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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. 

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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 fo