In Texas in its simplest form a divorce terminates a marriage giving a
married couple the legal right to marry another person.
What many people do not know is that a divorce is a lawsuit that does more
than end a marriage. A
Texas Divorce takes care of three things which are:
Property - divides marital assets and debts
Children – determines rights and duties of parents toward children, parental
visitation, and establishes child support and
Marriage – ends the marriage
Texas Family Law Cases are heard by District Courts that have a primary responsibility of for
law matters and these courts are known as “Family Law District Courts.”
In smaller county’s this may not be true and the cases may be heard
by county courts at law. In smaller county’s these courts may also
hear other types cases then just
family law cases.
No Fault Divorce
Like most states,
Texas’s “no fault” divorce statutes allow for the marriage to be dissolved without allegations and
proof of fault.
This means there is no need for the court to decide which spouse was the
source problem for the failure of the marriage. With a “no fault”
Texas divorce, the marriage is dissolved because it had become “insupportable”.
Other Grounds for Divorce
In Texas, you can ask the court to give you the divorce because it was
somebody's fault. If fault is proven then when a court gives a divorce
for "grounds," a court may give more of the community property
to the "innocent" spouse.
Fault Grounds under Section 6 of the Texas Family Code Include:
- living apart
- confinement in a mental hospital
- Conviction of a felony and
Legal Separation in Texas
Legal separation is a concept that provides a middle ground between marriage and
divorce. Some states have enacted statutes and enforce laws that allow or even
require spouses to legally separate before divorcing. However, Texas does
not recognize legal separation. In short, persons in Texas are either
married or they are
Although Texas does not have a statute regarding legal separation when
a couple has minor children Texas does have a law allowing people to seek
court orders regarding the children even when the couple is still married.
A parent can file a “Suit Affecting the Parent Child Relationship” (SAPCR) asking a Court to establish provisions regarding:
- Child Support
- Rights and Duties
Under Texas Family Code Section 6.301 for a divorce action to be commenced
in Texas Divorce Court, one of the spouses must have been domiciled in
Texas for 6 months or more and a resident of the county in which the suit
is filed for the preceding 90-day period.
This is a jurisdictional requirement without which a Texas Court would
have no legal power to dissolve the marriage.
In general, “domiciled in Texas” means at least one spouse
is a permanent resident here. For those who leave the state temporarily
or who have second homes elsewhere, Texas must be the place of permanent
or indefinite domicile.
In Re Green, 385 S.W.3d 665, 669 (Tex.App. -San Antonio 2012) “The test for residence
or domicile typically involves an inquiry into a person’s intent.
In Texas, there are two special statutes for military personnel regarding
residency and domicile.
The first one is Texas Family Code Section 6.304. Under this statute a
person not a resident of this state who is serving in the armed forces
of the United States and has been stationed in this state for at least
six months and at a military installation in a count of the state for
at least 90 days is considered a Texas domiciliary and a resident of that county.
This is helpful for a military service member or their spouse seeking a
divorce because they may not be technically a permanent resident of the state
under cause law because he or she may not intend to reside here indefinitely
The other helpful statute is Texas Family Code Section 6.303. Under this
statute If Texas was the domicile of a military member or Federal Employee
when they left Texas to serve outside of Texas, that person is still able
to file for
divorce in Texas.
Proper Venue or Where to File
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.
This is one of the things I discuss in my blog article “does it Matter
who Files First in a
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.
Jurisdiction Over Children
Under Texas Family Code 152.201 a new case can be established regarding
a child if:
- The State is the “Home State” of a child on the date the commencement
of the proceeding.
- A court of another state does not have Jurisdiction or has declined Jurisdiction
Under the Texas Family Code Section 152.102 Texas has defined “Home
State” to mean “the state in which a child lived with a parent
or a person acting as a parent for at least six consecutive months immediately
before the commencement of a child custody proceeding.
In the case of a child less than six months of age, the term means the
state in which the child lived from birth with a parent or a person acting
as a parent.”
A Texas Court also has to take into consideration the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA). This act adds an additional
Texas family law judge does not have jurisdictional authority to decide matters over
child custody and
child support without a greater period of residency – that is, six months.
The Texas Superior Court’s subject matter jurisdiction over child
custody and child support issues depends upon the answers to the following
- Whether Texas is the place where the child has lived for the most recent
six months (“home state” jurisdiction); or
- Whether Texas has the most significant connection with the child and at
least one parent; or
- Whether the child is physically present in Texas and needs protection based
on abandonment or some emergency; or
- Whether no other state is able to assert jurisdiction (or chooses not to
assert jurisdiction if it could), and it is in the child’s best
interests for Texas to assume jurisdiction.
If a Texas court does not answer in the affirmative to one of these threshold
jurisdictional questions, then the case with children will be dismissed.
The court is not really concerned with what the parties want in this regard
because there is a bigger issue involved. If the court lacks subject matter
jurisdiction, then it has no legal authority to render a decision over
child custody and
child support — lack of subject matter jurisdiction requires dismissal of the action.
Petitioning for Divorce
When filing for a
divorce in Texas the person filing is called the Petitioner and the person who is served
with the petition is called the respondent. The purpose of the petition
is to give notice to the family court and your ex what you are asking for.
The Original Petition for Divorce will include the following information:
- Personal information about both parties: full names, last the 3 number
of the Social Security Number, Last 3 numbers of driver’s license,
and service address of respondent.
- Date of marriage
- Date of Separation
- That the “the marriage has become insupportable because of a discord
or conflict of personalities that destroys the legitimate ends of the
marriage relationship” with “no reasonable prospect of reconciliation”
- One or both spouses has been domiciled in Texas for at least 6 months and
a resident of the county for the last 90 days.
- Personal information about all minor children born to or adopted by the
couple and whether they have property.
- What kind of Orders you are asking the Court to make in regards to the
children as to rights and duties, visitation, and child support.
- Information about whether the wife is pregnant or not
- Information regarding assets and debts, including marital and separate property.
- Statement of what assets should be given to which spouse (bank accounts,
real property, household furnishings, retirement accounts, vehicles, etc.).
- Information about the debts incurred during the marriage and which spouse
should be obligated to pay each debt.
- Request for spousal maintenance if you are seeking spousal support
- Has a protective order been sought or is one in place
- Are you seeking a name change?
- A prayer for the relief sought, including court orders to dissolve the
marriage, restore a former name, order spousal maintenance, order child
support, and so on.
The Petition for Dissolution of Marriage is filed with the district clerk
in county in which one of the parties meet the residency requirements
along with the filing fee which is between $300-$400. Once the petition
is filed, the other party must be notified of the
family law case.
Changing Your Name
Under Section 6.706 of the Texas Family Code if you wish to have your name
restored to your maiden name or other previous name during a
Texas Divorce, then you can request a name change in the petition.
If, at some point after the
divorce is final, your or your former spouse decide to change their name, then
you will need to file a separate lawsuit for an adult name change of Name
change. This is a more expensive process involving a criminal background check.
Service of Process
To comply with Rule 106 of the Texas Rules of Civil Procedure, the Original
Petition for Divorce and court citation must be served on the other spouse.
This is referred to as “service of process.”
If service is not accomplished as required by law, then the court’s
orders are invalid and unenforceable. Service of process, then, is not
something that should be done, it is something that must be done.
Proper service per Rule 106 is essential for the case to advance. The opposing
party is entitled to legal notice of a lawsuit so that he or she can respond
within the requisite time and protect his or her rights and interests.
The requirement of proper notice of the lawsuit by service of process ensures
fairness in the proceedings. “Proof of service” is evidence
filed with the court that the other party was properly served by one of
the following four methods:
Personal Service – a true copy of the citation and divorce paperwork was personally
deliver to the respondent by a sheriff or private process server. The
process server or sheriff completes an “Affidavit of Service”
which is filed with the court as proof of service.
Mail - Service by registered or certified mail, return receipt requested
Service by Publication - When other methods of service have failed a petitioner can ask the Court
for permission to service respondent by publishing a legal notice advertisement
in a newspaper of general circulation.
Once the other party has been served with the Original Petition for Divorce,
they have the Monday next after the expiration of 20 days to file a written
answer with the Court.
When the other party does not file a responsive pleading within the requisite
time period, the Petitioner proceed with the
divorce by seeking a default Judgment.
Texas has a 60-day waiting period from the time the Original Petition for
Divorce was filed the court and grant a divorce. Thus, technically the
soonest a divorce can be granted is 61 days unless there has been family violence.
Default divorces are certainly not uncommon in Texas. When no responsive
pleading is filed by the other spouse (who was properly served with process
under Rule 106 of the Texas Rules of Civil Procedure), the Petitioner
may proceed with the divorce by seeking a default judgment.
The Petitioner brings to the default hearing the following documents:
- Divorce Decree
- Wage Withholding Order
- Medical Support Order
- BVS Form
- Child Support Information Sheet
- TFC Section 105.006 Information Form
- Court Report Information Form
- Certificate of Last Known Address
- Service Member Civil Relief Act Affidavit
When a response is filed with the court by the other spouse, then the
divorce process continues.
When the spouses are able to enter into a written settlement agreement,
they may be granted an
uncontested divorce by the family law judge, avoiding further litigation and trial.
With an agreed decree, the case is fully resolved and finalized. If the
spouses are unable to reach an agreement on all basic issues in the divorce,
then the parties proceed through all phases of litigation, including trial.
divorce process, the parties may avail themselves of
Alternative Dispute Resolution (ADR), such as private
mediation, to resolve as many issues as possible without court intervention. If
a divorce is highly contentious and the dispute involves children, the
judge may order an amicus attorney to represent the children and make
a recommendation to the Judge.
If you want to know more about what you can do,
CLICK the button below to get your
“16 Steps to Help You Plan & Prepare for Your Texas Divorce”
Other Articles you may be interested in:
- Getting Ready for Divorce in 2017 in Texas: Part Two of a Two Part Series
- Dividing Property in a Texas Divorce - The Just and Right Division
- Why is Separate Property Important and How to Keep it Separate in a Texas Divorce?
- What Wikipedia Can’t Tell you About Texas Divorce and Marital Property Division
- Texas Divorce Property Division Enforcement
- Separate Property in a Texas Divorce?
- Does it Matter Whose Name is on Title or Deed of Property in a Divorce in Texas?
- Is Social Security Considered Separate Property in a Texas Divorce
- Business Owners and Business Assets in a Texas Divorce
- What to do when your divorce decree does not include a marital asset?
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.
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,
The Woodlands, the FM 1960 area, or surrounding areas, including
Fort Bend County and