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

Jada
February 12, 2020 at 5:28 am

Noncontested, Pro se. I’ve filed, served him and filed the Marriage settlement agreement along with all other required documents. Do I still need to gather financial information if we have a settlement agreement? Basically we agree that we will aell the house and split the proceeds 50/50 after all debts concerning the house are satisfied.

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Jae
February 10, 2020 at 3:22 pm

Spouse and I separated in July of 2019. He now lives in another state but will not sign a waiver and contesting the divorce. I’ve already filed a divorce petition with the court and today makes the 61st day whereas in Texas you schedule a hearing to finalize your divorce but because he has not signed the waiver I’m at a stand-still. He’s given me an address of a relative but does not live there. At this point, what steps can I take?

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Andrea
January 25, 2020 at 10:17 pm

I’m in the process of starting a divorce, my soon to be ex-husband said he only has to pay child support when out child graduates high school which is this year in may, but I always understood child support is paid until the child turns 18. And if they continue studying do they have to keep paying child support after their 18 and if yes until what age if they keep going to school ?

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Miranda
January 25, 2020 at 10:12 pm

Me and my husband have been married for 18 years I recently discover he had an affair that had been going on for 8 years. Out of anger I cheated as well and he found out. Because I cheated will this prevent me from getting spousal support ?

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Juan
January 15, 2020 at 6:55 am

If I married thru church and never got the state document, is it still required to get thru a divorce?

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Cindy
January 8, 2020 at 2:42 pm

I filed for divorce pro se as an uncontested divorce. Since the original petition that was filed, he will not stand by our agreements. He said he will just go file the final decree he found on line an filled out without what we agreed to split and said I don’t need to be present to sign the final decree. Is that true? Also if he signed a waiver of service do we both need to sign the final decree to get the divorce finalized?

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Sam
December 18, 2019 at 8:17 am

Can I list my house that’s in my name after filing for divorce, (though I know it’s technically community property), even though my spouse doesn’t want to list the house or agree to the divorce?

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Sue
October 24, 2019 at 3:44 pm

Wife committed adultery and is pregnant with another man’s child. Wife purchased a house 2 years ago. Husband is not on mortgage/deed. Husband received several cars as gifts from family. Both are long time residents of Texas.
Will a do-it-yourself divorce work?

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Robin
October 22, 2019 at 12:25 pm

My divorce was done in Texas many years ago. However, the final degree did not restore my maiden name. How can I get the degree modified or what do I need to do to restore use of my maiden name.

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Dustin
October 9, 2019 at 8:17 pm

How do I make a change on the final decree that was presented to me by my wife’s attorney. It has not been filed yet, just wish to make changes

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lucy
October 9, 2019 at 11:07 am

My husband and I have come to an agreement on a divorce. We already got some papers notarized and taken to the court we have to wait 60 days till the court day. What do i do now with all the paper work they told me to take it back to whomever gave them to me but i called the notary and she said she doesn’t know what else to do but to wait for the court day.

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Haley
October 3, 2019 at 5:21 pm

My husband decided to divorce me and moved out. A year ago he won an executive disability insurance claim due to a heart attack and has a retired early on disability with a substantial monthly income. I have not worked in 25 years as I’ve been raising our children. He says I’m not entitled to any of his money because it’s disability but we’ve been married 30 years and the policy was paid for during that time. He says there’s no point in hiring an attorney and I should just take my 1/2 community property?

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Deniese
October 1, 2019 at 8:24 am

My daughter filed for divorce a month ago and has started receiving child support. They haven’t agreed on bills, visitation, etc. does she need to contact an attorney or someone to set up mediation, or will this automatically be done? They have about a month left before the final date.

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Erin
August 31, 2019 at 10:21 pm

My husband recently filed for divorce – we do not have children or property and haven’t even been married 6 months. I am willing to sign any and all paperwork that I need to in order to finalize the divorce. However – do I need to be present in court for a hearing ? I am moving to another state and don’t want to fly back for a short hearing if I don’t need to. Is there anything I can do/sign in order to get out of going before a judge?

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Kelly
August 15, 2019 at 12:44 pm

We completely agree on everything in our divorece including selling our home and dividing the equity. How do we show this on the final decree? It only allows us to list it under him or I .
Do I fill in the legal descriptions in both areas and leave it for the judge to say it will need to be sold and split or do we need another form?

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Betsy
August 13, 2019 at 4:29 pm

I have filed for a divorce and my husband has signed the waiver of services does he still need the sign the final divorce papers and also am I suppose to send both him and the district clerk a notice of hearing ? I already have a court date I’m kinda lost in what to do from here and this is here in texas

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Daisy
July 24, 2019 at 8:15 pm

I’m in the army stationed in Hawaii but am a resident of Texas. Can I still file through the state of Texas? That’s where I got married.

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1. Post
  Author
  
  txdivorce
  August 5, 2019 at 3:06 pm
  
  Yes, you should be able to file in Texas. When you are relocated by the military, your Texas residency/domicile is not revoked.
  
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Lee
July 19, 2019 at 11:07 pm

My wife and I agree (with some disgust) to the terms of our divorce. I filed the initial paperwork and we are ready to complete and sign the final decree. The majority of the money that she is getting from our investments is from an Inheritance IRA that I received from my mother when she passed away. I’m keeping my personal IRA and she is keeping her IRA. My mother was over 70 when she died so the inheritance IRA is open to withdrawing the funds. Will I need to file a QDRO form for that IRA, even though it is an inheritance IRA and is open to full withdrawal? Thank you for your help.

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Bridget McAlister
July 11, 2019 at 2:19 am

I filed for divorce 2005 with a lawyer and they said they would handle everything but they didn’t. I dont have a divorce decree on file what should I do?

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1. Post
  Author
  
  txdivorce
  August 5, 2019 at 3:08 pm
  
  I would suggest hiring a new family lawyer to finish the divorce and look into the possibility of filing a grievance if applicable.
  
  Reply
Grace Niu
July 2, 2019 at 1:43 pm

We have been married for more than 25 years, now getting divorce. My husband agreed to split his IRA account to me, I was told QDRO doesn’t work for split IRA, then what kind of words I should put on final divorce decree to avoid to be charged 10% penalty and taxes for transferring IRA money to other name?

Thanks in advance!

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Cheslee Trammel
June 26, 2019 at 9:47 am

Hello, I filed for a divorce and my spouse did not file his response. I have a final hearing set up will he have to attend? If so and he doesn’t what does this mean for me? Will I be able to finalize my divorce?

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1. Post
  Author
  
  txdivorce
  August 5, 2019 at 3:15 pm
  
  The respondent spouse does not have to attend the prove-up hearing, but the judge will require that you prove that your spouse was given notice of the divorce in accordance with Texas law. Normally, this is done by getting respondent’s signature on a waiver or hiring the constable to hand-deliver the petition to your spouse. If (1) notice was given in accordance with Texas law, and (2) your spouse does not file a response, you can file a motion for default judgment. This is something best done by an attorney. If your spouse is willing sign a waiver and the decree, you can have the hearing without the presence of the respondent spouse. I would suggest reading our article titled “What do I do if my spouse will not respond to the divorce?“
  
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Victoria
May 6, 2019 at 7:29 pm

I haven’t received any Return of Service ever since my husband got served. What do I do?

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1. Post
  Author
  
  txdivorce
  May 13, 2019 at 12:05 pm
  
  The return of service may have been filed directly with the clerk’s office by the process server/constable.
  
  Reply
Shanna
April 20, 2019 at 2:27 am

My divorce was final 08/2018. I was awarded a vehicle and all proper documentation but the final decree omits the VIN number and ex refuses to cooperate. What can I do?

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1. Post
  Author
  
  txdivorce
  May 13, 2019 at 12:08 pm
  
  You’ll want to speak with your/an attorney about filing a motion for enforcement.
  
  Reply
Brenda Williams
April 17, 2019 at 11:34 am

I’ve filed the divorce papers and my husband has signed them. When I filed them I asked whether the court would contact me. The lady said it is up to you to get in touch with the court. Who do I contact and what am I contacting them for?

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1. Post
  Author
  
  txdivorce
  May 13, 2019 at 12:14 pm
  
  You’ll need to set a hearing to “prove-up” the divorce decree. Every court handle’s prove-ups a little differently, so you’ll need to call the court or the clerk and ask how your particular court handles prove-ups. Typically, there is a day of the week or perhaps hour of the day in which the court will set prove up hearings (or allow you walk in first come, first served basis).
  
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Rosi
April 16, 2019 at 3:06 pm

If we both agree to the divorce and agree on the custody of our child about how long will it take to get a divorce

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1. Post
  Author
  
  txdivorce
  May 13, 2019 at 12:16 pm
  
  The length of time a divorce takes depends on the court, but generally speaking 60-70 days is good starting place.
  
  Reply
Jeffry A Carr
January 27, 2019 at 3:30 am

Me and my spouse have been separated for going on 6 years this March, we have filed 3 times. First I filed and had paid for an attorney but the court threw it out. Second time she filed and the court threw it out put again but the judge wouldn’t give an explanation as to why, and the final time I did last week and the same result again and no explanation or idea why he will not except the divorce. She has had 2 other children since out seperation by another man which has claimed responsibility and is on the birth certificate. We both have a daughter together and are best friends and aren’t fighting for anything. Why won’t they let us get a divorce?

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Dave hustead
January 21, 2019 at 2:19 pm

My spouse filed for divorce and we missed our court date how long does her attorney have to get the papers back into the court to get a new court date

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Debbie
January 20, 2019 at 9:32 pm

I am 63 years old and have been married for 44 years to my 65 year old husband. I am still working as a teacher. My husband was laid off 3 years ago and does not work because he says he is retired and does not want to. If I divorce him, will I have to pay him alimony? I work as a teacher and I will be needing my salary to support myself.

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Chris
January 9, 2019 at 12:27 am

My wife wants a divorce, I want to reconcile. She has repeatedly told me “you WILL divorce me” and “give me my papers”, and has demanded that I be the one to file (even though she’s the one who wants it and I don’t). I have objected/refused for a while, but after a huge argument tonight, I finally gave in and told her I would. Aside from keeping my word to her, what obligation do I have to file, if as the “Petitioner” I am legally regarded as “the person asking for a divorce”, yet I’m not actually the one asking for a divorce and I’m only filing because she’s the one who wants a divorce but refuses to be the one to file?

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Heather
November 12, 2018 at 1:55 am

My husband moved to Texas a little over 6 months ago. My young child and I moved later (not yet 6 months). I am from Ga where we spent the first 7 years of our marriage until moving to TX. I have no family or friends here yet so no one to count on for emotional support. I’m a stay at home mom. Since I am not a resident of Texas yet would there be any chance of my filing for divorce in GA where I have support and more opportunity to begin rebuilding my life. I found out this was his “master plan”. He asked for a divorce 61 days after acquiring residency though no papers have been filed. He desperately wanted to move to Texas and I reluctantly followed him since I had no way to support myself at the time. I’m in counceling for domestic violence (severe verbal). I’m I destined to have to live in Texas with no hope of returning home to GA due to custody/visitation laws?

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