Guide outlines the process of obtaining a divorce in situations where you and your spouse have dependent children under 18 years of age or who are still in high school
As of April 19, 2023
Warning: The contents and documents provided in this guide are intended for informational purposes only and should not be considered a replacement for professional legal advice.
This guide outlines the process of obtaining a divorce in situations where you and your spouse have dependent children under 18 years of age or who are still in high school, and no existing legal orders govern the custody and support of these children.
Types of Divorce: Agreed, Default, and Contested
Instructions for handling an uncontested divorce are available at TexasLawHelp.org. An uncontested divorce is one where both parties reach a mutual agreement or one party does not respond to court summons, thus allowing the divorce to proceed by default.
A divorce is considered uncontested upon if both spouses concur on all pertinent matters such as custody, visitation rights, and child support, and are prepared to sign the divorce paperwork together.
A divorce may proceed by default if one spouse is officially notified but fails to respond or appear in court.
A contested divorce occurs when one spouse responds to the divorce summons or files a waiver of service but refuses to sign the final divorce decree. To proceed with a contested divorce, you must schedule a final hearing and provide your spouse with at least 45 days’ notice. Consulting with a lawyer is crucial in a contested divorce scenario.
Important Notice: The forms included in this guide are specifically tailored for divorces involving opposite-sex couples. While the procedural steps for filing are the same for both same-sex and opposite-sex divorces, please be aware that the forms may vary slightly for same-sex divorces.
No. Texas is a “no fault” state meaning that you don’t need to specify a reason (or fault ground) for the divorce. Irreconcilable differences and/or conflict of personalities between you and your spouse is all you need to list as your reason for wanting the divorce. Read more in our article.
Texas does not have a marital status known as “legal separation” under its Family Code. While you and your spouse can separate from one another physically you will remain married until the judge signs your Final Decree of Divorce. Read more in our article.
We have multiple guides as to how you can simply file for divorce. However, the simplest way is to hire the Law Office of Bryan Fagan to file your Original Petition for Divorce and to represent you throughout the rest of your case. Read more in our article.
The cost of a divorce depends upon whether you have minor children, assets that are divisible in the divorce and a host of other factors. You are better off speaking with one of our attorneys for a free of charge consultation to gain a better understanding of divorce costs based on your specific circumstances. Read more in our article.
The old saying that “half of marriages end in divorce” probably is not true. Factors such as whether or not you have graduated from high school, have children prior to marriage and whether or not you and your spouse are employed all factor into the percentages when it comes to divorce. Read more in our article.
Short answer: a lot. Your parenting record, social media use, drug/alcohol problems, and history of infidelity are just a handful of the potential “skeletons” in your closet that can be used against you in a divorce. Finding the right attorney to help you play defense when necessary and offense at other times is essential when it comes to accomplishing your goals. Read more in our article.
Very carefully! In all seriousness, a narcissist wants the divorce to be all about them. Instead, put the emphasis on your children and their best interests. If not for the kids- remember that the narcissist only thinks of themselves. Prepare your case with your attorney and consider all the angles. Your spouse won’t think beyond their nose to do the same. Read more in our article.
A divorce is a legal process whereby a judge with proper jurisdiction over your case ends your marriage. A legal separation is not a condition that exists under the Texas Family Code.
You should file the divorce first if only to have slightly more time to prepare your case and to get the case off the ground. Otherwise, there are no distinct or specific advantages under the law when it comes to filing the divorce first. Read more in our article.
You should file the divorce first if only to have slightly more time to prepare your case and to get the case off the ground. Otherwise, there are no distinct or specific advantages under the law when it comes to filing the divorce first. Read more in our article.
The answer that a lawyer gives whenever an answer is unclear is it depends. The judge in your case will determine whether your spouse can be ordered to pay your attorney fees if you ask for them to be paid by him or her. This analysis is performed on a case-by-case basis so we would need to know more about your specific circumstances before we can give you an answer on this subject. In a lot of divorce cases, each party pays their attorney. In others, one spouse is ordered to pay all the attorney’s fees. Read more in our article.
Yes, you can file divorce paperwork yourself in Texas. This can be done in an uncontested divorce where you and your spouse agree on all of the issues in your case. It can also be done by you individually in a contested divorce where you and your spouse do not agree on all or even any of the issues in your divorce. There is no requirement that you be represented by an attorney in a divorce but it sure helps given how many issues are at stake in a typical Texas divorce. Read more in our article.
Property owned together by you and your spouse is known in Texas as community property. Read more in our article.
Warning: These guidelines outline the fundamental steps for obtaining a mutually agreed divorce when children are involved. Each step is accompanied by a hyperlink to the necessary form(s) required for that particular stage.
Use these instructions if:
If there is an existing final court order concerning the custody and support of your children (excluding a family violence protective order), refer to this alternative guide: “I need a divorce. We have minor children. A final custody and support order is already in place.“
In the event of a family violence protective order, seek assistance from the Legal Help Directory to discuss your legal options with a professional. If you have been a victim of family violence, you may be eligible for complimentary legal assistance.
For access to both instructions and forms, click here to print them out.
Ensuring you file for divorce in the correct county is crucial. If you file in the wrong county, your case may be dismissed.
You have two options for filing:
If neither you nor your spouse meet these residency requirements, it’s advisable to consult with a lawyer.
For further details, refer to the Frequently Asked Questions (FAQs) on FAQs: Filing a Divorce with Children.
Fill out this starting form:
To begin your divorce proceedings, you will need to file (turn in) the Petition at the courthouse. This document serves to inform the judge and your spouse of your desire to seek a divorce and outlines the specific requests you wish the judge to address in the Final Decree of Divorce. Additional guidance on your available options can be found in the accompanying Divorce FAQ and related Divorce Articles.
When completing the Petition:
Please Note: The Petition requires your address, as your spouse will receive a copy. If you have concerns about disclosing your address to your spouse, consider contacting the Family Violence Legal Line at 281-810-9760 for free advice.
Fill out these additional starting forms if required for your case:
Make two copies of these completed starting forms:
Submit your completed Petition and other necessary starting forms to the court. Here’s how:
If you have any further questions or need assistance, feel free to ask the clerk or seek legal advice.
If your child has ever received TANF or Medicaid, you’ll need to follow these steps:
These steps ensure compliance with the requirement to notify the Office of the Attorney General (OAG) Child Support Division if your child has received TANF or Medicaid benefits. Make sure to retain the necessary proof and bring it with you when you attend court to finalize your case.
Give your spouse:
WARNING! Do not hand-deliver any papers to your spouse if there has been violence during your relationship, especially if a judge has signed a Protective Order ordering you or your spouse to stay away from the other. You can have your spouse served instead. If you decide to have your spouse served, use these instructions instead: Instructions & Forms for a Default Divorce with Children in the checklist below this checklist.
Ask your spouse to:
Your spouse can fill out and sign either form.
The Waiver of Service Only form must be signed in front of a notary. If your spouse plans to sign the Waiver of Service Only form, tell your spouse to sign it in front of a notary at least one day after you filed the Petition. Otherwise, your spouse will have to redo it.
The Respondent’s Original Answer form does not have to be signed in front of a notary.
If your spouse returns the signed form to you, make a copy and file the original at the clerk’s office. You can file it now or when you go to court to finish your case.
Tip: If your divorce is agreed, your spouse must also sign a completed Final Decree of Divorce form. It may save you time to fill out the Final Decree of Divorce form now and send it to your spouse with the Waiver of Service or Answer form. Read Step 6 for information about filling out the Final Decree of Divorce form.
CHANGE IN LAW! All family law cases filed after September 1, 2023, no longer need to exchange the previously mandatory Required Initial Disclosures. If your case was filed before September 1, 2023, after a party to a family law case (like a divorce) files an answer, both sides are obligated to exchange certain information and documents within 30 days. The form is here: Required Initial Disclosures in Divorces, Annulments, and Suits to Declare Marriage Void See Rule 11 Agreements for information (and forms) about one way to waive required disclosures by agreement.
Fill out this ending form:
When it’s time to finalize your divorce, you’ll request the judge to sign the Final Decree of Divorce form. This document marks the conclusion of your marriage and establishes directives concerning your children, property, and debt. Depending on your case, it may also include additional orders.
Before going to court, ensure that the Final Decree of Divorce form is fully completed (excluding the judge’s signature). Consider filling it out with your spouse, if possible. Here are some guidelines for completing the form:
Complete the following additional ending forms if they are required for your case:
Ensure thorough completion of these forms to address all necessary aspects of your divorce proceedings.
Some counties mandate that the Final Decree of Divorce form be reviewed by an attorney, while others do not. It’s advisable to contact the district clerk’s office in your county to ascertain local requirements. Even if not mandatory, seeking a review from a family law lawyer is prudent. Family law lawyers specialize in cases involving families, such as divorce cases.
You have options for legal assistance:
Seeking legal guidance ensures that your divorce process proceeds smoothly and your rights and interests are protected.
Ask your spouse to:
Note: Ensure that the Final Decree of Divorce form, including the attached possession order, is fully filled out before your spouse signs it. Once signed by your spouse, changes cannot be made to the Final Decree of Divorce unless your spouse initials each change.
Keep the signed Final Decree of Divorce form safe until it’s time to finalize your case.
In nearly all instances, you must observe a waiting period of at least 60 days before finalizing your divorce.
To calculate the 60 days, locate the day you filed your Original Petition for Divorce on a calendar, and then count out 60 additional days, inclusive of weekends and holidays. If the 60th day falls on a weekend or holiday, proceed to the next business day.
Note: Exclude the day you filed your Original Petition for Divorce when counting the 60-day waiting period. The following day is considered Day 1.
There are only two exceptions to the 60-day waiting period:
If your spouse has been convicted of or received deferred adjudication for a crime involving family violence against you or a member of your household, the 60-day waiting period is waived.
If you possess an active protective order or magistrate’s order for emergency protection against your spouse due to family violence during your marriage, the 60-day waiting period is waived.
Note: While you can opt to wait longer than 60 days, your divorce cannot be finalized in fewer than 60 days unless one of these exceptions applies.
Here’s a breakdown of the steps you need to take to proceed with your divorce:
Read the article Tips for the Courtroom for more information about going to court.
By following these steps, you can navigate the finalization of your divorce process effectively and efficiently.
Make sure to bring the following documents with you to the courthouse on the day you intend to finalize your case:
Upon arrival at the courthouse, proceed to the clerk’s office:
When you enter the courtroom:
After the judge signs your Final Decree of Divorce, return to the clerk’s office to complete the final steps:
Completing these tasks ensures that all necessary documentation is filed correctly, and any administrative requirements related to your divorce are fulfilled.
After obtaining a file-stamped copy of your Final Decree of Divorce and any other orders signed by the judge, be sure to send a copy to your spouse. Additionally, follow these additional steps as necessary:
Child Support and Medical Support Information: If you were ordered to pay child support and/or cash medical support, gather additional information from the Texas Attorney General Website or by calling 1-(800) 252-8014.
Enforcement of Child Support: If your ex-spouse was ordered to pay child support and/or medical support but fails to do so, contact the Texas Attorney General Child Support Division for assistance in enforcing your order.
Name Change Procedures: If your name was changed as part of the divorce proceedings, take a certified copy of your Final Decree of Divorce to the following agencies:
Vehicle Title Transfer: If a vehicle (not already in your name alone) was awarded to you, provide a certified copy of the Final Decree of Divorce to your county tax office and apply for title transfer. Ensure that the vehicle identification number (VIN) is listed in your Final Decree of Divorce.
Real Property Title Transfer: File deeds to transfer title to real property (house or land) at the property records office in the county where the property is located.
Qualified Domestic Relations Order (QDRO): If the judge signed a QDRO dividing a retirement account, send a certified copy of the QDRO to the administrator of the retirement plan by certified mail return receipt requested. Failure to do so may result in not receiving your share of the retirement funds.
Update Beneficiary Designations: Revise your will, insurance policies, and all financial account beneficiary designations as needed to reflect the changes resulting from the divorce.
Completing these steps ensures that all necessary administrative tasks are addressed following the finalization of your divorce.
Warning: The information and forms provided in this guide are not a substitute for the advice and assistance of a qualified lawyer.
These instructions outline the steps involved in a default divorce with minor children. Each step includes a link to the necessary form(s) for that particular step.
In this context, “default” means you have your spouse served with the initial divorce papers, and your spouse does not file an answer with the court. If your spouse is served and defaults (does not file an answer with the court), you can proceed with your divorce without their involvement.
These instructions are suitable if:
If there is already a final court order in place for the custody and support of your children (excluding a family violence protective order), please refer to this guide instead: “I need a divorce. We have minor children. A final custody and support order is already in place.“
If there is a family violence protective order involved, utilize the Legal Help Directory to find a legal professional who can provide guidance on your options. If you have been a victim of family violence, you may qualify for free legal assistance.
For printable versions of both the instructions and forms, please click here.
Ensuring you file for divorce in the correct county is crucial. If you file in the wrong county, your case may be dismissed.
You have two options for filing:
If neither you nor your spouse meet these residency requirements, it’s advisable to consult with a lawyer.
For further details, refer to the Frequently Asked Questions (FAQs) on FAQs: Filing a Divorce with Children.
Fill out this starting form:
To begin your divorce proceedings, you will need to file (turn in) the Petition at the courthouse. This document serves to inform the judge and your spouse of your desire to seek a divorce and outlines the specific requests you wish the judge to address in the Final Decree of Divorce. Additional guidance on your available options can be found in the accompanying Frequently Asked Questions and related Articles.
When completing the Petition:
Please Note: The Petition requires your address, as your spouse will receive a copy. If you have concerns about disclosing your address to your spouse, consider contacting the Family Violence Legal Line at 281-810-9760 for free advice.
Fill out these additional starting forms if required for your case:
Make two copies of these completed starting forms:
Submit your completed Petition and other necessary starting forms to the court. Here’s how:
When at the clerk’s office:
Submit your Petition and accompanying starting forms (along with copies).
Request in-person service of divorce papers for your spouse, which entails delivery by a sheriff, constable, or private process server.
Note: If your spouse agrees to sign the necessary court forms, service may not be necessary. Follow these instructions instead: Instructions & Forms for an AGREED Divorce with Children (the Agreed Divorce with Children materials are in the instructions & forms set that appears right above this checklist.)
Pay the filing fee (or submit a Statement of Inability to Afford Payment of Court Costs if applicable).
Inquire about any local standing orders or rules to adhere to and attach them to your documents as required.
Ask about any local rules or procedures pertinent to your divorce case.
The clerk will assign a “Cause Number” and “Court Number” to your Petition and note these at the top of the document.
Your copies will be “file-stamped” with the date and time, while the original will be retained by the clerk.
The clerk will generate a document known as a “citation,” which notifies your spouse of the divorce filing. It also informs them that unless they respond by filing an answer with the court, the divorce may proceed by default, without their participation. The clerk will affix another copy of your Petition to the citation. Together, these documents constitute the “initial divorce papers,” which must be served on your spouse by a constable, sheriff, or private process server. Refer to Step 4 for further guidance.
It is your duty to ensure that your spouse is served with the initial divorce papers by a constable, sheriff, or private process server. You are not permitted to serve the initial divorce papers yourself.
To arrange for your spouse to be served in person:
The constable, sheriff, or private process server will:
The completed Return of Service serves as evidence that your spouse was served, and your spouse will not need to sign anything.
If the Return of Service is sent to you, file it at the clerk’s office. The Return of Service must be on file for at least 10 days before you can proceed with your case, excluding the day it is filed or the day you attend court to finalize your case.
Note: If you encounter difficulties in having your spouse served, refer to the article “How to Serve the Initial Divorce Papers.” For any queries, you can use the “Ask a Question” feature to chat with a lawyer or law student online.
If your child has ever received TANF or Medicaid, you’ll need to follow these steps:
These steps ensure compliance with the requirement to notify the Office of the Attorney General (OAG) Child Support Division if your child has received TANF or Medicaid benefits. Make sure to retain the necessary proof and bring it with you when you attend court to finalize your case.
Fill out this ending form:
When it’s time to finalize your divorce, you’ll request the judge to sign the Final Decree of Divorce form. This document marks the conclusion of your marriage and establishes directives concerning your children, property, and debt. Depending on your case, it may also include additional orders.
Before going to court, ensure that the Final Decree of Divorce form is fully completed (excluding the judge’s signature). Consider filling it out with your spouse, if possible. Here are some guidelines for completing the form:
Print out and complete a Standard Possession Order form.
Complete the following additional ending forms if they are required for your case:
Ensure thorough completion of these forms to address all necessary aspects of your divorce proceedings.
Some counties mandate that the Final Decree of Divorce form be reviewed by an attorney, while others do not. It’s advisable to contact the district clerk’s office in your county to ascertain local requirements. Even if not mandatory, seeking a review from a family law lawyer is prudent. Family law lawyers specialize in cases involving families, such as divorce cases.
You have options for legal assistance:
Seeking legal guidance ensures that your divorce process proceeds smoothly and that your rights and interests are protected.
Adhere to the waiting periods applicable to your case:
Note: You can opt to wait longer than 60 days, but your divorce cannot be finalized in fewer than 60 days unless one of these exceptions applies.
Contact the clerk’s office to verify whether your spouse has submitted an answer.
If an answer has been filed by your spouse, proceeding with a default divorce is not an option.
If your spouse has not submitted an answer, you can finalize your divorce by default under the following conditions:
If finalizing your divorce by default is possible, complete the following additional forms and prepare one copy of each:
Contact the clerk’s office to inquire about the schedule and location for uncontested divorce hearings.
If you provided a copy of your Petition to the Office of the Attorney General (OAG), ask the clerk if any documents have been filed by the OAG in your case.
Review and familiarize yourself with the sample testimony for Divorce with Children (Set B). It is imperative to ensure that all statements in the testimony align with your situation. Seek legal counsel if discrepancies arise, as honesty in court proceedings is crucial, and false statements can lead to legal consequences.
Additionally, inquire with the court coordinator about the possibility of completing and submitting a Default Divorce with Children Prove-Up Affidavit, if applicable. Confirm whether the judges in the county accept these affidavits. An affidavit involves making a sworn statement in front of a notary public.
Refer to the article “Tips for the Courtroom” for comprehensive guidance on courtroom proceedings.
If you prefer to attend court proceedings virtually, you might need to submit a motion to appear remotely. Utilize the guide titled “I want to go to divorce court remotely” to obtain detailed information and necessary forms for this process.
Ensure you have the following documents when you attend the courthouse to finalize your divorce:
Upon arrival at the courthouse, proceed directly to the clerk’s office.
Upon reaching the courtroom, notify the clerk of your presence and submit your paperwork. Then, wait for the judge to call your case.
When your case is called, approach the front of the courtroom and stand before the judge’s bench. You will be required to raise your right hand and swear to tell the truth. The judge may ask questions or request you to read your testimony. Ensure you have your sample testimony ready. The judge will carefully review your statements and documents. If everything is in order, the judge will sign your Final Decree of Divorce.
Once the judge has signed your Final Decree of Divorce, return to the clerk’s office.
Provide your spouse with a file-stamped copy of your Final Decree of Divorce and any other orders signed by the judge.
Additionally, follow these steps if they are applicable to your situation:
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