How to File an Agreed Divorce with Minor Children in Texas

• What are the Texas residency requirements for divorce?
• Are there special considerations for same-sex spouses in Texas?
• What are grounds for divorce in Texas?
• Filing for an uncontested divorce: A step-by-step guide
• How do I file forms and deliver them to my spouse in Texas?
• Do I need a temporary restraining order? What does that mean?
• Domestic violence situations
• Waiting period for divorce in Texas
• What if we have a prenuptial or postnuptial agreement?
• Spousal maintenance in Texas
• Prove-up hearing FAQ
• References

Filing for divorce seems scary and difficult, but we're here to make it easier. Below, we walk you through the process of an agreed divorce with minor children in Texas from start to finish. Just a heads up: There will be some differences if you or your spouse are military service members.

In Texas, if you have kids under 18 with your spouse, you can file for an Agreed Divorce with Children.

Filing for an Agreed Divorce with Children

Uncontested divorces are not granted to couples with minor children in Texas. Rather, a form of "agreed divorce" is granted. This means you both must agree on all issues related to the divorce (including child custody and child support) and agree to sign the relevant court forms. Further, there can be no existing child custody or support orders in place.

What are the Texas residency requirements for divorce?

You can file for divorce in your home county or your spouse’s home county (if not the same). You or your spouse must have:

• resided in the county you plan to file in for at least 90 days, and
• resided in Texas for at least six months before filing your divorce petition

The rules are slightly different for military families. If serving outside the state of Texas, you can still file in the state if, for six months at a minimum, you or your spouse have called Texas your home and the county where you’re filing has been either party’s home county for 90 days (minimum).

Kids have residency requirements, too. For a Texas court to have the power to oversee custody and visitation rulings, the children must have:

• lived in Texas for a minimum of six previous months, or
• live in Texas as their home state (since birth)

Whoever files the divorce petition becomes known as the "Petitioner." The other spouse becomes the "Respondent." See What Is the Texas Divorce Process? for more basic information.

Are there special considerations for same-sex spouses in Texas?

An agreed divorce with children for same-sex spouses is largely the same as it is for heterosexual spouses. In some cases, parentage of children may need to be established before a court order will finalize your divorce. If so, it’s a good idea to get legal guidance. 

Since the nature of an agreed divorce is that you and your ex agree on all issues in your split, you have already come to an agreement regarding child custody and child support arrangements. 

Texas Legal Services Center doesn’t make forms for same-sex divorce with children available online, though they do for same-sex divorce without children The forms required for same-sex divorce are somewhat different than those required for opposite-sex divorce. 

Since the necessary forms for same-sex divorce with children can’t be accessed online, it’s a good idea to seek out the help of a legal expert to guide you through the process.  

Suggested: Establishing Paternity in Texas

What are the grounds for divorce in Texas?

Texas allows the Petitioner to decide whether they are filing for a fault or no-fault divorce. In an uncontested (agreed) divorce, both parties must first agree to the grounds for divorce and then file using one of the no-fault grounds. 

There are seven grounds for divorce in Texas. Fault grounds include cruelty, adultery, abandonment (for at least one year), and criminal conviction of a felony. No-fault grounds include insupportability, living apart for at least three years, and a lengthy stay in a mental hospital.

What are the most common grounds for divorce in Texas?

Insupportability is the most common grounds for divorce. It happens when spouses claim "irreconcilable differences" as the reason for the divorce with no hope of reconciliation. Since it is considered a no-fault ground, it doesn't require the Petitioner or Respondent to prove that the other spouse has done something wrong.

Note: All fault grounds in Texas require testimony and evidence of the other spouse's behavior, which could affect the division of assets, spousal maintenance, and child custody. If you plan to file under a fault ground, be sure you have evidence to support your case. Know, however, that the court might not uphold the fault. If they don't, the court could still grant your divorce based on a no-fault ground like insupportability. Overall, filing under a no-fault ground like insupportability is the most straightforward path.

No matter which grounds you claim, your spouse cannot "block" the divorce by not signing the applicable forms and refusing to participate in the divorce process.

An agreed divorce still requires a lot of decisions. 

See what most people include in their Agreements with our free download.

Filing for an uncontested divorce: A step-by-step guide

Families with children younger than 18 follow these steps to file for a divorce in Texas. There are many forms and rules involved, but try not to get discouraged. Take on each item independently, and you’ll be through the process in no time. 

Here’s what to do:

1. Find the right courtroom

You can file for divorce in the county where you have lived for at least 90 days, as long as you’ve lived in Texas for at least the last six months. You can file in the county where your spouse lives if that person has lived in that county for the last 90 days and in Texas for the last six months.

2. Fill out the first divorce forms

Print out the following documents, and print the answers in blue or black ink:

• Original Petition for Divorce: This document starts your divorce case and tells the court about the issues you would like to address.
• Civil Case Information Sheet: You may not need this form, but print it out and bring it with you anyway. Legislation has repealed the need for this information, but some courts still ask for it.
• Exhibit: Out-of-State Party Declaration

Make two copies of these forms when they’re filled out.

3. File your forms

Go to the courtroom you’ve identified, and turn in your starting forms. Ask the clerk if some local rules or procedures apply to your case, and pay your filing fee.

The clerk will give you a case number and court number and stamp your documents. You’ll get two copies back.

4. Notify your spouse

People working through an uncontested divorce work together, and the court allows you to collaborate. You can give your spouse signed copies of the originating paperwork along with a blank Waiver of Service Only form. Ask your spouse to fill out this document in front of a notary and give it to the clerk at the courthouse.

How do I file forms and deliver them to my spouse in Texas?

You can file your original petition for divorce, along with any other forms that may apply in your case, to the court in the county where you live or the county where your spouse lives (if you don't live in the same county). 

Included in the petition are your desired orders, which are outlined in what's called the "Final Decree of Divorce."

Once you file your petition for divorce with the court, you must serve (deliver) a file-stamped copy of the Original Petition For Divorce, Citation, and any other forms you filed with the court to your spouse. These are only valid if:

• They are served (delivered) by a constable, sheriff, or private process server, and
• A "Return of Service form" is completed and filed with the court

Are there alternatives to formal service?

If you and your spouse are willing to work together, you can avoid the costs of service by doing one of these things:

•  In an agreed divorce, the spouse designated as the Respondent (the one being served) can sign a "Waiver of Service Only," filed at the same time as the original petition. This is called a "Specific Waiver," meaning it has a specific purpose. In this case, it waives one's right to be formally served. This form must be signed in front of a notary public at least one day after the petition was filed with the court.
•  If the divorce Respondent is willing to fill out and submit the Original Answer form, they do not need to be served. This form does not need to be signed in front of a notary.

The Respondent can file either an Answer or a Waiver of Service Only (Specific Waiver).

Filing fees range from $250 to $320, depending on the county. Contact the court clerk's office where you plan to file to get exact amounts for the fees involved in your case.

Do I need a temporary restraining order? What does that mean?

When the original divorce petition is filed, the Petitioner or Respondent can also request that the court issue a Temporary Restraining Order (TRO). This can affect the use of property, payment of debts, child custody, and child or spousal support until the divorce is finalized.

If a TRO is issued, a court hearing will be scheduled and held within a few weeks. At this time, the court can decide to turn the TRO into a Temporary Order (TO). 

More commonly, both parties can agree to certain terms and have them documented by the court in the form of TRO; it functions more like an agreement in those cases. 

TROs and TOs are most common in contested divorces and much less so in uncontested divorces.

Domestic violence situations

A note about safety if there has been domestic violence in your relationship: If you have experienced domestic violence in your relationship, don't hand-deliver any forms to the other party, especially if there is a pending or signed Protective Order in place prohibiting contact. 

Please seek legal advice in this situation to ensure you can serve the other party safely and appropriately.

Protective order

If you have experienced family violence by your spouse, you may need a protective order. In Texas, family violence includes (but is not limited to) threats, stalking, and physical and sexual abuse.

How do you get a protective order?

To request that the court issue a protective order, the Petitioner or Respondent needs to fill out the Protective Order Application, Affidavit, and Declaration Forms. Make two copies, and file the forms in the same county as your divorce case. If your divorce case has not yet been filed, you can file the forms in one of three places:

•  The county where you live
•  The county in which the other person lives
•  Any Texas county in which the violence occurred

A hearing will be set within two weeks from the application filing. During the hearing, the court can order the other spouse not to harass you and your children; to move out of the family home; and to stay away from you, your children, and your places of work and school. The Petitioner and Respondent will need to include information about any Protective Orders pending or in place in their divorce documents.

Waiting period for divorce in Texas

There is a mandatory 60-day waiting period between when a Petition for Divorce is filed and when a Final Decree of Divorce can be signed. This requirement can only be waived in exceptional circumstances such as domestic violence and is granted at the discretion of the court.

After filing

During this time, you should finalize all of your agreements together. As of January 1st, 2021, in an uncontested divorce or once an answer is filed by the Respondent, both spouses must complete a form titled Required Initial Disclosures in Dissolution of Marriage. You then give a copy of the completed form to the other spouse within 30 days of the answer being filed. 

The Final Decree of Divorce must be completed and signed by both spouses before you go to court for your prove-up hearing. Depending on the county where you filed, you may be required to have your Final Decree of Divorce examined by a lawyer. Call the court clerk's office in your district to see if that applies to you.

A Qualified Domestic Relations Order (QDRO) is filed separately from the final divorce decree. This important order divides retirement benefits between ex-spouses. For more information on QDROs, click here. Need help with your QDRO? Our trusted partner, SimpleQDRO, can help.

What if we have a prenuptial or postnuptial agreement?

In an uncontested divorce, if you have a prenuptial or postnuptial agreement, the property division in your Final Decree should match it. Any prenup or postnup agreements should be disclosed as settlement agreements in the Required Initial Disclosures and may be presented as evidence to the court to be reviewed during status or prove-up hearings.

If there is not a match between the settlement agreements and the Final Decree, the court will dig deeper to understand why there is a difference. One thing the court is looking for is duress, meaning one spouse is being pressured or compelled to agree to something they may actually not want.

Spousal maintenance in Texas

In an uncontested divorce, you aren't able to ask for court-ordered spousal maintenance, also known as spousal support. However, the spouses can agree to "contractual alimony," which is essentially the same thing but is not calculated or ordered by the court. 

You can include the details of your contractual alimony in your Final Decree and present it to the court during your prove-up hearing.

FAQ about Texas prove-up hearings

As mentioned, in agreed divorces with children, you may be required to attend a short, informal prove-up hearing. A prove-up is when you complete your uncontested divorce in front of the judge by presenting a Final Decree of Divorce you and your spouse would like entered. You are asking the court to honor the terms agreed upon by the two parties. The judge has the final say.

Can I get a prove-up hearing if we have kids?

There may be situations where, if minor children are involved, the court will not grant a prove-up. Instead, the judge may order an initial status hearing with you and your spouse to discuss the information provided in the Original Petition or Original Answer. 

This is an opportunity for the judge to evaluate your case and make recommendations regarding issues such as child custody, visitation, and support.

When does the prove-up happen?

This hearing can only take place after the 60-day waiting period has passed. To set your prove-up hearing date, call the court coordinator's office where your divorce was filed to see when the court hears these cases.

Who must attend?

Both parties must attend this hearing in person, with some exceptions granted at the discretion of the court:

• If you can't get to court or would like to appear by telephone or video, you can ask if it's possible to file a Motion for Use of Emergency Procedures to do so.
• Some judges allow the use of an affidavit to satisfy the prove-up requirements, meaning you may not need to appear in court. They may only grant this in cases where no minor children are involved. To see if this is an option for you, contact the court coordinator.

What do you say during a prove-up hearing?

You will need to answer simple questions. Refer to this sample script to understand what to say at your hearing: Sample Testimony for Divorce with Children.

What do you need to bring to the hearing?

Bring all of the following:

• Final Decree of Divorce, completed fully and signed by both parties, to be presented to the judge.
• The Information on Suit Affecting the Family Relationship form, double-sided on one sheet of paper.
• Possession Order: This outlines when each parent (or sometimes non-parent has the right to time with the child, including specific holidays.

Note: There are several types of possession orders in Texas: Standard, Modified, Supervised, and special orders for children under age three. Which one do you need? Although Texas law presumes the Standard Possession Order is in the best interest of children ages three or older, you and your spouse may agree that it's not appropriate for your family. Please seek legal advice before finalizing the Possession Order if you need help drafting a Possession Order that meets your family's specific needs.

• Income Withholding for Support: If child support was requested, this is issued by the court to the payor's employer or income withholder as specified.
• If the child support amount you have agreed upon is significantly different from the Texas guidelines, bring each of your paycheck stubs with you so the court can see if this is justified.

The Petitioner also must fill out the Vital Statistics Form and provide it to their spouse so they are aware of what was written. It is sent by the court clerk to the Bureau of Vital Statistics after your divorce is completed.

Once your Final Decree of Divorce is signed by the judge, you must file it along with any other orders signed by the judge. Until you do so, your divorce is not final. After that, congratulations ... you're officially divorced! One more thing: Once your divorce is finalized, there is a 30-day "appeal window" during which time neither you nor your spouse can remarry.

Suggested: Texas Divorce Laws

At Hello Divorce, we’re dedicated to creating a kinder, less stressful divorce experience for our clients and their families. Have questions? Schedule a free 15-minute phone call with our team of account coordinators.

References

I need a divorce. We have children under 18. (October 2023). Texas Law Help.
Texas Family Code 6.204. (November 2023). CaseText.
I need a divorce. We have minor children. A final custody and support order is already in place. (October 2023). Texas Law Help.
Same-Sex Marriage & Divorce. (February 2024). Texas State Law Library. 
Set D Divorce Forms — Divorce without Children (Same Sex Divorce). Texas Law Help.