Texas Laws on Divorce: Grounds, Property, Custody, and Support

Texas divorce laws set a residency floor, a mandatory waiting period, and detailed rules for splitting property, raising children, and paying support after the marriage ends. At least one spouse must have lived in Texas for six months and in the filing county for 90 days,¹ no divorce is granted before the 60th day after filing,² and community property is divided in whatever way the court considers “just and right.”³ The details below cover who can file, on what grounds, how assets and debts get split, how children and support are handled, and the federal rules that override state law on retirement and taxes.

Who Can File and Where

A Texas court cannot hear a divorce unless one spouse has been domiciled in Texas for the six months immediately before filing and has lived in the filing county for the preceding 90 days.¹ Both thresholds must be met, and either the petitioner or the respondent can satisfy them. If neither spouse meets both requirements in a given county, the case will be dismissed or transferred.

There’s an important exception for military families. Time a Texas domiciliary spends outside the state or outside their home county while serving in the armed forces, or accompanying a spouse on military duty, still counts as Texas residence for divorce purposes.⁴ A service member stationed elsewhere for years can still file in the Texas county they left, so long as Texas remained their legal domicile.

The 60-Day Waiting Period

Texas imposes a mandatory cooling-off period. No divorce can be granted before the 60th day after the petition is filed.² The only exceptions are cases involving a family violence conviction or deferred adjudication against the petitioner, or an active family-violence protective order.

The 60 days are a floor, not a ceiling. Uncontested cases where the spouses agree on everything can finalize shortly after the waiting period expires. Contested cases run months or longer as the parties negotiate, mediate, or go to trial. The divorce becomes final only when the judge signs the Final Decree of Divorce and it is filed with the clerk.

Grounds for Divorce

Texas allows both no-fault and fault-based divorce. Most cases are filed on the no-fault ground of insupportability, meaning conflict has broken the marriage down and there is no reasonable expectation of reconciliation.⁵ Neither spouse has to prove wrongdoing, and the court can grant the divorce even if one spouse objects.

Proving fault is never required, but it can influence how a judge divides property or rules on custody. The recognized fault grounds are cruelty that makes continued cohabitation insupportable,⁶ adultery, abandonment for at least one year, felony conviction with at least one year of imprisonment during the marriage, living apart without cohabitation for at least three years, and confinement in a mental hospital for at least three years where the condition is unlikely to improve.

How Property Gets Divided

Texas is a community property state. Nearly everything either spouse earned or acquired during the marriage belongs to both spouses equally, regardless of whose name is on the account or title.⁷ Wages, real estate bought during the marriage, retirement contributions, and investment gains all fall into the community estate. Any property either spouse has at the time of divorce is presumed to be community property.

The court divides that estate in whatever manner it considers “just and right,” weighing each spouse’s rights and any children’s needs.³ Just and right does not mean automatic 50/50. A judge can award a larger share based on fault in the breakup, each spouse’s earning capacity, age, health, and the size of any separate property each spouse holds. Most negotiated settlements land close to even; court-ordered divisions can tilt further when fault or a large income gap is involved.

Separate Property Stays Separate

A spouse’s separate property is not divided. Separate property includes anything owned before the marriage, anything received as a gift or inheritance during the marriage, and personal injury recoveries other than lost wages.⁸ The spouse claiming an asset as separate must prove it by clear and convincing evidence. When separate funds have been commingled with community funds over the years, tracing the original source can be difficult and expensive, and this is where many property fights get complicated.

Debt Follows the Same Framework

Debts incurred during the marriage for family purposes are generally community obligations and are allocated as part of the just-and-right division. Debts one spouse brought into the marriage, or debts incurred purely for that spouse’s separate benefit, are more likely to be assigned to the spouse who created them. A key limit: a divorce decree only binds the two spouses. It does not override a contract with a creditor. If both names are on a mortgage or credit card, the lender can still pursue either spouse regardless of what the decree says.

Children: Conservatorship, Possession, and Support

When minor children are involved, the court’s primary consideration in every decision is the best interest of the child.⁹ That standard controls conservatorship, possession schedules, and support calculations.

Conservatorship

Texas calls it “conservatorship” rather than custody. There is a statutory presumption that appointing both parents as Joint Managing Conservators serves the child’s best interest.¹⁰ Joint managing conservatorship means both parents share the right to make major decisions about education, medical care, and similar matters. Even under a joint arrangement, one parent is usually given the exclusive right to decide the child’s primary residence.

That presumption disappears when there is a history of family violence.¹⁰ In those cases, the court may name one parent Sole Managing Conservator with exclusive decision-making authority. The other parent becomes a Possessory Conservator, typically keeping visitation rights and paying child support but with limited say over major decisions.¹¹

Possession Schedules

The schedule for each parent’s physical time with the child is called a possession order. Texas has a default Standard Possession Order that applies to children age three and older, with one version for parents who live within 100 miles of each other and a modified version, using fewer but longer stretches, for parents more than 100 miles apart.¹² Both versions include detailed holiday and summer schedules that alternate between the parents. The SPO is a floor, not a ceiling. Parents can agree to something more generous, and a court can deviate from it whenever the default would not serve the child’s best interest.

Child Support

Texas calculates child support as a percentage of the paying parent’s monthly net resources, using these guideline percentages:¹³

1 child: 20% of net resources
2 children: 25%
3 children: 30%
4 children: 35%
5 children: 40%
6 or more: not less than the amount for five children

The percentages apply to the first $11,700 per month in net resources, a cap that took effect September 1, 2025. Above that cap, the court can order additional support if the child’s needs justify it. For parents earning below $1,000 per month in net resources, a low-income schedule reduces each percentage by five points.¹³

“Net resources” means gross income minus Social Security taxes, federal income taxes, union dues, and the cost of the child’s health insurance. On top of basic support, the court orders one or both parents to carry health and dental insurance for the child.

Spousal Maintenance Is Limited

Texas calls court-ordered alimony “spousal maintenance,” and it is harder to get here than in most states. Before a court will even consider it, the requesting spouse must show they will lack enough property after the divorce to cover their minimum reasonable needs.

Beyond that threshold, the requesting spouse must also fit one of these categories:

The other spouse was convicted of or received deferred adjudication for family violence against the requesting spouse or their child within two years before filing, or while the divorce was pending.
The marriage lasted at least 10 years and the requesting spouse lacks the earning ability to meet minimum reasonable needs, whether because of a disability, responsibilities as the primary caretaker of a disabled child, or another compelling barrier to employment.

When maintenance is awarded, the monthly payment cannot exceed the lesser of $5,000 or 20% of the paying spouse’s average monthly gross income.¹⁴ Duration depends on the length of the marriage:¹⁵

Marriage under 10 years (eligible through family violence): up to 5 years
10 to 20 years: up to 5 years
20 to 30 years: up to 7 years
30 years or more: up to 10 years

Even within those caps, the court must limit the order to the shortest period that lets the receiving spouse become self-supporting, unless a physical or mental disability, child-care duties, or another compelling impediment makes that unrealistic.¹⁵ Maintenance tied to a family violence conviction can continue indefinitely as long as the spouse remains eligible. The practical effect: long-term spousal maintenance is rare in Texas compared to states with broader alimony statutes.

Retirement Accounts and Social Security

Retirement is often the most valuable asset besides the family home, and federal rules override state law here in ways that catch people off guard.

401(k)s and Pensions

Employer-sponsored plans like 401(k)s and pensions are governed by federal law under ERISA. Dividing one takes more than the divorce decree. You need a Qualified Domestic Relations Order, a separate court order directing the plan administrator to pay a portion of the account to the non-employee spouse.¹⁶ The QDRO must identify both spouses, specify the amount or percentage assigned, and name the plan. People frequently delay or forget this step and discover years later that the retirement account was never actually divided.

Military Retirement

Military pensions follow the Uniformed Services Former Spouses’ Protection Act. A state court can divide military retired pay as property, but for the Defense Finance and Accounting Service to send payments directly to the former spouse, the couple must have been married for at least 10 years overlapping with at least 10 years of creditable military service.¹⁷ The 10/10 rule affects only DFAS enforcement. A court can still award a share of military retirement in shorter marriages; the paying spouse would just have to make the payments directly.

For divorces finalized after December 23, 2016, where the order became final before the member retired, the divisible amount is based on the member’s pay grade and years of service at the time of divorce, not at retirement. That change prevents the former spouse’s share from growing if the service member is later promoted.¹⁷

Social Security

Social Security cannot be divided in a divorce decree, but a divorced spouse may still collect benefits on the other spouse’s work record. To qualify, the marriage must have lasted at least 10 years, and the divorced spouse must be at least 62, currently unmarried, and not entitled to a higher benefit on their own record.¹⁸ If the ex has not yet filed, the divorced spouse can still collect independently as long as they have been divorced for at least two years and the ex is at least 62. Claiming these benefits does not reduce the ex-spouse’s own payment.

Federal Tax Consequences

Divorce triggers federal tax changes that affect both spouses immediately.

For any divorce or separation agreement executed after 2018, spousal maintenance is not deductible by the paying spouse and is not taxable income to the receiving spouse.¹⁹ This reverses decades of prior tax treatment, and it matters in settlement negotiations because the paying spouse no longer gets a tax break, so the real after-tax cost of maintenance is higher. Agreements executed before 2019 still follow the old rules unless the parties later modified the agreement and explicitly opted into the new treatment.

The custodial parent generally claims the child as a dependent. If the parents want the non-custodial parent to claim the child instead, the custodial parent must sign IRS Form 8332 releasing the claim for the relevant tax years.²⁰ The non-custodial parent attaches this form to their return each year they claim the exemption. A divorce decree alone is not enough to transfer the dependency claim for agreements executed after 2008.

When a couple sells their primary residence, they can exclude up to $500,000 in capital gains on a joint return. After divorce, each former spouse can exclude only $250,000 individually.²¹ If one spouse keeps the home and the other moves out under a divorce or separation instrument, the spouse who moved out is still treated as using the home as a principal residence for purposes of the two-out-of-five-year use requirement. That rule can preserve the exclusion even when a buyout or sale happens years later.

Health Insurance After Divorce

Losing health coverage is one of the most immediate consequences of divorce. Coverage under a spouse’s employer plan typically ends when the divorce is finalized.

Under federal COBRA rules, divorce is a qualifying event that entitles the former spouse and any covered dependent children to continue the same group health plan for up to 36 months.²² The critical deadline: you or your ex must notify the plan administrator within 60 days of the divorce. Miss that window and COBRA rights are forfeited. COBRA is expensive because you pay the full premium yourself, often plus a 2% administrative fee, but it keeps you on the same plan with the same doctors while you arrange a longer-term option.

Divorce also qualifies you for a Special Enrollment Period on the federal Health Insurance Marketplace, letting you shop for a new plan outside open enrollment.²³ Depending on your post-divorce income, premium subsidies may make a marketplace plan significantly cheaper than COBRA.

Restoring a Former Name

If you changed your name when you married and want to change it back, the simplest time to do it is during the divorce itself. You can ask that the Final Decree of Divorce restore your former name. The judge grants this as a matter of course, and the decree then serves as the legal document you need to update your Social Security card, driver’s license, and other records. Handling it later as a separate court proceeding costs more and takes longer.

1
State of Texas. Texas Family Code 6.301 – General Residency Rule for Divorce Suit
2
State of Texas. Texas Family Code 6.702 – Waiting Period
3
State of Texas. Texas Family Code 7.001 – General Rule of Property Division
4
State of Texas. Texas Family Code 6.303 – Military Residency
5
State of Texas. Texas Family Code 6.001 – Insupportability
6
State of Texas. Texas Family Code 6.002 – Cruelty
7
State of Texas. Texas Family Code 3.002 – Community Property
8
State of Texas. Texas Family Code 3.001 – Separate Property
9
State of Texas. Texas Family Code 153.002 – Best Interest of Child
10
Texas Public Law. Texas Family Code 153.131 – Presumption That Parent to Be Appointed Managing Conservator
11
Texas Law Help. Child Custody
12
State of Texas. Texas Family Code 153.312 – Parents Who Reside 100 Miles or Less Apart
13
State of Texas. Texas Family Code 154.125 – Guidelines for the Support of a Child
14
State of Texas. Texas Family Code 8.055 – Amount of Maintenance
15
State of Texas. Texas Family Code 8.054 – Duration of Maintenance Order
16
Department of Labor. QDROs Under ERISA – A Practical Guide to Dividing Retirement Benefits
17
Defense Finance and Accounting Service. Legal Overview – Uniformed Services Former Spouses Protection Act
18
Social Security Administration. Code of Federal Regulations 404.331 – Who Is Entitled to Benefits as a Divorced Spouse
19
Internal Revenue Service. Topic No. 452 – Alimony and Separate Maintenance
20
Internal Revenue Service. Form 8332 – Release of Claim to Exemption for Child by Custodial Parent
21
Office of the Law Revision Counsel. 26 USC 121 – Exclusion of Gain From Sale of Principal Residence
22
Centers for Medicare and Medicaid Services. COBRA Continuation Coverage Questions and Answers
23
HealthCare.gov. Glossary – Qualifying Life Event