Texas Divorce Process

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 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.

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 proving to the judge that you provided notice to your spouse:

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/constable that is filed with the clerk to prove that your spouse received a copy of the Petition.

Waiver of Service

• If the Respondent doesn't want to have a process server or constable 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 Service 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.

Response/Answer

• The filing of an Answer by the Respondent lets the court know that the Respondent has received notice of the divorce and 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, the Respondent has 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.

Important Reminders

• 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.

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 an uncontested divorce and could cost you $100's, not $1000's.

1. Free Forms

The state of Texas has published free divorce forms. They are a little tricky to use, but will get the job done if your divorce is uncontested and you meet all of the requirements.

2. Do It Yourself Divorce (Low Cost)

If both spouses are willing to come to an agreement, you have what the divorce industry calls an "uncontested divorce". An uncontested divorce is pretty simple. Using uncontested divorce forms can make the divorce process simple and much faster. Once you are done with an online interview, you will have all necessary forms and instructions on how to use them.

3. 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.

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 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.
• 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"

At this point you and your spouse have either came to an agreement and signed a decree of divorce or their still isn't an agreement on all 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 will be set and the judge will decide what the terms of the divorce will be.

Agreed Divorce: In an agreed divorce divorce, the spouses will include the terms of the divorce within a document called the "Final Decree of Divorce" or what is often referred to as the "Decree".  The document will be signed by both spouses and then presented to the judge for his/her signature by one or both of the spouses at a "prove-up" hearing. The presenting spouse will hand the Decree to the judge and read a few sentences from a script.  Once the Decree has been proved up, the judge will make it official and sign the Decree.