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.

Helpful Tips!

  • To remove all the guess work on how to file for divorce in Tx. 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.comYou 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.

Grounds for a divorce in texas

  • 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].

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. The cost of a divorce can be low or be very high depending on wether it is a contested or uncontested divorce. Is it worth it to fight your spouse?

 

Contested divorce in Texas (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 in Texas (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?

Do It Yourself Divorce (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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39 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)

  3. Me and my husband have been married since 2001 well in 2007 he received 65 years aggravated time in Tdc. Well we haven’t really spoke lately and I guess he’s mad and filed for a divorce. I received a certified letter to go get from the post office I read the papers but I don’t understand. How long do I have to respond and can u respond back to the courts in writing or do I have to appear at the courts. And if so when or will Ibe sent a court date . I don’t want to sign anything can he still get a divorce even if I disagree ?

  4. Wife and i have been separated for 7 years. She has been with other men and i have a 3 year old and been with another women for 5 years. Wife keeps not wanting to give me a divorce. Now she is in jail for 6 months. What can i do?she is only doing this cause she doesn’t like that i am happy when she is the one who was cheating on me while we were married guess she feels like i would take her back. Please help i want to finals marry my child’s mom

  5. I am wanting to get divorced from my wife. I want this togo smoothly. If i want to use. The online forms does that mean both of us need to be on page before i file or can i file and her agree later?

  6. My spouse and I agreed to get a divorce and he filed the original petition for divorce. Since that happen, we agreed on joint custody and that neither one of us pays child support. What do we need to do to get the divorce decree to state this before we go to court for the final divorce? Can we type up an agreement and take it to a notary? Or do we have to go to court and ask a judge to change the papers or do I need to somehow find a lawyer? Any advise is greatly appreciated!

  7. Am I required to bring a copy of my marriage license in order to get divorced? She destroyed it the other day, and court is Thursday

    • Please visit the link below to learn where to get a copy of your Marriage licensehttp://www.dshs.state.tx.us/vs/reqproc/faq/mardiv.shtm

  8. My husband and I agreed to divorce after 5 years of marriage. I filed for divorce and told him I will have the papers ready. He changed his contact info after and I could not contact him. I hired a process server to serve him at his job. The server has been to the job all times of the day and evening and always told by employees they cannot find him in warehouse. My divorce petition has been filed for 65 days now. How can I divorce him now?

    • If attempts to serve my spouse do not work, what is my next step?

      If a process server is not able to serve your spouse, you can petition the court to either serve your spouse via certified mail or by publication. Serving your spouse by certified mail means that we will mail a copy of the citation and petition to the last known address of your spouse and that will trigger service.

      The other alternative is to serve your spouse by publication, which means that notice of the filing of your petition will be published in a local newspaper or newspapers. Service by publication takes a little bit longer than the other methods of service, as there is a longer period of time that must past before the answer is due.

      If your spouse does not file an answer by the answer due date, a default judgment can be entered.
      credit- cordellcordell.com/resources/texas/texas-divorce-questions/

  9. I have stood before the judge and was told I was divorced. The court has not filed the decree. Am I divorced or not?

  10. I have a question. My husband and I are getting divorced.
    We got married in 06 and separated in 09. Since 2012 my daughter has stayed with me and went to visit him every other weekend. He paid me $60 a week. Now he agreed to pay me $140 in our divorce. Can I take him to court to pay back child support.

  11. I filed petition for divorce on March 21st and had sheriff serve my husband on April 4th after getting a citation in court. He has neither filed an answer nor a waiver. What’s the next step I should take?

  12. We have done all the filing and now have the 60 day waiting period until we can finalize it. In Texas, do we both have to be there to finalize it before a judge or can I do that part without my husband?

  13. What if spouse is incarcerated and you have 4 children who you feel would be better off with litttle or no visitation from the other parent. How does that work?

  14. How long after the cooling off period has passed must we appear in court to have the judge finalize the divorce. We have been separated for 4 months now. However both of us are dragging our feet to finalize the process. Is there a deadline? Will we have to re-file after a certain time and repay the filing fee for the original petition for divorce?

  15. we have filed an uncontested divorce and the 61 day waiting period is now over. the wife and I agreed that we will not touch each others pension and 401k and to keep each others money. basically we just wanted to formally end our marriage agreement and go our separate ways. Will the judge still have to divide everything even if we have agreed to not having to divide anything?

  16. My husband lives out of state. and when you start the original petition of divorce papers, do i also have to have the out of state party affidavit? If so am i the one who fills that out in ref. to him or does he fill that out before i can file?

  17. What happens if you get married in other country a month before the judge finalizes the divorce? Does the new marriage can be valid in the US or is going to be void and all the marriage process needs to be done again?

  18. My court date is next week. I know as soon as the judge signs my divorce paper it is final. I just need to know if I can get the signed divorce papers the same day? I am buying a home and need my divorce decree ASAP. I’m on a deadline and i’m freaking out on how long this will take.

  19. 1. I filed the original petition for divorce (in person, pro se).
    2. I got her to sign the waiver of service (certified mail).
    3. I filed the waiver of service (certified mail).
    4. I just received an original answer today contesting the allegations for divorce (certified mail).

    My grounds for divorce that was stated on petition:
    The marriage has become insupportable because of discord or conflict of personalities between Petitioner and Respondent that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.

    A. Can she do that after signing the waiver?
    B. How can you fight those allegations?
    C. Texas, being a No Fault Divorce State, is she just wasting time?

  20. Hello, I’m in the Military. My wife filed for divorce in Texas and I’m in Florida. Texas requires that a citation be served along with your petition for divorce. My wife served me 3 different times because each time I told her about the missing citation and every never petition she was leaving out again the ‘”citation”and in the petition I don’t have a deadline to file a response. In order for the ball to start rolling I need to be served a citation. I called the court house prior to my deployment a few weeks ago and the lady at the court house said they show no citation in the system and nothing can happen without this citation…………I just deployed and I was told by my wife that we have a court date set up soon because I failed to file a response and she appartently doesn’t understand about a citation. My question is: How can the courts grant her a court date without a citation in the system?? Either the courts over looked it or something. I going to call the court house soon but I just wanted to aske this question. Thank you
    Bill

  21. Question, what if you can’t make it to court since I moved to another state? Even though I signed the paper.. help

  22. I married him while he was was incarcerated. We were together before than off and on but i moved out of state etc but since came back. We’ve been married almost 5 yrs but i havent physically been with him in over 5 yrs. He was abusive manipulative etc. I filed for divorce and have no clue to where he is. Will it go.in my favor or am i screwed?

  23. I have filed for divorce but we are to forced remain in family home together until I can move temporarily with daughter (45 yrs of RN) now he is searching for new women online dating sites. Do I have any extra rights? I’m 65 no job and filing for disability. Can no longer wirk. My SS IS (? Us about $568 SS INCIME

  24. My ex husband claims, he divorced me in texas but we were married in scotland i never recieved and papera to sign or final divorce scottish law says we arw still married until i can prove otherwise my ex, refuses to tell me which county he filed in

  25. If i want to get a divorce but my wife moved to Mexico, how can proceed with the divorce. We have agreed to child support and visitation rights verbaly. How can I proceed?

  26. My spouse won’t fill out the final decree of divorce, and this is the only document needed to complete my file before the court can give us a court date. What others ways can I use to fix this? She would not talk to me or respond to a mediator since she moved out of state.

  27. Pingback: Fighting Sadness And Grief After A Divorce

  28. My husband and I agree to file for divorce and he keeps wanting to fight for custody of 3 year old. I am the one that takes care of the child physically and financially 95% of the time. What should I do?

  29. have a question my boyfriend is married but has been separated from his wife for over 13 yrs … she wants the divorce to get married but doesn’t want my boyfriend in the kids life so doesn’t want child support at all just the divorce… wat steps can he take to give her the divorce but wont get back at him when it comes to child support

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