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

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Genia
August 31, 2015 at 9:34 pm

What if the “petitioner” now won’t go to court to finalize the already signed papers.? Can the respondent be able to file for a no show and move forward with divorce ?

Reply
1. Post
  Author
  
  txdivorce
  September 10, 2015 at 5:35 pm
  
  The petitioner is the person requesting a divorce (i.e. the person who filed the petition for divorce). If the petitioner no longer wants to pursue the request for divorce, they are free to drop the request. The respondent may also file a counter-petition for divorce (i.e. his/her own request for divorce). Only after a counter-petition is filed would the respondent/counter-petitioner be able to proceed with their request for divorce.
  
  Reply
J
June 30, 2015 at 7:13 am

I recently filed for divorce, husband is nowhere to be found, so he hasn’t signed the waiver of service. The 61 days are up, but child support order with attorney General isn’t complete. Is there any way to move forward and get the divorce done, given these two obstacles???

Reply
1. Post
  Author
  
  txdivorce
  September 10, 2015 at 5:40 pm
  
  When using uncontested divorce forms, it is typically necessary that both spouses sign the paperwork. A divorce, however, does not require both spouses to agree to it. If your spouse cannot be found, an attorney would be recommended to help guide you through the divorce process.
  
  Reply
GRJr
April 28, 2015 at 2:41 am

What if I can’t locate my spouse?

Reply
1. texasadmin
  May 18, 2015 at 9:07 pm
  
  Check out the resource page of our site
  
  Reply
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Picadilly
December 2, 2014 at 11:11 pm

I was served divorce papers by a process server, within 10 minutes I received a text from my husband that he had been notified of me being served. I am curious how he knew so fast, would the process server have called him directly to let him know? Everything I read says he would have been notified after the certificate was returned to the court. I am not sure of the procedure, any help would be appreciated.

Reply
1. Post
  Author
  
  txdivorce
  December 7, 2016 at 6:21 pm
  
  The process server was likely hired by your spouse and thus a phone call would be expected.
  
  Reply
D-Walk
September 19, 2014 at 3:27 am

I just want to know, being though I payed for the divorce and I put myself of support way before the filing, what happens next? Do I continue to persue even if she’s playing games with the process? Im not trying to be jerked out of 600+. PLEASE HELP

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James Coolbaugh
September 18, 2014 at 11:12 pm

got married in el paso texas in 2001 wife is from mexico. I have no idea where in mexico she is i need to file for a divorce so i can marry my partner. what do i have to do since i do not know where she is in mexico. she is not a citizen of the united states even when we were married.

Reply
1. Post
  Author
  
  txdivorce
  December 7, 2016 at 6:23 pm
  
  You must give your spouse notice of the divorce. Texas statutes governs how notice can be given. There are ways to comply with the law and provide notice to a spouse that cannot be located. You’ll likely need to speak with an attorney to accomplish alternative service.
  
  Reply
Stephanie
September 16, 2014 at 5:16 am

My husband said he filed for divorce about two months ago, which I don’t know if it’s true. I checked where he stationed at in Hawaii, and there is no docket number. Is there a website that I can check in Texas?

Reply
1. Post
  Author
  
  txdivorce
  December 7, 2016 at 6:26 pm
  
  Some of the larger counties have websites that the public can check. I am unaware of a website that can check each Texas county. I would start with the counties where you have resided in most recently. Generally speaking (in Texas), the Petitioner should file in the county where one spouse has resided for the last 90 days.
  
  Reply
Mark Carranza
September 11, 2014 at 3:20 pm

Im living in a abusive relationship. My wife has attacked me on several occasions over the last 4 years. I have video taped her beating me with a broom handle, breaking my nose in front of my son (from a previous relationship) , destroying my property, and I have taken pictures of each and every scratch and cut she has given me. All of this is unknown to her.

I want to file for divorce, but because she makes more than me, it would be financially hard for me. She owes me money for bills that are in my name, and for $500 that she put on my credit card 2 years ago. Is their anyway i can have her pay for half of the bills and for the credit card debt if I file for divorce? The credit card is in my name. Also, I bought her a laptop last year, from my account. Do inhale a right to ask for it back ?

I need some help. I’m tired of getting blamed for everything that’s wrong in our marriage. She’s been diagnosed with clinical depression, but refuses to take her medication,which makes her worse.

Please help me.

Reply
Robin
September 4, 2014 at 8:46 pm

He states he wants a Divorce and Wants me and my 82 yr old dad out n 2 weeks Can he legally do this

Reply
Robin
September 4, 2014 at 8:45 pm

Got a question,I Live in East Texas & Been Married 11 Years Haven’t worked the whole 11 years cause he made enough to support us, We own a home but it’s n his name only Can he kick me out and what’s my Rights I Have no Job & NO Family here

Reply
1. Adison
  December 8, 2015 at 6:50 pm
  
  He would have to get a court order and it gives u 30 days to move out in texas.
  
  Reply
Abc
August 27, 2014 at 6:09 pm

If I divorce my wife will she be sent back to u.s or will she she in uk

Reply
johnny
August 27, 2014 at 1:31 pm

Starting a divorce we have agreed on what we want and are in decent terms with each other. We agreed to a certain amount a month but her insurance is better than mine. Is it mandatory for me to carry my child with insurance also.

Reply
Cynthia
August 26, 2014 at 10:13 pm

whoah this blog is magnificent i really like reading your posts.
Keep up the good work! You recognize, many people are hunting round for this information, you could aid them
greatly.

Reply
Christopher
August 21, 2014 at 8:10 pm

My wife (ex) sent me a text message partially showing the completed status of our divorce. It has now been well over a month and I still haven’t received any papers. Do I have to specifically request a copy?

Reply
Sincerity
August 20, 2014 at 3:32 am

If on the petition I checked the box that states I do not want my name changed; is that enough to allow me to keep my husbands name? I don’t want to change my name because of our children.

Reply
1. Post
  Author
  
  txdivorce
  August 1, 2016 at 12:10 am
  
  Yes, if you do not request a name change your name will not change.
  
  Reply
Crystal
August 20, 2014 at 12:56 am

I filed for divorce, and my 60 day waiting period was up the end of April. I was supposed to call the court to set a date for a final hearing. I never did that. Is it too late to do that now, or do I need to file again?

Reply
1. Post
  Author
  
  txdivorce
  August 1, 2016 at 12:09 am
  
  You should not have to file again.
  
  Reply
Chano
August 19, 2014 at 3:02 pm

what if she is pregnant and refuses to do a paternity test?

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SG
August 12, 2014 at 12:00 am

I’ve reached the 21 day waiting period for my husband to file his answer for divorce. Wherected do I go to finish this without his answer.

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Bryan
August 8, 2014 at 2:54 pm

After I file a petition for divorce, is there a time limit within which I have to finalize the divorce. I’ve gotten past the 61 day waiting period but not quite ready to pull the plug and am wondering if there is a statute of limitations for the petition.

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Sarah
August 7, 2014 at 4:17 pm

What if my husband is in jail, how do I get the papers to him without having to see him.

Reply
Jess
August 1, 2014 at 3:45 pm

I just moved to a different county, can I still file my divorce if he still resides in the same county or do I have to wait 90 days?

Reply
1. SA Divorce
  August 27, 2014 at 9:59 pm
  
  You would have to follow the rules for your new county. If it is a county in Texas then you would have to wait the 90 days.
  
  Reply
mary pacheco
July 30, 2014 at 10:30 pm

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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chenny
July 30, 2014 at 1:57 pm

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?

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Ben
July 25, 2014 at 7:06 pm

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.

Reply
Ben
July 25, 2014 at 7:05 pm

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 loves out of state.

Reply
ivan
July 24, 2014 at 8:02 pm

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?

Reply
annie
July 23, 2014 at 6:26 am

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

Reply
1. texasadmin
  August 5, 2014 at 5:00 pm
  
  If you are unsure where the divorce was filed, Go to everify.com and search to see if he has filed any divorce in any state. Hope this helps.
  
  Reply