The decision to end the marriage is never easy. However, the further steps can be no less confusing once it's made. Spouses may face many questions and do not know where to start.
In this article, let's consider how the Texas divorce process works in more detail. We will find out the primary requirements for divorce, the factors affecting its length and cost, and how to prepare to make the divorce process more efficient.
Residency Requirements
All U.S. states require that at least one spouse involved in the dissolution of marriage reside in that particular state for a period prescribed by the state's Family Law before being allowed to apply for a divorce with the local court.
Under the Texas Family Code, either party must have lived in the state for at least six months before filing a divorce petition. Besides, either party must be a resident of the county where they want to start the divorce case for at least 90 days.
Grounds for Divorce
The Texas divorce process starts with filing the Original Petition for Divorce with the Clerk of the District Court.
This initial divorce form contains essential information regarding the marriage and grounds for divorce provided by the Texas Family Code.
Grounds for divorce are legal reasons specifying the circumstances which led to the marriage breakdown.
Currently, 17 U.S. states are "true" no-fault divorce states, meaning that the plaintiff cannot allege the other spouse's misconduct as the basis for their divorce. The others allow no-fault divorce but, at the same time, still recognize fault grounds, which vary from state to state. Texas belongs to the latter.
No-Fault Grounds
No-fault divorce means Texas courts can grant a divorce without either spouse being found guilty of marital misconduct.
In Texas, the only legal ground recognized for a no-fault divorce is "Insupportability." A person can state that the marriage has become insupportable due to some disagreements the spouses cannot resolve, and there is no hope for reconciliation. No-fault divorce typically implies that neither party has to prove anything before the court.
Fault Grounds
Unlike no-fault divorce, choosing a fault ground means that a person must specify their spouse's (called the defendant) misconduct as the basis for their divorce and be able to prove that this reason is well-founded.
Fault grounds for divorce enable the courts to grant a divorce in favor of either spouse.
In Texas, fault-based grounds include:
- adultery;
- cruelty or violence;
- abandonment or willful desertion for at least one year;
- confinement in a mental hospital for at least three years;
- conviction of felony or imprisonment for at least one year (unless spouse testifies against convicted spouse).
Besides, the judge can grant a divorce in favor of either party if the spouses have lived separately and apart for at least three years.
How to File an Uncontested Divorce
Texas Family Code provides laws and rules that apply to all divorce cases. Nevertheless, an amicable uncontested divorce may offer more flexibility in arranging the process, choosing the type of legal representation to use, and managing the expenses.
An uncontested no-fault divorce is considered the easiest way to dissolve the marriage in Texas.
Although Texas Family Law and Civil Procedure Rules govern the divorce procedure in Texas, spouses avoiding litigation have more freedom on how to arrange their divorce within this framework and have more control over the costs.
An uncontested divorce means that the spouses negotiate and resolve issues like property and debts division, child custody and child support, alimony, etc., out of court.
Instead of hiring a high-priced attorney to represent them during the divorce proceeding and letting a judge decide the final terms, the spouses create a Marital Settlement Agreement and submit it for court approval.
The process of filing for an uncontested divorce is the same for all couples and generally includes the following steps:
- The plaintiff completes and files primary divorce forms, including Petition for Divorce, Waiver of Service, Final Decree of Divorce, and Notice of Final Decree, with the District Clerk's office. Some other divorce papers can be required depending on the circumstances of a particular case.
- When initiating a divorce, the plaintiff also must pay court filing fees. In Texas, the filing fee is about $300, varying slightly from county to county and depending on whether the spouses have children.
- The plaintiff must make several copies of the divorce petition. When the documents are stamped and dated with a case number, the originals stay in court. Then, one copy is returned to the plaintiff, and the other has to be delivered to the other spouse (the defendant), following the specific procedure.
- Then, the waiting period begins. In Texas, no final divorce decree can be granted until sixty days after filing the initial divorce paperwork.
- When the waiting period expires, and all the additional divorce forms are filed with the court, the court can schedule a final hearing, called a "prove up" in uncontested divorce cases in Texas.
A prove up is a short hearing to present testimony or an agreement between the spouses to the judge. If the judge considers the couple's agreement fair and reasonable, a divorce can be finalized.
DIY Divorce in Texas
The main advantage of an uncontested no-fault divorce is that if the spouses do not need legal advice, they can attempt a DIY divorce, i.e., divorce without a lawyer.
The Texas court process does not prohibit a person from representing themselves as a Pro Se litigant. Although this option is not recommended in complicated contested cases, those couples who can resolve all their divorce issues out of court, whether with the help of a mediator, counselor, or independently, can save money on legal fees.
Divorce Without a Lawyer
The main stages of divorce are the same regardless of whether you hire an attorney or arrange a divorce on your own. However, it is worth noting that a person should be well aware of Texas Family Law, court rules, and their own rights and liabilities as a self-represented litigant to avoid the pitfalls of a DIY divorce. Otherwise, the court can reject the papers if there is even a minor mistake.
Those couples ready to take responsibility for completing the documents and filing for divorce can find all the basic information about the process on the Texas Judicial Branch website, which provides a self-help guide and a package of court-approved divorce forms.
Besides, they may use online divorce services to prepare all the required papers as soon as possible without a hassle.
How to File a Contested Divorce
A contested divorce occurs when the spouses cannot reach an agreement concerning the terms of their separation, like spousal support, marital property division, child-related matters, etc. Thus, they have to ask a judge to decide those issues at a contested trial hearing.
Contested divorces are typically much more expensive and take longer than uncontested ones, as spouses need to hire separate divorce lawyers to represent their interests in court. Moreover, if a fault ground for divorce is stated, spouses need time to prove it, and the judge needs time to review it.
The filing process is almost the same as for uncontested divorce. However, a final hearing cannot be scheduled right after serving the divorce papers on the defendant. Instead, the spouses typically have to attend a temporary orders hearing needed to handle all the controversial matters while the divorce is pending.
Then, even in a contested divorce, the spouses often must go through mediation and attempt to settle at least some of their differences out of court.
If a settlement has not occurred, the divorce is set for trial. Both spouses are required to provide their evidence, testimonies, and arguments so that the judge can make a fair decision about the issues that the spouses could not settle.
Filing Fees
When the plaintiff applies for divorce, they must pay a mandatory court filing fee. The court fee averages around $300 in Texas but can vary slightly from county to county. The exact amount can be found on the county's District Clerk's website.
In some cases, if a person cannot afford filing fees, they can ask for a fee waiver by completing and signing an Affidavit of Inability to Pay Court Costs in the presence of a public notary.
Serving Documents
When the case is filed, the plaintiff must notify their spouse about the divorce by delivering copies of the divorce papers (Petition for Divorce and the Citation) in a court-approved manner.
According to the Texas Rule of Civil Procedure, the service of process can be accomplished in the following ways:
- Personal service by the constable, sheriff, or private process server.
Whoever the server is, they must hand the papers to the defendant, complete a Return of Service form as an acknowledgment of service, and file this form with the court.
- Service by registered or certified mail
This type of service means that the clerk mails the papers to the defendants by registered or certified mail, return receipt requested. If the defendant signs the receipt (the green card), the clerk completes a Return of Service form.
This step of the divorce can only be skipped if the defendant voluntarily waives the service by filing a Respondent’s Original Answer form or a Waiver of Service Only form (additional notarization fees may apply).
Online Divorce
Online divorce is a perfect option for couples attempting to arrange a DIY divorce in Texas but not wanting to waste time on paperwork.
Various online divorce websites help select and complete all the required divorce forms in a couple of days at a much lower price than the average flat fee offered by lawyers for an uncontested divorce.
Using a step-by-step online questionnaire, the user outlines the circumstances of their case so that the system can help them select the relevant court forms and fill them out correctly. When the documents are ready, the user must print them, sign them, and file them with the local court following the written instructions.
Thus, online divorce is a straightforward and affordable alternative to lawyers in simple uncontested divorce cases. The Texas Online Divorce costs start from $139, while the average lawyers' flat fees range between $1,500 and $2,000 for similar services.