Some people are able to sit down at the kitchen table, so to speak, and work out on their own all issues of property and debt division and children issues without hiring a divorce attoreny. This is the fastest and least costly method to do a 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 and 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, sometimes represented by a divorce attorney, 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, often with the help of their divorce attoreny. 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 divorce attorney’s fees.
Then the parties, and their divorce attorneys, 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, their divorce attorney will set a trial date. 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 by their divorce attorneys 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 divorce attorneys 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 divorce 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.