Divorce Defined | How to File for Divorce in Texas

Divorce is the legal dissolution of a marriage.

The keyword is ‘legal’ which means it must be dissolved by a court or a competent body.

In Texas, separation is neither legal nor counted as divorce. Therefore, in order to get a divorce, you must petition the court for it.  There are several steps to note when filing for divorce.

First, the court must have jurisdiction over the suit. Yes, a divorce is a lawsuit that involves division of properties, custody of child(ren), temporary orders, and more. How do you know if the court has jurisdiction. Well, a party must have been resident in Texas for six months.

If one of the parties (wife for example) is not a resident, then to successfully file for divorce in Texas, Texas must be the couples’ last marital residence. This is known as personal jurisdiction. Another keyword to watch out for is “substantial justice and fair play.” In other words, the court’s authority to hear and rule on the case must not be unfair for the non-resident spouse.

Secondly, the suit must be properly maintained. This means that you must pass the residency and domiciliary test. Most people are familiar with residency, but not too many people understand what ‘domiciliary’ means.  The U.S. Legal, an online dictionary, defines domiciliary as “a person who resides in a particular place with the intention of making it his/her principal place of abode.”

To satisfy this requirement, there are several options. The most common option is where the couple have been living in Texas for the past 6 months; also, the couple must be a resident of the county where the suit is filed for the past 90 days. So, remember these two timeline: 6 months in Texas and 3 months in the county of suit. If you are a military member, please contact our office and speak to our attorneys; you may still be able to file for divorce based on your station.

How to file for Divorce in Texas?

There are several steps involved in filing for Divorce in Texas. Here is a practical list that you may find helpful:

  1. A valid marriage must exist prior to filing.
  2. Draft a petition or suit for dissolution with or without children. Your attorney can help you with your petition. It is important to have all the provisions and statements regarding what you want once your divorce becomes final.
  3. Next, take your drafted document (or filled out template) to the court clerk. Read the information above to find out where you should file. Pay your court fees and filing fees. Then, the court court will issue a citation.
  4. You must serve your petition on the other party (i.e. the other spouse). Service: serve the other party by personal delivery or certified mail with return receipt requested. If they cannot be found, you may ask the court for service by publication. In order to serve the other party by publication, you have to include an affidavit that proves why you chose publication. Also, if the other party to be served (“Respondent”) will waive service, you should note it in your petition. A citation and petition will be issued otherwise.
  5. If children or child is involved, under Texas Family code chapter 160, a notice of intent to claim paternity of the child should be filed. Your children includes an adoptive child.
  6. Next, if your divorce is contested, that is the other party will fight it and you both cannot agree, please contact our office to speak with our one of our mediators. Mediation is a confidential process that helps parties settle their issues. Most judges in Harris county and surrounding areas refer family cases to mediation. Therefore, it is to both parties’ benefit to talk to a mediator.
  7. Additionally, the court will give you a scheduling order. The scheduling order is a timeline that tells you what you need to do – parenting plan and education.

There are other forms that you may need to included in your petition. Examples are restraining order in a case of family violence and/or temporary order where the suit is based on fault. It is a case by case situation, and this article is intended to give you some information.

Although a couple can file file for divorce without a fault, there are different basis of divorce.

  1. Fault

    1. Adultery,
    2. Felony conviction
    3. Abuse (aka Cruelty)
    4. Mental incapacity
    5. Three years of living apart
    6.  Abandonment

  2. No-Fault (and most common ground for divorce)

    1. Insupportability
    2. Irreconcilable Differences

If the marriage’s  dissolution is based on fault, then a party is asking the court to blame a person. What is the benefit of fault divorce? There are several benefits to assigning fault, including collecting alimony or requesting a modified division of property.

However, a no-fault divorce says ‘this divorce is not the fault of either spouse” or “we just can’t get along anymore.”

A no-fault divorce is usually because both spouses have agreed to part ways. This is the common and easier basis for divorce. A fault divorce requires evidences, witness, affidavits, and can be lengthy and expensive. It brings out the ugly side of people as they attempt to hide their income and avoid paying for child support. On the other hand, a no-fault divorce simply tells the court that there is a dispute (big or small) that cannot be resolved to save the marriage.  The Code calls these disputes irreconcilable differences.

Overall, when you file for a divorce in Texas, the court wants to know: Who are the spouses (parties)? Are there children (custody, child support, medical and dental support)? Are there properties (division of community and/or separate properties)? How are the properties going to be divided? Are there grounds for annulment? Will there be a name change? Has there been abuse (restraining order)?

A divorce process can be simple or complex. You need the assistance of a private attorney. If you cannot afford an attorney, seek the help of pro-bono attorneys in your area who can counsel you on what to do and the forms you need.

Our Hands-on Approach to your Divorce Case

At Aminu Law Firm, we have several options for families going through separation. Since divorce can be emotionally traumatic, stressful, and difficult, you should not go through independently. Even in simple cases of divorce, if children are involved, they will be affected – directly or indirectly. Therefore, it is beneficial to address the legal and counseling side of divorces. We provide pro-se Guide for a flat fee, consultation with document review, and free case evaluation for our clients. This a-la-cart option is for low-income families.

In conclusion, it is important to make sure you are not doing this alone. Most couples who file for divorce need post-divorce counseling. The purpose of this article is to guide you in filing a suit for divorce in Texas.  Call our office for more information and free resources.

 

 

 

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