A Beginner’s Guide to the Texas Divorce Process
Divorce is an incredibly difficult experience not only due to the emotional stress associated with the end of a marriage but also the confusing legal process. If you have children, are military-affiliated, or have disagreements regarding the splitting of assets, the legal hoops one must go through becomes even more complicated.
We at Bineham & Gillen have created this document to give you a clear introduction to your options in a divorce. Whether you decide to file on your own or consult an attorney to help you navigate the law, we want to share our knowledge so that you enter the divorce process with open eyes.
Table of Contents
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Uncontested Divorce
What is an Uncontested Divorce?
Simply put, an uncontested divorce happens when a couple generally agrees on the terms of the divorce. Some couples choose to file for divorce on their own or they may seek the help of an attorney to speed up the process. This type of divorce is typically faster because a trial does not need to be held.
Is my Divorce Uncontested?
If you and your spouse agree on all or most terms of the divorce, including division of property, real estate or finances, you are likely in the running for an uncontested divorce. If you disagree on these terms or if you have children under the age of 18, property, retirement, debt, or if one or both of you served in the military, you should retain an attorney.
Find out if your divorce is contested or uncontested here.
DIY Filing vs. Filing With an Attorney
Although the state of Texas does not require married couples to hire a lawyer when filing for a divorce, it is recommended to seek guidance and advice.
Hiring a lawyer will not only help alleviate the pressures of completing and filing paperwork with the District Clerk, but typically expedites the process (versus filing for divorce on your own.) Hiring an attorney will give you the peace-of-mind in knowing that all the paperwork has been filed correctly, helping you avoid unnecessary delays and have a clear and binding agreement with your former spouse.
How to File on Your Own
1. Meet Residency Requirements
Make sure that you meet residency requirements. In order to file for divorce in Texas, either you or your spouse must have been living in the state for a minimum of 6 months prior to the divorce. To file in Bexar County, one spouse must also have resided in the county for at least 90 days.
2. Obtain Divorce Petition
If you meet the residency requirements, you will then go to the local district court to obtain a Petition of Divorce form. The form will require contact information, financial and property information, proposed settlement arrangements and your reasons for requesting a divorce.If filing in Bexar County, you can purchase a DIY Divorce Packet from the clerk on the 5th floor of the Bexar County Courthouse.
100 Dolorosa, 5th Floor
San Antonio, TX 78205
If you already know which forms you need to file, you can also download them from the Bexar County Webiste.
3. File at Clerk’s Office
Take the signed form to your district clerk’s office. You will need two copies of the form and you will be required to pay a filing fee to the county in order to file. Once you’ve filed, you will be given a file number and your petition will be stamped as received.If filing in Bexar County, you will go submit your forms to the Elizondo Tower on the 2nd floor (located next to the courthouse):
Paul Elizondo Tower
101 W Nueva, Suite 217
San Antonio, TX 78205-3411
4. Serve Your Spouse
After you’ve filed the petition for divorce and received the court stamped copy, you will need to serve the papers to your spouse. Your spouse must sign a waiver of service form with a notary present.
(If you serve your spouse and they file an answer detailing their objections with the petition, you now have a contested divorce. We highly recommend consulting with an attorney moving forward.)
5. Complete Final Decree
Next, you will complete the Final Divorce Decree which will be the court order that legally ends the marriage. This document will be where you lay out the details of what you and your spouse have agreed on, such as child custody, how you will be dividing up your property, etc. Your spouse must sign the Final Degree to continue with an uncontested divorce.
6. Wait 60 Days
There is a 60 day waiting period from the time the divorce is initially filed before it can be finalized in Texas.
7. Attend Hearing
Once the waiting period has been met and all the proper forms completed, you will need to attend a hearing. A judge will review your case and sign the divorce decree, legally finalizing the divorce.
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Contested Divorce
What is a Contested Divorce?
When a divorce is “contested,” it means that you and your spouse cannot come to an agreement regarding one or more of the terms in your divorce. Usually, these disagreements have to do with one or more of the following items:
- Child custody
- Child support
- Division of property
- Asset distribution
- Debt allocation
- Alimony (spousal support)
A divorce can also be contested if one spouse does agree to divorce at all. Compared to uncontested divorces, contested divorces are more complicated, expensive and take longer to resolve.
Fault vs. No-Fault Divorces
In the state of Texas, a couple must meet one of the grounds for divorce when they file for divorce. While there are seven main grounds for divorce, they can be broken into two categories: fault and no-fault divorces. Just as it sounds, a fault divorce places blame on one of the parties in the divorce. Likewise, a no-fault divorce does not place blame on either party.
Some states require couples to prove fault when getting a divorce. However, Texas law allows for no-fault divorces, and most couples in Texas end up choosing the no-fault option.
If you do decide to pursue a fault divorce, it can impact how the judge decides to distribute community property between you and your spouse.
At fault grounds for divorce include:
- Adultery: when one spouse has voluntary intercourse with someone outside of the marriage.
- Cruelty: when one spouse causes mental or physical pain and suffering upon the other spouse.
- Felony Criminal Conviction: when one spouse is convicted of committing a state or federal felony, imprisoned for over a year, or if they haven’t been pardoned from the crime over the course of the marriage.
- Abandonment: when one spouse willfully left the spouse filing for divorce for over a year.
- Confinement to a Mental Hospital: when one spouse has been confined to a mental hospital for 3 years or with no sign of getting better.
- Living Apart: when spouses have lived apart for 3 consecutive years.
No-fault grounds for divorce include:
- Insupportability: when both spouses agree that the marriage is not endurable; also known as irreconcilable differences
How Do I Find the Right Divorce Attorney For Me?
Hiring a lawyer is not one-size-fits-all. You should be able to trust your attorney to treat your situation with care and make the best decisions for your case. You may have to discuss personal details about your marriage and should find someone you feel comfortable enough to be honest with.
You need an attorney with integrity, who will be a good steward of your money. You need an attorney who is not afraid to tell you the truth, even if it is something you do not want to hear. You want to select a lawyer who will not create unnecessary conflict and have unnecessary hearings just to create more billable hours.
Your divorce attorney must be equipped to handle the intricacies of family law. They should be able to answer your questions and communicate the details of your case in a way that is easy to understand.
The cost of a divorce will vary depending on case complexity, but you should ensure that you can afford your chosen attorney. An attorney should be clear and straightforward about their rates and billing process so you know what to expect financially.
Blog: What to Ask your Divorce Lawyer During the Initial Consultation
The Divorce Process
1. Filing Your Divorce Petition
The first thing you will have to do in the divorce process is to file an Original Petition for Divorce in your specific county. In the petition, you will have to state your reasons for pursuing the divorce.
If you need special accommodations like a temporary restraining order or a court date for a child custody hearing, you will need to specify that when you file.
If you have a divorce attorney, he or she will file the petition for you.
2. Petition Response
Once the staff attorney reviews it and the District Clerk’s office prepares a citation, the sheriff’s office, or a constable, or private process server will need to serve your spouse.
If you are the one being served, do not sign or agree to anything without an attorney present. You will want to retain an attorney immediately and respond within 20 days of getting served or risk defaulting. If this happens, your spouse will get almost complete control during the negotiation and settlement phase.
3. Discovery
Discovery is the phase of the divorce where requests for financial records, receipts and other important documents are put forth. These documents will be used to decide how to fairly divide up properly and determine child support, child custody and alimony.
There are four major types of documentation that you or your spouse can use to request information from the other party.
- Requests for Disclosure: a request for basic information concerning the other party and their claims regarding the case.
- Requests for Production, Inspection or Entry: a request to produce or allow examination of physical evidence. This can include documents, e-files, emails, texts, or other physical objects.
- Requests for Admission: a request for one party to admit whether certain facts or evidence is true or genuine.
- Interrogatories: a list of written questions for the other party. If you receive an interrogatory, you will need to respond in writing, under oath.
- Depositions: questioning one party or witness with a court reporter taking down the questions and answers. The person being questioned will have to provide answers under oath, either orally or in writing.
This can be a particularly difficult part of the divorce process, but it is critical to be completely honest about your situation with your attorney so that they can make the smartest choices for your case.
4. Mediation
After the discovery process, both parties and their attorneys must meet with a neutral third-party to negotiate and attempt to reach a settlement. The neutral third-party should be a professional mediator, a family lawyer or a judge. Note: Your personal lawyer cannot serve as the mediator for both parties.
Not all counties in Texas require a professional mediator, but Bexar county does require a mediator during the divorce process.
5. Trial
In the event a settlement cannot be reached within mediation sessions, a formal trial will take place. During the trial, witnesses will have to testify and depositions will be read. A judge or jury will then decide the outcome of the divorce.
Divorce trials typically don’t last as long as they do in the movies or on television. Trials usually take one to two days.
6. Post-Trial Motions
Modifications can be used to edit spousal support agreements, child custody and child support agreements.
A motion for a new trial can be filed if you or your spouse believe they have received an unfair verdict during a trial. In a new trial, you must present items that could have changed the decision of the final decree.
Items used in a motion for a new trial must not have been available during the discovery process. If you were aware of these items during the discovery process and did not come forward with them, they will not count in the new trial.
7. Appeal
Unlike a post-trial motion, an appeal does not take place in the same court where the initial ruling took place. Instead, it takes place in the court of appeals. If you have already gone through a motion for a new trial and the ruling came out the same, the arguments used in the motion for a new trial can be used in the appeal.
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Special Considerations in Divorce
Divorce with Children
Divorce with children involved is a sensitive process that is emotionally draining for everyone involved. Divorces with children will usually be contested because agreements need to be made about child support and child custody.
It is important to remember that in child custody and child support agreements, the well-being of the child or children will always come first. Because of this, the Texas courts encourage joint custody as much as possible. However, if one of the parents provides an unsafe environment for the child or children then sole custody may be granted.
Determining Child Custody
If the child or children are younger and parents cannot agree, the courts decide. When determining if parents should receive joint custody, the courts will evaluate the following circumstances:
- The home environment of each parent.
- The physical distance between each parent’s home.
- Each parent’s ability to raise the child.
- Whether or not the parents can still work together in raising the child.
- The finances of each parent.
- Work conditions i.e. is the parent employed, do they travel a lot, what are the hours like, how flexible is their work schedule?
- If a child is 12 years or older, they may have a voice in which parent to live with.
If a parent is seeking sole custody, the courts will consider the following circumstances:
- The wishes of the child, if over 12 years of age.
- The current and potential emotional needs of the child
- The current or potential danger to the child
- The quality of parenting from either parent
- The stability of the home
- Parental unfitness or the omission of evidence that could prove parental unfitness.
- The courts will also pay attention to the behavior of both parents during the court proceedings and factor that into their decision-making process.
In divorces where parents have been granted joint custody of the children, the State of Texas requires both parents to take a parenting class. The class goes over how to work through the trauma of divorce with your children. Some exceptions can be made if a judge waives the requirement for a class. You are usually given the option to take the class in person or online.
Whether you are a father, mother or grandparent, we highly recommend working with a attorney who has extensive experience with child custody law. This is to ensure that both you and your attorney understand your rights and can offer knowledgeable advice on the best course of action for your family.
Blog: Fathers’ Custody Rights in Texas Explained
Pregnancy
Divorce in Texas cannot be finalized while the wife is pregnant. The divorce process may be initiated, but will not be able to finalize until the pregnancy has ended.
Military Divorce
The military considers divorce a civil matter that is handled in civilian court. While service members and their spouses can seek the guidance of an attorney through the installation legal assistance offices at no cost, military legal assistance attorneys CANNOT represent you or your spouse in civilian family law court.
As a service member that is deployed, overseas, or otherwise unable to attend, you have the right to postpone or extend civil court or administrative proceedings.
As the former spouse of a service member, you will retain benefits such as medical, commissary, exchange and theater privileges unless you remarry if you meet the 20/20/20 rule under the Morale, Welfare, and Recreation program. All former spouses are entitled to a portion of a service member’s retirement for time their spouse served in the military during the marriage.
20/20/20 Explained
- The former spouse was married to the military member for at least 20 years at the time of the divorce, dissolution or annulment.
- The military member has performed at least 20 years of service that is creditable in determining eligibility for retired pay (the member does not have to be retired from active duty).
- The former spouse was married to the member during at least 20 years of the member’s retirement-creditable service.
If you think you may be entitled to your spouse’s military retirement or civilian pension, discuss this with your attorney before the divorce. After the divorce decree is signed, the court will say that it’s too late to claim it. Once a final property division is made, it can NEVER be changed.
Figuring Out Where to File
Filing for divorce overseas can be complicated for a number of reasons, one being that the United States may not recognize a foreign divorce. United States divorce laws allow special privileges for service members and their families. Military members can either:
- File in the state where the service member is currently stationed;
- File in the state where the service member claims legal residency;
- File in the state where the non-military spouse resides.
International Divorce
The world has become increasingly more globalized, and because of this, more marriages are taking place between two people living in different countries from one another. If you want to divorce your spouse in the state of Texas but they are out-of-state or living abroad, you can still file for divorce without their presence. The easiest way to file a divorce when one party is living internationally is to file an uncontested divorce.
Regardless of whether your international divorce is contested or uncontested, you will need the help of a family attorney to make sure your divorce is recognized both in the states and internationally. It is recommended to file for divorce domestically as divorces filed abroad may not be recognized in the United States.
LGBT Divorce
The U.S. Supreme Court ruling passed on June 26, 2015 declared same-sex marriage a federally recognized entity. This means LGBT marriages are legally recognized in all 50 states, including Texas. County clerks and judges in Texas are able to grant marriage licenses, perform marriages, and grant divorces to same-sex couples.
Same-sex couples seeking a divorce are subject to the same laws of property and asset division as divorcing heterosexual couples.
If you married your same-sex partner before the SCOTUS ruling on June 26, 2015 when same-sex marriages became federally recognized, and you executed a “there”(prenup) ”here” (cohab) agreement, this contract will stand as the ruling contract in your divorce.
LGBT Marriages With Children
In same-sex marriages in which one spouse is pregnant or gave birth to a child, there are additional factors to consider when assessing the rights of the non-biological parent. We recommend consulting an attorney experienced in LGBT family law.
In same-sex marriages where a couple has adopted a child and receives an adoption subsidy, the subsidy will not negate or otherwise affect the adoptive parent’s obligation to pay child support. If both people have legally adopted the child, custody will be determined in the same way as children of divorcing heterosexual couples.
Download the Guide: “How to Get a Divorce in Bexar County”
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Alternatives to Traditional Divorce
Legal Mediation
Mediation is already required for divorcing couples in most counties, including Bexar county, but there are several benefits to getting legal mediation.
- Legal mediation can resolve all problems between a couple and can help couples stay together.
- It can break down communication barriers that existed before mediation.
- It can help the divorce process go faster if both parties are able to agree on the issues in their divorce.
- If the couple wants to carry on with the divorce after legal mediation, a court will look at the couple more favorably if they attempted legal mediation.
Blog: The Benefits of Legal Mediation in Your Divorce
Separation
Spouses who don’t want to deal with the legal process may simply choose not to get divorced. Under separation, couples live separately but are still legally married.
In Texas, there is no such thing as legal separation. You are either married or not married. If you live in Texas and want to separate from your spouse without a divorce, your separation will not be recognized in court. However, you may choose to get a Partition and Exchange Agreement, which allows the transfer of shared property to a spouse so that it is separately owned. This will allow you or your spouse to protect your financial affairs while legally married.
Annulment
A marriage annulment is a legal acknowledgment that the marriage never actually happened. An annulment must take place within the first year of marriage. After the first year, it is a divorce.
In order to file for an annulment in Texas, one of the spouses must be a Texas resident or the marriage must have taken place in Texas. Annulments can be filed in county courts, just like divorces.
In order to qualify for an annulment, the couple must meet one of the following grounds:
- One of the spouses was a minor under the age of 18 years old at the time of the marriage.
- A spouse was under the influence of drugs or alcohol at the time of the marriage.
- A spouse was coerced into the marriage, either by force or under duress, or they were convinced into the marriage by fraud.
- Either spouse is permanently impotent.
- A spouse lacked the mental capacity to accurately consent to the marriage at the time of the marriage.
- A spouse hid or concealed a prior divorce.
- The marriage was held within 72 hours of the marriage license being issued.
Where to Go From Here
The divorce process can be complicated, contentious and emotionally draining, but doing adequate research and finding the right attorney can greatly improve the outcome of your divorce.
Bineham & Gillen has over 30 years of combined experience working in all aspects of family law. If you’re beginning the divorce process and need an attorney that is knowledgeable, honest and fair, schedule a consultation with our team today. We will sit down with you to discuss the details of your case and help you make smart decisions for the good of you and your family.
Download the Guide: “How to Get a Divorce in Bexar County”
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