For those living as an expat and considering divorce in Texas, it is important to weigh up the pros and cons of divorcing in Texas with those when divorcing in England. This guide compares both divorce jurisidiction in terms of divorce process, timescale and outcome.
Expat Divorce in England and Wales
Expat Divorce in Texas
A person can divorce through the English courts if:
a) both husband and wife are resident in England or Wales
b) both husband and wife were resident in England or Wales and one still remains there
c) their spouse is habitually resident in England or Wales
d) they have been resident in England for a year
e) They have been resident in England for 6 months and are domiciled in England
f) Both husband and wife are domiciled in England or Wales
g) One party is domiciled in England and Wales, and no divorce could take place in another EU country based on a to f above.
|A British expatriate can divorce in Texas if either spouse has been domiciled there for 6 months. |
It is also necessary for the party to have been a resident of the particular county in which the divorce will be filed for 90 days. This requirement is jurisdictional, but a temporary absence from the state of Texas will not negate jurisdiction. The fact that one or both of the parties may maintain a home or other property in Great Britain or any other country will not diminish the court’s jurisdiction over the divorce.
Where jurisdiction is questioned, it is generally a simple matter to prove by testimony. Additionally, rental contracts, driver’s licenses, local utility bills, local club memberships, payment of state property taxes, and the like may all contribute to the proof needed for a British expatriate to establish domicile in Texas.
Timescale for divorce:
A divorce in England takes 5 months if the divorce is not contested.
|There is no minimum requirement in terms of the duration of the marriage, as there is in England. |
The average uncontested divorce takes 3 months to complete.
The divorce process:
The divorce process begins with the ‘divorce petition’ which is a legal document which is lodged with the court. The court enters the details on the court system and the petition is ‘issued’. Once the divorce petition has been issued it is delivered to the other party. The other party should then acknowledge the divorce and state whether they intend to defend or contest it by completing a short form called an ‘acknowledgment of service’ and returning it to the court. Once the petition has been acknowledged or service has been approved by another means, the next stage of the divorce can be applied for which results in Decree Nisi. As soon as the Decree Nisi has been pronounced, there is a statutory waiting period of 6 weeks and one day until Decree Absolute can be applied for. Once the court has pronounced the Decree Absolute, the divorce is concluded.
|Texas is one of the few jurisdictions in the world where a trial by jury is available on particular issues—including child custody, relocation of the child’s home, and characterization and valuation of property. |
Texas recognizes no-fault divorce at this time, but divorce may also be filed on fault grounds, including cruel treatment and adultery. Fault grounds may be considered by the court as justification for a disproportionate award of community property, although fault does not usually serve as a basis for establishing support or maintenance except in particular cases of family violence.
If the divorce is filed in Texas, it will be governed by Texas law regardless of the place of the marriage or the laws of other marital residences. The only exception to this rule is where the parties have signed a written marital property agreement for the disposition of all or some of their property and that contract contains a choice of law clause. In such a case, Texas will construe the agreement according to the choice of law provision therein. Even so, the remaining issues will be governed by Texas law.
Under English law, on granting a decree of divorce, the court may make any one or more of the following orders by way of a financial settlement:
(a) an order that either party shall make to the other monthly payments, for a set amount and time frame as decided by the court;
(b) an order that either party shall pay to the other a lump sum;
(c) an order that a party shall make monthly payments for the benefit of a child of the family;
(d) an order that a party shall pay a lump sum for the benefit of a child of the family;
(e) an order that a party shall transfer to the other party (or to any child of the family) property to which the first-mentioned party is entitled;
(f) one or more pension sharing orders to equalise the pension provisions for both parties.
It shall be the duty of the court in deciding what orders to make, to have regard to all the circumstances of the case. First consideration is always given to the welfare of any children of the family under the age of eighteen. The court shall in particular have regard to the following matters—
(a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future;
(b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
(c) the standard of living enjoyed by the family before the breakdown of the marriage;
(d) the age of each party to the marriage and the duration of the marriage;
(e) any physical or mental disability of either of the parties to the marriage;
(f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
(g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it.
|Texas law allows couples to enter into a marital property agreement governing the property of the marriage. The requirements for enforceability in Texas are: |
If no marital property agreement is entered into by the couple, then Texas community property law regime applies.
Generally speaking, under community property law of Texas, the community estate owns all the assets and liabilities, except for any separate property owned by either party. Upon divorce, property of the marriage is presumed to be community, however, if property is proved to be the separate property of either party by clear and convincing evidence, then the court may not divide such proven separate property. Many Texas property cases therefore turn on the issue of what is and is not separate or community property. The joint, or community estate must be divided by the court upon divorce in a just and right manner.
Aside from the property division, in certain circumstances a spouse can apply for spousal maintenance if they are divorcing in Texas, and this will be determined in accordance with Texas law, regardless of the domicile of either party upon the date of marriage. However, the Texas courts rarely award generous or long term spousal maintenance as the maintenance statutes specify that the payment and amount of maintenance is to be based on the receiving spouses’ “minimum reasonable needs,” after taking into account what the recipient received in the property division and what the recipient can earn in the workforce. There is an emphasis in Texas on encouraging both parties to support themselves.
Custody of any children of the family can be shared between the parents. Child maintenance for people living in England is calculated using the Child Maintenance Service. The amount payable is calculated depending on income and outgoings, with deductions made for the amount of nights spent at the other parent’s house.
When the parents are not living in England and Wales, the CMS calculation is considered but isn’t relied on as rigidly. When assessing child maintenance payments, the court shall in particular have regard to the following matters—
(a) the financial needs of the child;
(b) the income, earning capacity (if any), property and other financial resources of the child;
(c) any physical or mental disability of the child;
(d) the manner in which he was being and in which the parties to the marriage expected him to be educated or trained.
|Unlike in England, the divorce process is not separate from child custody. All claims – whether financial or child-related – have to be dealt with in the divorce itself. |
The Texas Family Code governs all child arrangements including child support, and the best interests of the child are always paramount. Parents are usually awarded a series of parental responsibilities and rights as a matter of course. There is a presumption in Texas that both parents will be joint managing conservators. Even with joint conservatorship, however, one parent may be awarded more or different rights and duties with respect to the children, and child support is still generally paid to the primary parent. The non-primary parent usually has a Texas standard possession order with generous possession times, which comes from the Texas Family Code. There are still cases in which a joint conservatorship is not awarded, for instance, in certain cases involving family violence or other situations that may pose a danger to the child.
The United States is a signatory to the Hague Convention on child abduction. Therefore if an expat parent relocates with the child or children to another Hague signatory country (such as England, France, Germany, etc.), without the consent of the other parent or the court, the parent left behind may seek orders for the child’s immediate return to Texas.
Article prepared by Hannah McCrindle, with thanks to Cynthia Diggs at Holmes, Diggs & Sadler in Houston, Texas for her assistance. Please contact Cynthia at [email protected] or 713-802-1777 if you are an expatriate in Texas requiring advice on Texas family laws.