Understanding the Texas Family Code: A Bexar County Family Law Attorney’s Guide to Divorce, Custody, and Support
Every family law case we handle, whether it is a straightforward uncontested divorce or a high-conflict custody dispute, is governed by the same body of law: the Texas Family Code. Most of our clients have never read a page of it before the day they walk into our office, and there is no reason they should have. But once a marriage is ending, or a custody arrangement is being decided, the Family Code stops being an abstract set of statutes and becomes the framework that will shape the rest of a family’s life. How property gets divided. How much child support is owed. Whether one spouse can receive maintenance from the other. These are not questions of fairness in the abstract. They are questions the Texas Legislature has already answered in specific, codified detail, and the answers matter enormously.
We wrote this guide because we spend our days inside this statute, in Bexar County’s family courts, and we have seen how much confusion and fear comes from not knowing what the law actually says. This page walks through the core framework of the Texas Family Code as it applies to divorce, property division, child custody, child support, and spousal maintenance, current as of the date of publication. If you are facing a family law matter right now, do not wait to understand these rules from a search engine. Call Barton & Associates at 210-500-0000 for a free, confidential consultation.
Filing for Divorce in Texas: The Basic Requirements
Before a Texas court can even hear a divorce case, the Family Code requires the filing spouse to meet residency requirements under Section 6.301. At least one spouse must have been domiciled in Texas for the six months immediately before filing, and a resident of the county where the case is filed for the 90 days immediately before filing. In Bexar County, that means a petitioner or their spouse must be able to show genuine Texas domicile and San Antonio-area residency, not simply property ownership or a temporary stay.
Texas is a no-fault divorce state, which means a spouse does not need to prove wrongdoing to obtain a divorce. Section 6.001 allows a divorce to be granted on the ground of insupportability, meaning the marriage has become insupportable due to discord or conflict of personalities that destroys the legitimate ends of the marriage relationship, with no reasonable expectation of reconciliation. Texas law also allows fault-based grounds, including cruelty, adultery, and abandonment, and proving fault can affect how the court divides the marital estate, even though it is not required to obtain a divorce at all.
Once a petition is filed, Section 6.702 imposes a mandatory 60-day waiting period before a Texas court can grant the divorce, regardless of how quickly both spouses agree to the terms. The only exception applies in cases involving a final protective order or a family-violence conviction against the responding spouse. This waiting period exists by design, and no agreement between spouses can waive it.
Community Property: How Texas Divides What a Marriage Built
Texas is one of a small number of community property states, and this single fact shapes nearly every financial conversation in a Texas divorce. Under the Family Code, property possessed by either spouse during or on dissolution of the marriage is presumed to be community property, meaning both spouses are presumed to have an equal, undivided ownership interest in it. This presumption can be overcome, but the burden falls on the spouse claiming an asset is separate property, and that burden requires clear and convincing evidence, not simply an assertion.
Separate property generally includes assets a spouse owned before the marriage, property acquired during the marriage by gift or inheritance, and recovery for personal injury damages other than lost earning capacity. Everything else acquired during the marriage, as a general rule, belongs to the community estate and is subject to division.
It is a common misconception that Texas divides community property in an automatic 50/50 split. It does not. The Family Code requires the court to divide the community estate in a manner that is “just and right,” having due regard for the rights of each party. This standard gives Texas courts real discretion, and factors like fault in the breakup of the marriage, disparity in earning capacity, and the health and age of each spouse can all lead a court to award a disproportionate share of the estate to one spouse. This is one of the most misunderstood aspects of Texas divorce law, and it is exactly where experienced legal representation makes the difference between an equitable outcome and a rushed settlement that shortchanges your future.
Child Custody in Texas: Conservatorship and Possession
Texas law does not use the term “custody.” The Family Code instead speaks in terms of conservatorship, which governs the legal rights and duties parents have regarding a child, and possession and access, which governs the physical time each parent spends with the child. These are separate legal questions, and a parent can be a joint managing conservator with equal legal rights while still having a possession schedule that gives the other parent more overnight time.
Section 153.131 establishes a presumption that it is in a child’s best interest for parents to be named joint managing conservators. This does not mean equal time is guaranteed. It means both parents generally retain rights to make certain decisions, such as those involving the child’s education and medical care, while the court separately determines a possession schedule based on the child’s best interest. In some cases involving family violence, abuse, or a demonstrated danger to the child, a court can appoint one parent as sole managing conservator, limiting or eliminating the other parent’s decision-making rights and, in serious cases, their access to the child entirely.
Every custody determination in Texas is governed by the best interest of the child standard, and the Family Code does not reduce that standard to a rigid checklist. Courts weigh the child’s physical and emotional needs, each parent’s ability to prioritize the child’s welfare, the stability of each proposed home, and, depending on the child’s age, the child’s own wishes. This is a fact-intensive standard, and it is why two custody cases with similar facts on paper can resolve very differently depending on how the evidence is presented.
Child Support in Texas: How the Guidelines Work
Texas calculates child support as a percentage of the paying parent’s monthly net resources under Section 154.125 of the Family Code, not a percentage of gross income. Net resources are calculated by starting with all income sources and subtracting specific statutory deductions, including federal income taxes, Social Security taxes, and union dues.
The guideline percentages are based on the number of children before the court: 20 percent of net resources for one child, 25 percent for two children, 30 percent for three, 35 percent for four, and 40 percent for five or more. These percentages apply up to a statutory cap on monthly net resources, which the Texas Legislature and the Office of the Attorney General periodically adjust. As of this page’s publication, that cap sits at $11,700 per month, following an increase from the prior $9,200 figure. For income above the cap, courts presumptively apply the guideline percentage only to the capped amount, though a court can order additional support above the guideline amount when a child’s proven needs justify it.
Child support in Texas is not a private arrangement between parents. Only a court can modify an existing order, and Texas law generally requires a party seeking modification to show either a material and substantial change in circumstances, or that three years have passed since the order was rendered and the guideline amount would now differ by 20 percent or $100 from the current order. Parents cannot informally agree to waive or reduce court-ordered support, and doing so does not protect either parent if enforcement becomes necessary later.
Spousal Maintenance in Texas: A Narrow and Strictly Limited Remedy
Texas takes one of the most restrictive approaches to spousal support of any state in the country, and the Family Code reflects that in Chapter 8. Court-ordered spousal maintenance is not automatic, and Texas law creates a presumption against awarding it. A spouse seeking maintenance must show they lack sufficient property, including their separate property, to provide for their minimum reasonable needs, and must meet one of several specific statutory conditions: the other spouse’s conviction for a family violence offense against them within the relevant time period, an incapacitating disability, the care of a disabled child, or a marriage that lasted at least ten years combined with a demonstrated inability to earn sufficient income to meet minimum reasonable needs.
Even when a spouse qualifies, the amount and duration are strictly capped. Under Section 8.055, court-ordered maintenance cannot exceed the lesser of $5,000 per month or 20 percent of the paying spouse’s average monthly gross income. Duration is tied to the length of the marriage under Section 8.054: generally up to five years for marriages between ten and twenty years, up to seven years for marriages between twenty and thirty years, and up to ten years for marriages of thirty years or more, except in cases involving disability, where the court can order maintenance for as long as the disability continues. Courts are also required to limit the duration to the shortest reasonable period necessary for the receiving spouse to earn sufficient income, not the maximum period the statute allows.
This is worth understanding clearly before entering settlement negotiations. Spouses often assume maintenance is a routine part of a Texas divorce, and the reality is that it is available in a narrower set of circumstances than most other states allow. Separately, spouses can agree to contractual alimony as part of a negotiated settlement, which is not subject to these statutory caps but is enforced as a contract rather than through the court’s contempt power.
Frequently Asked Questions: Texas Family Code: Divorce, Custody, and Support
1. What are the residency requirements to file for divorce in Texas?
At least one spouse must have been domiciled in Texas for the six months immediately before filing, and a resident of the county where the case is filed for the 90 days immediately before filing, under Texas Family Code Section 6.301. Either spouse can satisfy this requirement, so a petitioner can file based on their spouse’s qualifying residency even if they themselves recently moved.
2. Do I need a reason to get divorced in Texas?
No. Texas is a no-fault divorce state. Under Texas Family Code Section 6.001, a court can grant a divorce on the ground of insupportability, meaning the marriage has become insupportable due to conflict with no reasonable expectation of reconciliation. Texas also recognizes fault-based grounds, including cruelty, adultery, and abandonment, and proving fault can influence how the court divides community property, even though it is not required to obtain the divorce itself.
3. How long does a divorce take in Texas?
Texas Family Code Section 6.702 imposes a mandatory 60-day waiting period from the date the petition is filed before a court can grant the divorce, regardless of how quickly both spouses agree to the terms. The only general exception applies in cases involving a final protective order or certain family-violence convictions. Contested divorces involving disputes over property or children typically take considerably longer than the 60-day minimum.
4. Is Texas a 50/50 community property state?
Not automatically. Texas is a community property state, meaning property acquired during the marriage is presumed to belong equally to both spouses. However, the Family Code requires courts to divide the community estate in a manner that is “just and right,” not a mandatory equal split. Courts can and do award a disproportionate share of the estate to one spouse based on factors including fault in the marriage’s breakup, earning capacity, and health.
5. What is the difference between community property and separate property in Texas?
Community property is property acquired by either spouse during the marriage and is subject to division in a divorce. Separate property generally includes assets owned before the marriage, property received during the marriage by gift or inheritance, and personal injury recovery other than lost earning capacity. Separate property is not divided in a Texas divorce, but the spouse claiming an asset is separate must prove it with clear and convincing evidence.
6. Does Texas use the term “custody”?
No. The Texas Family Code uses the terms conservatorship, which refers to a parent’s legal rights and duties regarding a child, and possession and access, which refers to the actual time each parent spends with the child. These are legally distinct concepts, and a possession schedule can differ significantly from how conservatorship rights are allocated between parents.
7. What is joint managing conservatorship in Texas?
Joint managing conservatorship means both parents share certain legal rights and duties regarding the child, such as decisions about education and medical care, though it does not require equal physical time with the child. Texas Family Code Section 153.131 establishes a presumption that joint managing conservatorship is in a child’s best interest, though this presumption can be overcome in cases involving family violence, abuse, or other circumstances that make joint conservatorship inappropriate.
8. How is child support calculated in Texas?
Texas calculates child support as a percentage of the paying parent’s monthly net resources under Texas Family Code Section 154.125, not gross income. The guideline percentages are 20 percent for one child, 25 percent for two children, 30 percent for three, 35 percent for four, and 40 percent for five or more children, applied up to a statutory net resources cap.
9. What is the maximum child support cap in Texas?
As of this page’s publication, Texas Family Code Section 154.125 sets the net resources cap at $11,700 per month, following an increase from the prior $9,200 cap. Guideline percentages apply automatically up to this cap, though a court can order additional support above the guideline amount if the child’s proven needs justify it.
10. Can child support be modified after a Texas court order is issued?
Yes, but only through a formal modification proceeding. A parent generally must show either a material and substantial change in circumstances, or that three years have passed since the existing order and the guideline amount would now differ by 20 percent or $100. Parents cannot informally agree to change a court-ordered child support amount without court approval.
11. Can I get spousal maintenance in a Texas divorce?
Only in limited circumstances. Texas Family Code Chapter 8 creates a presumption against spousal maintenance, and a spouse must show they lack sufficient property to meet their minimum reasonable needs, along with meeting one of several specific conditions, including a marriage lasting at least ten years combined with an inability to earn sufficient income, a family violence conviction against the requesting spouse, an incapacitating disability, or care of a disabled child.
12. How much can spousal maintenance be in Texas, and how long does it last?
Court-ordered spousal maintenance under Texas Family Code Section 8.055 cannot exceed the lesser of $5,000 per month or 20 percent of the paying spouse’s average monthly gross income. Duration depends on the length of the marriage under Section 8.054, generally up to five years for marriages of ten to twenty years, up to seven years for marriages of twenty to thirty years, and up to ten years for marriages of thirty years or more, except in cases involving a qualifying disability.
13. What is the difference between spousal maintenance and alimony in Texas?
Texas law technically refers to court-ordered support as spousal maintenance, governed by Chapter 8 of the Family Code and subject to strict statutory caps on amount and duration. Contractual alimony, by contrast, is a private agreement negotiated between spouses as part of a settlement, is not subject to those statutory caps, and is enforced as a contract rather than through the court’s contempt power.
14. Does fault affect how property is divided in a Texas divorce?
It can. While Texas does not require proof of fault to obtain a divorce, a court dividing the community estate is permitted to consider fault, such as adultery or cruelty, when determining what division is “just and right.” Proving fault can support an argument for a disproportionate share of the community estate, though it is one of several factors a court weighs.
15. Why does it matter whether my Bexar County family law attorney has courtroom experience with these statutes specifically?
The Texas Family Code establishes the framework, but how that framework applies in practice depends heavily on the judges and procedures of the specific court hearing the case. At Barton & Associates, our San Antonio Family Law Division has represented clients in Bexar County’s 225th, 285th, and 407th District Courts, and that direct, ongoing experience with these specific courts shapes how we build a strategy, negotiate a settlement, and, when necessary, take a case to trial.
How This Plays Out in Bexar County Courts
Our San Antonio Family Law Division has represented clients across Bexar County, including in the 225th, 285th, and 407th District Courts, and we have watched how these statutory frameworks play out in real cases in front of real judges. Understanding the guideline child support percentage is one thing. Knowing how a particular Bexar County court tends to handle a request for an above-guideline award because of a child’s private school tuition is another. Understanding the community property presumption is one thing. Knowing how to trace a premarital asset that has been commingled with community funds for a decade, in a way that will hold up in front of a Bexar County judge, is where legal experience becomes decisive.
If you are facing a divorce, custody dispute, or support matter anywhere in Texas, understanding this framework is the first step, and having attorneys who apply it daily in Bexar County’s family courts is what turns that understanding into a result you can rely on.
Barton & Associates, Attorneys at Law
115 Camaron St, San Antonio, TX 78205
Office: 210-500-0000
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Disclaimer
This page is intended for general informational purposes only and does not constitute legal advice. Statutory figures, including the child support net resources cap and spousal maintenance caps, are current as of the date of publication and are subject to change by the Texas Legislature or periodic administrative adjustment. No two family law cases are alike, and this guide is not a substitute for a consultation with a licensed Texas family law attorney about the specific facts of your case.
