Texas Uncontested Divorce

This information is an overview of the uncontested Texas divorce filing process and a summary of the divorce papers that are typically filed with the family law or domestic relations clerk. This overview is not intended to be an exact step-by-step guide for those "do it yourself divorce" filers, due to the fact that many cases are unique and the overview presented here is often not the only method of obtaining an uncontested divorce in Texas.

To file for divorce in Texas, one spouse has to be a resident of the state for at least six continuous months and in the county of filing at least 90 continuous days.

Texas permits No-Fault divorce when 1) "the marriage has become insupportable because of conflict of personalities that has destroyed the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation" or 2) when the parties live "separate and apart without cohabitation of three years." Texas also permits Fault divorce on grounds of 1) adultery, 2) abandonment, 3) confinement for incurable insanity for over three years, 4) conviction of a felony and imprisonment for over one year, 5) cruel and inhuman treatment.

In divorce actions, the person who files is called the Petitioner; the person who responds is called the Respondent.

In Texas, divorce begins when one party serves the other with Original Petition for Divorce, filed with the District Clerk of the county court. A Notice of Service of Process normally accompanies the Petition, and it is personally served on the Respondent, who may waive service in writing. The Respondent may elect to waive service when he or she agrees to the divorce or if both the petitioner and the respondent are working toward a settlement. This saves cost of service.

In most cases, however, Service of Process is done by a Sheriff, Constable or private server. The process includes the Petition and a Citation, which tells the respondent he or she has 20 days plus the following Monday to file an answer to the Petition.

The filing fees for the Original Petition, Citation and Service of Process vary slightly from county to county, but if all three are required can run more than $300.

If the Respondent answers the Petition, most likely he or she is preparing for a contested divorce. In this event, at the time of the filing, the Petitioner can request a standard Temporary Restraining Order. This stock order preserves the status quo, enjoins both parties from hiding or stealing marital assets, demands civility, enjoins harassment and threats, warns against the stealing of mail or cars. If no Temporary Restraining Order has been issued, the court sets a hearing within 14 days. At this hearing, the court issues temporary orders, which are a set of rules for the parties to live by while the divorce is pending. These rules deal with the temporary terms and conditions of custody, visitation and support of children, the use of property (including the marital home) and servicing of debt. They can also include temporary spousal support orders and interim attorney’s fees.

Thereafter, the parties engage in Discovery, by which both sides gain information and later negotiate a Marital Settlement Agreement. If the parties cannot reach an accord, they may be required to attempt Mediation, by which a neutral third party attempts to help them negotiate the Marital Settlement Agreement.

If they cannot reach agreement, a trial date is set. Texas is one of two states that permit jury trials for divorce cases upon request.

There is a 60-day waiting period between the filing of petition and the court judgment of divorce, but this does not mean that all divorces are automatically final on the 61st day. When the parties begin the action with agreement about the terms and conditions of their divorce, the final decree can be prepared and signed at any time. The divorce then becomes final when the judge so proclaims it in open court and signs the judgment. Neither party may marry a third party before the 31st day after the Decree of Divorce is granted.

At least 60 days must transpire between the filing and a divorce hearing, but because of the way the law it worded, the 60-day period may be hard to calculate. Many lawyers play it safe by waiting two months and two weeks from the filing of the petition. If the Respondent signs a Waiver agreeing to forgo service, this is the only waiting period required.

If, however, the Respondent was served, there are three different waiting periods that must be observed. They are as follows:

> The two months and two weeks from the filing date, and
> Twenty-seven days from the Service of Process, and
> Twelve days from the date of the Officer’s Return (on the Citation) in the District Court.

When the parties are not in agreement, however, a divorce can take six months to a year or longer, pending upon the complexities of the case.

In Texas, when the Petitioner and Respondent agree on the terms and conditions of the divorce (asset and liabilities distribution, spousal and child support, and visitation), they have what is called an Agreed Divorce. This is also called an uncontested divorce. In this routine, the Respondent signs a Waiver permitting the case to be finished without his or her participation. The Petitioner and his or her attorney go court for hearing and "prove up the divorce," by which a judge works through a list of standard questions and approves the divorce then and there.

A variation of this is called the default divorce. In this regime, the Respondent is notified of the divorce action, but does nothing about it, and no Answer is filed within the 20 days plus Monday time period and there is no waiver. In Texas and other jurisdictions, a person who does not show up loses by default. If the spouse is missing or will not be found, a default divorce also requires that Notice of Service be made by publication, which means the Citation must be published a number of times in a newspaper.

The best and easiest way to end a marriage is by agreement because apart from signing the Waiver and/or Marital Settlement Agreement, the Respondent does nothing. The most difficult (emotionally and financially) is by contest, which happens when the Respondent files an Answer and prepares for battle. Many marriages end by default, when the other spouse cannot be located or will not accept service of process.

The Petition, however, must be delivered to the Respondent in all cases. The petition, which is seven-page form, tells the court basic information about the marriage and states relief asked of the court. As mentioned, it may include a copy of the Marital Settlement Agreement, if the couple is that far along in their negotiations, and if there are children, it will include a form the Information Re Minors Required under § 152.209, Texas Family Code, as well as any Protective Orders issued by the court. Sometimes, divorcing couples include the Marital Settlement Agreement with the Petition as an attachment and thus pave the way to the divorce hearing.

When a couple divorce by agreement, the Waiver, which is signed by the spouse before a notary public, states he or she has received the Petition and the case can proceed without further Notice. This eliminates the need for the Citation, which gives him or her 20 days plus Monday to respond.

The Citation informs the Respondent he or she has been sued for divorce. It gives him the 20-day period to respond to the action. The response is called an answer. In most Texas counties the clerk prepares the Citation; in a few, the Petitioner must prepare it. The form of the Citation is slightly different when the Petitioner lives in a different Texas county than when both spouses live in the same county.

The Petition, Citation and Notice of Process are then forwarded to the Sheriff in the county where the Respondent lives.

By the time of the hearing, the Petitioner has prepared a Final Decree. The Final Decree, which is a standard six-page form, makes the divorce final, enters the judgment of divorce, and if applicable, identifies the children of the marriage, establishes custody, visitation, child support, health insurance, provides vital information about the parties, establishes separate and community property, income taxes, and support. It may include a number of exhibits as attachments, generally when the parties have minor children. The exhibits, which are normally lettered A, B and so on, include the following forms:

> Property Owned by Children, lists property owned by the minor children.
> Conservatorship, which spells out the terms and conditions of child custody, defines the rights and duties of each parent.
> Standard Possession Order, which spells out the terms and conditions of visitation, stipulates when each parent will have possession of each child.
> Possession Order for Children Under Three Years deals with the terms and conditions of visitation of very young children.
> Child Support Order, stipulates the withholding of child support paid by the noncustodial parent to the custodial parent.
> Health Insurance Order for Children stipulates the terms and conditions for the continued medical and hospital insurance for the children.
> Information Required by Texas Family Code § 150.006. This form lists the names, Social Security and driver’s license numbers, residence and mailing address, employer of all the parties in the action -- the Petitioner, Respondent and children.
> Orders Re Property and Debts, which identifies the separate property of the Petitioner and the Respondent, divides the community property of the divorcing spouses. (This form is used when the Petitioner listed separate or community property on the Petition and it is not divided in the Marital Settlement Agreement.)

In addition, depending upon the terms of the divorce and the situation of the parties, the court may require additional forms that are signed and ordered at the time of the final decree. Generally, it is the responsibility of the Petitioner to prepare these forms for the court. These forms include the following:

> Statistics Form, which provide vital information about changes in family relationships emanating from divorce and annulments. This information is for the Bureau of Vital Statistics.
> Order/Notice to Withhold Income for Child Support is issued when child support is ordered.
> Employer’s Order to Withhold Earning for Spousal Maintenance is completed and issued to the employer of the payor spouse when maintenance is ordered but without child support.
> Request to Issue Withholding Order is used when the payor spouse changes jobs and effectively reinstates withholding orders that were originally in place. This form is issued by the District Clerk.
> Military Affidavit is used when the respondent may enjoy protections of the Servicemembers Civil Relief Act (SCRA).
> Financial Information discloses the income of both the Petitioner and the Respondent and is used in connection with support calculations and awards.
> Affidavit of Inability to Pay is used when the Petitioner seeks relief from the court costs associated with the divorce because of indigence.
> Power of Attorney to Transfer Motor Vehicle is used to effect the transfer of automobiles in conjunction with divorce settlements.
> Special Warranty Deed (to Transfer Real Property) is used to effect the transfer of real property in conjunction with divorce settlements.

When a spouse cannot or will not be found, a spouse seeking to divorce the missing partner must nevertheless notify him or her. To do this, the Petitioner must publish the Summons in a newspaper. This is called Citation by Publication, and it requires the approval of the court after a good faith effort has been made to located the missing partner. The Citation is then published over a period of weeks, and a certification of publication becomes part of the record of the divorce proceedings.