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Filing a divorce in Texas

How to File a Divorce in Texas

The Texas Family Code Section 6 stipulates the processes and procedures for dissolution of marriages in Texas.The law provides the following reasons for filing for a divorce in Texas:

  • Insupportability - Caused by a conflict of personalities and without any expectation of reconciliation. It is also called a "no-fault" reason
  • Cruelty - A spouse is being treated with cruelty by the other
  • Adultery - A spouse has committed adultery
  • Felony conviction - a spouse has been imprisoned for a year or convicted of a felony, provided the conviction was not based on the testimony of the other spouse
  • Abandonment - A spouse leaves the other with the intention of abandonment or is away for more than a year
  • Living apart - The spouses have lived separately without cohabitation for at least three years
  • Confinement in a mental institution - A spouse has been confined in a mental hospital for at least three years

In Texas, a spouse can file directly for divorce or through a family law attorney. All divorce suits are filed at the county clerk's office. There are two types of divorce filings:

  1. Uncontested divorce: An uncontested divorce involves both spouses agreeing on all issues and are willing to sign all required court forms. They must agree on how to share their properties, child custody, and child support where applicable. An uncontested divorce is usually cheaper, and a spouse can do the filing directly. Another form of uncontested divorce is when the other spouse refuses to answer the divorce petition or cannot be reached to answer the petition
  2. Contested divorce: If both spouses cannot agree on all issues involved, the divorce is contested and must be decided by a court or mediation. A contested divorce usually involves attorneys and sometimes forensic accountants

The Texas Family Law Section 6:301 stipulates that a divorce petition must be filed in the county where the person filing the divorce (petitioner) or the spouse (respondent) is a resident. One of the spouses must be residing in Texas for at least six months and domiciled for 90 days in the county before filing the divorce. An exception to the residency rule is given for persons in public services or the armed forces.

How Long Does It Take to Get a Divorce in Texas

Texas divorce law requires divorcing spouses after filing for divorce to wait a mandatory 60-day period before the divorce can be finalized. The 60-day waiting period can be waived on the following conditions:

  1. A spouse has been convicted of a crime involving family violence or has a deferred adjudication
  2. There is an active protective order against a spouse because of a history of family violence during the marriage

An uncontested divorce where both parties have agreed on the divorce terms can be dissolved after the 60-day wait. A contested divorce can take years for all issues to be resolved.

How Much Does a Divorce Cost in Texas

There is no fixed cost for a divorce in Texas, the cost varies by county. The following factors affect the cost of a divorce:

  • Whether the divorce is contested or not
  • The complexity of the divorce
  • If the marriage has children under 18
  • Value of couple's shared/marital assets
  • If the divorce involves a trial

The divorce cost can be divided into the following categories:

  • Filing fees: $250 - $300
  • Issuance and service fees if the divorce papers will be served to the other spouse
  • Attorney fees

An indigent spouse can apply to the court for a waiver of filing fees by filing an Affidavit of Inability to Pay Court Costs. The petitioner must meet one of the following conditions to be eligible for a waiver:

  • A beneficiary of government-funded aids such as Texas food stamps, Temporary Assistance for Needy Families (TANF), Medicaid, or public housing
  • Being represented by a legal aid attorney at no cost
  • Evidence of having applied for a free attorney from a legal aid provider and being found eligible, but the legal aid provider could not accept the case
  • Inability to pay for basic household needs due to low income

A petitioner seeking waived fees will provide the following information to support the affidavit:

  • Details of dependents
  • Net household income
  • Monthly expenses
  • Government benefits received

How to File a Divorce by Yourself in Texas

The following steps are required to file for a divorce in Texas without a lawyer:

  1. Fill out and sign the Original Petition for Divorce (Set B) form. The form is to be filled with blue ink
  2. If you are indigent or receiving public assistance, fill out the Statement of Inability to Afford Payment of Court Costs (Affidavit of Indigency) form and sign it in the presence of a notary.
  3. Fill out a Civil Case Information Sheet form
  4. Fill out the Suit Affecting the Family Relationship form
  5. Submit all forms with two copies of the divorce petition and affidavit of indigency
  6. The clerk will stamp the documents with the date and time of filing. The clerk will return the two file-stamped copies and keep the original
  7. Note the "Cause Number" and "Court Number" assigned to the petition
  8. If you are not applying for a waiver, pay the appropriate filing fees depending on the county
  9. Give legal notice to your spouse that you have filed for a divorce. The petitioner can give the legal notice in one of three ways:
    1. Waiver of service - If the spouse agrees to fill the Waiver of Service Only (Set B) form and to sign it in front of a notary, there is no need to have the file-stamped copy of the divorce petition served
    2. Official service of process: This can be done by a constable, sheriff, or private process server at a fee. It can also be sent by certified mail with a return receipt requested. The Return of Service form filled by the official process server or the return receipt signed by the spouse must also be filed in the county where the divorce action was filed
    3. Posting or publication: If your spouse's address is unknown, the divorce petition must be posted at the courthouse or a legal notice published in a newspaper circulating in the area of the spouse's last known address

Choosing a Divorce Lawyer in Texas

Getting a divorce is a multi-step process that many will find demanding. Therefore, it is important to choose the right attorney to guide you and provide timely legal advice. A good divorce lawyer will help negotiate acceptable terms from the divorce and provide guidance in filling out the divorce forms. A good divorce lawyer will also help navigate the intricacies of Texas divorce laws. Some factors that a petitioner should consider when selecting a divorce lawyer are:

  • Cost: The divorce lawyer's hourly rate and payment structure are critical.
  • Reference: ask friends and families for recommendations of competent and compassionate attorneys
  • Interview attorneys before making a choice

The Family Law Section of the State Bar of Texas maintains a list of family lawyers.

Can You Get a Divorce Without Going to Court?

No. Most processes for an uncontested divorce can be done without going to court in Texas; however, one of the spouses will have to appear before the judge in a court to answer questions to finalize the divorce proceedings. The questions are to ascertain that both parties are fully aware of the consequences of their actions.

How to File for Divorce in Texas with Children

The process to file for divorce with children in Texas is dependent on whether the divorce is uncontested or contested. For an uncontested divorce, the process is as follows:

  • Determine the county to file for divorce; the county must be where you or your spouse have lived for the last 90 days
  • Fill out the following forms:
    • The Original Petition for Divorce (Set B) form. You must provide the answers in blue ink without blanks
    • The Civil Case Information Sheet
    • The Exhibit: Out-of-State Party Declaration if either spouse lives outside Texas
    • Statement of Inability to Afford Payment of Court Costs if you cannot afford the filing fees
  • Make two copies of the filled forms
  • Take the forms and copies to the county clerk's office
  • Attach a copy of the county's standing order, if it exists
  • Note the "Cause Number" and "Court Number" assigned to the petition
  • Pay the filing fees
  • The clerk will "file stamp" the copies with the date and time
  • The clerk will give the copies to you and keep the original

If the children benefited from TANF or Medicaid, then the petitioner must also send a copy of the petition to the Office of the Attorney General (OAG) Child Support Division in the county. The petitioner can send copies via email or certified mail return receipt requested. Email copies are sent to the email address of the OAG Child Support Office with the cause number and county where the petition is filed as the subject line. The petitioner must print a copy of the email as proof.

To send the copies via certified mail with return receipt requested, the petitioner must ask for the return receipt form from the post office and send them to the mailing address of the Child Support office. The OAG will send a signed return receipt back. The post office receipt and the signed return receipt must be kept as proof.

The petitioner must give the file-stamped copy of the divorce petition to the spouse. The petitioner should also give a Waiver of Service Only (Set B) form or Respondent's Original Answer (Set B) form to the spouse to fill. The respondent must sign the Waiver of Service Only form in the presence of a notary at least a day after filing the divorce petition. The Respondent's Original Answer form does not have to be signed before a notary. The signed form must be filed at the county clerk's office. If the spouse files an answer, both parties are required to exchange certain information using the Required Initial Disclosures in Divorces, Annulments, and Suits to Declare Marriage Void form within 30 days.

In addition, the following forms must be filled and attached with the Final Decree of Divorce (Set B) form:

  • Child Visitation and Possession Order
  • Income withholding Order for Support if child support will be required
  • Information on Suit Affecting the Family Relationship form

A contested divorce requires a family law attorney to help file the appropriate documents.

How to File for Divorce Online in Texas

The following are the processes for filing for divorce online in Texas:

  • Go to www.efiletexas.gov
  • The website will ask if you have an e-filing service provider, select "NO" if you are using the service for the first time
  • A list of electronic filing service providers is presented; select EFileTexasCourts, the state-provided service
  • Click on "Register" to start a new registration. Follow the prompt on the screen and fill in the required information to register
  • Sign in to the system after completing the registration
  • You must set up the payment account before filing a case. Click "My Account" and fill in the required information
  • Go to the filing page to file all required documents
  • When all documents have been selected, click on the summary button to proceed
  • The summary page shows all the information and documents you have submitted and the total cost of the filing. Review the summary and make amendments if necessary
  • After reviewing the summary, click on submit to pay and file the divorce suit

The online system allows filing a petition at any time of the day, unlike the in-person submission that closes by 5 pm.