Frequently Asked Questions in Texas Divorce Cases

The Texas divorce process can be a confusing, emotional, and stressful maze to navigate. It does not help that for many people they do not know what to expect and there is a lot of false information available. This blog article is intended to help answer many of the frequently asked questions asked by many of my clients and potential clients.

Does one spouse have to be at fault in order to obtain a divorce in Texas?

No, Texas is what is called a no-fault state. This means a spouse can file for divorce under the ground that the marriage has become insupportable. This means a standard clause is placed in the Original Petition for Divorce that "the marriage has become insupportable because of a discord or conflict of personalities that destroys the legitimate ends of the marriage relationship". In other words the spouse asking for the divorce wants a divorce.

What is an uncontested divorce?

An uncontested divorce means that both parties have reached an agreement on the following:

  1. Both spouse agree to be divorced
  2. Parental decision making responsibility for thing such as medical decisions, educational decision, psychological decision for the children, etc.
  3. parental visitation
  4. the amount and duration of child support
  5. the amount and duration of any spousal support (alimony)
  6. the division of property, and debts.

For more information on an uncontested divorce check out my blog article Uncontested Divorce Attorney in Spring, Texas.

Who is the Petitioner in a Divorce in Texas?

The petitioner is the term used for the spouse who starts the case by filing an Original Petition for Divorce.

Who is the Respondent in a Divorce in Texas?

The Petitioner in a divorce is the spouse who starts the case by filing an Original Petition for Divorce. The other spouse is called a Respondent because they can respond to the Original Petition for Divorce by filing an answer.

Where can I file for Divorce?

You can file for divorce in either the county in which you or your spouse has lived for at least 90 days, as long as that same spouse has lived in Texas for at least six months.

Do both husband and wife need to live in the county where the divorce is filed?

No. Only one party must live in the county where the divorce is filed. This means a spouse can either file in the county where they are living or the county where their spouse is living.

In either of these scenarios the party who is being used to meet residency requirements must have lived in that county for 90 days and have lived in Texas for 6 months.

What is an Original Petition for Divorce in Texas?

A divorce is started in Texas by filing an Original Petition for Divorce,

What is a waiver of service in Texas?

It is required under the Texas Family Code requires that a spouse be notified when a divorce case has been opened. One method for doing this is to have them served by a process server. Another method under the Texas Family Code is if they are willing to sign a Waiver of Service. A waiver of service is a document the Respondent spouse signs waiving the requirement for service. By signing the waiver of services, the spouse agrees that it is not necessary to have them served by a process server.

How long does it take to get divorced?

There is a mandatory 60-day waiting period in Texas from the time the divorce is filed until you are eligible to appear in court to finalize your divorce. However, unless you are agreed on all issues as discussed above in an uncontested divorce, it could take longer. You can read more about the answer to this question in our article How Long Will My Texas Divorce Take?

The time frame could be anywhere from 61 days to 6 months if you are agreed. If you are not agreed it could take up to several years in a highly contested matter. The more you are able to agree between you and your spouse the shorter the time frame will be for the divorce.

What is an Agreed Final Decree of Divorce in Texas?

An Agreed Final Decree of Divorce is the document that Judge signs ending the divorce and approving the agreements that you and your spouse have made regarding all of the specifics of your divorce.

How is property divided in a Texas Divorce?

The Texas Family Code requires that the Court divide the community property of the divorcing spouses "in a manner that is just and right." This means the Court does not have to divide the property 50/50 and can consider relevant factors in deciding what is "just and right." These factors can include:

  1. fault in the divorce
  2. disparity in earning power
  3. disparity in amount of separate property
  4. Physical Condition, Health
  5. Unusual Gifts To Third Parties Or Paramours
  6. Etc.

Just and right does not mean that community property or debt must be divided equally. The Judge can consider the above factors, fault, and size of your or yours spouse's separate property estate when making his decision on what is just and right.

What is considered community property and community debt?

Texas is a community property state. Community Property in Texas is created at the time of marriage. At the time of marriage three independent estates are created. These estates include the husband’s estate, the wife’s estate, and the community estate. At the time of divorce the Courts determines the characterization of property as either separate or community property.

In other words, all property owned by either married party during the divorce is presumed to by property of the marriage no matter whose name is on that property. Likewise any debts are presumed to be community debt.

Although Texas Courts do not have authority to characterize separate property, the Family Courts have authority to make a just and right division of the community estate in the absence of a pre marital agreement. Community property in Texas is everything a husband and wife own together. This typically includes all money earned, debts incurred and property acquired during marriage. Separate property is all property that was acquired before marriage. Here are some key things to know about community property in Texas.

You can read more about community property and community debt in our article "His, Hers and Ours - Texas Divorce."

What is considered separate property?

In general, Texas Community Property is property acquired by either spouse during the marriage.

There is a rebuttable presumption that all property owned at marriage is community property.

To rebut this presumption, spouses must provide clear and convincing evidence that a asset is separate property in Texas.

Separate Property in Texas is

  1. property acquired before marriage,

  2. property acquired during marriage by gift, devise or descent

  3. property acquired during marriage, but purchased with separate property funds

The reason why it matters is that separate property will not be divided because it is not marital property. You can read more about this topic in our article "Why is Separate Property Important and How to Keep it Separate in a Texas Divorce?"

Will my spouse need to appear in court in order to finalize the divorce?

If the divorce is uncontested, only the person who filed for divorce will need to appear.

This means that either:

  1. The person who does not appear will need to have signed and have notarized a Waiver of Citation or
  2. May have been served with citation and then signs the final divorce decree

What is a common law marriage in Texas?

In Texas a common law marriage exists when the following elements are met:

  1. a man and woman have agreed to be married;
  2. after an agreeing to be married the spouses lived together as husband and wife in Texas; and
  3. the spouses have held themselves out as being married to the public

The fact that you live together or have children does not automatically mean you are common law married. The facts and circumstances of each case must be evaluated in order to determine whether a common law marriage exists. You can read more about this topic in our article "Common Law Marriage and Texas Divorce Guide."

Can I get a common law divorce in Texas?

No. there is no such thing as a common law divorce. If there is a valid marriage in order to be divorce you must go through the same divorce process as everyone else. I discuss this question further in my blog post How to get a Common Law Divorce in Spring, Texas.

How do I get a legal separation in Texas?

Texas does not have legal separation. You are married until the Court grants your divorce, and there is not much room in the middle. You can read more about this topic in our blog article "Legal Separation in Texas?"

Many other states offer legal separation or even require a legal separation prior to a divorce that is not the case in Texas. If you need to protect your interest regarding property or children while being separated from your spouse you will need to file for a divorce and obtain temporary orders. In Texas there is no requirement of separation prior to filing for a divorce.

What if I don't know where to find my spouse?

In Texas, you must make every effort to notify your spouse of divorce proceedings. You cannot get a secretdivorce. If you cannot find your spouse you will still be able to get divorce. However, you will need to obtain permission from the court to publish a notice of the divorce in the newspaper or post a notice in the courthouse. This is called a Motion to Serve by Publication or Posting.

However, be aware that a publication divorce takes longer, is more complicated, and more expensive.

In many cases, the court will appoint an attorney to represent the missing spouse. This attorney try to locate the missing spouse and then will make a report to the Court of their progress. Additionally, the attorney fees for this lawyer representing your missing spouse will be your responsibility.

What if one spouse does not want a divorce?

Texas is a no fault divorce state. This means in Texas if one spouse wants to be divorce and the other spouse does not Texas will still grant a divorce to the requesting spouse. In Texes anyone who wants to be divorce can obtain a divorce any reason or no reason.

What if my spouse will not sign the divorce papers?

If your spouse will not sign the divorce papers, you do not have an uncontested divorce.

In this case, your spouse will need to be served with the papers by a process server. This is an additional expense to hire a process server and have your spouse served.

What if my wife has had children with someone else since we were married?

This is an additional complication because the presumption in Texas, is that all children born during a marriage are considered children of the marriage.

In this situation either the father of the children will need to be willing to sign papers establishing his paternity or if he refuses to do so, it will be necessary to get a court order to force him to take a DNA test.

How much child support should I expect to pay or receive?

There is a formula used to calculation child support. At its simplest form to calculate child support it is necessary to determine the net income of the person paying it. Then Texas law says the amount of child support to be paid is a percentage of that net income. Then it is necessary to determine how many children are before the court and then apply the appropriate percentage to the net income. For the 1st child it is 20% of the net income. For each additional child add 5% so for 2 children it would be 25% for 3 children 30% and so on.

Do I have to pay or receive child support?

Yes, in most cases a court will not approve a divorce with no child support provisions. In some circumstances there are ways to get a divorce decree approved with no child support if both parties agree and are willing to attend mediation and sign a mediated settlement agreement with ano child support provision.

What is considered "standard visitation” or a Texas Standard Possession Order?

Standard visitation in Texas is considered to be:

  1. The 1st, 3rd, and 5th weekends of each month starting on Friday at 6:00 p.m. to Sunday at 6:00 p.m.
  2. Every Thursday during the regular school year from 6:00-8:00 p.m.
  3. Alternating holidays
  4. 30 days during the summer

For more information on standard visitation or a Texas Standard Possession Order check out my blog article Texas Parental Visitation – Texas Standard Possession Orders in Harris and Montgomery County, Texas – Part 1

Can I have "50/50” possession of the children?

Without an agreement by you and your spouse, probably not. “Week on, week off” sounds good in theory, but it usually does not work in the long run. This is because you and your spouse will probably remarry within a year or two after your divorce, or you will probably relocate several miles away.

This causes significant problems when the children reach school age. If you and your ex-spouse live in different cities, who decides where the children attend school? Can you travel 30 miles to deliver and pick up the kids from school each day? Who gets the tax deduction for the kids? These are just a few of the problems you will encounter. There are better options that we will discuss with you. You can read more about the answer to this question in our article Can I Get 50/50 Time with My Children?

Can we split custody of our Children?

Yes, by agreement. But without an agreement by both spouses judges most likely will not separate the children. Family Law Courts generally honor a child’s preference of which parent the child wants to live with, if the child is 12 years or older. However, the court may reject the child’s preference if the judge thinks that it would not be in the child’s best interest.

What are four things that will guarantee problems with me getting custody or unsupervised visitation of my kids?

Drug use, family violence, child neglect or child endangerment, and dating a sex offender.

Can I move wherever I want to with my kids if I file for divorce or SAPCR?

Generally No. Geographical restrictions on your residence have become the standard for most Texas Courts. Absent agreement by your spouse, you will not be allowed to relocate out of the county in which your divorce is granted, (or surrounding counties). For example, if you live and divorce in Harris County, you will be required to live in Harris County or the counties that border Harris County. You can read more on this topic in our blog article "Can a Parent remove My Child from the state of Texas or from the County or Country where I am living?"

Why cant I move where I want to?

This is because the Texas Family Code believes that is in your child's "best interest" that your ex-spouse continue to have a relationship with your children. The fact you do not like your ex-spouse is probably does not matter.

Can I get child support and custody of my kids if we were never married?

Yes. You can get child support and custody of your children in the State of Texas even if you were never married. This type of case is called a Suit Affecting Parent Child Relationship or “SAPCR” or a Paternity case.

Does my 18 year old child still have to go with their other parent on the weekend for court ordered visitation in Texas?

No. for more information check out my bl article Does my 18 year old child still have to go with their other parent on the weekend for court ordered visitation in Texas?

What is an annulment?

In some instances a person may want and be able to get an annulment rather than a divorce. An annulment and divorce are different. A divorce ends a valid marriage. An annulment would mean you were never married in the first place.

With an annulment there is not a 60-day waiting period. However, an annulment, there requires that certain statutory grounds, such as:

  1. Marriage Under the Age of 14;
  2. Marriage Under the Age of 18;
  3. Under Influence of Alcohol or Drugs;
  4. Fraud & Duress;
  5. Impotency;
  6. Mental Incapacity.

An annulments are harder to get and are just as expensive if not more so then a divorce.

How can I change my name or my spouse's name back to their maiden name?

If you or your spouse wishes to have their name changed it is simple matter to do during the divorce. An additional clause will need to be included in the divorce papers. Additional a couple extra questions will need to be asked when proving up the divorce.

The name you or your spouse chose will need to be any name previously used. If you or your spouse wants a name that was never used before than it cannot be accomplished through the divorce process and will need to be separate cause of action.

Do I have to change my name or can I force my spouse to change their name after the divorce?

No, there are no requirements for you or your spouse to change their name after your divorce. This is a personal decision and up to you or your spouse.

How do I get a certified copy of my decree of divorce in Harris County?

If you let us know we will happy to help you obtain a certified copy of your decree of divorce. Otherwise

  1. You may order a copy from the district clerk on the 2nd floor at 201 Caroline, Houston TX 77002.
  2. You may also order it from the District Clerk’s Website at www.hcdistrictclerk.com

How do I get a certified copy of my decree of divorce in Montgomery County?

If you let us know we will happy to help you obtain a certified copy of your decree of divorce. Otherwise

You may order a copy from the district clerk at 301 North Main, Conroe, TX 77301

How do I get a court date to finalize my divorce?

Once your 60 days have passed AND you have in your possession the signed and notarized documents from your spouse, you should call our office to set up a court date. Court dates are generally set up for Friday mornings at 8:30.

What happens when I appear in court to finalize my divorce?

You and one of the Spring, TX Divorce Lawyers at the Law Office of Bryan Fagan will appear before the judge and answer a few questions.

How should I dress when I go to court?

It is not necessary to wear a suit or a dress to court. However, you will need to dress neatly. Shorts, sleeveless t-shirts, and flip-flops are not appropriate. Slack or pressed jeans and a t-shirt with a collar are acceptable.

Where is my court located in Harris County?

Harris County, Texas Family Law Courts and addresses


Where is my court located in Montgomery County?

Montgomery County, Texas Family Law Courts and addresses

What time should I arrive at the courthouse to prove up the divorce?

You will need to arrive in the courtroom by 8:30 a.m. Have a seat in the courtroom on or near the back bench. Wait for a Spring, TX Divorce Lawyer to arrive from the Law Office of Bryan Fagan to arrive and call your name. Please do not leave the courtroom. One of our attorneys may have to appear in other courts before they get to your court. If you leave the courtroom, we may not be able to find you and your court date may have to be rescheduled.

What if I need a translator in court?

If a translator is needed then arrangement will need to be made to ensure a translator is present. Some courts require a certified translator.

Can my spouse sign the papers and then get them notarized?

When your spouse signs the papers they will need to be a presence of notary public. They cannot be signed and then notarized if your spouse is not present at the time they are to be notarized.

Should notarized papers be returned to the attorney's office prior to my court date?

Yes, in Texas the courts now require e-filing and do not accept paper documents. Please, drop off, fax, or e-mail The Law Office of Bryan Fagan the signed Waiver of Citation and Final Decree of Divorce so that we can e-file them.

Do I have to include the legal description for real estate and the VIN for my vehicles in the divorce papers?

Yes, they must be included in the divorce decree. If you did not provide us with this information and we have to find it without your help this can increase the cost of your divorce.

Where can I find my legal description and vehicle identification number?

The legal description for real estate may be found on your deed or on the county appraiser website such as hcad.org. The vehicle identification number may be found on your vehicle title or on your vehicle insurance card.

What if my case is set for trial?

If an agreement regarding your divorce can not be reached between you and your spouse a court will set it for trial. Should this happen depending on the court you and your spouse may be ordered to attend mediation prior to the trial date. This is another chance to reach an agreement. If no agreement can be reached then a trial will be necessary.

What happens at the trial?

A trial is a final court hearing. All issues must be presented to a judge. If there are issues that are agreed upon you can let the court know what the agreement is. If there are issues that are contested those issues must be presented to a judge or jury that will make the final decision.

The issues are presented through testimony of the parties, presenting evidence, and witnesses. If you are having a trial before a judge the judge will decide both child and property issues. If the case is before a jury only certain issues will be decided by the jury (character of property, whether or not there is a common law marriage, and custody of children) the remaining issues will be heard by a judge.

When is my divorce official final?

  1. A divorce is finalized when the judge says you are divorced on the day your appear before the judge to prove up your divorce.
  2. However, your divorce is considered final for purposes of appeal on the day the judge signs the final decree.

These two dates can be different.

What if my spouse is in prison or jail?

You will still be able to get a divorce. Your spouse may voluntarily sign the divorce papers agreeing to the divorce. If they do not it will necessary for them to be served with the divorce papers at their place of incarceration. You can read more about this topic in our article "Getting a divorce in Texas when your spouse is in jail."

Will I be required to attend parenting classes?

Many court require that you and your spouse attend parenting class before a divorce will be granted. Please make sure to complete this class and provide us with a copy of the certificate showing that you have completed the class prior to the time your case is to be proved up.

Where may I attend parenting classes?

Parenting classes in Harris County and Montgomery County for Family Law Cases in Texas

How long after my divorce is final do I have to wait to get remarried?

There is a 30 day waiting period after the date that your Decree of Divorce is signed. The Judge does not always sign the Decree on the same day that you appear in court.

In certain cases a Judge will waive the 30-day waiting period if good cause shown. This requires filing a motion to request the judge to do so. Another reason why you need to wait 30 days to remarry is because the parties may appeal a divorce within the 30 days after the date the divorce decree is signed by the judge.

Can I marry more than 5 times?

Yes there is not a limit on the amount of times you can be married. However, you can only be married to only one person at an given time.

Who Gets the Family Pet in a Divorce in Texas?

A Court will base their decision on property law in Texas unless you are able to show that your pooch should be considered your separate property. You can read more about this topic in our blog article "Who Gets the Family Pet in a Divorce in Texas?"

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Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.

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Law Office of Bryan Fagan
Spring Divorce Attorney
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Houston, TX 77068
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