How to File an Agreed Divorce with Minor Children in Texas
- Texas residency requirements for divorce
- Considerations for same-sex couples
- Grounds for divorce in Texas
- Filing and delivering divorce forms
- Temporary restraining order (TRO)
- Waiting period
- Prenuptial and postnuptial agreements
- Spousal maintenance
- Prove-up hearing FAQ
If you have kids under 18 with your spouse, you need to 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 you are both willing to sign all court forms. There also can't be any court orders for custody or child support already in place.
What are the Texas residency requirements for divorce?
You can file for divorce in the county where you live or the county where your spouse lives (if you don't live in the same county). You or your spouse must have:
- lived in the county you plan to file in for at least 90 days, and
- lived in Texas for at least six months prior to filing your divorce petition
The same residency requirements apply to members of the military and their spouses in Texas, even though they may only be stationed there and not legal residents.
Kids have residency requirements, too. For Texas courts to have jurisdiction over initial orders for custody and visitation, the children must have either:
- lived in Texas for at least the previous six months
- live in Texas as their home state (since birth)
Make sure you use the correct set of forms when filing for a divorce, as there are different court forms for different family situations. If each parent lives in a different state, looking over the Uniform Child Custody Jurisdiction and Enforcement Act may be of assistance to you.
Whoever files the petition for divorce 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?
If you are a member of the LGBTQ+ community, please note that the Texas Family Code does not have a provision, nor does it have corresponding court forms, for divorces involving same-sex couples with children.
Same-sex couples with children may attempt to use the Set B forms (labeled "for couples with minor children"). Depending on your circumstances, the court may allow you to continue with that set of forms or reject the use of those forms. Please seek legal advice prior to filing your divorce if you are part of a same-sex couple.
What are 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 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. We've split them into fault and no-fault:
- Fault grounds: cruelty, adultery, abandonment (for at least one year), and felony criminal conviction
- No-fault grounds: insupportability, living apart for at least three years, and confinement to a mental hospital
What is 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 the fault grounds 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.
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 petition for divorce 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.
If you have experienced family violence by your spouse, you may need a protective order. In Texas, family violence includes:
- physical or sexual abuse
- using controlled substances that cause injury to a child
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. You need to 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.
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 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 reviewed by an attorney. Call your district clerk's office to see if that applies to you.
You also have to fill out and sign your Qualified Domestic Relations Order (QDRO) separately from the Final Decree. For more information on QDROs, click here.
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
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 age three or older, you and your spouse may agree that it's not appropriate for your family. Please seek legal advice prior to 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.
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