Filing for divorce seems scary and difficult, right? We’re here to make it easier and less stressful. Below, we’ll 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.
If you have kids under 18 with your spouse, you need to file for an Agreed Divorce with Children.
Uncontested divorces are not granted for those couples with minor children, but rather a form of Agreed Divorce. This means you both must agree on all of the issues related to the divorce (including child custody and child support) and are willing to sign all court forms. There also can’t be any court orders for custody or child support already in place.
Texas residency requirements
You can file for divorce in either the county you live in or the county your spouse lives in (if you don’t live in the same county). Either you or your spouse needs to have:
- lived in the county you plan to file in for at least 90 days, and
- have lived in Texas for at least 6 months prior to filing your divorce petition
These same residency requirements also apply to members of the military and their spouses, even though they may only be stationed there and are not legal residents.
Kids have residency requirements, too. For the 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 6 months or since birth, or
- Texas must be the child’s home state, and the child has only been gone from Texas for less than 6 months when the date the divorce is filed
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.
Special considerations for same-sex spouses
If you are a member of the LGBTQ+ community, please note that the Texas Family Code does not have a provision, nor corresponding court forms, for divorces involving same-sex couples with children. Same-sex couples with children may attempt to use the Set B forms (labelled as “for couples with minor children”). Depending on your circumstances, the Court may either allow you to continue with that set of forms or reject the use of those forms in your particular case. Please seek legal advice prior to filing your divorce if you are part of a same-sex couple.
Who is the Petitioner? Who is the Respondent?
Whoever files the petition for divorce becomes known as the “Petitioner”. The spouse therefore becomes the “Respondent”.
What are the grounds of divorce?
Texas is a state that 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 3 years, and confinement to a mental hospital
What does insupportability mean? This is the most common ground for divorce. It happens when the 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. Heads up: 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.
But wait, what if I want to file my divorce under fault grounds? If you plan to file under a fault ground, be sure you have evidence to support your case. However, the court might not uphold the fault. If they don’t, the court could still grant your divorce based on a no-fault ground such as insupportability. Overall, filing under a no-fault ground such as insupportability is the most straightforward.
No matter which grounds you claim, the other spouse cannot “block” the divorce by not signing the applicable forms and refusing to participate in the divorce process.
How do I file forms and deliver them to my spouse?
You can file your original petition for divorce, along with any other forms that may apply in your case, to the court in either the county you live in or the county your spouse lives in (this could happen if you don’t live in the same county). Included in the petition are what you want as 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. They are only valid if:
- They are served (delivered) by a constable, sheriff, or private process server, and
- (who completes) [Someone] completes a “Return of Service form” and files it with the court.
This sounds complicated. And expensive! Are there other options?
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 (remember, that’s the one who is being served) can sign a “Waiver of Service Only”, filed at the same time as the original petition. This is what’s called a “Specific Waiver”, meaning that 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 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).
Depending on the county you’re in, the filing fee ranges from $250-$320. You should contact the court clerk’s office where you plan to file to get exact amounts for the fees involved for your case.
A note on being safe 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.
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 it documented by the court in the form of TRO, meaning 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.
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? In 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.
There is a mandatory 60-day waiting period between when a Petition for Divorce is filed and the soonest a Final Decree of Divorce can be signed. This requirement can’t be waived except 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 to the other spouse within 30 days of the answer being filed.
The Final Decree of Divorce must be completed and signed before you to go 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. You should 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 QDRO, click here.
What if we have a pre- or post-nuptial agreement?
In an uncontested divorce, if you have a pre- or post-nuptial agreement, the property division in your Final Decree should match it. Any pre- or post-nuptial 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, which means one spouse being pressured or compelled to agree to something they may actually not want to.
In an uncontested divorce, you aren’t able to ask for court-ordered spousal maintenance. 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.
What is a prove-up hearing? 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 and/or Original Answer. This is an opportunity for the Judge to evaluate your case and make recommendations around issues like custody, visitation, and child 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 has to 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 may allow the use of an affidavit to satisfy the prove-up requirements, meaning you may not need to appear in court, but may only grant this in cases where there are no minor children involved. To see if this may be an option for you, contact the court coordinator.
What do you say during a prove-up hearing? You will need to answer simple questions during the time. Refer to this sample script to help you 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.
- You need to complete and print the Information on Suit Affecting the Family Relationship form, double-sided on one sheet of paper.
- Possession Order: outlines when each parent (or sometimes non-parent) has the right to time with the child, including for specific holidays. There are several types of possession orders in Texas: Standard, Modified, Supervised, and special orders for children under age 3.
Wait, which one do I need? Although Texas law presumes the Standard Possession Order is in the best interest of children age 3 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 are 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 has to fill out the Vital Statistics form and provide it to the other 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 your or your spouse can remarry.
Have questions? Schedule a FREE 15-minute strategy session with our team of divorce experts.