Texas Divorce: Frequently Asked Questions

This article covers the basic issues you'll encounter in a Texas divorce.

Are there any residency requirements in order to obtain a divorce in Texas?

Texas has two residency requirements to get a divorce (or "dissolution of marriage") in the state. During the period just before you file your divorce papers, either you or your spouse must have been a resident of:

• the state for at least six months, and
• the county where you file for at least 90 days.

(Tex. Fam. Code § 6.301 (2022).)

Can you get a no-fault divorce in Texas?

Yes. The quickest way to get a "no-fault" divorce in Texas is to declare in your divorce papers that your marriage "has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation." (Tex. Fam. Code § 6.001 (2022).)

You could also get a no-fault divorce based on that fact that you and your spouse have been separated, but the separation must have lasted at least three years, without marital relations. (Tex. Fam. Code § 6.006 (2022).)

Learn about all of the no-fault and fault-based grounds (legal reasons) for divorce in Texas.

Can I get an uncontested divorce in Texas?

In an uncontested divorce (also known as "agreed divorce" in Texas), couples have agreed about all the legal issues involved in ending their marriage, including:

• dividing their property
• alimony (known as "spousal maintenance" in Texas), and
• if they have minor children, child custody and child support.

Also, when you file for an agreed divorce in Texas, you and your spouse must agree that your marriage has become insupportable. There are additional requirements if there are existing custody or support orders in place. (Learn more about uncontested divorce in Texas.)

An agreed divorce is almost always quicker, easier, and cheaper than a traditional, contested divorce. If you want these advantages but haven't been able to agree with your spouse about all the issues, divorce mediation could help you find solutions that will work for both of you.

Once you're able to resolve your differences, you'll typically sign a written divorce settlement agreement.

Will I need a lawyer to get a divorce in Texas?

Many Texas couples find that they can get a do-it-yourself divorce without lawyers if they've already been able to reach a settlement agreement before they file their divorce paperwork. If you want to go the DIY route but don't have the time or inclination to track down all the forms and fill them out properly, you also have the option of filing for divorce online with a service that provides the right forms and basically walks you through the process.

Even if you and your spouse have agreed about all of the issues in your divorce, it could be helpful to have a lawyer at least prepare or review your settlement agreement. That's especially true when you have complicated property or other assets to divide, like retirement accounts or a business.

If your divorce is contested, you'll probably need to hire a lawyer to handle all the complicated legal procedures, gather the evidence you'll need, and advocate on your behalf.

What is the divorce procedure in Texas?

Filing for divorce in Texas involves several steps:

• Filing the divorce petition. One spouse (the "petitioner") will file an Original Petition for Divorce and accompanying documents with the court clerk in the county where either spouse has lived for 90 days.
• Serving the divorce papers. The petitioner then must either have the divorce papers personally served on (hand-delivered to) the other spouse (the "respondent") or have the respondent sign a waiver of service and simply accept the documents from the petitioner.

The next steps in the Texas divorce process may depend on whether you've filed for an agreed divorce or a contested divorce.

• Answering the divorce petition. In a contested divorce, the respondent has 20 days to file an answer to the divorce petition. In an uncontested divorce, the respondent may either file an answer in that time or simply return the signed waiver of service.
• Standard temporary orders. Either spouse may ask the judge to issue standard temporary restraining orders, including orders meant to preserve the couple's property during the divorce proceedings. Judges might also issue these orders on their own, if they think it's necessary. (Tex. Fam. Code §§ 6.501, 6.502 (2022).)
• Financial disclosures. If the respondent has filed an answer, the spouses must exchange certain information and documents about their property, retirement plans, and other financial matters. (Tex. Rules Civ. Proc., rule 194.2 (2022).)
• Finalizing an agreed divorce. Both spouses must sign and file a Final Decree of Divorce, which could be included with the initial paperwork. After the waiting period (more on that below), the court will schedule a hearing. At the hearing, the judge will review the divorce papers and, if everything is in order, will sign the final divorce decree.
• Finalizing a contested divorce. Typically, contested divorces will go through discovery, the legal process for getting evidence from the other spouse and from experts (like custody evaluators and financial analysts). The process could also involve multiple motions and court hearings on issues that crop up during the divorce, including requests for temporary support (more on that below). Most couples negotiate a settlement at some point during the process, usually with the help of their lawyers. The judge may order the couple to participate in mediation. (Tex. Fam. Code § 6.602(a) (2022).) If the spouses aren't able to reach a complete settlement agreement, the'll have to go to trial to have a judge decide any remaining issues for them.

Does Texas have a waiting period for divorce?

In Texas, a judge may not grant your final divorce until at least 60 days have passed after you filed the divorce petition. The only exceptions to this waiting period are in cases involving domestic violence, when the petitioner has an active family violence protective order against the respondent, or the respondent has been convicted of a a domestic violence crime against the petitioner or someone else in the household. (Tex. Fam. Code § 6.702 (2022).)

Although your divorce will be final when the judge signs the divorce decree, neither you nor your spouse may marry someone else until another 31 days have passed. (Tex. Fam. Code § 6.801 (2022).)

How is property divided in a Texas divorce?

Texas is a community property state. That means that when judges are dividing property in Texas divorces, they start out by assuming that any property either spouse has during the marriage is community property, which belongs to both spouses equally. If you claim that something you own is separate property that shouldn't be divided in the divorce, you'll have to prove that claim with clear and convincing evidence. Separate property includes gifts and inheritances (only to one spouse), as well as assets that one spouse owned before the marriage. (Tex. Fam. Code §§ 3.001, 3.002, 3.003 (2022).)

In the divorce, the judge will usually divide community property equally between the spouses in a 50-50 split. In some cases, however, a judge may adjust the distribution in a way that seems fair under the circumstances. (Tex. Fam. Code § 7.001 (2022).)

Can I get alimony in my Texas divorce?

It's not easy to get alimony ("maintenance") in Texas. Judges may order maintenance for a spouse only if that spouse won't have enough property (including separate property) after the divorce to provide for "minimum reasonable needs," and one of the following is true:

• the marriage lasted at least 10 years, and the supported spouse isn't able to earn enough income to provide for minimum reasonable needs, or
• the supported spouse can't earn enough for those minimum needs because of an incapacitating mental or physical disability, or because the spouse must provide substantial care for a child with a disability.

(Tex. Fam. Code § 8.051 (2022).)

How do Texas judges decide child custody and child support in divorce?

In Texas, as in all states, the child's best interest is the primary consideration in any decisions about child custody, including:

• legal custody (called "managing conservatorship" in Texas), or the right to make important decisions about the child's upbringing, and
• physical custody (called "possessory conservatorship" in Texas), or where the child will live and when parents will have "access" (or visitation).

Texas law presumes that it would be in a child's best interests for both parents to have managing conservatorship, except when specific circumstances dictate otherwise. If parents can't agree on their own parenting plan, the judge will issue a possession order setting out the times each parent will have with the children. (Tex. Fam. Code §§ 153.002, 153.256, 153.131, 153.311 (2022).)

In Texas, the parent who has the least amount of time with the children pays child support. Under the Texas child support guidelines, the amount of support is generally based on a percentage of that parent's net income and the number of children being supported. (Tex. Fam. Code §§ 154.121–154.133 (2022).)

Can I get temporary support or custody during my Texas divorce?

During a divorce proceeding, the judge may issue temporary orders for child custody and child support to provide for the children's safety and welfare. The judge may also order one spouse to pay temporary spousal support. (Tex. Fam. Code §§ 105.001(a), 6.502(a)(2)(2022).)

Other than the general rule that temporary spousal support be necessary and fair, the law in Texas doesn't spell out criteria for these orders. If you're seeking temporary spousal support, be prepared to show that you'll need it to cover your basic expenses and that your spouse can afford to pay.