As you ponder over the decision to pursue a divorce from your spouse, it’s natural to have numerous questions about the Texas divorce process. Here are some answers to frequently asked questions about the divorce procedure in Texas.

What does it mean to “file” for divorce?

In essence, a divorce is a civil lawsuit initiated by one spouse against the other. When you “file” for divorce in Texas, you start legal action against your spouse. This process commences with submitting an original divorce petition to the district court in your county of residence.

Once your spouse receives the divorce papers, they have approximately twenty days to file an answer. Typically, your spouse will also file a counter-petition for divorce along with their answer. In this scenario, the spouse initiating the divorce is called the “petitioner,” while the other spouse is the “respondent.”

Key Terms in the Divorce Process

  1. Uncontested Divorce: This type of divorce where both spouses agree on all issues, including child custody, child support payments, and the division of marital property.
  2. Contested Divorce is when the spouses disagree on one or more issues, leading to more complex divorce proceedings.
  3. Divorce Decree: This is the final decree issued by the court, marking the end of the divorce case. It outlines the court’s rulings on all matters related to the divorce.
  4. Community Property: Texas is a community property state. This means that all property acquired during the marriage, with some exceptions, is considered community property and is subject to division upon divorce.
  5. Separate Property: This refers to any property each spouse owned before the marriage and gifts or inheritances received by one spouse during the marriage.
  6. Spousal Support: Also known as spousal maintenance, this is financial support paid by one spouse to the other after a divorce. It’s determined based on various factors, including the duration of the marriage, the financial resources of the spouse seeking support, and the paying spouse’s ability to provide support.
  7. Child Custody refers to any minor children’s legal and physical custody arrangements. Legal custody pertains to the right to make important decisions about the child’s upbringing, while physical custody refers to where the child will live.
  8. Temporary Orders: These are orders issued by the court during the divorce process before the final hearing. They can cover issues like child custody, child support, and spousal support.

What is in a divorce petition?

divorce petition, or an original one, is a formal document that initiates the divorce process. It contains general information about the parties involved, including minor children’s names, addresses, and birthdates. It also outlines the grounds for the divorce.

While most divorces in Texas are filed on the grounds of insupportability, which is a no-fault divorce, if you’re seeking a divorce based on fault, such as adultery or family violence, this must be specified in the divorce petition.

Suppose you’re seeking specific relief, such as spousal support, sole managing conservatorship of your children, or an unequal division of the community property. In that case, this information should also be included in your divorce petition.

As the divorce proceedings unfold and new facts come to light during the discovery process, it may be necessary to amend the divorce petition. This can be done multiple times before the final divorce hearing.

It’s important to note that the divorce petition is a critical document in the Texas divorce process. It sets the tone for the divorce case and can significantly impact the court’s rulings on child custody arrangements, child support payments, and the division of marital property. Therefore, it’s advisable to consult with a divorce attorney when preparing your divorce petition

When can I file for divorce in Austin, TX?

You can file for divorce in Austin, Texas when you meet the residency requirements and are ready to initiate the legal process. In Texas, you or your spouse must have been a state resident for at least six months before filing for divorce. Additionally, one of you must have been a county resident where you plan to file for divorce for at least 90 days. Once these residency requirements are met, you can file for divorce in Austin, Texas.

When can I file for divorce in Austin, TX?

Texas law allows divorce to be filed in Austin, TX when one spouse has been a resident for at least six months. Texas Family Code permits various grounds for divorce. While the no-fault divorce—where neither spouse is blamed—is the most common, there are also several fault-based grounds. These include situations where one spouse has committed adultery, abandonment, family violence, or if one spouse has been institutionalized in a mental hospital for at least three years. Mental or physical disability can also be considered grounds for divorce, but these are less common.

Is it better to file for divorce first?

Filing first in divorce can be a strategic advantage, particularly in contested divorces. This is because the spouse who files first (the petitioner) can control certain aspects of the case, including the timing of court hearings. They can also establish temporary orders, setting the tone for the final divorce decree. It’s important to consider your situation with an experienced divorce attorney to make the best decision.

What if I don’t have access to funds to pay my lawyer?

It’s not uncommon to be concerned about the financial implications of a divorce, especially when it comes to paying for a divorce attorney. Texas, a community property state, considers all income earned and property acquired during the marriage as community property. This means the assets will be divided equally in the event of a divorce unless clear and convincing evidence indicates otherwise. Some attorneys might offer payment plans or sliding scale fees based on your income and circumstances.

Should I move out of the house?

In general, staying in the marital home may be advisable unless there is a risk of family violence or domestic violence. Texas divorce laws make it clear that moving out can potentially impact the court’s decisions on child custody and property division, especially in contested cases where these matters are unresolved.

How will file for divorce impact my right to see my children?

Before any court orders, both parents have equal rights to their children. However, if one spouse moves out of the house, a judge must make temporary orders regarding conservatorship, visitation, and child support while the divorce is pending.

These temporary orders often mirror the final orders entered after resolving the case. Typically, one spouse becomes the primary custodial parent, and the other pays temporary child support while the divorce continues. Visitation schedules may vary, but standard possession schedules are common.

How Quickly After Filing for Divorce Can My Divorce Be Finalized?

The earliest a divorce can be finalized in Texas is 60 days after the divorce petition is filed. However, this timeline applies only to uncontested divorces, where the parties agree on all issues from the beginning of the case. Divorce cases involving disputed issues typically take longer, ranging from six months to a year to resolve.

At the Family Law Office of Ben Carrasco in Austin, Texas, we understand that every divorce case is unique. If you are considering divorce, we are here to provide experienced legal counsel and guide you through the process with compassion and professionalism. Contact us today for a consultation to discuss your situation and protect your rights during this challenging time.

About the Author
Ben Carrasco is a highly skilled family law attorney based in Austin, Texas, known for his extensive expertise in family law and business litigation. While his primary focus is family law, Ben brings a wealth of experience in litigating diverse business disputes, ranging from breach of contract and collections to business torts, fraud, and real estate matters. In his family law practice, Ben navigates all aspects of the field, including divorce, child custody, support, property division, and more, offering clients expert guidance throughout the litigation process. His legal journey began in complex commercial litigation, initially with a global law firm and later with a prominent Austin-based firm. However, driven by a desire to make a direct impact on people's lives and embrace the human element of the law, Ben transitioned to family law, a decision that has proven to be deeply rewarding. A proud Austin native with roots in California, Ben completed his undergraduate studies at the University of California, Berkeley, before earning his law degree at Stanford Law School, where he excelled in legal writing and served as an associate editor of the Stanford Law and Policy Review.