Texas Divorce Process

REQUIREMENTS NECESSARY TO FILE FOR DIVORCE

  • One of the spouses has to have been a resident of Texas for a continuous six-month period.
  • Either spouses must have been a resident of the county where the divorce is filed for at least 90 days.
  • Texas is a “No Fault Divorce State”. “No Fault” means that one spouse DOES NOT have to “prove” the other spouse has done anything “wrong” in order to obtain a divorce. You CAN NOT be held in a marriage if the other spouse does not want to sign or refuses to participate in the divorce process.
  • Texas courts cannot grant a divorce until 61 days have passed from the date the petition was filed. This cooling off period supposedly helps couples who change their mind.
  • Cannot get married before 30 days to anyone else unless it’s your spouse.

Reasons for divorce

  • Adultery
  • Abandonment
  • Confinement for incurable insanity for three years
  • Conviction of a felony and imprisonment for over one year
  • Cruel and inhuman treatment. [Texas Codes Annotated; Family Code, Chapters 6.001 to 6.007].

Helpful Tips!

  • To remove all the guess work with filing yourself file online. We Recommend you use MyDivocePapers.com to help with the paper work. Its simple, only cost $159, and it will walk you through the paperwork by asking you questions to determine what forms you need. Highly recommended.
  • If you have questions regarding your personal situation get free legal advice at avvo.com. You can ask a local lawyer about your situation for free!
  • Try not to fight with your spouse when it comes to divorce matters. The more you show them respect the easier this whole process will be. This is not the time to blame or point fingers at one another, come together, set an agreement on terms and move on with your life.
  • If you have children, it is a good idea to set up a temporary agreement on who the child will be living with and what type of visitation rights the other party has. This helps to make sure that everything is in writing and protects you. Whatever you decide , write it down and make sure you note that the arrangement is temporary, so that its clear you’re not agreeing to something for the long haul. If you both are still living together this doesn’t need to be set up.

 

STEP 1          STEP 2          STEP 3          STEP 4          STEP 5          STEP 6

 

 

STEP ONE: WHERE TO START?

The first step in getting a divorce in Texas is to fill out the Original Petition for Divorce. This form will tell the judge and your spouse that you want a divorce.

  • Make 2 copies of  a fully filled out and completed “Original Petition for Divorce,” and take the original along with 2 copies to the District Clerk’s Office at local county Courthouse where either party lives. The fee for filing this form typically ranges from $250 – $300 dollars.
  • If for any reason you are unable to pay this, you may be eligible to get this charge waived due to either a lack of money or if you are receiving public benefits for assistance (check with your county clerk). This is called  an Affidavit of Inability  and it will require you to disclose your financials to the court.
  • The Clerk will stamp your paperwork and assign a cause number and a judicial district. You will receive your two copies back, one for you and the other needs to be delivered to your spouse for legal notice of your divorce filing. Be sure to put your copy in a safe place.

STEP TWO: LEGAL NOTICE

The Petitioner (the person initiating the divorce) must give legal notice to the Respondent (spouse). This means that one of the stamped copies of the petition for divorce form must be given to you spouse . There are a couple of methods of doing this:

Waiver of Citation

  • If the respondent doesn’t want to have a process server deliver the divorce papers, the respondent can sign a waiver of service in front of a notary and have it filed with the county.
  • By signing a waiver means that the responded waive all of the legal rights in the case. They agree to the divorce and all other issues of the divorce. This happens when both spouses are in agreement with the divorce.
  • Avoid giving your spouse the Waiver of Citation until you have filed your Original Petition for Divorce with the court.
  • If s/he doesn’t want to waive all legal right to them regarding divorce matters and hearing schedules, they can file an Answer form instead.

Answer

  • An Answer lets the court know that the Respondent is actively participating in the case and does not want to waive his legal rights. If the respondent fills out an Answer form, it ask’s the court to require the petitioner to prover each and every claim and lets the courts know to give notice of all hearings in the case to the respondent.
  • The Answer alone doesn’t make any claims towards or against the petitioner. To make claims against a petitioner and have the courts award you something, you will have to file a Counter Petition.
  • The spouse that fills out the answer does not have to go to court and it does not mean that the case is contested.

Official Service in Person or by Mail     

You can have an official process server in you area to give legal notice to the respondent(your spouse) in person or by certified mail. After your spouse has been served you will receive a Return of Service form from the server for proof that your spouse has received legal notice from you.

Important Reminders

  • This Return of Service form must be filed with the county clerk by the petitioner.
  • If the Respondent fails to file an Answer(response to the divorce for through the use of an Answer Form) within 21 days from being officially served, the case is default and it may be possible to finish the divorce process without the Respondent signing off.
  • If there is no Temporary Restraining Order issued, the Respondent will have 21 days to file an Answer.
  • You divorce can only be finalized after 61 days from the day you filed the petition for divorce but the 61 day waiting period can be waived due to domestic violence.
  • The return of service must be on file with the District Clerk’s office for 10 days

STEP THREE:  CONTESTED or UNCONTESTED?

Did your spouse sign an Answer or have made it clear that they will not agree with your terms? If the answer to this question is yes, you have a contested divorce. The divorce process is stressful enough, now it will be more expensive, stressful for everyone (especially children), and guarantee’s to ruin chances of a civil relationship in future. Is it worth it?

Contested divorce (Spouse Disagrees)(High Cost)

  • If you and your spouse argue rather then come to any kind of agreement, you and your spouse will take the issues to a judge to decide.
  • Texas has juries in divorce trials
  • Most divorce trials aren’t long, drawn out affairs like trials you may have seen on television. Many take a day or two, or even just a morning
  • It will take a huge emotional toll on you, your spouse, and certainly your kids, and also your bank account.
  • An average divorce may run $30,000 (each) with lawyers and could easily go higher with a few added complexities.
  • More forms to fill out and more information needed from both parties.
  • Will not recommend you do it yourself, get some assistance from a mediator or an attorney.

Uncontested Divorce (Spouse Agrees)(Lower Cost)

  • If you can make this happen its is the best choice for you and your spouse. Uncontested divorce is when you and your spouse work together to agree on the terms of your divorce, and you both fill out the divorce papers cooperatively to make the divorce happen.
  • Your uncontested case is ‘agreed’ if you and your spouse agree on what to put in your Decree of Divorce, your spouse has signed a waiver or answer, and your spouse is willing to sign your Decree of Divorce.
  • There is no formal trial, and you probably won’t have to ever appear in court.
  • The judge will usually approve a settlement agreement unless it’s clear that the terms are completely unfair to one person or were arranged when one person was under duress.
  • Takes less time to complete a divorce and will run you a little over $1000 (total).

 

STEP FOUR: DETERMINE WHICH ROAD TO TAKE?

 DIY (Lowest Cost)
Filling out additional forms may get a little more cloudy if you spouse disagrees to the divorce or its terms. If you both are willing to talk and come to an agreement this will make both of your lives easier. You’l probably be able to handle your divorce with little or no help from a lawyer, but you may want to ask a lawyer to look over your paperwork and , perhaps, to review your settlement agreement.
Use MyDivorcePapers.com to do it yourself. Its simple and much faster, it will walk you through the paperwork by asking you questions to determine what forms you need. Once you are done it will have all necessary forms and if you need to make adjustments after negotiating, you can go back and edit them.

MEDIATOR (Medium cost )
If you and your spouse don’t initially agree on the terms but are able to talk, contact a divorce mediator in your local area help you and your spouse communicate more effectively.

  • A mediator is a trained neutral professional that helps spouses work out a settlement agreement without a court fight.
  • The mediator is only there to help both of you communicate with each other.
  • A mediator doesn’t make any final decisions on your settlement, that is left to you and your spouse.
  • Will cost less then a lawyer and it quite affective.
LAWYER (Highest cost)

If you and your spouse argue rather then come to any kind of agreement, you and your spouse will take the issues to a judge to decide. Both parties will get a lawyer and fight for what they want and don’t want based on their arguments. Like mentioned earlier, this is a very long and expensive process that should only be used if you and your spouse are unable to agree on most things.

  • Each spouse hires a lawyer
  • There is no guarantee who will get what because it is left up to the judge for the final verdict.
  • Other professionals are typically involve like accountants, therapist, actuary and this makes the cost go up.
  • Kids are put through a lot of stress.
  • Will take over at least triple the time compared to an uncontested divorce waiting period of 61 days.

 

 

STEP FIVE:  NEGOTIATING THE THREE BIG ISSUES

Every divorcing couple must consider how property and debts will be divided, and whether one spouse will pay spousal support to the other. If you have kids, you’ll also need to make decisions about child custody, visitation, and support. You and your spouse will either need to work out these three big issues or turn them over to a judge to decide.

There are two types of property in Texas  Community and Separate Property. Each explained below:

 

COMMUNITY (MARTIAL) PROPERTY

  • Is the collection of assets you and your spouse have gathered during your marriage, including money, real estate, investments, pension plans, and so on. Martial debts are obligations you took on together during your married life. Both the property and the debts belong to both of you, and part of the divorce process will be to divide them up between you. Unless the court finds that equal division would be unjust.
  • Texas is a community property state.
  • Any property possessed by either spouse while married is considered to be community property.

 

SEPARATE PROPERTY

  • Are assets or debts that either of you had before your marriage, or that you acquired after the permeant separation, are called separate property or debts. Generally, each of you will keep your separate property and be responsible for your separate debts, in some states separate property can be divided at divorce.
  • Any property that was acquired during the marriage by gift or inheritance is also considered separate property
  • If you and your spouse agree on how to divide your property then the court will simply approve your agreement. If you can’t agree the court will divide things up for you the way they choose.

 

CHILD CUSTODY

Even if you and your spouse are never on the same page of on money matters, you should both try your hardest to come to an agreement about child custody. A child custody fight will indeed harm your children more than any other kind of dispute that might come up in the divorce process. Try to do any and everything to avoid it.

Things to figure out if you have children:

  • You or your spouse will pay child custody
  • You have to decide wether you and your spouse will share custody equally or who will be the primary custodial parent.
  • The person who does not have custody will be awarded visitation rights
  • Both spouses or one spouse may be ordered to make either a periodic, lump-sum, or in some cases may require a spouse to pay both payment intervals.

Types of custody:

  • Custody means to have physical custody: you child lives with you and legal custody: make legal decisions about the child welfare and education.
  • Sole custody, if a parent has both legal and physical custody and the other has fairly limited visitation.
  • Joint custody: both parents share physical and legal custody.

 

SPOUSAL SUPPORT (spousal maintenance)

  • Texas allows a maximum spousal support payment of $5,000 a month or 20% of a spouse’s average monthly gross income, if that amount is less then the $5,000.
  • Can be only ordered to a spouse when they are not able to earn sufficient income and the time frame is not forever.
  • How long can you receive spousal support in Texas if you meet the requirement? Married 0-10 years = None, Married 10-20= up to 5 years, Married 20-30 years= up to 7 years, Married 30 or more years= up to 10 years
  • There are three exceptions:
    • Mental or Physical disability
    • Needed for tending to an infant or young child of the marriage
    • A spouses earnings are enough to provide for the “minimum reasonable needs”

Need more information on the requirements and all factors considered with spousal support, property and child custody click here and scroll down to view all requirements.

 

STEP SIX: COURT

At this point you and your spouse have either came to an agreement and have a Marital Settlement Agreement completed or their still isn’t any agreement on terms. If the parties cannot reach an agreement, they may be required to attempt Mediation(only if you haven’t already). If the parties cannot reach agreement, a trial date is set.

Preparing for court tips

By the time of the hearing, the Petitioner has prepared a Final Decree of Divorce. The Decree of Divorce also says who keeps what property and who pays what debts.

The Final Decree, which is a standard six-page form, makes the divorce final, enters the judgment of divorce, and if applicable, identifies the children of the marriage, establishes custody, visitation, child support, health insurance, provides vital information about the parties, establishes separate and community property, income taxes, and support. It may include a number of exhibits as attachments, generally when the parties have minor children.

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5 Comments
    • He is required to submit either a Waiver or an Answer, if neither, it becomes default. And whatever is in your counterclaim may be awarded. Double-check my answer at Texaslawhelp .org

  1. I filed divorce papers on my spouse. we were sent a court date when we went we were not on docket because apparently he had contested it. Then year later he gives me the Respondents answer to divorce but I am not sure what to do after he has given me copy. What does this mean?

    • The answer means that he wants to be notified of all hearings and trials. I suggest you visit Texaslawhelp .org and use the search bar. There is alot of information on this website. You must make sure that your case is still active before you move any further. (Contact your district clerk’s office)

  2. The answer means that he wants to be notified of all hearings and trials. I suggest you visit texaslawhelp .org and use the search bar. There is alot of information on this website. You must make sure that your case is still active before you move any further. (Contact your district clerk’s office)

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