Texas Divorce Process

Overview of the divorce process in Texas

Prior to making the decision to proceed with a divorce in Texas, it is a good idea to become familiar with the divorce basics and the key issues that must be addressed in the divorce process.

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).

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.
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.”

The 6 Step 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.

Comments 511

kate
July 21, 2014 at 4:27 pm

is a counter-petition for divorce written the same way an original petition for divorce in written?

Reply
1. Post
  Author
  
  txdivorce
  August 1, 2016 at 12:15 am
  
  It is generally written the same way with a few minor revisions (i.e. the petitioner is the counter-petitioner, etc.)
  
  Reply
Teresa Zingg
July 18, 2014 at 2:14 pm

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

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m.e
July 17, 2014 at 5:20 pm

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?

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milly
July 11, 2014 at 3:07 am

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

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Bill
July 10, 2014 at 10:52 am

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

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Judy
July 7, 2014 at 1:34 am

Can I additionally sue spouse for cheating without protection & giving me STD & risking contracting AIDS?

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1. johns
  November 12, 2014 at 4:26 am
  
  Can I sue my husband for giving me std’s risking contracting Aids?s
  
  Reply
Albert
July 2, 2014 at 7:59 pm

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?

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Chris
June 27, 2014 at 9:19 pm

Do my spouse and I need to sign the Divorce Decree before we go for our court hearing?

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Eva Buford
June 24, 2014 at 1:57 pm

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.

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Stephanie
June 21, 2014 at 9:08 pm

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?

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mary
June 20, 2014 at 5:58 pm

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?

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leo
June 20, 2014 at 12:04 am

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?

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Dia
June 4, 2014 at 3:04 pm

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?

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1. LOUAN Birkes
  September 10, 2014 at 10:53 am
  
  My husband filed divorce and its been over mine months now….am I allowed to see someone else..are not are should I wait
  
  Reply
Jennifer Woods
June 1, 2014 at 10:51 pm

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?

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Kris
June 1, 2014 at 10:28 pm

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?

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Clara Vaughn
May 22, 2014 at 10:11 pm

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?

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Lorena
May 22, 2014 at 5:10 pm

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.

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Cherry Bradshaw
May 20, 2014 at 1:48 pm

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

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Tricy
May 13, 2014 at 2:12 am

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?

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1. texasadmin
  May 16, 2014 at 9:48 pm
  
  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/
  
  Reply
  1. tammy
    December 14, 2016 at 10:29 pm
    
    in a divorce where a husband has been served by publication, are the final divorce papers the same even though his signature isnt there or is a there a default final decree?
    
    Reply
    1. Post
      Author
      
      txdivorce
      February 2, 2017 at 9:48 pm
      
      The divorce decree in a default situation is similar to the standard uncontested divorce decree that both spouses sign. You will, however, need to provide testimony to the court and proof of publication to prove-up the divorce.
      
      Reply
steve
May 12, 2014 at 2:51 pm

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

Reply
1. texasadmin
  May 12, 2014 at 8:46 pm
  
  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
  
  Reply
Stacy
April 30, 2014 at 12:23 am

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!

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Andrew
April 25, 2014 at 11:34 pm

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?

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cecil
April 21, 2014 at 5:24 am

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

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regina
April 16, 2014 at 8:28 pm

Once the judge signs the divorce decree; can my spouse contest?

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Lashawn Blakely
April 16, 2014 at 6:45 am

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 ?

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Melissa
April 15, 2014 at 7:18 pm

What happens if the documents you filed with the court are incomplete or wrong?

Reply
1. Harper
  November 11, 2015 at 6:31 pm
  
  You can amend your original petition, write “amendment” next to the title of each copy, and file them with the district clerk. You don’t have to pay any extra fees, and the waiting period won’t start over.
  
  Reply
Patricia
April 14, 2014 at 5:01 pm

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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Bianca
March 25, 2014 at 4:59 pm

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?

Reply
1. Patricia
  April 14, 2014 at 5:04 pm
  
  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)
  
  Reply
pam
March 4, 2014 at 8:32 pm

what if husband refuses to discuss your counter claim you file.

Reply
1. Patricia
  April 14, 2014 at 5:03 pm
  
  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
  
  Reply
  1. NeedHelp
    October 9, 2014 at 6:30 am
    
    What if my husband is in a different country(military) but i am in texas.
    
    Reply
  2. Janis Gutierrez
    October 18, 2016 at 7:16 pm
    
    My husband got deported over 8 years ago haven’t heard from him since
    
    Reply
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