Texas Divorce: What You Should Know

Every state has its own rules and procedures for divorce. Here's what you need to know about how to get a divorce in Texas.

• Residency Requirements for Divorce in Texas
• What Are the Grounds for Divorce in Texas?
• How Do I Get a Divorce in Texas?
• What to Expect in a Texas Divorce
  • Property Division in Texas
  • Child Custody in Texas
  • Child Support in Texas
  • Spousal Support in Texas
• Mediation as a Divorce Alternative
• Finalizing a Divorce in Texas

Residency Requirements for Divorce in Texas

As long as you follow the state's marriage license rules, you can get married in any state—even if you don't live there. The requirements for ending a marriage, though, are not as relaxed. Instead, you must meet a state's residency requirements before you can file for divorce in its courts.

To get a divorce in Texas, at least one spouse must have:

• lived in Texas for the six months prior to filing and
• been a resident of the county where the suit is filed for the 90-day period before filing.

(Tex. Fam. Code § 6.301 (2021).) The purpose of state residency requirements is to prevent one spouse from moving to another state (or county) to "shop" for a court or judge that will view the case more favorably for that spouse. Residency requirements also prevent one spouse from filing in a location far from the other just to make it more difficult (and expensive) for the other spouse to respond and participate.

What Are the Grounds for Divorce in Texas?

Texas allows both "no-fault" and "fault-based" divorces. A no-fault divorce is one in which the court doesn't require either spouse to prove that the other's bad acts were the cause of the divorce. In a fault-based divorce, one or both of the spouses must show that the other's actions caused the marriage to fail.

No-Fault Grounds for Divorce in Texas

No-fault divorces reach resolution faster than fault-based divorces because the spouses don't have to argue about or prove who was responsible for the divorce. Also, with a no-fault divorce, you do not have to have your spouse's consent to end the marriage. The no-fault grounds for divorce in Texas are:

• Insupportability of the marriage. The marriage can't last because of conflict or discord between the spouses, and there's no reasonable expectation that the spouses can reconcile. (Tex. Fam. Code § 6.001 (2021).)
• Living apart. The spouses have lived apart without cohabitation for at least three years. (Tex. Fam. Code § 6.006 (2021).)

Fault-Based Grounds for Divorce in Texas

In a fault-based divorce, one or both spouses will have to present evidence to the judge that proves the spouse committed acts that meet one of Texas' fault-based grounds for divorce. Fault-based divorces are often more contentious, more expensive, and last longer than no-fault divorces. The fault-based grounds for divorce in Texas are:

• Cruelty. (Tex. Fam. Code § 6.002 (2021).)
• Adultery. (Tex. Fam. Code § 6.003 (2021).)
• Felony conviction. (Tex. Fam. Code § 6.004 (2021).)
• Abandonment. (Tex. Fam. Code § 6.005 (2021).)
• Confinement to a mental hospital for at least three years. (Tex. Fam. Code § 6.007 (2021).)

How Do I Get a Divorce in Texas?

Generally, there are two types of divorce—uncontested and contested. An uncontested divorce is one where the spouses agree on all divorce-related matters, such as division of property, child custody, and spousal support. A contested divorce, on the other hand, is one where the spouses can't agree and must ask a court to decide the issues in their divorce.

Uncontested divorces are generally faster and less expensive than contested divorces because there's no fighting in court—all the judge must do is review and approve the spouses' marital settlement agreement and issue a divorce decree.

How to Get an Uncontested Divorce in Texas

An uncontested divorce in Texas is called an "agreed divorce." The forms and procedures you'll use for an agreed divorce depend on your situation. Click on the link that best describes your situation to obtain information and forms about how to file your divorce.

• Agreed divorce with children—no court orders for custody and support
• Agreed divorce with children—a final custody and support order is already in place
• Agreed divorce without children or real property
• Agreed divorce without children but with real property

In an agreed divorce, the responding spouse will usually sign the Final Decree of Divorce that the petitioning spouse filed with the petition.

If you file a petition for divorce and your spouse doesn't respond, Texas allows you to get a default divorce. This means that the judge will decide the issues in the divorce without input from your spouse.

How to Get a Contested Divorce in Texas

When a spouse files for divorce in Texas, the court will know that it is contested when the responding spouse (the "respondent") files an answer but refuses to sign the Final Decree of Divorce that the filing spouse (the "petitioner") filed with the petition. Many respondents in contested divorces also file a Counter-Petition for Divorce when they answer the petition. A counter-petition lets the court know what the respondent is asking for in the divorce.

Although you can represent yourself in your divorce, many people involved in a contested divorce choose to hire a lawyer to help them navigate the court system and present their case to the court.

It can take up to a year (or more, depending on the circumstances) to finalize a contested divorce.

Divorce Filing Fees in Texas

Like most legal proceedings, you must pay court filing fees to begin your divorce. Divorce filing fees vary by county in Texas. The cost might also differ if you have children. For example, in Harris County, the filing fee in 2021 for a divorce with children is $320. If you don't have children, the filing fee is $293. Contact the court clerk in the county where you will file your divorce to find out the current filing fee.

If you can't afford to pay the filing fees, you can ask a judge to waive the fees. You can request a waiver by filing a Statement of Inability to Afford Payment of Court Costs or an Appeal Bond or a sworn and notarized statement that includes the same information contained in this form. If the court grants your request to waive fees, you will not have to pay any court costs—such as filing fees or fees for issuance of service of process—during your divorce.

Serving Your Spouse in Texas

Once you file the paperwork, you will need to provide copies of all the documents to ("serve") your spouse and submit proof of service to the court. In Texas, you will need to serve your spouse with:

• the citation (this is a notice that the divorce has been filed, similar to a summons in other states)
• a copy of the Original Petition for Divorce, and
• any other forms filed with the petition.

You'll need to hire a sheriff, constable, or professional process server to serve the divorce papers on your spouse. (Tex. R. Civ. Pro. R. 103 (2021).) You can't serve the documents yourself. The documents can be served by delivering them to your spouse in person, or mailing them by registered or certified mail, returned receipt requested. (Tex. R. Civ. Pro. R. 106 (2021).) If neither of these procedures work, you can ask the court for permission to serve your spouse in another way, such as by publication or posting.

You can avoid hiring a sheriff or constable if your spouse agrees to "waive" service. To waive service, your spouse must fill out and sign a:

• Respondent's Original Answer or
• Waiver of Service Only form.

What to Expect in a Texas Divorce

Once the respondent files an answer, both spouses must exchange initial disclosures, unless the spouses agree to waive this requirement.

Here are the issues you can expect a judge to address in a contested divorce.

Property Division in Texas

Texas is a community property state. "Community property" is any property acquired or earned during the marriage that isn't separate property. "Separate property" in Texas includes:

• anything that belonged to one spouse before marriage and was kept separate throughout the marriage
• property acquired by the spouse during marriage by gift or inheritance, and
• personal injury awards awarded to a spouse for an injury the spouse sustained during the marriage (minus any recovery that was awarded for the spouse's loss of earning potential).

(Tex. Fam. Code § 3.001 (2021).)

Texas courts presume that any property that spouses have during their marriage is community property—the spouses must provide proof of separate ownership if they want the court to designate it as separate property. (Tex. Fam. Code § 3.003 (2021).)

Child Custody in Texas

Like all states, Texas courts encourage divorced parents to have frequent and continuing contact with their child. Texas courts award custody based on what is in the best interests of the child. (Tex. Fam. Code § 153.002 (2021).) Alternatively, Texas parents can enter into a written agreed parenting plan regarding custody, and the court will approve it as long as it is in the child's best interests. (Tex. Fam. Code § 153.007 (2021).)

Texas uses unique child custody terminology. Custody is referred to as "conservatorship." Also, legal custody and physical custody are called "managing conservatorship" and "possessory conservatorship." Texas law favors giving the parents joint managing conservatorship, but will deviate from this preference if it's not in the child's best interests. (Tex. Fam. Code § 153.131 (2021).)

Even when both parents share managing conservatorship (legal custody), the court might allocate possessory conservatorship (physical custody) differently. (Tex. Fam. Code § 153.135 (2021).) Texas has a "standard possession order" most courts apply if the parents can't agree on the terms of possessory conservatorship. (Tex. Fam. Code §§ 153.3101 through 153.3171 (2021).) Judges who believe the standard possession order isn't appropriate in a particular case may change the terms.

Child Support in Texas

Although Texas courts can order either or both parents to pay child support, in most cases courts order the parent without primary possessory conservatorship (the "noncustodial parent") to pay. Texas child support payments continue until:

• the child is 18 years old or graduates from high school (whichever comes later)
• the child is emancipated through marriage or a court order, or
• the death of the child.

If the child has a disability, a judge can award child support for an indefinite amount of time. (Tex. Fam. Code § 154.001 (2021).)

Texas child support payment amounts are based on a percentage of the noncustodial parent's income. You can estimate how much your child support payments will be by using Texas' child support guidelines.

Spousal Support (Alimony) in Texas

Texas courts award "spousal maintenance" for either spouse only if the spouse seeking maintenance doesn't have enough property to provide for their reasonable needs and:

• the spouse from whom maintenance is requested was convicted of domestic abuse within the past two years before filing the divorce, or
• the spouse seeking maintenance:
  • can't earn enough to provide for their minimum reasonable needs due to a physical or mental disability
  • has been married to the other spouse for 10 years or longer and can't earn enough to provide for their needs, or
  • is the custodian of a child of the marriage of any age who requires care and supervision due to a disability that prevents the spouse from earning enough income to provide for the spouse's needs.

(Tex. Fam. Code § 8.051 (2021).) If the spouse qualifies for maintenance, the judge will evaluate factors such as each spouse's income and education to determine the nature, amount, duration, and payment method of support. (Tex. Fam. Code § 8.053 (2021).)

See Understanding and Calculating Alimony in Texas for more information about how Texas courts evaluate maintenance and the length of Texas maintenance awards.

Mediation as a Divorce Alternative

Not all divorces need to be drawn out battles in the courtroom. Instead of hurrying to the courthouse to file for divorce when you have unresolved issues, mediation might be a less contentious and cheaper way to divorce.

Divorcing spouses can choose to mediate on their own with a private mediator. Some states' laws require divorcing spouses to attempt mediation while a divorce is pending in court. This is known as "court-ordered mediation." Texas courts can require a divorcing couple to mediate. (Tex. Fam. Code § 6.602 (2021).)

In mediation, both spouses meet with a trained and neutral third party called a "mediator." Mediation sessions are confidential, and each spouse will have the opportunity to list their issues and suggest resolutions. The mediator will not make any decisions in the case—rather, a mediator's job is to guide the negotiations in a way that will help the spouses settle their divorce without court intervention.

If you agree on some or all of the issues during the mediation, the mediator can draft a divorce settlement agreement for you to present to the court. In Texas, the court will enter the mediated settlement agreement as an order if it:

• states—in bold, capital, or underlined letters—that it is irrevocable
• is signed by both spouses, and
• is signed by each party's attorney (if any) who is present at the time the agreement is signed.

(Tex. Fam. Code § 6.602 (2021).)

Any remaining issues that you and your spouse can't agree on will be decided by the court. Even if you're able to agree on one or two issues, mediation is usually much less expensive than going through a complete divorce trial, and can help you and your spouse create a foundation for continuing communication after your divorce.

Finalizing a Divorce in Texas

Even if you have an uncontested divorce, Texas has a "waiting period" of 60 days between when you file your divorce petition and when the court can finalize the divorce. (Tex. Fam. Code § 6.702 (2021).)

Before your final hearing, you must fill out a Final Decree of Divorce. The court can provide you with the right form decree to use, depending on whether or not you have children. After the hearing, the judge will either sign the proposed decree you submitted or, if the judge doesn't agree with what you've proposed, will prepare and sign a different decree.

You'll receive a copy of your divorce decree after it's signed by the judge and entered as an order. If you need an additional copy of your Texas divorce decree, you can contact the clerk of the court that granted the divorce.

Other Resources for Filing a Divorce in Texas

• Texas Law Help's Guide to Representing Yourself in Family Court.
• The Texas Young Lawyers Association's Pro Se Divorce Handbook: Representing Yourself in Family Court.