Filing for divorce is a big step to take in your life and your marriage. We hear about divorce a great deal, we all know people who have been through a divorce, and it may seem like filing for divorce is just not a big deal. However, there are certain steps that you need to follow to get the divorce that you are seeking. First, however, it makes a difference when you contemplate whether a divorce should be in your future. Thinking through the process and understanding whether a divorce is what is best for you and your family is what we would recommend that you do initially.
Right off the bat, not just anyone can file for divorce in Texas. We have so many people who have recently moved to our state that it is not a given that every person who considers Texas to be “home” can file for divorce here. More specifically, anyone can file for divorce in a Texas family court but not everyone will find out that a court has jurisdiction over their case. Jurisdiction means the legal authority to render orders that can impact you, your children, and your property. Without jurisdiction, a court can do nothing for you in a divorce setting.
Residency is the first box that you must check to get divorced in Texas. To be a resident of Texas is not a state of mind. The courts in Texas have a standard to pay attention to when it comes to being listed as a resident. First, you must have been living in the State of Texas for at least the past six months and in the county where you plan to file for divorce for at least the previous 90 days. For example, if you moved to Fort Bend County on March 1, 2022, and want to file for divorce on November 1, 2022, then you would be in the clear. However, if you moved to Fort Bend County on August 1, 2022, you would not since you would not have been a resident of the State of Texas for at least six months. You would either need to wait another three months to file for divorce in Fort Bend County or file for divorce in whatever jurisdiction you left in another state.
Is your divorce uncontested?
An agreed divorce is one where you and your spouse agree on all the issues of your case. You would likely have a formal marital settlement agreement that includes all the issues of your case and how you decided to resolve them. Or, you at least have worked through the issues of the case and have tentative agreements in place even if you have not put those agreements in writing. This is not to say that at any time you or your spouse may change your mind on things, but now you would have what is known as an uncontested divorce.
What is decided in an uncontested divorce? The same sort of issues is decided in a contested divorce. The only difference is that in an uncontested divorce you and your spouse agree on the issues that need to be decided. These issues relate to how to divide property and debts between the two of you. This is known in the world of Texas family law as community property division. Next, spousal maintenance or contractual alimony would need to be agreed to as well. If you plan to have contractual alimony, be a part of your divorce settlement then you should be specific in terms of how long the alimony will be paid for, how much money will be paid per month, and what conditions (If any) will exist that can terminate these payments early.
The other major issues associated with an uncontested divorce would be child support, child custody, and visitation if you and your spouse have minor children together. These are the most emotional subjects involved in a divorce case and can be the most complicated as well. Figuring out the moving pieces involved with child custody schedules, child support, holiday visitation, and conservatorship rights and duties usually takes some degree of negotiation. Therefore, it's a rare uncontested divorce where children are involved.
The cause of your uncontested divorce would most likely be insupportability, meaning that there due to a conflict or discord in personalities with no chance of a reconciliation the marriage must end. In a contested divorce you and your spouse could each allege a fault ground for divorce which would allege that one of you did something specific which caused the end of the marriage and for a divorce to be necessary. Examples of fault grounds for divorce include adultery, cruel treatment, and abandonment.
It is simpler to file for an uncontested divorce than a contested divorce. The reason is that if you plan to file for divorce without the assistance of an attorney you can do so with fewer forms and procedures that you have to follow. What are the advantages of a simpler divorce? For one, the divorce will probably conclude faster. Even bearing in mind that there is a 60-day minimum length for a divorce from the date on which your case is filed an uncontested divorce should not need to last much beyond those 60 days. Next, an uncontested divorce (especially one with no children) minimizes the potential need to hire a family law attorney to represent you. We think it is a good idea to always have an attorney by your side to make sure your documents are drafted and filed correctly and in a timely fashion, you can choose to not do so when the stakes are somewhat lower.
Even if you and your spouse do not have a truly uncontested divorce, you may be able to quickly resolve your divorce with the help of an experienced family law mediator. Mediation occurs when you and your spouse mutually agree to have a third-party mediator come into your case to help the two of you resolve the outstanding issues of your case. Even if you have agreed on 99% of issues before mediation, a mediator can help you resolve that 1% easier and faster than you would likely be able to do on your own. Once you have your agreements in place either you or your spouse would draft a final decree of divorce that would formally end your divorce and marriage once a judge can sign the document.
How to prepare Texas divorce forms
Some specific forms/documents must be filed to begin your divorce. Whichever spouse files the divorce is known as the petitioner. The other spouse will respond to the Original Petition for Divorce and will be known as the Respondent for the duration of the divorce. An Original Petition for Divorce sets forth the legal arguments and theories that you will be basing your divorce on, including whether you are alleging any fault grounds for the divorce having been filed. The respondent will have a deadline (roughly 20 days from the date on which he or she is served with the Original Petition for Divorce) to respond with an Answer. An Answer is a very basic form/document that simply denies the allegations made in the Original Petition. Additional allegations can be offered by the Respondent in a document known as a Counter-Petition for Divorce.
Will you need help filling out these forms and filing the documents?
We have already discussed how it is a good idea to have an attorney represent you in your divorce. With property and children's issues at stake, there is just too much to lose for you to not consider hiring an experienced family law attorney to assist you and advocate for you and your positions. If you do not have any minor children and own no property, then the stakes are significantly lower for you likely than for other people going through a divorce. However, even then there are risks associated with the divorce taking longer to complete and costing more money than it ought to. Hiring an attorney guarantees you nothing, but it does give you the best chance at accomplishing your goals and minimizing the cost and time that must be invested into your case.
A contested divorce means that filing the basic forms of your divorce online without an attorney will not do you much good. The need for you to negotiate with your spouse on contested and important issues means that you are relying upon your level of knowledge for the case and that is risky. An experienced family law attorney knows how to negotiate, knows the law and how it can impact your family, potentially. It is a risk, to say the least, to not hire an attorney even if you believe that you have an uncontested divorce on your hands.
How to file and serve your Original Petition for Divorce in Texas
As soon as you have gotten together all of the forms and documents in your case you will need to file them with the district or county clerk’s office for your jurisdiction. Keep in mind the residency requirements that we discussed at the beginning of today’s blog post: resident of the state of Texas for at least the past six months and a resident of the county where you plan to file your divorce for the past 90 days. For most of you reading this blog post that should not be a problem. For others, you need to start doing the math on when you may have moved here. Or, when your spouse may have moved to another county where divorce could be filed. One thing that you should try to avoid if at all possible is having to travel for a divorce because your spouse beat you to the punch and filed for divorce in another county before you could file in your home county.
There are filing fees associated with filing for divorce unless you qualify to have those fees waived because you qualify as someone unable to afford to pay those filing fees. If you believe that you do qualify as an indigent person you should have evidence ready to present to a judge. Documentation regarding public benefits, housing vouchers, or assistance documents would be worthwhile to start organizing before you file for divorce. You almost certainly will need to present those to the judge to have your filing fees waived or reimbursed. Fling fees are usually a few hundred dollars in total to file your petition. It is less expensive to file an answer or to file subsequent documents in your divorce.
Next, you need to think about how you are going to notify your spouse of the divorce. Filing the divorce is a big step, no doubt about it, but to move the divorce forward you will need to spend the time needed to notify your spouse of your having filed the case. Unfortunately, sending him or her a text message with a photo of the Original Petition will not work. Your spouse has a right to be served personally with notice of the divorce. Here is how that process looks on a practical level.
Service of citation involves hiring a sheriff, constable, or private process server to personally deliver your divorce documents to your spouse. A file-stamped copy of your original petition, a notice of the divorce proceeding known as a citation, and any temporary orders that have been filed will be included in those documents. Your spouse will then have to file an Answer within approximately twenty days from that day to not be in default. More on that in a moment.
If you have attempted to serve your spouse using this method but have not been successful you may need to file a motion for substituted service to serve your spouse using another method that is valid under Texas law. Publishing notice in a newspaper, mailing the notice of citation via certified mail, and electronic service via email are possible methods that you may be able to employ if your spouse has proven difficult to notify via personal service.
In the alternative, your spouse may also be willing to sign a waiver of service instead of you all having to go through with the process described above. If your spouse is willing to formally waive their right to service by signing a document stating as such, you can simply hand him or her the divorce paperwork and move on with your day. The waiver must be signed in front of a notary by your spouse.
What happens after your spouse is notified of the divorce?
What happens next in your divorce depends in large part upon whether your case is contested or uncontested. If your case is uncontested, then your spouse must either file an Answer to the Petition or return the waiver of service to the court. Either you or your spouse can file the waiver of service on behalf of your spouse. At that point, you and your spouse would like to want to get to work completing a Final Decree of Divorce that can be signed by each of you. The Final Decree contains all your agreement on child custody and property division.
In a contested divorce your spouse would need to file an answer to your divorce petition within 20 days of having been served as we discussed a moment ago. If no answer is filed on time, then you could conceivably draft your final orders in the divorce and have a judge sign off on those once the 60-day waiting period deadline has passed.
A temporary order hearing and/or mediation is typically the next step in a divorce after a case has been filed and the respondent has filed their answer. The purpose of temporary orders is to give you some degree of the structure during your divorce. A custody schedule, conservatorship breakdown, and division of household duties and bills are typically what is included in temporary orders. You will have the option to try and settle these issues in mediation but if you are unable to do so a judge will intercede and issue orders in a temporary order hearing.
As you can see, even in a “simple” divorce there are several different circumstances, issues, and processes involved in a case. While all of this is ongoing you will still need to attend to important matters with your family, your work, and the other areas of your life. Having an experienced and knowledgeable family law attorney by your side to help guide you through a divorce is a significant advantage.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today’s blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free-of-charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about how your family's circumstances may be impacted by the filing of a divorce or child custody case.