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Instructions and Forms for a Default Divorce with Children

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:

  • You anticipate that your spouse will not participate in the divorce process, and
  • There are no existing court orders regarding the custody and support of your children, apart from a family violence protective order.

 

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.

Checklist Steps

Step 1: Establish the appropriate jurisdiction for filing your divorce.

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:

  1. You can file in the county where you currently reside if:
    • You have been living in that county for the past 90 days, and
    • You have been a resident of Texas for at least the past 6 months.
  2. Alternatively, you can file in the county where your spouse resides if:
    • Your spouse has been living in that county for the past 90 days, and
    • Your spouse has been a resident of Texas for at least the past 6 months.

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.

Step 2: Complete the initial paperwork.

Fill out this starting form:
  • Original Petition for Divorce (Set B) (called the Petition for short)
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:
  • Write your responses legibly using either blue or black ink. Ensure all sections are completed; do not leave any blanks.
  • You will be identified as the “petitioner,” while your spouse will be referred to as the “respondent.”
  • If you encounter any uncertainties or require assistance, it is advisable to seek legal counsel.
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:
  • Civil Case Information Sheet
    • (NOTE: the Texas Supreme Court has repealed the rule requiring the civil case information sheet, so you may not need this form. If you are filing paper documents in person at the clerk’s office, you should complete it and bring it anyway, however).
  • Exhibit: Out-of-State Party Declaration (required only if you or your spouse lives outside of Texas)
  • Statement of Inability to Afford Payment of Court Costs (use only if you cannot afford to pay the filing fee for your case) You can call the clerk’s office to learn the filing fee for your case. Learn more here: Court Fees and Fee Waivers.
Make two copies of these completed starting forms:
  • Original Petition for Divorce
  • Exhibit: Out-of-State Party Declaration (only if you or your spouse lives outside of Texas)
  • Statement of Inability to Afford Payment of Court Courts (only if you are asking the court to waive court costs)

Step 3: Submit your completed initial paperwork.

Submit your completed Petition and other necessary starting forms to the court. Here’s how:
  1. Determine if your county has standing orders. If so, attach a copy of the standing orders to your Petition.
  2. To file your forms online, visit E-File Texas and follow the provided instructions. Consult the guide titled “I wish to electronically file (e-file) my documents” for detailed information on the e-filing procedure.
  3. Alternatively, if you prefer to file your divorce forms in person:
    • Take your Original Petition for Divorce along with any additional starting forms (and copies) to the district clerk’s office in the county you’ve determined to be the appropriate filing location for your divorce.
    • 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.

Step 4: Arrange for your spouse to be served with the necessary documents.

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:
  • Send the initial court documents to a constable, sheriff, or private process server in the county where your spouse resides or works.
  • Include the service fee (contact them beforehand to ascertain the fee) or a file-stamped copy of your Statement of Inability to Afford Payment of Court Costs, along with a self-addressed and stamped envelope.
The constable, sheriff, or private process server will:
  • Deliver the initial divorce papers to your spouse.
  • Complete a Return of Service form indicating when and where your spouse was served.
  • Forward the completed Return of Service to you or the court.
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.

Step 5: Inform the relevant authorities, such as the Office of the Attorney General, if required. Answer or Waiver of Service document.

If your child has ever received TANF or Medicaid, you’ll need to follow these steps:
  1. Send a File-Stamped Copy of Your Petition to the Office of the Attorney General (OAG) Child Support Division.
    • Email Option: Scan a file-stamped copy of your Petition and email it to the OAG child support office in the county where your case is filed. Find the email address for the OAG child support office in the county where your case is filed. You can find the email addresses for Child Support Offices here. Include the cause number and the county where you filed your case in the subject line of the email. Keep a printed copy of your email as proof, which you’ll need when you go to court.
    • Certified Mail Option: Alternatively, mail a copy of your Petition by certified mail return receipt requested. Obtain the necessary forms for certified mail return receipt requested from the post office.  Find the mailing address for the OAG child support office in the county where your case is filed. You can find the mailing addresses for Child Support here. Address the envelope to the OAG child support office in the county where your case is filed. The post office will provide you with a receipt upon mailing, and the OAG will sign the return receipt (commonly known as the “green card”) and mail it back to you. Keep both the mailing receipt and the return receipt (green card) as proof, which you’ll need when you go to court.
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.

Step 6: Complete the Final Decree of Divorce and any other concluding paperwork.

Fill out this ending form:
  • Final Decree of Divorce (Set B) 
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 your responses legibly using blue or black ink. Avoid leaving any blanks.
  • You are designated as the “petitioner,” while your spouse is identified as the “respondent.”
  • Consult with a lawyer if you have any inquiries or require assistance.
Print out and complete a Standard Possession Order form.
    • If the standard possession schedule suits your family’s needs, fill it out and attach it to the Final Decree of Divorce. However, if it doesn’t work or wouldn’t ensure the safety of your children, consider hiring a lawyer to draft a possession order tailored to your family’s specific requirements. Various standard possession orders are available, depending on whether your suit was filed before September 1, 2021, or after that date. Alternatively, you may find suitable possession orders included with this article: Child Visitation and Possession Orders
Complete the following additional ending forms if they are required for your case:
  1. Income Withholding Order for Support (if child support will be ordered).
  2. Qualified Domestic Relations Order (QDRO): If you are dividing retirement benefits (other than an IRA), you must also complete a form called a Qualified Domestic Relations Order (QDRO). This website does not provide QDRO forms. You may contact the employer or retirement plan administrator to see if they have a sample QDRO form. If not, it’s advisable to hire a lawyer to draft the QDRO form. Even if you use the employer or plan administrator’s form, it’s essential to have a lawyer review it to ensure you are not forfeiting important benefits. Prepare the QDRO before going to court, so the judge can sign it when finalizing your divorce. Learn more here: Dividing Retirement Benefits Upon Divorce.
  3. Information on Suit Affecting the Family Relationship form (also known as the “Austin” form): This form must be printed on one page (front and back).
Ensure thorough completion of these forms to address all necessary aspects of your divorce proceedings.

Step 7: Seek a review of the Final Decree of Divorce form, if available.

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:
  1. Limited Scope Representation: You can hire a family law lawyer solely to review your forms. This arrangement is known as limited scope representation.
  2. Legal Help Directory: Utilize our Legal Help Directory to locate a lawyer referral service, legal aid office, or self-help center in your area.
  3. Legal Events and Clinics: Check our Legal Events and Clinics page for information on free legal clinics in your area.
  4. Ask a Question: Use the “Ask a Question” feature to chat online with a lawyer or law student.
Seeking legal guidance ensures that your divorce process proceeds smoothly and that your rights and interests are protected.

Step 8: Adhere to the necessary waiting periods.

Adhere to the waiting periods applicable to your case:

  • 60-day waiting period – In nearly all instances, you must observe a minimum 60-day waiting period before finalizing your divorce.
To calculate the 60 days, identify the date you filed your Original Petition for Divorce on a calendar, then tally 60 additional days (including weekends and holidays). If the 60th day falls on a weekend or holiday, proceed to the following business day. Note: Exclude the day you filed your Original Petition for Divorce; commence counting from the next day.
 
Exceptions to the 60-day waiting period:
  1. If your spouse has been convicted of or received deferred adjudication for a crime involving family violence against you or a household member, the 60-day waiting period is waived.
  2. 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: 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.

  • 20 + day waiting period – Following service on your spouse, they must be given a minimum of 20 days plus until the next Monday at 10:00 a.m. to submit an Answer. Determine the date your spouse was served, count 20 additional days (inclusive of weekends), then proceed to the subsequent Monday. Your spouse must file an answer by this date. If your spouse fails to submit an answer by this deadline (and all other prerequisites are fulfilled), you can conclude your case by default without their involvement.
Note: Your spouse retains the ability to file an answer until you finalize your divorce case, even if the 20 + day waiting period has elapsed.
 
  • 10 + day waiting period – The constable, sheriff, or private process server should have furnished a Return of Service form indicating the date your spouse was served. This form must be filed with the court and remain on record for at least 10 days before you can finalize your case.
Important: Exclude the day the Return of Service is filed with the court and the day you attend court to finalize your case when calculating the 10-day waiting period.

Step 9: Find out if your divorce can be completed through default.

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 filed an answer and is now willing to sign your finalized Final Decree of Divorce, you can conclude your case through agreement.
  • If your spouse has filed an answer and refuses to sign your finalized Final Decree of Divorce, your case is contested. In such instances, a contested final hearing must be scheduled to conclude the contested divorce. Provide your spouse with a minimum of 45 days’ notice for the final hearing. Refer to “How to Set a Contested Final Hearing (Family Law)” for further guidance. Remember, it’s advisable to seek legal representation if your case is contested.
If your spouse has not submitted an answer, you can finalize your divorce by default under the following conditions:
  • Your spouse has been successfully served by a constable, sheriff, or private process server; and
  • A Return of Service form, indicating when and where your spouse was served, has been filed with the clerk’s office for at least 10 days (excluding the day it was filed and the day you go to court); and
  • The 20 + day waiting period for your spouse to file an answer has elapsed; and
  • The 60-day waiting period has concluded; and
  • Your spouse has not filed an answer and does not do so before you finalize your divorce. (Note: Your spouse can file an answer until you finalize your divorce, even if the 20 + day waiting period has expired.)
If finalizing your divorce by default is possible, complete the following additional forms and prepare one copy of each:
  • Certificate of Last Known Mailing Address
  • Military Status Declaration (In the case of Harris County, complete a Military Status Affidavit instead. Have it notarized.)

Step 10: Prepare for your court appearance.

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.
  • If not, you can proceed with finalizing your divorce without further communication to the OAG.
  • If yes, seek advice from a legal professional on the next steps. You can utilize the Ask a Question service to communicate with a lawyer online.
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.

Step 11: Attend the court proceedings to finalize your divorce.

Ensure you have the following documents when you attend the courthouse to finalize your divorce:
  • A file-stamped copy of your Original Petition for Divorce.
  • A file-stamped copy of the Return of Service form indicating when and where your spouse was served.
  • The fully completed and signed by you of Final Decree of Divorce form, including an attached possession order.
  • An Income Withholding Order for Support if child support is being ordered.
  • A Certificate of Last Known Mailing Address form and one additional copy.
  • A Military Status Declaration, or a Military Status Affidavit for Harris County, along with one extra copy.
  • Sample Testimony for Divorce with Children (Set B).
  • Any additional documents specific to your case, such as a Qualified Domestic Relations Order (QDRO) if you are dividing a retirement account.
  • The completed Information on Suit Affecting the Family Relationship form (also known as the “Austin” form), printed on one sheet of paper (front and back).
Upon arrival at the courthouse, proceed directly to the clerk’s office.
  • Inquire with the clerk about the necessity of obtaining the court file or docket sheet, which lists all documents filed in your case.
  • Request the clerk to verify once more if your spouse has submitted an answer. If an answer has been filed, default proceedings cannot proceed, and you should return to Step 9.
  • Submit the Certificate of Last Known Mailing Address and the Military Status Declaration (or Military Status Affidavit). Ask the clerk to affix a file stamp on your copies of each form. Ensure you bring a file-stamped copy of each form to court.
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.

Step 12: Submit the signed Final Decree of Divorce to the appropriate authority.

Once the judge has signed your Final Decree of Divorce, return to the clerk’s office.
  • Submit the Final Decree of Divorce and any other orders signed by the judge. Remember, your divorce remains incomplete until you complete this step.
  • File the completed Information on Suit Affecting the Family Relationship form (also referred to as the “Austin” form), ensuring it is printed on a single sheet of paper (front and back).
  • Obtain certified copies of your Final Decree of Divorce and any other signed orders from the clerk’s office. Note that fees may apply for these certified copies.
  • If your name has been changed, procure at least three certified copies of your Final Decree of Divorce to provide to the agencies outlined in Step 13. Fees may apply for obtaining these certified copies from the clerk.
  • If child support has been ordered, inquire with the clerk about the procedure for setting up a child support account.
  • Complete and submit the Record of Support Order to the clerk’s office to initiate the child support account setup process.

Step 13: Following the completion of your divorce.

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:
  • If you have been ordered to pay child support and/or cash medical support and have inquiries about payment locations, refer to the Texas Attorney General Website or contact (800) 252-8014.
  • If your former spouse has been ordered to pay child support and/or medical support and fails to do so, reach out to the Texas Attorney General Child Support Division for assistance in enforcing the order.
  • If your name has been changed, present a certified copy of your Final Decree of Divorce to the following agencies:
    • Your local Social Security Administration (SSA) office for updating your social security card.
    • Your local Department of Public Safety (DPS) office for updating your driver’s license or state identification card.
    • Your County Voter Registrar for updating your voter registration card. You may contact the Texas Secretary of State for further details.
    • Contact the U.S. State Department to change your name on your passport.
  • Transfer car titles by providing a certified copy of the Final Decree of Divorce to your county tax office and applying for title. Ensure that the vehicle identification number (VIN) is listed in your divorce decree.
  • File deeds to transfer title to real property (house or land) at the property records office in the county where the property is situated.
  • If a Qualified Domestic Relations Order (QDRO) was signed by the judge to divide a retirement account, send a certified copy of the QDRO to the administrator of the retirement plan via certified mail with return receipt requested. Failure to do so may result in not receiving your portion of the retirement funds.
  • Review and revise your will, insurance policies, and all financial account beneficiary designations as necessary.

Forms Required

Original Petition for Divorce [Divorce Set B]
Civil Case Information Sheet
Exhibit: Out-of-State Party Declaration
Fee Waiver (Bilingual) – Statement of Inability to Afford Payment of Court Costs or an Appeal Bond
Final Decree of Divorce [Divorce Set B]
Standard Possession Order
Income Withholding for Support
Information on Suit Affecting the Family Relationship (Excluding Adoptions)
Certificate of Last Known Mailing Address
Military Status Declaration
Military Status Affidavit
Sample Testimony for Divorce with Children
Default Divorce with Children Prove-Up Affidavit
Low-Income Child Support Guidelines Handout
Out-of-State Party Declaration – Guided Form

Source URL: https://www.bryanfagan.com/i-need-a-divorce-we-have-children-under-18/