FAQs - FILING A DIVORCE

Can I file for divorce in Texas?

You can file for divorce in Texas if you or your spouse has lived:

  • in Texas for at least the last 6 months, and

  • in the county where you file for divorce for at least the last 90 days.

See Texas Family Code Section 6.301.

Note for military families: If you are serving in the military or other government service outside of Texas you may still file for divorce in Texas if:

  • Texas has been the home state of either you or your spouse for at least 6 months and the county where you plan to file the divorce has been the home county of either spouse for at least 90 days. 

  • The same rule applies if you accompanied your spouse who is serving in the military or other government service outside of Texas. If Texas is your home state, time spent outside of Texas with your military spouse counts as time spent in Texas.

See Texas Family Code Section 6.303.

 

 

What if my spouse doesn’t live in Texas?

As long as you meet the residency requirements for divorce, you can get divorced in Texas even if your spouse lives in another state. 

What if our children don’t live in Texas?

A Texas Court cannot make initial custody and visitation orders about a child unless:

  • the child has lived in Texas for at least the last 6 months (or since birth) or Texas was the child’s home state and the child has been gone less than 6 months.

 
 
How long will my divorce take?

In almost all cases, you must wait at least 60 days before you can finish your divorce.

When counting the 60 days, find the day you filed your Original Petition for Divorce on a calendar, and then count out 60 more days (including weekends and holidays). If the 60th day falls on a weekend or holiday, go to the next business day. Note: When counting the 60 day waiting period, don’t count the day you filed your Original Petition for Divorce. Day 1 is the next day.

There are only two 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 member of your household, the 60-day waiting period is waived.

  2. If you have an active protective order or an active magistrate’s order for emergency protection against your spouse because of family violence during your marriage, the 60-day waiting period is waived.

Do I need a lawyer to help me with my divorce?

You do not have to have a lawyer to file or respond to a divorce case. However, divorce cases can be complicated and your rights as a parent, your property and your money may be at risk.

 

 
Can I hire a lawyer just to give me advice?

Yes! You can hire a family law lawyer just to give you legal advice, review your forms, draft a document, or help you prepare for a hearing. You may then be able to handle the other parts of your divorce yourself. Hiring a lawyer for a limited purpose is called “limited scope representation.”

Can my spouse’s lawyer give me advice?

No. A lawyer is only allowed to represent one side in a divorce. Your spouse’s lawyer cannot give you legal advice. You cannot rely on your spouse’s lawyer to protect your interests.

What if my spouse doesn’t want a divorce?

Your spouse cannot stop you from getting a divorce. Texas is a “no-fault” divorce state. This means that a divorce can be granted without either spouse being at fault. As long as one spouse believes that the relationship cannot be fixed, the judge will grant the divorce.

Do my spouse and I have to be separated to get a divorce?

No. You don’t have to be separated to get a divorce.

 

 

Can I get a divorce in Texas if I’m not a U. S. citizen?

Yes. You may file for divorce in Texas even if you do not have legal status in the United States if you or your spouse has:

  • lived in Texas for at least the last 6 months, and lived in the county where you file for divorce for at least the last 90 days.

Can I get an annulment or an order declaring my marriage to be void?

Most people do not qualify for an annulment or order declaring their marriage is void.

A judge can annul your marriage only if:

  • You were 16 or 17 years old when you got married and you were married without your parent’s consent or a court order. (Note: An annulment case in this situation must be filed by your parent or another designated adult before you turn 18.) or

  • You were under the influence of alcoholic beverages or narcotics, and as a result, did not have the capacity to consent to the marriage and you have not voluntarily lived with your spouse since the effects of the alcoholic beverages or narcotics ended. or

  • Either you or your spouse, for physical or mental reasons, was impotent (unable to have sex). You did not know of the impotency at the time of the marriage and you have not voluntarily lived with your spouse since learning of the impotency. or

  • Your spouse used fraud, duress, or force to make you get married and you have not voluntarily lived with your spouse since learning of the fraud or being released from the duress or force. or

  • You did not possess the mental capacity to consent to marriage or to understand the nature of the marriage ceremony because of a mental disease or defect. Since the marriage ceremony, you have not voluntarily lived with the Respondent during a period that you possessed the mental capacity to recognize the marriage relationship. or

  • Your spouse did not possess the mental capacity to consent to marriage or to understand the nature of the marriage ceremony because of a mental disease or defect. At the time of the marriage, you did not know of your spouse’s mental disease or defect and you have not voluntarily lived with your spouse since you discovered your spouse’s mental disease or defect. or

  • Your spouse hid the fact that he or she got divorced from someone else during the 30 days before your marriage ceremony. At the time of the marriage ceremony, you did not know about the divorce and you have not lived with your spouse since you found out about the divorce. It also must have been less than 1 year since you were married. or

  • You were married less than 72 hours after the marriage license was issued. A judge did not sign an order waiving the 72 hour waiting period and none of the exceptions set out in Texas Family Code Section 2.204 (b) apply. (At the time of the marriage, you were not a member of the U.S. armed forces on active duty, you did not perform work for the U.S. Department of Defense as an employee or under a contract with the Department, and you did not seek a waiver based upon completion of a premarital course as set out in Section 2.204 (b) (4).) And, it has been less than 30 days since the marriage took place. 

See Texas Family Code, Chapter 6, Subchapter B.

A judge can declare your marriage void only if:

  • Either you or your spouse was married to someone else at the time of your marriage. or

  • You and your spouse are close relatives. or

  • Either you or your spouse was under 16 when you got married (unless a court order allowed you to marry). or

  • You are married to your step-parent or step-child.

See Texas Family Code, Chapter 6, Subchapter C

 

 

What if my spouse or I have (or had) a protective order?

You must attach a copy of any protective order involving you and your spouse or your children to your Original Petition for Divorce.

What if I need orders right away?

If you need orders right away, you may ask a judge to make a temporary restraining order (TRO) and/or temporary orders. A temporary restraining order lasts until you can have a temporary orders hearing. Temporary orders typically last until the divorce is finished.

Note: A family violence protective order is different from a temporary restraining order. If you need a family violence protective order call the National Domestic Violence 24 Hour Hotline at 1-800-799-SAFE (7233).

What does “pro se” mean?

Pro se means you are representing yourself in a court case and don’t have a lawyer.

What if I can’t find my spouse?

If you cannot find your spouse (after looking really hard) you can serve your spouse by publication in a local newspaper.

What if my spouse is in jail or prison?

You must still notify your spouse about the divorce if he or she is in jail or prison.

If your divorce is agreed, your spouse can sign the necessary court forms in jail or prison and return them to you.

If your divorce is not agreed (or you don’t want to have contact with your spouse), you must have a constable or sheriff serve your spouse with the initial divorce papers in jail or prison.

Note: If your spouse must be served, you will need the physical address of the jail or prison.

 

 

What if the wife had a child with another man while married to the husband?

If the wife had a child with another man while married to the husband, paternity of the child must be established before you can finish your divorce. This is true even if you have been separated for a long time.

How will our property and debts be divided?

Texas law says that community property and debt should be divided in a way that is “just and right.” This doesn’t always mean 50/50. Separate property is not divided.

How does a divorce affect debt?

Your divorce does not affect a creditor’s right to collect a debt. So, if your Final Decree of Divorce orders your spouse to pay a debt that is in both of your names (such as a mortgage or car loan) but your spouse doesn’t pay it, the creditor can still seek payment from you.

What is mediation?

If you and your spouse don’t agree on the terms of your divorce, you may want to consider mediation. In mediation, an independent person (the mediator) will try to help you reach an agreement. The divorce process is usually easier when you have an agreement.

How long do I have to wait to get remarried?

You must wait 30 days from the date of divorce before you can marry someone else. This 30 day waiting period can be waived by the judge if there is a good reason to do so.

 
 
 
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