Texas divorce details
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Uncontested vs Contested Divorce in Texas
In general, a divorce is either uncontested or contested in Texas. The difference between uncontested and contested divorces means the difference in whether the spouses can reach an agreement on all important issues of the separation, or the trial battle is necessary.
For example, speaking of such things as child custody, support, and visitation, high assets including retirement accounts, businesses and community property division, some couples just can't negotiate successfully by themselves. There is a contested divorce in such a case. It means that to reach an agreement on all aspects of the divorce settlement the couple had better involve mediation, arbitration, and even trial.
Of course, the time frame for a contested divorce almost always is significantly longer than that of an uncontested divorce.
Uncontested Divorce in Texas
In opposite to the contested divorce, an uncontested one is a type of dissolution in which both spouses can come to an agreement on all aspects pertaining to the divorce. Such divorce is usually pretty amicable and easy, it is also referred to as an “agreed” or “mutual” divorce.
Texas law allows filing for an uncontested divorce based on the No-Fault divorce ground - so-called insupportability (actually, the only No-Fault reason for getting divorced in Texas). This ground is often referred as a conflict of personalities or irreconcilable differences. When the couple simply cannot get along anymore, or just doesn’t want to demonstrate any blame for the separation and wash their dirty linen in public, – there is a No-Fault uncontested divorce.
When your divorce is filed as uncontested, it could save you a lot of time and money since there are fewer legal fees. Furthermore, you can even try cheap and fast DIY divorce online if you wish, since an uncontested divorce is well-suited for that.
In case of an uncontested divorce, the Respondent signs a Waiver permitting the case to be finished without his/her participation. The Petitioner and his/her attorney (if an attorney is involved) go court for hearing and prove up the divorce. There a judge works through a list of standard questions and approves the divorce right then and there.
Grounds for divorce in Texas
Choosing the appropriate type of divorce begins with the identification of its causes. You should sort out what is No-Fault divorce and know the difference between Fault and No-Fault divorce.
Texas belongs to mixed states. What does it mean? A divorce can be granted either with or without proof that one spouse was at fault for the breakup of the marriage.
In fact, there is one No-Fault and six Fault grounds for divorce in Texas.
- No-Fault Divorce
No-Fault divorce is a definition of the type of divorce based on its grounds.
Roughly speaking, the only No-Fault reason for getting divorced in Texas is so-called insupportability. This ground is often referred as a conflict of personalities or irreconcilable differences. When the couple simply cannot get along anymore, or just doesn’t want to demonstrate any blame for the separation and wash their dirty linen in public, – a No-Fault divorce can be the right choice.
Being more simple and quite more cheap, No-Fault divorce is popular now. Despite there is a provision for counseling in the Family Code, plainly stated, there is no any defense to a petition for divorce based on insupportability – so if at least one of you want to be divorced, you will be. The law of Texas will not force you to remain married.
- Fault Divorce Grounds
Fault divorces are not as common nowadays, and in fact, some states no longer recognize them, but in Texas the coexistence of Fault vs No-Fault divorce is still relevant.
The Fault divorce implies, that one of the spouses requests that a divorce be granted based on some fault of the other spouse.
There are six Fault divorce grounds due to the Texas Divorce Law, including cruelty (either physical violence or mental abusing and any unreasonable cruelty); adultery; separation (if the spouses have lived apart for more than three years); abandonment: felony conviction ( for at least a year) and a mental hospital confinement (for at least three years, and his/her condition will not improve or the probability of relapse is high).
Notice, that in the majority of No-Fault divorces, the court splits community property 50/50, but in a Fault divorce, in addition to the need to open your private life up to the court, the party who is at Fault for the divorce is subject to an unequal distribution of the marital estate in a manner that is determined to be just and right by the judge.
Texas Residency Requirements to File for Divorce
But before sorting out all the pros and cons of each divorce option and other details of a Texas Family Law, let’s point the main demand of a Texas divorce, which is very plain and clear.
You can file for divorce in Texas if you or your spouse be a resident of the State for 6 months or 180 days before your filing for divorce and one of you must have resided in that County, where you are going to be filed, for at least 90 days.
So, the divorce itself is usually filed in the county in which the filing spouse resides.
How to File for an Uncontested Divorce in Texas?
An uncontested divorce can be filed without an Attorney in Texas. If both spouses can reach an agreement on all the issues of their divorce, the legal process for filing an uncontested (and, respectively, no-fault) divorce and for finalizing this dissolution is pretty simple. Here are some common steps of the process:
Prepare the Civil Case Information Sheet and the Petition for Divorce. From this point, the uncontested divorce is starting. The Civil Case Information Sheet includes general information about the spouses in the divorce proceeding. That who is going to file the divorce should fill out this document, sign it, and file it in court with the Original Petition for Divorce. The Original Petition for Divorce is the document that is filed by the petitioner (divorce initiator) to commence the divorce proceeding in court. It provides information about your marriage and requests that a judge grant your divorce based on the grounds you referred to and finally issue an Order dissolving your marriage. So, prepare the petition, sign it, and file it in court. When the petition is filed, the court will stamp it.
You must provide your spouse with a copy of the filed petition. Then, he/she should sign a Waiver of Citation form in which he/she agrees with what you said in your petition, and with the fact that your divorce is an uncontested one. Your spouse has to sign this document before a Notary who will notarize the signature. You should receive the signed and notarized Waiver to bring it to court and file it with the court clerk.
- After the petition has been filed with the court the mentioned above 60 Day Waiting Period starts. According to the Texas law, a Texas court cannot grant a divorce during this period. "Waiting", or "cooling-off" period in the case of no-fault divorce officially gives you time to resolve the conflict of personalities and maybe to change your mind about getting a divorce.
The next stage is the filing of the Final Decree of Divorce. It contains all terms and agreements of your divorce. The judge will sign it when grants your divorce. The Decree of Divorce is drafted by the petitioner. The petitioner must sign it and notarize. It is also recommended to have the respondent's notarized signature on the Decree of Divorce. When both spouses sign the Decree of Divorce, it is called an “Agreed Decree of Divorce”.
- Attend a "Prove-Up Hearing" to Finalize Your Divorce. Only the petitioner is required to attend and appear at this hearing, but, surely, the respondent may come if he or she wants to. This is a very short hearing, at the end of which the judge will sign your Agreed Final Decree of Divorce. The divorce is final as soon as the judge pronounces it so in open court and signs the decree of divorce.
- Don’t forget to complete the so-called Texas VS-165 Form an advance. Bring it to your hearing to obtain one or more copies of the signed and dated Agreed Final Decree of Divorce.
Do-It-Yourself Divorce in Texas
Those couples who don’t need their divorce to be a huge show, are looking for ways to save a little when drafting a divorce, without involving lawyers or mediators. Such procedure is known as do-it-yourself divorce.
In short, you can fill out the forms yourself checking your state's court website for divorce papers or using an online divorce service.
Such websites as this one, can prepare forms for you based on detailed information you provide. These divorce documents are customized to your certain situation.
And, surely, an important advantage of DIY Divorce is an average cost of a typical online divorce – $100 to $500, that varies by your county’s required forms and filing procedures.
However, sometimes people are attracted by the cost of Do-It-Yourself kits, and they just forget to think about all the difficulties and risks. You should notice that do-it-yourself divorce is primarily an uncontested divorce. It may be risky and even dangerous if you’re divorcing an abusive spouse (especially if your ex-partner hires an attorney).
Don't ignore the main condition of a successful DIY divorce – the decision to end your marriage should be mutual, cause you will have to negotiate, meet and compromise if you want your divorce to be quick, accurate and silent.
Who is a good candidate?
- You will cope with DIY divorce if you and your spouse made a decision about dissolution agreed and as peaceful as possible. In fact, it must be a No-Fault Uncontested divorce. Negotiation is a particularly important part of do-it-yourself divorce, so if you should be sure that your spouse can be honest with you.
- DIY divorce process will be easier if you have no children.
- That's good if both of you are employed and support yourselves.
- You have neither lots of assets nor lots of debts. Then you don't need to sort out how to divide the assets, what to do with possible tax implications for transferring the funds, or who is responsible for the debts.
How Much Does an Uncontested Divorce Cost?
Let’s compare. An average cost for the whole divorce process with a help of attorney ranges from $5,000 to $34,000, including an attorney’s fees about $12,500!
While an uncontested online divorce will cost you only $100 to $500, depending on the chosen online-service and other circumstances of your divorce. So, divorcefiller.com offers its Premier uncontested divorce tool with fully-guided fast and affordable process from $149.
How long does it take to get divorced in Texas?
The Texas traditional (with an attorney) divorce process typically ranges from 7 months to 19 months, so an average term is 12,5 months.
But due to the Texas Family Code Section 6.702 “a court may not grant a divorce before the 60th day after the divorce was filed.” It means that a 60-day waiting period begins right the day a person files for divorce. So under the most favorable circumstances the 61st day after a divorce petition is filed is the earliest date you probably can get divorced in Texas in the case of an amicable & uncontested dissolution.
Papers & Documents You Need to Get a Divorce in Texas
Though rules and procedures for filing a petition may vary from situation to situation, this basic list of documents you need to file out for an uncontested divorce will help you to cope with this process. Approved by the Supreme Court of Texas it is used in agreed divorces that do not involve children or real property.
- Affidavit of Indigency.
Also known as “Affidavit of Inability to Pay Costs”, this form helps to know if you can file for divorce without paying the court and filing fees. You can use it if you are poor and you cannot afford court fees.
- Original Petition for Divorce.
The form that actually starts your divorce process. It tells that you want a divorce and states what you want the Court to order in the Final Decree.
- Waiver of Service.
It tells the Court that the respondent has received a copy of the Original Petition for Divorce and does not need to be formally given a copy by a constable, sheriff, or process server. This form allows the judge to finalize your divorce when the respondent has signed the Final Decree of Divorce.
- Final Decree of Divorce.
This form finalizes your divorce and states what the Court has ordered in your case. Fill it out and bring it to the divorce hearing.
- Certificate of Last Known Address.
It tells the Court the last known address of your spouse (of a respondent). It is filled out only in certain situations. If a Waiver or an Answer has not been filed by your spouse, you have to bring this form to the final divorce hearing.
- Notice of Change of Address.
Must be filed if you or your spouse moves.
- Affidavit of Military Status
It tells the Court whether or not your spouse is on active military duty.
How to serve your spouse in Texas
Texas's waiting period begins on the day you file your petition, not the date you officially serve your spouse with your papers. If you can serve your spouse by conventional means – either through a private process server or the county constable – you can usually complete this divorce requirement with a minimum of fuss and relatively quickly.
In fact, anyone 18 or older (but not you) can hand the papers to your spouse. It can be a family member or a friend.
You can also hire someone to do it. It may be a professional process server, but not necessarily. But it cannot be you who hands the papers to your spouse.
At the same time, papers cannot be given to someone except your spouse. The only exception is that the papers can be given to someone "of suitable age and discretion" who lives in the same home with your spouse, but you will have to convince the judge that your spouse lives with this person. So, you better try to choose an easier way.
Online Divorce in Texas
Nowadays Online Divorce is becoming increasingly popular due to its low cost, short terms, and variability.
For example, you can do everything by yourself, just downloading a necessary divorce kit, or you can take an online help of paralegal or legal assistant to figure out some details, or just hire an attorney to do only a certain part of your divorce. Some companies offer arrangements where clients can receive advice or have particular parts of their divorce completed.
Notice! The state of Texas now allows you to file for divorce online, but not every court in Texas counties is on board with the program – some of them still don't. As you have to file for divorce in that county where you’ve lived for the last three months, you should check with your court to make sure you can file for divorce online.
Rules for Child Support and Visitation in Texas
Child support guidelines in Texas are pretty cut and dried. The parent who doesn’t have custody must pay a certain percentage of his or her net income for child support. The percentage depends on how many children the parent is supporting: For one child, the court generally awards 20% of the net resources of the non-custodial parent for one child, 25% for two, and higher percentages for more children.
This provides a baseline amount that is presumed to be fair. However, if a parent believes that the amount generated by using the guidelines is too high or too low, the parent can ask the court to change the award, based on a long list of factors provided in the Texas Family Code. These factors include the child's needs, any special expenses the child or parent incurs, and how much time each parent spends with the child.
In Texas, a child custody is called conservatorship. Chapter 153 of the Texas Family Code includes the list of demands for appointing people as "conservators" and granting rights of custody and access to a child.
Court decision always aims to focus on the best interests of the children. First, the court will decide the issue of legal custody for any minor children. This will give one or both parents the right to make decisions related to schooling, religion, cultural activities and health issues. Now more and more courts favor the joint child custody, allowing both parents to make significant decisions about children's upbringing and education.
Rules for Spousal Support in Texas
Texas isn't very friendly to the idea of alimony. Generally, a court will award alimony only in limited circumstances. For example, if you are unable to support yourself due to a disability, or unable to work because you must care for a child with a disability, the court may award spousal support.
Division of Property in Texas
Texas is a one of the states with equal property split. According to the Community Property laws both spouses own property, income and debt equally. That is why in the case of uncontested divorce the court typically splits community property 50/50.
So, community property and debt are divided in a divorce and separate property and debt are not divided.
Your Final Decree of Divorce will list all the community property each spouse will keep or in some circumstances order community property (such as a house) sold and say how the proceeds should be split. Either it will list the separate property of each spouse.
Despite it is true that uncontested divorces are less time-consuming and less costly than litigated ones, they have some pitfalls. It is still quite difficult to negotiate with your ex and not to miss some important financial issues that can influence your further post-divorce life.
After all, under community property law, each spouse is entitled to half of all assets acquired during the marriage including real property, along with half of the earnings of the spouses between the marriage date and the separation date. And agreeing to avoid all of that may be detrimental to a person's financial stability.
Take into account, that you always can hire an attorney to do only a certain part of your divorce. Some companies offer arrangements where clients can receive advice or have particular parts of their divorce completed.
Division of Debt in Texas
In a Texas divorce, debts can also be assigned like property so it is particularly important to understand your ability to pay for the debts assigned to you, especially if you are taking an asset with a debt attached to it, like a house or a mortgage. Notice, that if you cannot afford the mortgage then you will not keep the house for long, and you will lose the asset awarded to you plus your credit rating will suffer and you may end up owing additional fees and interest on the mortgage.
Divorce Mediation in Texas
Mediation is one of the most frequently used methods of negotiating a property or custody agreement in Texas divorce cases. An attempt at mediation is required (or strongly recommended) in many Texas counties and depends on some particular conditions. For example, Travis County requires mediation when it’s anticipated that a hearing before a judge on a family law dispute will take three hours or more.
In addition, some couples really need a third party to help to communicate their position to their spouse and often only the one mediation session is enough for the couple to sort out some important points. So you and your spouse may benefit from and reach an agreement with virtual divorce mediation. Such a virtual session is conducted by an experienced mediation attorney. No office visits and extra meetings are required.
How to Divorce a Missing Spouse in Texas
If you can't find your spouse to serve him with the paperwork, the time-consuming complication can arise. You should have to ask the court for special permission to serve him by publication. Approval usually depends on how hard you've looked for him. You should then have to submit proof of your search to the court, then publish notice of your petition for divorce in the newspaper, if the judge grants your request to use this method of service.
If the respondent still fails to file a response, the petitioner can request that the court grant the divorce by default, but you must wait another 30 days after publication to file for a default divorce. And the court must approve and sign a statement of the evidence presented at the default hearing.
If your spouse finally responds and contests your divorce, resulting in your going to trial so a judge can resolve the contested issues for you, your divorce might take a year or more.
Default Divorce can be defined as a separate subset of an uncontested divorce. Default Divorce means that the Respondent is notified of the divorce action but does nothing about it, and no Answer is filed within the 20 days period and there is no waiver. Thus, In Texas a person who does not show up loses by default.
Notice! If the spouse is away and will not be found, a default divorce also requires that Notice of Service be made by publication (so-called Citation) in a newspaper a required number of times.
And if that is you that spouse who don't respond to petition for divorce, and your case is considered "default", remember that you are giving up your right to have any say in your separation process. So before you choose this option, as the most "lazy" (that which doesn`t require any action from you), make sure you read all the papers your spouse filed more carefully. All that your ex-spouse asks for in his/her papers, is probably going to be what the court will order in the end.
Annulment of the Marriage in Texas
Annulment (or "void", as it called in Texas) is not the same as divorce. While a divorce ends a valid marriage, an annulment ends a marriage which was originally not supposed to be valid. If your marriage was invalid from the beginning, you may be eligible for an annulment of your marriage in the state of Texas.
The marriage can be subject to an annulment on such grounds as:
- Incest – your and your spouse are related, closer than first cousins.
- Bigamy (you or your spouse is in another marriage that wasn't terminated in time).
- Underage, which means that one spouse was under the legal age to get married (18 - is the age of majority in Texas to get married without parental consent)
- Intoxication – one spouse was too intoxicated during the ceremony to consent to marriage.
- Impotence – one spouse is permanently unable to have sexual intercourse.
- Fraud – one spouse lied about or hid something essential to the marriage.
- Duress – one spouse was coerced, threatened, or forced to get married.
You can request an annulment by filing a document called “A Suit to Declare Void the Marriage of [Petitioner] and [Respondent].”
File the lawsuit in the district court for the county where either you or your spouse lives. Residency requirements to file for an annulment are the same as for divorce.
Check with the district court clerk’s office to see if they have a sample form you can use to file for an annulment
Legal Separation in Texas
Separation can seem a viable option for couples who have not decided to divorce yet and suppose that living apart can give them space and time they need to decide if they want to resolve their problems or finally fill for a divorce.
But there is no such item as Legal Separation in Texas family laws!
And since Texas does not recognize legal separation, so is worth to remember that parties are not protected while separated. Because no documentation recognizes a legal separation, you remain married even if you are not living together. While the division of assets and child support could work in this scenario if you and your spouse agree, if one of you changes your mind, you will not have legal protection. Also, you cannot remarry either until you have obtained a divorce.
Same-Sex Divorce in Texas
Prior to 2015, you would not have been able to get a same-sex divorce in Texas, much less get married here.
But with the pronouncement that same-sex marriages were to be made legal in all fifty states, the Supreme Court, finally, changed long-standing Texas law on this subject.
Now, married same-sex couples are afforded the same rights as married heterosexual couples.
They include terms of the property laws and the marital property rights. That means all assets and debt accrued from the date of marriage until the date of divorce are subject to division.
If you married in a location that recognized same-sex marriage prior to the SCOTUS ruling – you will probably face fewer difficulties to divorce. The date of marriage will be established through some sort of ceremonial marriage that occurred, and the couple should have documentation to establish when and where they married.
That’s interesting, that many same-sex couples who married outside of Texas Prior to the SCOTUS ruling, wisely executed both a prenup (there) and a cohab (here). Now that Texas recognizes same-sex marriage, the premarital agreement would stand as the ruling contract and be upheld during the divorce, as long as it was prepared properly.
Military Divorce in Texas
Despite every case is unique, there are some points need to consider how military divorce is influenced by Family Code and some Federal laws.
Military divorces are governed by both state and federal laws, which means there are unique laws not found in civilian divorces that will apply to certain aspects of a divorce involving a member of the armed forces. Generally, this includes matters of jurisdiction and how military pensions are divided between spouses. Additionally, service members on active duty are protected by the Servicemembers Civil Relief Act (SCRA), which prohibits divorce proceedings involving military members while they are on active duty, or for 60 days following the start of active duty (in some cases).
What about service of divorce papers, it still needs to be in person even if the receiving party is an active duty member of the military.
The Servicemembers Civil Relief Act also protects active duty members of our military from being held in default for failing to respond to a divorce petition. So divorce proceedings are basically postponed for as long as they are considered active duty members of the military and up to sixty days after that.
How To Divorce a Spouse In Jail In Texas
If one spouse has been convicted of any felony and has been incarcerated in a state or federal prison without a pardon for at least a year, his or her spouse can obtain a Fault Divorce.
The nuance of this ground is the fact that a court may not grant a divorce against a spouse who was convicted on the testimony of the other spouse.
Texas Divorce Filing Fee
Court filing fees are in addition to the cost of using DivorceFiller.com. This cost may vary by county. Please check with your local courthouse to determine the exact amount.
Can a Filing Fee Be Waived?
You can fill out a special mentioned above “Affidavit of Indigency” form (also called “Affidavit of Inability to Pay Costs”) if you are in a difficult financial situation and cannot afford to pay these fee.
In this manner, you ask the Court if you can file for divorce without paying the court
and filing fees. So you should be prepared that the Court may ask you to present evidence of your income and expenses at a hearing. The Court does not necessarily provide such an opportunity, but, surely (and unfortunately), there are some cases when some people are forced to try it.
How We Can Help
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