Texas divorce details
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Uncontested vs Contested Divorce in Texas
Divorce in Texas, like any other state, falls into two main categories: contested and uncontested.The main difference between the two lies in whether the couple can come to an agreement on all the issues regarding the divorce process, or if they have to battle them out in court.
Issues regarding child custody, retirement accounts, and property division can sometimes be difficult for some couples to resolve on their own. If they cannot come to an agreement, the divorce is considered to be contested. In order to reach an agreement, the couple is better off seeking outside help such as mediation, arbitration, or even a trial.
Unsurprisingly, a contested divorce almost always takes a much longer time than an uncontested one.
Uncontested Divorce in Texas
In contrast to contested divorce, an uncontested divorce takes place when both spouses come to an agreement on all terms of the divorce. It is generally an amicable process and sometimes referred to as an “agreed” or “mutual” divorce.
Texas law allows citizens to file for an uncontested divorce based on the grounds of a No-Fault divorce, commonly referred to as “insupportability”. This indicates a conflict of personalities or irreconcilable differences. When a couple simply cannot get along with each other (or does not want to spend time proving fault in court), a No-Fault, uncontested divorce can be initiated.
If you file for an uncontested divorce, it can save you a lot of time and money due to fewer legal fees. Furthermore, you get the opportunity to prepare the required documents online. Furthermore, uncontested divorces give you the opportunity to have the relevant documents prepared online.
In an uncontested divorce, the Respondent signs a Waiver permitting the case to be finished without his/her participation. The Petitioner and their attorney (if involved) go to court for a hearing. There, the judge goes through a list of standard questions and may approve the divorce on the spot.
Grounds for divorce in Texas
Choosing the appropriate type of divorce begins with identifying the root causes of it; one must know the differences between Fault and No-Fault divorces.
Texas is a “mixed state”which means that a divorce can be granted either with or without proof that a spouse is at fault.
State law indicates one ground for a No-Fault divorce and six grounds for a Fault divorce.
- No-Fault Divorce
The only ground for a No-Fault divorce is when there are irreconcilable differences between the two spouses.
Given their simplicity and affordable costs, No-Fault divorces have been gaining in popularity. Additionally, there is no defense to a petition for divorce based on insupportability – i.e. if at least one spouse wants a divorce, it will be considered. Texas law does not force an unhappy spouse to stay married just because the other spouse is happy with the marriage.
- Fault Divorce
Fault divorces are not as common nowadays as they were before. In fact, some states no longer even recognize them. Texas, however, retains the distinction between Fault and No-Fault divorces.
A fault divorce implies that one of the spouses is requesting for a divorce based on the fact that the other spouse has done something wrong.
There are six grounds for a fault divorce in Texas:
- cruelty (either physical or mental abuse and any other unreasonable acts of cruelty)
- separation (if the spouses have lived apart for more than three years);
- felony conviction (for at least a year)
- confinement to a mental hospital (for at least three years, with signs that the spouses’ condition will not improve or that the probability of relapse is high).
It is important to note that in a majority of No-Fault divorces, the court splits joint property evenly down the line. In a fault divorce, 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.
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Texas Residency Requirements to File for Divorce
A central requirement for all divorces is residency within the applicable state for a certain time period.
One of the spouses must be a resident of Texas for 6 months to be eligible to file for a divorce in the state. Additionally, the petitioner must be a resident of the county where the case will be heard for at least 90 days.
The divorce itself is usually filed in the county where the filing spouse resides.
How to File for an Uncontested Divorce in Texas?
An uncontested divorce can be filed without the help of an attorney in Texas. If both spouses can reach an agreement on all the issues of their divorce, the legal process for filing and finalizing an uncontested (no-fault) divorce is fairly straightforward. Here are some common steps in the process:
- Prepare the Civil Case Information Sheet and a Petition for Divorce. The Civil Case Information Sheet includes general information on the spouses of the divorce proceeding. The person filing the divorce must fill out this document, sign it, and file it in court with the Original Petition for Divorce. The Original Petition for Divorce is a document that needs to be filed by the petitioner (the divorce initiator) in order to commence the divorce proceeding in court. It provides information regarding the marriage and requests that a judge grant a divorce based on the grounds it refers to, and then issue an Order dissolving the marriage. In sum: prepare the Petition, sign it, and file it in court. After the Petition is filed, the court will stamp it for approval.
- You must provide your spouse with a copy of the filed petition. The spouse must then sign the Waiver of Citation form and get it notarized. This document confirms that they agree with what is laid out in the Petition and the fact that the divorce is uncontested. After you receive the signed and notarized Waiver, file it with the court clerk.
- After the Petition has been filed with the court, the 60-day waiting period begins. According to Texas law, the court could not grant a divorce during this period. The "waiting" or "cooling-off" period, in the case of a no-fault divorce, officially gives the spouses time to resolve their conflicts, and an opportunity to reconsider getting the divorce.
- The next stage is filing the Final Decree of Divorce which contains all the terms and agreements of your divorce. It is drafted by the petitioner: they must sign it and get it notarized. The judge will then sign it when they approve the divorce. It is also recommended to have the respondent’s signature notarized. When both spouses sign the Decree of Divorce, it is referred to as an “Agreed Decree of Divorce”.
- Attend a "Prove-Up Hearing" to finalize your divorce. Only the petitioner is required to attend this hearing. This is a very short hearing where the judge will sign your Agreed Final Decree of Divorce. The divorce is final as soon as the judge pronounces it in open court and signs the decree of divorce.
- Don’t forget to complete the Texas VS-165 Form in advance. Bring it to your hearing in order to obtain one or more copies of the signed and dated Agreed Final Decree of Divorce.
Do-It-Yourself Divorce in Texas
For couples who wish to save time and money when drafting a divorce without having to involve lawyers or mediators, do-it-yourself divorce may be the solution.
In this procedure, you can fill out the required documents yourself either by referencing your state court’s website or by using an online divorce service.
Online services such as ours prepare the forms based on the detailed information you provide. They are customized for each individual situation..
Furthermore, another important advantage is the relatively low costs. On average, such services only cost anywhere from $100 - $500, depending on your county’s required forms and filing procedures.
However, people sometimes get too caught up on the cheap costs of a DIY divorce and forget the potential difficulties and risks that come with it. It is important to note that this procedure is used primarily for uncontested divorces. It may be risky and even dangerous to implement this if you are divorcing an abusive spouse (especially if they hire an attorney).
Don’t forget that the main condition of a successful DIY divorce is that the decision to end your marriage is mutual. You must negotiate and compromise on all the issues if you want your divorce to be quick and accurate.
Who is a good candidate?
- You and your spouse are able to peacefully negotiate the terms of the divorce.
- You don’t have any children.
- Both of you are employed and financially independent.
- Neither of you have a lot of assets nor debts. This way, you don’t have to resolve complex issues regarding property and debt division.
How Much Does an Uncontested Divorce Cost?
The average cost of the divorce process can range anywhere from $5,000 to $34,000, including the average cost to hire an attorney of around $12,500
On the other hand, an uncontested divorce through the use of online services will only cost you anywhere from $100 to $500. Divorcefiller.com offers its Premier uncontested divorce tool that is fully-guided for an affordable price of only $149.
How long does it take to get divorced in Texas?
The traditional divorce process in Texas ranges anywhere from 7 - 19 months.
But according to the Texas Family Code Section 6.702, “a court may not grant a divorce before the 60th day after the divorce was filed.” This means that a 60-day waiting period begins the day the person files for divorce. So in the best case scenario, you will be approved of your divorce on the 61st day since you file the petition.
How to serve your spouse in Texas
Texas's waiting period begins the day you file your petition, not the date you officially serve your spouse with the papers. If you can serve your spouse through conventional means – either through a private process server or the county constable – you can usually complete this divorce requirement with minimum fuss and relative ease.
In fact, anyone 18 or older (aside from you) can hand the papers to your spouse; it can be a family member or a friend.
You can also hire someone like a professional process server to do it; it just cannot be you.
Keep in mind that the papers must only be handed to your spouse, no one else. The only exception is to give them someone “of suitable age and discretion” that lives in the same house as your spouse. However, you will have to convince the judge of this so it may be better for you to choose some other easier method. So, you better try to choose an easier way.
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Papers & Documents You Need to Get a Divorce in Texas
Although the rules and procedures for filing a petition may vary from situation to situation, there is a standard list of required documents that you must file for an uncontested divorce. Approved by the Supreme Court of Texas, the following forms are used in agreed divorces that do not involve child custody or property division issues
- Affidavit of Indigence.
Also known as “Affidavit of Inability to Pay Costs”, this form helps determine if you can file for divorce without having to pay for court and filing fees. You can use this if you are financially unable to afford the fees.
- Original Petition for Divorce.
This is the form that initiates your divorce process. It states that you want a divorce and the items that you want the Court to order in the Final Decree.
- Waiver of Service.
This informs the Court that the respondent has received a copy of the Original Petition for Divorce and does not need to be formally handed a copy by a constable, sheriff, or process server. It 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.
This informs tells the Court on the last known address of your spouse. It is filled out only in certain situations. If a Waiver or an Answer has not been filed by your spouse, you must bring this form to the final divorce hearing.
- Notice of Change of Address.
This must be filed if you or your spouse relocates.
- Affidavit of Military Status
This informs the Court whether or not your spouse is on active military duty.
Online Divorce in Texas
Nowadays, online divorce is becoming increasingly popular due to its low costs, fast process, and flexibility.
For example, you can do everything yourself by just downloading a necessary divorce kit online. You can also receive online help from a paralegal or legal assistant to figure out some details or just hire an attorney to complete a certain part of your divorce. Some companies offer arrangements where clients can receive advice or have particular parts of their divorce completed.
It is important to note that although the state of Texas now allows you to file for divorce online, not every Texas county courts have gone on board with the program. Since you have to file for divorce in the county where you’ve lived for the past three months, you should check with the 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: 20% for one child, 25% for two children, and higher for more than two.
This provides a baseline amount that is presumed to be fair. However, if a parent believes that the amount generated using the guidelines is unfair, they can ask the court to change the award amount. The reward readjustment will be based on certain factors such as: child’s needs, any special expenses the child or parent incurs, and how much time each parent spends with the child.
In Texas, child custody is also referred to as conservatorship. Chapter 153 of the Texas Family Code includes the list of requirements for appointing people as "conservators" and granting rights for custody and access to the child.
Court decision always aims to focus on the best interests of the children. 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. Nowadays, more courts have started favoring joint child custody, allowing both parents to make significant decisions regarding the children's upbringing and education.
Rules for Spousal Support in Texas
Texas isn't very friendly to the idea of alimony. Generally, the court will award alimony only in special 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 one of the states that practice equal property split. According to the Community Property laws, both spouses own property, income, and debt equally. This is why in the case of an uncontested divorce, the court typically splits community property evenly down the line.
In general, community property and debts are divided in a divorce while separate property and debt are not.
Your Final Decree of Divorce will list all the community property each spouse will keep or in some circumstances, order them to be (such as a house) sold and states how the proceeds should be split. Either way, it will list the separate property of each spouse.
Although it is true that an uncontested divorce is less time-consuming and less costly, it has its pitfalls. It is still quite difficult to negotiate everything without missing some important financial issues that might influence your post-divorce life.
After all community property law states that each spouse is entitled to half of all the assets acquired during the marriage along with half of all the earnings between the marriage and separation date. Agreeing to avoid all of these may be detrimental to a person's financial stability afterwards.
Keep in mind that you can hire an attorney for only certain parts of your divorce. Some companies offer services where clients can receive advice or have particular parts of their divorce completed.
Division of Debt in Texas
Debts can be assigned like property, so it is particularly important to understand your ability to pay for the ones assigned to you. It is especially important if you are taking an asset with a debt attached to it, such as a house or mortgage. Keep in mind that if you are unable to afford the mortgage, not only will you lose the asset that was awarded to you, but your credit rating will also suffer and you may end up owing additional fees and interest.
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 certain conditions. For example, Travis County requires mediation when it’s anticipated that a hearing before a judge on family law dispute will take more than three hours.
In addition, some couples really need a third party to help communicate to each other. Oftentimes, one mediation session is enough for couples to sort out their differences. You and your spouse may find help in reaching an agreement through a virtual divorce mediation. Such a session is conducted online by an experienced mediation attorney and no office visits or extra meetings are required.
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How to Divorce a Missing Spouse in Texas
If you are unable to locate your spouse to provide them with the required paperwork, you may have to request the court for an official publication. Approval usually depends on how hard you have searched for them: you should submit proof of your search to the court If the judge grants your request, publish notice of your petition for divorce in the newspaper.
If the respondent still fails to file a response, the petitioner can request the court to grant divorce by default. However, you can only make this request if it has been at least 30 days since the publication. The court must then approve and sign a statement of the evidence presented at the default hearing.
If your spouse finally responds to the divorce, you will have to go to trial to resolve the contested issues, which might take up to a year or more.
Default divorce can be defined as a separate subset of an uncontested divorce. Default divorce occurs when the Respondent is notified of the divorce action but fails to or refuses to respond within 20 days. Thus, a person who does not show up loses by default.
It is important to note that if the spouse is missing and cannot be located, a default divorce also requires that a Notice of Service be made through publication (so-called Citation) in a newspaper.
If you are the respondent who fails to respond to the divorce action, remember that you are giving up your right to have any say in the separation process. So make sure you read and understand all the documents that your spouse files because that is what the court will order in the end.
Annulment of the Marriage in Texas
Annulment (or "void", as it is called in Texas) is not the same as divorce. While a divorce terminates a valid marriage, an annulment ends a marriage that was invalid from the start
Your marriage can be subject to annulment on grounds such as:
- Incest – you and your spouse are blood-related (closer than first cousins).
- Bigamy (you or your spouse is in another marriage that wasn't terminated in time).
- Underage - one spouse was under the legal age to get married at the time of marriage (18 is the legal age 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 like a viable option for couples who have not yet decided on divorce and suppose that living apart can give them the time and space they need to make a final decision.
Unfortunately, there is no such thing as Legal Separation in the Texas family laws.
And since Texas does not recognize legal separation, so is worth to remember that parties are not protected while separated.Since there is no legal documentation that recognizes legal separation, you remain married even if you are not living together. While you and your spouse may agree on the division of assets and child custody, if someone changes their mind, there will be no form of legal protection. Furthermore, you cannot remarry until you officially file for 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.
But with the pronouncement that same-sex marriages will be made legal in all fifty states, the Supreme Court finally changed long standing Texas law regarding this subject.
Same-sex married couples can now afford the same rights as heterosexual married couples.
This includes all the terms regarding property laws and marital property rights; all the assets and debt accrued since 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 marriage should have been established through some sort of ceremony, and the couple should have documentation to establish when and where they were married.
It is interesting that many same-sex couples who married outside of Texas prior to the SCOTUS ruling wisely executed both a prenup and cohab agreement. 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
Since every case is unique, it is important to note how military divorce is influenced by the Family Code and some Federal laws.
Military divorces are governed by both state and federal laws. This means that there are unique laws that do not apply to civilian divorces but 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 the 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 regards to serving the required paperworks, it must be done in person even if the receiving party in on active duty.
The Servicemembers Civil Relief Act also protects active duty members of the military from being held in default for failing to respond to a divorce petition. Divorce proceedings are postponed for as long as they are considered to be on active duty and up to 60-days after that.
How To Divorce a Spouse In Jail In Texas
If a spouse has been convicted of a 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 is the fact that a court may not grant a divorce against a spouse who was convicted on the testimony of the other spouse.
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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 the “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 the fees.
Be prepared to present evidence of your income and expenses at a hearing if the Court requests. It doesn’t occur every time, but there have been cases in the past so be prepared
How We Can Help
We are here to help make your uncontested divorce as easy, quick, and stress-free as possible.
We are always available to answer any questions that you or your spouse may have.
After completing a short online interview, we review your completed forms and help customize them to meet your state and county requirements. We take into consideration all the different factors such as: children, income, assets, and many more. This way, you don’t have to waste any time trying to figure out all the information and nuances by yourself.
Generally speaking, we help you prepare all the required documents and provide you with complete guidance. You will gain access to your completed, ready-to-print and sign paperwork without any lengthy delays. We firmly believe that time is money. Work with us, and we will help you save both.
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