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

Jeff Lane
November 11, 2018 at 9:45 pm

My wife is in a different county and filed for a divorce. We don’t have anything to contest. Im in a halfway house. Do I have to show up for the hearing? I want the divorce to happen but don’t want to break the law.

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Debbie
November 8, 2018 at 6:27 pm

my fiance found out last week that his ex wife never signed the divorce papers..10 yrs ago..do we still need to wait 60 days? and he was going to do a no fault divorce what happens if she doesnt sign them again.

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Rebecca
November 7, 2018 at 1:37 pm

What if the Petitioner does all the paperwork and sets the guide lines for who will be taking what in the divorce, but the Respondent never signs and doesn’t show up for court? Then the Petitioner will receive everything they once shared and the Respondent will only have 30 days to Appeal in order to receive anything out of the divorce?

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RaSheeb Edmonds
November 2, 2018 at 6:32 am

I have been waiting 5 month for the waiver of service from my spouse but she hasn’t sent it yet. Can I take the decree to the court anyways without her needing to show up since it’s uncontested?

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1. Post
  Author
  
  txdivorce
  December 27, 2018 at 12:00 pm
  
  The filing of the signed waiver is typically the proof that the court needs that your spouse received notice of the divorce. If your spouse will not sign, you will need to hire the constable or a process server to personally deliver the divorce papers (and citation) to your spouse. After delivery, they will sign and file an affidavit saying the divorce papers were delivered and you will use that to prove your spouse has notice of the divorce.
  
  Reply
Linda Coleman
October 25, 2018 at 9:56 pm

How long can a divorce filing stay alive with no final action before the case is thrown out and you have to start over?

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1. Post
  Author
  
  txdivorce
  December 27, 2018 at 12:00 pm
  
  It depends on the court. Each court sets their own timeframes.
  
  Reply
Chris Kuhne
October 25, 2018 at 1:35 pm

I intend to file for divorce in Texas. No minor children. I receive monthly private (non-governmental) total disability payments for life which currently pays our shared expenses. Even though for tax purposes the disability payments are not considered income, would my respondent spouse have any claim on my disability payments after I initiate divorce proceedings?

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Eileen Morin
October 13, 2018 at 2:08 pm

My court date for my divorce is November 2nd. I am the petitioner. Why doesn’t my husband (respondent) need to be in court? How will the judge make an order for spousal support or anything else if he isn’t there? We were married 22 years.

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Jay
October 12, 2018 at 11:37 am

Had final hearing with the judge in Dec of 2017 where he granted the divorce. I have just received a notice of intent to dismiss. I thought when the judge, my ex and I signed it was complete, did I miss something?

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Marie Armour
October 10, 2018 at 11:19 pm

Three questions: 1- If the Respondent fails to file an Answer within the allotted time, is the divorce considered uncontested? 2- Does the Respondent have the opportunity to provide an Answer after the allotted time has expired? 3- Assuming no Answer is provided, and the 60 day waiting period has expired, What is the Petitioner’s next step?

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Gary
October 9, 2018 at 7:23 pm

The judge denied my divorce decree after submitting it when the cooling off period ended. Do I have the right to know why and can I amend the decree and submit it again?

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James
October 8, 2018 at 1:05 pm

My spouse and I have not been together in about 8 years. Very rarely speak to each other(last time was probably 5 years ago) and are not legally separated.
I live in Texas and I’ve heard she’s moved to Florida. We have a child together but her mother adopted her.
Is there any specific things I should do in my case?
Will the adoption effect anything as far as paper work goes?

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Brittany
October 3, 2018 at 11:34 am

The judge reviewed our final divorce decree and did not sign it due to the child support section not being filled out. So with that being said, 1.) Do I have to a file a new waiver of service and wait 10 days 2.) can I just add attachment to the docs on why I do not request child support and fill out the child support section with zeros?

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Danielle
September 25, 2018 at 12:00 pm

Once the decree is signed will I need to appear in court?

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1. Post
  Author
  
  txdivorce
  December 27, 2018 at 12:02 pm
  
  One of the spouses will need to prove-up the decree which will require an appearance by one or both spouses.
  
  Reply
Susan
September 18, 2018 at 2:10 pm

Are you required to be separated (living in separate homes) before the final decree can be filed in the state of Texas? If so, how long are you required to be separated? I filed the original petition in June 2018 however, my spouse is not moving out until 10/01.

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1. Post
  Author
  
  txdivorce
  December 27, 2018 at 12:02 pm
  
  No.
  
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Erika
September 16, 2018 at 2:47 pm

Is there a time limit from the time the 60 waiting period ends and the time the final decree has to be signed off by the judge?

I travel for work and there may be schedule conflicts to do it immediately after the 61st day.

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1. Post
  Author
  
  txdivorce
  December 27, 2018 at 12:04 pm
  
  Each court does it a little differently, but the divorce can be dismissed if it sits on the docket for too long. A couple of days delay is fine.
  
  Reply
Cara
September 9, 2018 at 9:47 pm

I filed for divorce in Texas in June 2018. I served my husband the divorce paperwork myself and have not done anymore paperwork. No proof of service was filed, or anything. We have a 1 child together. I want to move back home with my mother in Arizona because I can no longer afford to live here. Since no other paperwork has been filed can I just up and leave and file for divorce another time?

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Pearl jones
August 21, 2018 at 11:09 pm

Divorce been filed since February the respondent is in another County, she is not responding the divorce been filed since February the lawyer is telling us he has to obtain a private. Dective to find her , there’s proof she agreed to divorce but she being uncooperative what shall we do

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1. Post
  Author
  
  txdivorce
  December 27, 2018 at 12:07 pm
  
  Listen to your lawyer.
  
  Reply
Aj
August 18, 2018 at 1:41 am

At the time our petition was filed she was not pregnant. I’ve finally gotten a call from the clerk that they are ready to review, but she has had a child in the meantime with her boyfriend (we were a same sex marriage.) Do I update our final decree? or do I now have to completely start over?

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Stephen
August 8, 2018 at 4:14 pm

i filled for divorce since march this year and my wife lawyer has responded to it
we talk about everything and she agreed to sign the final degree due to the fact that we do not have kids and properties, but is almost 30 days i have been waiting for them to get back with the final degree paper works with signatures but they are not responding.
what else can i do to finalize the divorce please.

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ENRIQUE
August 8, 2018 at 10:32 am

We are from Spain, we got married in Vegas. We legalized the status in Spain without any problem. We came to live in TX in 2013 and we decided to divorce in 2016 in Spain. Now we are married in Texas, but divorced in Spain. How could we update our status in TX?

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Ashley
August 1, 2018 at 3:54 pm

If the standard divorce decree form I got from the Texas Law Help website does not provide enough space for debt information can I type that information up on a separate page? Also, if I will be receiving spousal support can I include that information on a separate page?

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prince Bell
July 31, 2018 at 2:13 am

My wife lives in another state and it’s been a difficult task to track her.We both agreed that no one will push for any kind of alimony or asset sharing and she agreed to sign any paper i send to her through my friend that lives in the same state with her.We have no kids or property together.My question is this ‘ i am filing for divorce next week but i have already mailed her via speed post the Waiver of Service and decree of divorce and one other form to sign.I intend having all of them with me before i go into the court house to file the actual notice of divorce.Is there anything wrong in what i am doing ? ‘

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Amy martin
July 26, 2018 at 6:54 pm

We filed for divorce 61 days was up June 18th now how can I get the divorce over with?? We live in Texas

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1. Post
  Author
  
  txdivorce
  July 29, 2018 at 2:03 pm
  
  You’ll need to attend a prove-up hearing (assuming both spouses agree to the terms of the divorce by signing the divorce decree) and ask the judge to sign the decree. Each court is a little different in how they handle these hearings, so you’ll need to call the court coordinator and ask how your particular court handles/sets prove-up hearings.
  
  Reply
  1. Masulani
    September 8, 2018 at 10:40 am
    
    What happens if no one shows up to court and the it is canceled? What should I do then?
    
    Reply
Bc gonzales
July 24, 2018 at 3:30 pm

I am same sex marriage. Got married in oklahoma and the following year in Texas when it became legal. We both live and reside in texas. If we file for divorce in Texas do we still need to file for divorce in oklahoma. If we stay married in oklahoma are we still considered married in Texas?

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1. Post
  Author
  
  txdivorce
  July 29, 2018 at 2:02 pm
  
  You file for divorce in only one place. Since you reside in Texas, Texas courts will have jurisdiction to declare the divorce.
  
  Reply
Nancy
July 24, 2018 at 3:21 pm

How long after the final decree is submitted to the associate judge for prove up will a court date be set for the final decree to be signed by the judge?

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1. Post
  Author
  
  txdivorce
  July 29, 2018 at 2:04 pm
  
  Many associate judges will handle the prove-up hearings and then submit the decree to the judge for signature (w/o another hearing).
  
  Reply
Stephanie Garcia
July 24, 2018 at 1:42 pm

After the final decree of divorce is submitted how much time more less does it take for court to give me a court date to finalize divorce?

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1. Post
  Author
  
  txdivorce
  July 29, 2018 at 2:05 pm
  
  It really depends on the particular court.
  
  Reply
Jim
July 21, 2018 at 9:19 am

If it’s a non-contested divorce and we are still working out terms etc. Does the 61 days go in effect when the final decree is ageeed upon and submitted to the court? Can the final decree have Ex-spouse still on health insurance if desired?

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1. Post
  Author
  
  txdivorce
  July 29, 2018 at 2:07 pm
  
  The 60 day cooling off period starts from the date the petition is filed. In other words, the divorce decree can not be signed by the judge until the expiration of 60 days after filing of the petition. Often times, the spouses will sign the decree well before the judge does.
  
  Reply
D. E.
July 3, 2018 at 6:35 am

What happens to divorce papers after 4 months of no activity?

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Tim
July 2, 2018 at 11:08 am

Does any of us have to go to court for an uncontested divorce?
If yes, how is one aware of the court date

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KTB
June 27, 2018 at 8:20 pm

if a petition for divorce was filed on 3/14/18 and no other documents have been filed or entered under the petition but now a record is showing for 9/14/18 a hearing with the judicial officer named under this record and in the comments it shows dismissal, was that record for dismissal done by the court since no other action was taken or is that something the petitioner would have had to initiate?

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1. Post
  Author
  
  txdivorce
  December 27, 2018 at 12:11 pm
  
  The court most likely initiated the dismissal (for want of prosecution or lack of activity), but it could have been initiated by the petitioner.
  
  Reply