demands for specific documents like bank statements or business records), interrogatories (written questions answered under oath), and depositions (sworn, in-person testimony taken outside of court). This is where hidden assets surface, income disputes crystallize, and each side builds a factual foundation for trial. A spouse who stalls on discovery or gives incomplete answers risks court sanctions.
Mediation
Texas courts can order divorcing spouses into mediation at any point after the case is filed,16State of Texas. Texas Family Code FAM 6.602 – Mediation Procedures and most judges do. A neutral mediator works with both sides to negotiate a resolution. Mediation is not binding unless the spouses choose to make it so. If they reach a deal, they sign a mediated settlement agreement that must include a prominent statement that it is not subject to revocation, be signed by both parties, and be signed by any attorney present at the signing. An agreement meeting those requirements is binding on both spouses and the court.17Texas Public Law. Texas Family Code 153.0071 – Alternate Dispute Resolution Procedures
Mediation resolves most contested Texas divorces. A private mediator costs a fraction of a multi-day trial, and even when mediation does not resolve everything, narrowing the disputes before trial saves time and money.
Trial
If mediation fails or leaves issues unresolved, the case goes to trial. Both sides present evidence, call witnesses, and make legal arguments. The judge (jury trials are available in Texas divorces but rare) decides every remaining dispute: property division, conservatorship, possession schedules, child support, and spousal maintenance. The final decree reflects those rulings. The 60-day waiting period must have passed since the original petition was filed before the court can sign the decree.2State of Texas. Texas Family Code FAM 6.702 – Waiting Period
What to Gather Before Things Get Adversarial
Contested divorces live and die on documentation. Start collecting records as early as possible, because once the case turns adversarial, access to shared accounts can get restricted fast.
On the financial side, collect at least three years of bank statements for every account either spouse used, joint and individual. Gather pay stubs, W-2s, and federal tax returns for both spouses. Pull statements from all retirement accounts (401(k)s, IRAs, pensions) and any brokerage or investment accounts. Compile credit card statements and mortgage records to get a clear picture of shared debts. If either spouse owns a business, you also need profit and loss statements, balance sheets, and business tax returns.
Build a written inventory of every significant asset with its estimated market value: real estate, vehicles, jewelry, art, firearms, and anything else of meaningful worth. List every debt with its current balance and whose name is on it. This inventory is the foundation for the property negotiation and will be required by the court.
If children are involved, organize school records, medical and dental records, and a detailed list of child-related expenses like daycare, tutoring, and health insurance premiums. Documentation of each parent’s day-to-day involvement — who takes the child to school, who attends doctor’s appointments, who coaches the team — strengthens a conservatorship case more than most people realize.
In high-asset divorces or cases where a spouse suspects hidden income, a forensic accountant can change the outcome. They trace income and expenses through bank records, tax returns, and credit reports to uncover undisclosed accounts, undervalued business interests, or personal spending buried inside business deductions, and they can testify as expert witnesses so the judge decides based on accurate numbers rather than each spouse’s competing claims.