How a Texas Divorce Case Works

Learn about the divorce process in Texas.

By , J.D.

Here are the basic things you'll need to consider in a Texas divorce case.

Filing the Petition

In Texas, the divorce process starts when either spouse files a petition for divorce. The petition may be two pages or 40 pages long, depending on your circumstances and the relief you request.

To file a petition, you must have lived in Texas continuously for at least six months, and in the county where you file the petition for at least 90 continuous days.

This petition is filed with the court clerk, and your case is assigned to a family court. The assignment of cases is random. Your lawyer cannot select the court or the judge.

After it is process at the courthouse, the petition must be delivered to your spouse. The most common means of delivery is by having a Sheriff, Constable, or private process server hand your spouse the petition and a citation. The citation is essentially a cover sheet that tells your spouse a lawsuit has been filed and provides the time limits for responding.

If you and your spouse are working together on the divorce, your spouse can waive service of process.

Temporary Orders

You may want to ask the court to issue one or more orders between the date you file the petition and the date your divorce becomes final. You may need a temporary restraining order (TRO) and temporary injunction to prevent your spouse from transferring or disposing of property and/or to prevent harassment. A TRO and a temporary injunction give the same relief -- essentially, they maintain the "status quo" and preserve property until the court divides it -- but they last for different time periods. A TRO is good only for 14 days, and is granted without notice to your spouse or a hearing. A temporary injunction is granted after notice and hearing (or agreement of both spouses), and remains in effect until your divorce is granted. Realistically, temporary injunctions are routinely granted upon request, and are made mutual; this means they apply to both spouses equally.

Temporary orders may also be needed to settle which spouse shall remain in the family home, who will pay the bills, who will pay and care for the children, and so on while the divorce case is pending.

If you have obtained a Temporary Restraining Order or requested a hearing for temporary orders, the Court will set a hearing date. Unless you reach an agreement with your spouse before the scheduled hearing, you will have to appear in court at the hearing.

Discovery

Discovery is the process by which each side gathers documents and information relevant to the lawsuit. Some common discovery methods are depositions (oral testimony before a court reporter); interrogatories (written questions); requests for production of documents (such as tax returns, bank account records, deeds, and other financial papers); or requests for admissions. If you are served with discovery requests or a notice to take your deposition, your lawyer will guide you accordingly.

Income Taxes

Generally, you and your spouse will be jointly and individually liable for all taxes due in any year in which you filed a joint return. This means the IRS can pursue collection actions against either or both of you. Even if the court orders your spouse to pay the whole tax bill, that isn't binding against the IRS, and does not prevent the assessment of penalties and interest. Recent tax debts also can't be discharged in bankruptcy.

Attorney Fees

Each party is responsible for his or her own attorney's fees and costs of litigation. It may be treated as a marital debt and divided like all other property in the divorce. The Court also has the option to require one party to pay all or any part of the attorney's fees and costs for the other party, depending on their respective financial resources and the facts of the case.

Spousal Support

In 2012, Texas law regarding spousal support (alimony) changed. Spousal support may be awarded in a divorce only if both of these things are true:

  • The spouse seeking support must lack the resources to meet his or her own basic minimum needs.
  • The marriage must have lasted at least ten years, in most cases.

In deciding whether to award alimony, the court will consider a number of factors, including the education and earnings of each spouse, the property each spouse owns, and any misconduct during the marriage.

Name Change

You may request a change of your name as part of your divorce action. Name change requests are usually granted even if there are minor children. If you think you would like to change your name, it would best to do so as part of your divorce. As a separate lawsuit, the requirements are much stricter.