Frequently Asked Questions Regarding Filing for Divorce

I’m sure if you wanted, you could go online and search through 1,000 proverbs about beginning a process and you’ll find a few that mention that perhaps the most difficult step in that process is the first. Getting the “oomph” you need to take that first step and build some forward momentum is an underrated part of a divorce from the standpoint of difficulty.

Read on as we answer some of the of our most frequently asked questions regarding filing for divorce.

How do I begin my divorce suit?

An Original Petition for Divorce must be filed in the district clerk’s office and the required fees paid.

How Do I file for Divorce?

The first step in a Texas divorce action is for one spouse to file a Petition for divorce with the court. Some couples choose to engage in mediation or settlement negotiations first, but one spouse must file a Petition before the court will order a judgment of divorce.

The party who files the Petition becomes the petitioner and the other becomes the respondent. The court will assign a cause number to the case, stamp the Petition with the cause number and the filing date, and then return it to the petitioner.

The traditional way of starting a divorce in the state of Texas is to file a Petition with the courthouse. So, what you need to do essentially is to create a package.

A divorce lawyer knows how to do it very simply, but if you were to do it on your own, ultimately, you need the Petition for the divorce itself. In the Petition, you give a lot of information about you, your spouse, if you have children, where you live, and other types of information, but most importantly, you need to choose a ground for divorce.

What forms do I need to file for a divorce in Texas?

In order to file a divorce, you will need:

  1. An Original Petition for Divorce
  2. Case Information Sheet
  3. Health Insurance Availability Affidavit – If children are involved
  4. UCCJEA Affidavit – if a party is out of state which states the last addresses of the children
  5. Waiver of Service
  6. Service Request form – if the other party will not sign the waiver of service

After I file for divorce, do I have to continue to live in Texas?

If children are not involved in the divorce, then you do not have to continue to live in this state.

However, if you plan on moving to be aware you may have to make arrangements to come back to Texas if there are any hearings or mediations. If there are multiple hearings this may get expensive.

However, if you are awarded primary possession of the children, there is a good chance a court will restrict the state and counties where you are able to live.

If you are not the parent who gets primary possession, it is also important to consider whether you will be able to exercise regular possession and access to your children if you are living out of state.

When can I file for divorce in Texas?

You can file for divorce as soon as either you or your spouse meets the residency requirements of the state and county that you plan on filing in.

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.

How long must I live in Texas to get a divorce here?

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.

Which county should I file in?

In most divorce cases, there is not an option on where to file a divorce. This is because Texas Family Code Section 6.301 sets out the residency requirements for filing for divorce. Those requirements are that at least one spouse must have been:

  1. a domiciliary of this state for the preceding six-month period; and
  2. a resident of the county in which the suit is filed for the preceding 90-day period.

What this section basically says is that if both spouses live in the same county in Texas then there is only on option on where the spouses can file. However, if spouses live in different counties then there is possibly a choice.

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.

Does it matter which spouse files first for the divorce

Sometimes filing first makes a difference.

The first to file for divorce is known as the Petitioner. Here are the ways in which being the Petitioner matter:

  1. Choosing which County to File In
  2. Payment of Initial Filing Fee
  3. Setting the Tone of the case
  4. Going First at Trial or Other Hearings
  5. Timing and Relief Requested
  6. Help Prevent Assets from Being Hidden

Why should I care if the divorce is in one county or another?

There are a number of reasons why choosing one county over another can make a difference. One of the biggest reasons is when the counties are several hours apart such as Bexar County versus Harris County. In such a case this would mean:


One spouse would have a much more convenient forum for their divorce. While their spouse would have to make a trip that takes hours back and forth whenever there is a court hearing.

Additional costs

The distance can also create additional costs such as time off work, fuel costs, or having to rent a hotel whenever they are required to travel.

Local Attorney or Attorney in City where Case is Filed

Another decision the spouse who must travel will need to make is whether to hire an attorney near them who will have to travel or an attorney in the county where the divorce is filed. Either choice will have pluses and minuses.

What if you are Unable to File First?

If you are unable to file first, you should not worry. As a responding Ex, you will still be able to participate in the process. You will have an opportunity to file an answer and counter-petition with the Court.

What if I am in the military and out of state?

When a person either serves in the military or is married to a person serving in the military, moving from place to place is a fairly common occurrence.

If either spouse is from Texas and would like to file for divorce in Texas, this can cause a problem regarding the residency requirement as stated in the Texas Family Code.

Generally speaking, in order to file for divorce in Texas at least one party must have been living in Texas for six months and the county where the suit has been filed for 90 days prior to filing suit.

However, the Texas Family Code Section 6.303 provides an exception for these public servants and their spouses.

If Texas is the domicile of a military member or Federal Employee serving outside of Texas, that person is still able to file for divorce in Texas. Domicile means that Texas is considered to be the permanent home the party intends to return to after completion of the service assignment that necessitates their absence from the State. A spouse of a soldier or public servant may exercise this same right.

Is this filing different if I am in the military?

Filing for divorce is not different when it comes to divorce for military personnel. Although, there can be differences when it comes to military personnel going through a divorce. Some of those differences include:

  1. Military retirement
  2. Calculating gross income
  3. Considering a visitation schedule that will be workable
  4. When a spouse in the military is deployed will any family members exercise visitation for the deployed spouse
  5. Deployment and court dates


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Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan, PLLC 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, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, 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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