Once it’s decided, you need to know how to get divorced. No doubt, by this point, you may have spent countless hours trying to find a way to avoid divorce; but now you must turn your attention to how to go about it. Here at Oxner Legha, we will guide you through how to get divorced in Texas, step by step.
Do I Need a Lawyer?
To get divorced in the State of Texas, you do not need a lawyer if the divorce is uncontested, which means there are no disagreements between you and your spouse. A contested divorce – one that involves disagreement between you and your spouse – will most likey require an attorney. If you and your spouse cannot agree on who gets what or major decisions like child custody, it is best to hire a lawyer.
So, should you get a lawyer if you’re not fighting right now? Divorces can be messy and highly emotional affairs, especially when children are involved. You may find yourself in need of a family law attorney if your spouse hires one.
If you think you may need a divorce attorney, please contact us so we can talk through your situation.
How Long Will It Take to Get Divorced in Texas?
When you are waiting to get divorced, it is understandable that you might want it over as soon as possible. Because of a mandatory waiting period of 60 days, it takes at least 61 days to get divorced in Texas. More than likely, however, it will take a few months to a year, depending on the county docket and what exactly is being contested.
Am I Qualified to Get Divorced in Texas?
There are many steps to getting divorced in Texas. First, you must qualify to file. If you are filing for divorce in Texas, you and your spouse must have lived in the state of Texas for at least 6 months. This is called a residency requirement. Additionally, you and your spouse must have resided in the county where you will divorce for at least 90 days in advance of filing a petition for divorce.
What If I Am Pregnant and Need a Divorce?
Texas law does in fact address how pregnancy affects divorce proceedings. If you are pregnant and need a divorce, you can begin the process, but it cannot be finalized until after the child is delivered. The child’s paternity must be established beforehand, should it be called into question. This is important because your divorce decree determines custody arrangements. If there are questions about any other children, those questions should be sorted out first. The paternity of any other children born during the marriage must be decided before you can finalize your divorce.
How Does the Divorce Process Begin?
In order to get a divorce in Texas, you must start with two steps:
- Filing for a divorce with the District Clerk’s office.
- Serving your spouse.
Getting a divorce in Texas officially begins when you file an Original Petition for Divorce with your county’s district clerk’s office. You will bring a filing fee, determined by your county and at least two copies of the original. One copy is for your records, and one will be served to your spouse. Supplemental documentation may be required or recommended by your attorney.
How Do I Complete the Divorce Paperwork?
At Oxner Legha, our goal is to support you through your divorce and that includes completing divorce paperwork on your behalf . Filling out an Original Petition for Divorce is, at first glance, a fairly simple process. Yet, it can also be a daunting one.
The document entails pages of information personal to the marriage, such as basic legal information, shared assets, children, property and debts. There are other documents you may wish to file simultaneously, such as Temporary Orders. We highly encourage anyone who is getting a divorce in Texas to avoid common traps and pitfalls by reviewing these legal documents with an attorney before filing it with the court.
Does It Matter Who Files First?
When you are getting divorced in Texas, it’s good to be the first to file.
Filing first means you are the Petitioner, and your spouse is the Respondent. Being the Petitioner sets the tone. It can levy your ability to gain control of assets and to control when hearing days are scheduled.
Being the Petitioner also means that if your divorce is going to trial in Texas, your lawyer will present to the court first – ahead of your spouse’s lawyer. To be clear, filing first means your lawyer gets to decide what the judge hears first.
Consider how you will approach the divorce proceedings. If you are getting divorced in Texas, it is best to keep in mind that it can escalate to trial, even if you initially intended to work it out in mediation. You will want an attorney to guide you through how to get divorced, as many of these nuanced strategies are unknown to the layman.
Do I Have to Say Why I Am Getting a Divorce?
The short answer is “No.” Texas is a “no-fault” state, and this means you are not required to provide any reasons why you are getting a divorce. Grounds for divorce were once required in the past, but no longer. However, in certain situations, it may benefit your case to provide reasons to the court. A family law attorney can help you decide when it’s appropriate.
How Do I Serve My Spouse?
After you have filed for divorce, you are legally recognized as the Petitioner of the lawsuit, and your spouse is the Respondent. In Texas, it is the Petitioner’s obligation to give a Legal Notice to the Respondent, a practice commonly known as “serving papers.” There are three ways to give legal notice:
- Ask your spouse to sign a Waiver of Citation.
- Hire someone or request the local Sheriff’s office to serve your spouse.
Of course, we at Oxner Legha handle this part for our clients, and the information here is for educational purposes only. Schedule a consultation with our family law attorneys to get started.
If your divorce is amicable, the first method of serving your spouse – by Waiver of Citation – can be used to initiate the process. But don’t do it in advance. Make sure your spouse signs the Waiver of Citation at least one day after you filed the petition with the clerk. Arrange for a notary to be present when your spouse signs, as you must prove to the court that the signature on the waiver is indeed the signature of your spouse. Once the waiver is signed and notarized, you will file it with the same District Clerk’s office where you filed the original petition.
Keep in mind – the waiver will recommend that your spouse seek legal advice. At the top of the waiver, there is an emboldened warning to the Respondent. The waiver will clearly warn your spouse to seek legal advice before signing it. If your spouse hires a lawyer, you will want to have hired one first.
How Can I Initiate Divorce Without Seeing My Spouse?
When you are getting divorced, you may want to avoid your spouse for many reasons. Whatever they may be, the best way to avoid further conflict is by hiring someone else to deliver the divorce petition for you. This is known as the Service of Process.
What Is the Safest Way to Serve Divorce Papers in Texas?
After filing the petition, you may arrange personal service with the clerk. You must provide reliable contact information for your spouse. A constable or sheriff will deliver the divorce petition, or you may hire a private process server to deliver it. Hiring a private process server may expedite the delivery.
The server should take care of the next steps. The server will have your spouse sign for proof of the exchange, and they should file a Return of Service with the court. Occasionally, the Return of Service will be given to you directly, and if so, you will need to file that with the court yourself.
Again, at Oxner Legha we are happy to save you the headache and oversee the serving process for you.
What If I Am Afraid of My Spouse?
Personal service, a.k.a. using a process server to deliver the divorce petition, is highly recommended if you fear your spouse.
Please note: if you are currently experiencing domestic abuse, please stop reading this article and immediately call the 24-Hour National Domestic Violence Hotline at 800-799-7233. [For the hearing impaired, please call 800-787-3224.] If there is domestic abuse in the marriage, you may qualify for exemptions and legal protections not covered in this article.
What If I Can’t Find My Spouse?
If you are getting divorced in Texas and you can’t find your spouse, the court may intervene through a process called Serving by Posting or Publication. This process is exactly what it sounds like: the judge may order legal notice to be posted in the court or published in a newspaper.
But it should be said that this process is rare, expensive, and not available to everyone. In the case that you do qualify, you must provide extensive proof that you cannot locate your spouse, and the court may even require you to pay for a lawyer to represent your missing spouse.
What Happens After My Spouse Has Been Served?
After your spouse is served the divorce petition, they have until the Monday after the expiration of 20 days to file an answer. If there are no disagreements, you and your spouse will sign a Decree of Divorce and submit it to the court. This decree may contain an agreement specific to you and your spouse but will generally cover the following items:
- Division of property and debt
- Child custody and support (if applicable)
- Option for surname reversal
Next is the Waiting Period of 60 days.
What If I Change My Mind After Filing?
It is possible to change your mind about getting a divorce in Texas. If you and your spouse agree to it, you will sign and submit a document called Notice of Nonsuit. If you decide to get divorced later, you will need to start the process again.
What If My Spouse Doesn’t Respond?
Just because your spouse is avoiding it, it doesn’t mean you can’t move forward. You will still have to wait out the 60 days, but after that, you can contact the court to request a hearing for what is called a Default Divorce.
If you are hoping for a default divorce, remember that your spouse can still file an answer between the Monday after Day 20 and the finalization. However, until they have filed an answer, you have no obligation to provide your spouse with any further notifications for proceedings.
What If My Spouse and I Cannot Agree on Anything?
If you file for divorce, your spouse may choose to serve a Counterpetition. This allows your spouse to state the grounds they have for divorce and whether they have any requests for the decree.
If the relationship between the two of you is not amicable, the divorce is referred to as a High-conflict Case. You should elect to file Temporary Orders to establish how custody of the children and property will be shared until the divorce is finalized.
Mediation will be required before the final hearing. In contested divorces with children involved, it may be appropriate to consider home evaluators and parenting courses. It is ideal to try to reach a Settlement between the two parties before appearing before a judge.
What Makes a Divorce Final?
If the divorce is uncontested, you will schedule a hearing for the Final Decree of Divorce with the court. It is not necessary for both spouses to attend, given that both have signed the decree.
If the divorce is contested, and if you must appear in front of a judge to answer questions, it is paramount to have a family law attorney by your side. You will need to be prepared to provide legally recognized reasons for your requests, as well as all appropriate documentation.
When a judge approves a divorce, they will officially grant the divorce and sign the Final Decree of Divorce. After the paperwork is processed by court administration, you will be obligated to provide a copy to your spouse if they are not present.
The Last Step to Getting a Divorce in Texas
Completion of the BVS Form is required by the State of Texas at the end of divorce suits and any other suit that affects the family relationship. If you do not have any children, the form is still necessary and will confirm this with the state.
