Divorce Law

How to File for Divorce in Texas

Ending a marriage is difficult, but familiarizing yourself with Texas divorce law can help prepare you for this new phase. Some divorces can be straightforward, but others involve complex legal issues such as dividing up property or determining child custody and visitation rights. If there are children involved, there are added concerns of visitation, custody, and child support. Texas law for divorce provides its own individual filing requirements and fees for the divorce process, which an experienced divorce attorney can help you navigate.

Fault-Based and No-Fault Divorce in Texas

Generally, there are two types of divorce: fault-based divorce and no-fault divorce. Texas allows for both fault and no-fault divorces, which is not the case in all states.

In no-fault divorces, neither spouse has to prove fault or blame the other. Instead, most divorces in Texas are done on the grounds of insupportability. In other words, the marriage relationship has deteriorated. Most Texas divorces are no-fault divorces.

Fault-based divorce proceedings are relatively rare in Texas and require the spouse filing for divorce to prove that the other spouse is at fault for the marriage ending. When one spouse files a fault divorce, they are required to state fault grounds such as:

  • Committing adultery
  • Abandoning the other spouse for a minimum of one year
  • Being convicted of a felony crime
  • Subjecting the other spouse to cruel treatment
  • Being confined to a mental institution for a minimum of three years

Although someone can file for divorce in Texas on fault grounds, it is not required. They have the option to tell the court they cannot save the marriage because of irreconcilable differences.

Property Division in Texas Divorces

Texas is considered a community property state when it comes to the division of assets in a divorce. Community property states treat all property, including debt, acquired during your marriage as if it belongs to both of you until you are legally divorced.

However, there are some exceptions to this law, such as:

  • Inherited property or gifts
  • Property owned by one spouse before being married
  • Damages awarded from personal injury lawsuits

Since property division can be a contentious issue, you may want to hire a Texas divorce attorney to ensure your property rights are protected. Keeping detailed records of your property and other financial assets or debts helps protect yourself and the assets you wish to keep after your divorce.

Filing Requirements for Divorce in Texas

Residency Requirements in Texas Divorce Law

When filing for a divorce, either you or your spouse needs to have lived in Texas for a minimum of six months before you can officially file. When deciding in which county to file your divorce forms, it is crucial to note either you or your spouse have lived in that county for a minimum of 90 days.

Filling Forms with the County Clerk

To get started, you need to fill out your Original Petition for Divorce and bring two copies to file with the county clerk. This form includes information about you and your spouse, your marriage, and any requests you may have about:

  • Child custody and visitation
  • Child support
  • Property division
  • Spousal support

Some counties use their own unique form, but most use the Texas Supreme Court version. The filing fee depends on the county, but generally, the fee is between $200 to $300 to file your petition in Texas. Although you can begin on your own, it may help to seek legal advice from a Texas family attorney to ensure all your documentation is completed correctly.

The clerk will stamp your file and assign you a case number along with two copies of your divorce petition. One copy is for you to keep, which many people bring to their attorney, and the other needs to be served to your spouse.

Additional Orders When Filing for Divorce

When you file for divorce in Texas, you may also ask the court to issue a temporary restraining order or a protective order against your spouse. A restraining order prevents both of you from leaving Texas or damaging your community property in any way during the proceedings. A protective order is used to prevent your spouse from making contact with you. It is usually used in domestic violence cases.

Serving Your Spouse with Divorce Papers

Texas law requires you to serve a copy of your divorce petition on your spouse to properly inform them you are going forward with the divorce process. Texas has two ways in which you may serve divorce petitions:

  • Personal service: having a person eighteen years of age or older physically deliver the copy of your divorce forms and complete a proof of service form to show the court your spouse was served
  • Service by mail: sending the petition via certified mail and requesting a return receipt to prove to the court your spouse was served

Timeline for Texas Divorce Proceedings

Once you have successfully served your spouse with the divorce petition, your spouse has twenty days to respond or file an Answer with the court. There is a waiting period of sixty days for divorces in Texas before a divorce may be granted. The way your spouse chooses to respond, or not respond, will determine the timeline for your divorce.

Divorce by Default Judgment

If your spouse fails to respond after being served with your divorce petition, the case can still move forward. The court operates under the assumption that your spouse has relinquished their rights and participation in the case. When this occurs, the judge is more likely to grant most or all requests from your divorce petition after the sixty-day waiting period.

Uncontested Divorces

Suppose your spouse does file an Answer with the court and agrees with the requests made in your original divorce petition. In that case, it is considered an uncontested divorce or dissolution of marriage. The next step is for you and your spouse to create and sign a written divorce agreement and file it with the court clerk within sixty days.

Contested Divorces

If your spouse files an Answer disputing the requests you made in your original divorce petition, this is considered a contested divorce. Sometimes you and your spouse may need to go forward with mediation before the county judge is willing to hear your case.

If mediation does not resolve the issues at hand, you can proceed to trial for a judge to make decisions on the contested issues. After the issues are resolved in court, and the terms are in writing, the court may grant you a divorce. Contested divorces generally take longer than the sixty-day waiting period. They may take significantly longer depending on the complexity of the contested issues.

Annulments in Texas

You may wish to see if you and your spouse are eligible for an annulment, which can significantly expedite the process of ending a marriage. If granted, Texas law treats an annulled marriage as if it never legally happened. Some of the legal grounds for annulment in Texas include:

  • Incest
  • Underage participants
  • Bigamy
  • Force
  • Fraud
  • Intoxication
  • Impotence

If you and your spouse have children but wish to seek an annulment, there must be a separate suit to establish child custody, visitation rights, and child support. Talking to a Texas family attorney can help you determine the best course of action.