TEXAS DIVORCE BASICS
Names of the Parties: The spouse that files the petition for divorce (i.e. initiates the divorce with the court) is known as the “Petitioner”. The other spouse is known as the “Respondent”.
Jurisdiction: Texas courts only have jurisdiction to grant divorces for Texas residents. So, one of the spouses must be a Texas resident for 6 months prior to the date the petition for divorce is filed in Texas.
Venue: At least one spouse must reside in the county where the divorce is filed for at least 90 days prior to the filing of the divorce petition.
No Fault: 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.
Cooling Off Period: 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.
Appeal Period: After the divorce decree is signed by the judge, each spouse can technically file an appeal for 30 days. As such, neither spouse can get married until the divorce decree is final (30 days has elapsed from the date in which the judge signed divorce decree).
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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.
Grounds for a divorce in Texas
- Confinement for incurable insanity for three years
- Conviction of a felony and imprisonment for over one year
- Cruel and inhuman treatment.
- Insupportability – This is the catchall that almost all divorces are filed under. Insupportability means “discord or conflict of personalities” that has prevented any “reasonable expectation of reconciliation.”
STEP ONE: WHERE TO START?
The first step in getting a divorce in Texas is to file the 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.” Take the original along with 2 copies to the District Clerk’s Office at your local county Courthouse where either spouse has lived for the last 90 days. The fee for filing the Petition for Divorce typically ranges from $250 – $300 dollars.
- If for any reason you are unable to pay the filing fee, you may be eligible to have the county filing fees waived due to either a lack of money or if you are receiving public benefits for assistance (check with the district clerk in the county in which you intend to file the divorce). This is called an Affidavit of Inability of Pay 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 (i.e. specific court). 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 file-stamped copies of the petition for divorce must be delivered to your spouse. There are a couple of methods of doing this:
Waiver of Citation
- If the Respondent doesn’t want to have a process server serve/deliver the petition for divorce, the respondent can simply sign a waiver of service in front of a notary. This will let the court know that they received a copy of the petition for divorce and thus have been informed of the divorce.
- Avoid giving your spouse the Waiver of Citation until you have filed your Original Petition for Divorce with the court.
- If the Respondent doesn’t want to waive their right to contest the divorce, they can file a Response (aka Answer or General Denial) instead.
- An Answer lets the court know that the Respondent is actively participating in the case and may contest the terms of the divorce.
- The Answer alone doesn’t assert any claims against the Petitioner. To make claims against the Petitioner, you will have to file a Counter Petition for Divorce.
- The spouse that files the Answer does not have to go to court and it does not necessarily mean that the case is contested.
Official Service in Person
You can hire an official process server or constable to give legal notice to the Respondent (your spouse) in person. After your spouse has been served you will receive a Return of Service from the process server for proof that your spouse has received legal notice of the filing of the petition for divorce.
- This Return of Service form must be filed with the district clerk to show the Court that your spouse has received legal notice of the divorce case.
- If the Respondent fails to file an Answer (response to the divorce for through the use of an Answer Form) by the Monday following the 20th day after receipt of legal notice, the Petitioner can request a default judgment and the Court can award a divorce to the Petitioner without the Respondent signing off.
- Your divorce can only be finalized after 60 days from the day you filed the petition for divorce but the 60 day waiting period can be waived due to domestic violence.
STEP THREE: CONTESTED or UNCONTESTED?
Did your spouse file an Answer or have made it clear that they will not agree with your terms of divorce? If the answer to this question is “yes”, you have a contested divorce. The divorce process is stressful enough, a contested divorce is more stressful and expensive. The cost of a divorce can vary greatly depending on whether it is a contested or uncontested divorce.
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.
Use FileDivorceInTexas.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 always edit your personalized divorce forms.
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:
- 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.
- 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.
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.
- Spousal support can be only required when the receiving spouse is 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”
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.
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.