Texas divorce law allows an amicable parting of ways in an “uncontested” dissolution. The “petitioner” filing for divorce or the “respondent” being served with divorce must have (i) lived in the Lone Star state for the last six months and (ii) resided in the same Texas county in which divorce is filed for the last 90 days. Chapter 6 of the Texas Family Code sets forth the grounds for divorce as well as one “defense” available only for parties seeking reconciliation.
Although divorce is not “simple” for a couple on the outs, those who have no children or disputed assets may try filing themselves through a process called E-Filing made available through Texas family courts. Alternatively, petitioners and respondents may seek independent counsel to defend their interests in mediation before finalizing any support agreements. This article takes readers through the main steps in the Texas divorce process. For more help, consult the Texas divorce attorneys of the Aberdeen Law Firm today.
Step 1: Texas Grounds for Divorce and Defenses
Familiarize yourself with the state’s residence requirements and get an overview of the divorce process. Under Texas Family Code Section 6.001, the most common ground for divorce is “insupportability.” This refers to irreconcilable personal “discord or conflict” destroying both the marital relationship and reasonable prospects of reconciliation. Other bases for divorce include:
- Adultery–divorce may be granted in victim’s favor
- Cruel treatment making cohabitation intolerable
- Conviction of a felony or one-year imprisonment
- Abandonment, remaining away at least one year
- Living apart (legal separation not necessary) at least three years
- Confinement in mental hospital for disorder with likely relapse
The Texas legislature abolished most defenses to divorces alleging fault. Only one remains. The defense of “condonation” survives, but only if the court finds reconciliation is reasonably expectable. On the other hand, Texas has also made divorce more efficient by allowing couples with no shared children or assets to electronically file an uncontested divorce.
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Step 2: Complete and Serve the Right Forms in Texas
Those who meet either the six-month state residency requirement or the 90-day county requirement will then want to complete and serve the correct forms. Although Texas law has only one “official” divorce petition, there are four categories of initial forms for couples with:
- No children, no property
- No minor children
- Minor children involved
- Minor children with final custody order
A simple “uncontested” divorce involving no assets or children requires filing the following forms–along with the correct filing fee–in the Texas family court with authority over the parties:
- Original divorce petition
- Waiver of formal service
- Change of new address
- Affidavit of military status
- Affidavit of indigency
- Final divorce decree
The “original” petition informs the court how to rule on the final decree. In contested cases, the respondent may also file an answer or “counter-petition” making separate demands. The respondent may likewise waive official service of the original petition by a sheriff, constable, or private process server but should only sign after the original petition has been filed.
Step 3: File the Petition with Court in Texas
Petitioners should retain the original petition and make two copies to file in the district or county court. Depending on the location, the filing fee should range between $150 and $300. Those who cannot afford these fees should complete an affidavit of indigency before a notary to file with the petition for divorce. Because each court is distinct, you should ask the clerk about:
- Local standing orders governing attached documents
- Local rules that may affect your divorce case
- Completing a civil case information sheet
- Change of state records regarding marital status
- File-stamping your copies with date and time of filing
Be sure to retrieve both file-stamped copies from the clerk. You can change your official marital status by completing a Bureau of Vital Statistics form on “suit affecting the family relationship.” Spouses who waive formal service should wait one day after receiving the file-stamped copy to sign in front of a notary. Either party can then file the waiver of service in the same court.
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Step 4: Serve the Respondent
Texas divorce law requires legal notice to respondents who have not signed a waiver in one of three ways. First, registered process servers may personally deliver the petition for divorce or the court clerk may mail it by certified mail, return receipt requested. This “official” service is required absent a waiver. Official service of process may involve:
- Sheriff, constable, or process server completing a Return of Service form showing date, time, and location of service. They can file this with the court or give it to you.
- Court clerk sending certified mail with return receipt. The recipient must sign the green card upon receipt and send it back to you.
If you don’t know where your spouse is, you can post legal notice at the courthouse or by publishing in a newspaper. Texas Rule of Civil Procedure 21a also allows electronic service and sometimes, service over social media, in some cases. The deadline to prove legal service is 12 days prior to the final hearing. Parties that waived service must sign the final divorce decree within this time.
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Step 5: Issues of Marital and Community Property
Texas law recognizes community property acquired during the marriage and vulnerable to equitable distribution upon divorce. Equitable should not be confused with “equal.” The court applies its own standards, discussed below. Separate property generally refers to property acquired before the marriage and not covered by a premarital agreement. When dividing community property or debt, the judge will consider various factors including:
- Size of the other spouse’s separate assets in comparison to yours
- Any “fault” in causing divorce, showing “due regard” for each party
- Whether minor children should continue living in the marital home
- Offsetting award of home ownership with interest in other community property
- Available savings, retirement account, other real property or equity
- Claims for reimbursement of debts such as mortgage or credit card
Texas law refers to alimony as spousal “maintenance.” The judge will order this if the requesting spouse lacks sufficient resources to provide for “minimum reasonable needs.” The court may limit the amount and duration of spousal support to $5,000 per month or 20 percent of the payer’s gross monthly income, whichever is less. The duration is based on how long the parties were married.
Step 6: Child Support and Parenting Plan in Texas
In 2005, the Texas Legislature began requiring a “parenting plan” to accompany the final decree of divorce. The plan sets forth both parents’ rights related to conservatorship, child support, visitation, and plans to minimize future disagreements. Divorces involving children may also require resolution of conflicts involving:
- Coordination and facilitation of compliance with court order
- Duration of custody and support orders, especially for disabled kids
- Location of children’s primary residence versus “non-custodial” parent
- Appointment of sole managing conservator in cases of domestic violence
- Issues of long absences, abuse, neglect, final protective orders
- Court-mandated parenting courses prior to final divorce
The court must consider the children’s educational and health needs in arranging custody and support. To modify an existing order, the requesting parent must file a Petition to Modify the final divorce decree. However, courts will only grant modifications every three years and under limited circumstances. For example, if support payments would increase or decrease by 20 percent.
Because issues of child support and property distribution are complex, consult an experienced Texas divorce attorney before proceeding. Note that claims for reimbursement may not be applied to student loans or a child or spouse’s living expenses. They are also distinct from separate orders of child and spousal support.
Step 7: Prepare for Court
Once both parties have signed the final divorce decree, they should prepare to present their case before a Texas family law judge. Some judges will want to hear testimony. The court clerk can tell you when judges hear uncontested divorce cases. On the date of your hearing, you may also want to bring copies of the following:
- File-stamped copy of original divorce petition
- Final decree signed by spouse or copy of return service form
- Signed waiver of service or certificate of last known address
- Military status affidavit if applicable (to file with certificate of last address)
Before appearing in court, ask the clerk if you need to bring the court file, a docket sheet listing what has been filed so far, or any other evidence the judge may require. After reasonable attempts to locate a spouse prove unfruitful, you can bring a file-stamped copy of the certificate of last known address or military affidavit. The judge will then sign the final decree.
Step 8: Finalize Your Divorce in Texas
Note that 60 days must pass between filing the original petition for divorce and the final decree. During the 60 days, attorneys from both sides may participate in negotiation and mediation. A judge cannot sign until the 60 days have passed. At your hearing, the judge will grant the divorce and sign the final decree and any related orders. You must then file the final decree signed by the judge with the clerk’s office to finalize the divorce. You can request a certified copy for your records. Neither party can remarry until 30 days after the final decree is filed.
How a Texas Divorce Lawyer Can Help
Whether you need help filing for divorce, ensuring proper service, or arranging support payments, the talented Dallas family law attorneys at the Aberdeen Law Firm can help. Applying decades of experience, we aim to minimize the litigiousness of divorce proceedings while fighting for our clients. Call (855) 593-1497 for a consultation or contact us online.
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