The 60-Day Divorce in Texas

During consults, I am frequently asked by potential clients how to get divorced quickly and cheaply. These are understandable questions. To my knowledge, divorce is not often associated with rainbows, sunshine, or happiness.

TV, books, friends, and family frequently unpleasantly depict divorce. I think it is only natural to want to handle divorce quickly and painlessly.

This article summarizes Texas law regarding the waiting period for a divorce and what is necessary to speed the divorce process. Remember, what is theoretically possible under the law may not be possible depending on the specific facts of your case and who you are married to.

Uncontested Divorce versus Contested Divorce

Generally, in my consults, everyone asks for an uncontested divorce. There is no box to check whether your divorce will be uncontested or contested when you file for divorce in Texas. Whether a divorce is ultimately uncontested or contested depends on the married couple involved.

Although a divorce terminates a marriage, giving a married couple the legal right to marry another person, many people do not know that a divorce in Texas also does more than end a marriage. A Texas Divorce takes care of three things:

Property - Divides marital assets and debts
Children – Determines the rights and duties of parents toward children, parental visitation, and establishes child support.
Marriage – Ends the marriage.

It is not uncommon for potential clients to tell me their divorce is uncontested, and the only argument is "who gets children" or "the house" or if there will be "alimony." That is not what uncontested means. Adding the word "only" is not going to make the divorce uncontested.

For a divorce to be "uncontested," there must be agreement on all three things. If you agree on all three, then the case will never have to go to trial. However, if you are not in agreement on all three, then ultimately, the claim must go to trial, which could take a year or longer.

Can My Divorce be Completed Quickly?

This blog will help the reader contemplate filing for a divorce in Texas to determine whether it is realistic to complete their divorce quickly. By quickly, I mean in 61 days.

Mandatory Texas Waiting Period

In Texas, there is a mandatory 60-day waiting period from when the divorce is filed until you can appear in court to finalize your divorce.

Under Texas Family Code Section 6.702, a "court may not grant a divorce before the 60^th day after the divorce was filed." By reading this part of the Family Code, you learn two things:

The 60-day waiting period begins the day a person files for divorce and
On the 61^st day after a divorce petition is filed, the earliest date you can get divorced is in Texas.

Before You File for Divorce

Before you file for a divorce in Texas, you must determine where you can file for divorce. If you file in the wrong place, that will only delay your ability to divorce and possibly cause you to have to repeat steps unnecessarily.

Residency Requirement

Under Texas Family Code Section 6.301, for a divorce action to be commenced in Texas:

One spouse must have been domiciled in Texas for six months or more and
Be 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.

The above means that at least one spouse must have lived in Texas for at least six months. And if you will file for divorce in a county, either you or your spouse must have lived there for at least 90 days.

If both spouses live in the same county, then the county is the only choice on where the divorce may be filed in Texas. However, sometimes, spouses live in different counties. If so, then there might be a choice of counties on where the divorce may be filed.

Documents are Needed, but a Divorce is more Complicated than Documents

Many potential clients I meet with mistakenly believe that a divorce is as easy as filling out a one-page document. It was that easy to get a marriage license; why isn't divorce that easy, cheap, and quick?

When I encounter this mistaken belief, I use the analogy that it is easy, cheap, and quick to make a child. However, after a child is made, it will often take parents 18-30 years before that child can support itself. Fortunately, it should not take 18-30 years to get a divorce. The point of this analogy is that although it may be easy to get married, it is often not nearly as easy to get divorced.

Some of the essential documents that are needed include:

Original Petition for Divorce
Waiver of Service
Final Decree of Divorce
Income Withholding Order (if there are children)
Medical Support Order (if there are children)
Texas Family Code 105.006 form.
BVS Form
Parenting Class Certificate (if there are children in some courts)

The above forms are the minimum you will need if your case is uncontested. However, depending on your case, you will need additional documents. Some of these forms will be discussed below in greater detail.

The First Step in the Divorce Process (Filing for Divorce)

If Texas has jurisdiction over the parties, then the first step in the divorce process is the actual filing of the divorce. This requires an Original Petition for Divorce.

Drafting the Original Petition for Divorce

Every divorce in Texas, even where the parties are amicable, and the divorce is "uncontested," must begin with filing an Original Petition for Divorce in a state district court.

The Original Petition for Divorce is the legal document that officially begins the divorce process in Texas. The Original Petition for Divorce is prepared by the "Petitioner" filing the divorce or by the thPetitioner's's lawyer.

Filing the Original Petition for Divorce

After the Original Petition for Divorce is prepared, it is filed in the District Clerk's office in the county where one or both spouses reside.

If the spouses live in different counties, then the Divorce Petition can be filed in the county where either spouse resides. Usually, we advise clients to pick the county which is most convenient for them.

The Date of Filing is Important

The day the Original Petition for Divorce is filed is the official day that the divorce process begins. It is the day the court uses to determine when the 60-day waiting period is over.

Divorces are not Automatically Granted in Texas.

Once the waiting period is over, a divorce is not automatically granted or finalized by day 61. The 60-day waiting period is the mandatory minimum it takes to get a divorce. Most divorces in Texas take longer to complete.

Many divorce cases in Texas are not ready or eligible to be finalized immediately upon the expiration of the 60-day waiting period. Some reasons for this can include:

Lack of notification to the other spouse that a divorce has been filed
Lack of information to a mandatory party
Lack of agreement on all three issues in a divorce

Once the Original Petition for Divorce has been filed, the next step is to provide legal notice to the other spouse.

Two additional essential criteria must be fulfilled before the divorce case is minimally eligible for finalization.

The Second Step in the Divorce Process (Legal Notice)

It is necessary to understand that legal notice can be different from actual notice.

Actual Notice vs. Legal Notice

Notifying your spouse, you have "started the divorce process" may involve notifying your spouse with actual notice (telling them, emailing them, sending them a letter) of the divorce. However, basic information is not the same as legal notice.

Legal Notice is Required

Legal notice to your spouse is required, and either frequently accomplishes it:

A Waiver of Citation or
Service of Citation

Waiver of Citation

When using a waiver of citation, your spouse is asked to sign a written document known as a Waiver of Citation. This document contains the information required by the Court and the Texas Family Code.

To be accepted as valid by the court, your spouse must sign the document in the presence of a Notary Public, and the Waiver must be signed on a calendar date after the Divorce Petition has been filed.

Everyday Things that Can Invalidate Waivers of Citation

It is not uncommon for courts to not accept a Waiver of Citation when someone ignores the above requirements by:

Not getting a Waiver of Citation notarized or
Trying to save time and have the Waiver signed before the actual filing Original Petition for Divorce is filed.

Waivers of Citation are Evidence in Court

Waivers of Citation serve an importation function in your divorce. They show the court you're your spouse has received legal notice of the divorce proceedings. Waivers of citation are typically used when spouses:

Are you still able to communicate
Agree on getting a divorce
Agree on settlement terms regarding the divorce

Caution Regarding Signing a Waiver of Citation

If your spouse asks you to sign a waiver of citation, be careful. Not all releases of authority are the same. There are good waivers of source, and there are harmful waivers of citation.

It would help if you had a divorce lawyer look at the Waiver of citation first to make sure that what you're signing will not hurt your divorce case.

Service of Citation

Your spouse may not be willing to sign a Waiver of Citation. However, if your spouse chooses not to sign a Waiver of Citation or has not hired their attorney, then you will need to provide them with legal notice of the divorce using the service of citation.

Service of citation can be accomplished by having the divorce paperwork delivered to your spouse by:

A sheriff
A constable
A court-authorized neutral third party (usually a process server)

What is a Citation?

A citation is a legal document that furnishes your spouse with notifications that the spouse is:

Being sued for divorce
Warned to respond to the divorce within a particular manner and time frame

Otherwise, the divorce may be defaulted (finalized without further notice to that spouse)

Hand Delivery is Not Always Required

Depending on the facts, a court may approve alternative methods of service of citation. A court will generally support alternative forms of assistance in cases where:

You can satisfy the court that a spouse's whereabouts are unknown or
If the show the Court that your spouse is avoiding personal service of citation

The Third Step in the Divorce Process (Settling the Divorce Issues)

After you have provided your spouse with legal notice of the divorce, the next step is to determine the main issues in the divorce. As mentioned earlier, a Texas Divorce takes care of property, children, and marriage.

To finalize divorce after the 60-day waiting period, it will be necessary for both spouses to sign a written agreement settling all divorce issues.

This written agreement is called a Final Decree of Divorce. When Texas law is applied to the facts of your case will determine what must be included in your divorce decree.

Children's Issues

For example, children may be an issue that will need to be covered in the divorce decree. This is typically the case if a couple has children together or were born during the marriage. There are no prior Court Orders in place dealing with custody and support issues regarding the children.

In a situation such as this, the Final Decree will need to include how the parent will:

Allocate the parental rights and duties between the two parents,
Handle possession and access of the children, and
Provisions for child support and medical support of the children.

Property and Spousal Maintenance

Additionally, the Final Decree of Divorce will also need to include provisions regarding dividing any marital property and debts between the two spouses. It is not enough for the two of you to know how the marital property is divided. The decree must specify exactly what is to happen.

If it is not specified in the decree in the future, you may have to spend a lot of money fixing what you and your spouse verbally agree to or understood at the time of the divorce.

A spouse might be entitled to post-divorce spousal support (alimony) if specific additional criteria are fulfilled in certain marriages. I have discussed this topic in other blogs regarding alimony or spousal maintenance for further reading; however, it needs to go in the divorce decree if there is to be spousal maintenance.

How do I Know if My Divorce is Uncontested?

Whenever I am told, "my divorce is uncontested," I silently think, "we shall see." However, some possible indicators of an uncontested divorce include:

Your spouse has received the notice and voluntarily signs a Waiver of Citation
You and your spouse agree on how property should be divided
You and your spouse agree on children's issues (child support, medical support, and visitation)
You and your spouse remain civil to each other and can discuss the terms of divorce and children's issues

How do I know if my Divorce is Contested?

Indicators that your divorce is contested include:

Your spouse has hired an attorney or otherwise filed a written pleading with the Court challenging some of this divorce
Your spouse is not talking to you
Whenever you and your spouse talk, you end up fighting
Your spouse has emptied the bank account
Your spouse is hiding the children
Your spouse will not sign the Waiver of service
Your spouse is hiding from the process server
Your spouse has hidden or destroyed some of your personal property
Your spouse changed the locks on the house

A 61-Day Texas Divorce is Possible

Suppose the above criteria regarding "uncontested Divorce" has been accomplished within 60 days of filing the petition in that your spouse has either received a proper legal notice and has signed the Final Decree or has received appropriate legal information and failed to file an "Answer" to the divorce within the 60 days. In that case, your case may be eligible to finalize.

Court Appearance is Required

Even if an agreement is reached and all the paperwork is signed, the finalization of uncontested divorce will require that you make a personal court appearance.

The court appearance with an uncontested divorce is usually a very brief proceeding. Once in front of the judge, it usually will take less than five minutes. The longest part of the process will generally be the drive to the court. Where your name is on the judge's list will dictate how long you must wait in court. If your name is the first one on the list, you will be the first one called. If you are the last name, you will be the last one called.

Scheduling Your Day in Court (Prove Up)

Your divorce court will typically have a procedure for how they handle uncontested cases. You may be able to look up your court online to find out their policy.

Typically, they have regularly scheduled days and times when the court is available to hear its uncontested cases. For example, Harris County usually shows up by 8:00 A.M. and signs up on the uncontested docket Monday-Friday.

Your spouse does not have to appear with you in court to finalize the uncontested divorce. Your attorney will be with you for the court appearance and will guide you through the process. I usually meet with my clients before the hearing date to review the questions I will ask them before court.

Can I get Divorced Sooner than 61 Days?

You probably cannot divorce sooner than 61 days. There are two minimal exceptions to this concept of the mandatory 60-day waiting period. But more on this in a moment. A court may waive the waiting period under section 6.702 of the Texas Family Code because:

A court may grant an annulment or declare a marriage void
If the court finds that the respondent has been convicted or received deferred adjudication for an offense involving family violence as defined by section 71.004 against the thPetitionerer or a member of the thPetitioner's's household or
ThPetitionerer has an active protective order under title 5 or active magistrate's order for emergency protection under article 17.292, Code of Criminal Procedure.

In theory, if you meet one of the above criteria, you might get divorced sooner than 61 days. However, in practice, if you are trying to get divorced under one exception, your divorce is probably contested, which more than likely means your divorce will probably have to be handled through a trial.

If your divorce is handled in a trial, it will likely take longer than 60 days before a court will hear your case.

Not Every Divorce Can Be Completed in 60 Days

Not every divorce case can or even should be completed as quickly as possible. Depending on your case and the issues involved, the information available, and parties to the point, it may not be reasonable to move so quickly.

Whether you have been married for many years or for a short time, how you approach the divorce is an important decision. It will involve considerable contemplation, and you should have legal guidance through the divorce process.

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Law Office of Bryan Fagan, PLLC | Spring, Texas Divorce Lawyer

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

Our d ivorce lawyers in Spring, TX, are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact the 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 Spring, 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.

The 60-Day Divorce in Texas