It is always a good idea to have a qualified family lawyer complete your divorce, but if you intend on doing your own, this guide is meant for people who want a divorce and don't have any children or community assets other than personal effects.
Where to File for Divorce
In order for a Texas family court to be able to preside over, and ultimately grant your divorce, you or your spouse must have lived in Texas for at least the previous six months and have resided in the county in which you wish to file for at least the last 90 days. For example, let's say that you are a resident of Louisiana and your spouse moved to Texas a year ago and has lived in Harris county for the past four months, in such a case a court in Harris county could preside over and grant your divorce. It is extremely important for you to realize that these residency requirements are not going to stop you from physically being able to file in a particular county, but if you don't meet the residency requirements then you will likely have a very unpleasant surprise when the judge tells you that they cannot grant your divorce. This can cost a great deal of time and money so don't make a mistake here. Once you have determined where to file for divorce then you can begin drafting a petition asking the court for what you want.
Preparing the Original Petition for Divorce, and the 60 Day Waiting Period
A petition is the initial legal document that gets a divorce lawsuit started and the person filing the lawsuit is called the Petitioner. In Texas a divorce is a lawsuit like any other, and is subject to the Texas Rules of Civil Procedure, a petition is necessary to begin the process. The petition tells the court what you want and recites necessary facts (such as the names of the parties and that the residency requirements have been met). If you don't ask for the relief you want in your petition and ask for that relief correctly then the court will not grant it, so it is important to do this right. There are many forms available, free and for cost, to assist you in drafting a proper petition. You don't want to be hasty in this step, you must be detail oriented and meticulous. Don't think that because you have a form that everything will work out fine. Some courts will not accept certain forms and forms vary widely in quality, so make sure you check with your particular court before you buy a form or spend a great deal of time preparing one. You definitely don't want to get all the way to the end of your case only to have it dismissed, which would likely mean that you would have to start over. An attorney's help would be beneficial even if it is only to draft your petition or help you draft your own petition. If you are very short on funds then law librarians and law libraries are a great resource, but if a librarian isn't a lawyer then by law they can't give you any legal advice. Don't rely on legal advice given by non-lawyers.
After you have drafted a petition and made sure it is correctly done, then you must file it with the court, pay the filing fee, and wait a minimum of 60 days. In Texas there is a 60 day waiting period, that starts at the time of filing the petition, before a court will grant a divorce. It is a cooling off period, Texas policy favors the preservation of marriages and the state of Texas has an interest in being sure that you are sure before they grant a divorce. There are things that can be done during the waiting period such as preparing the civil process request, getting your spouse served, and drafting a proposed divorce decree (more on these below).
The Citation and Getting Your Spouse Served and the Waiver of Service
Your spouse is entitled to notice that you are filing a divorce lawsuit and they are entitled to an opportunity to respond to it. They have a right to be provided with a copy of the petition and court issued citation. You cannot serve the respondent yourself, you can however have a sheriff or private process server serve them. If your spouse resides overseas then the following blog post, Serving Your Spouse or Opposing Party Overseas may be of interest.
You must complete a civil process request, the court must issue a citation, and you must have your spouse served with the divorce paperwork (at a minimum the petition and citation). A civil process request is a form that asks the court to issue what is called a citation, different courts may have different procedures here so check with your court to make sure you are following their specific procedure for having a citation issued. The citation tells your spouse, the respondent, that they are being sued for divorce and it gives them a time frame in which they must file an answer. This form can also list who is going to serve process so that the court clerk can call that person to come pick up a copy of your petition and the citation when they are ready to deliver to the respondent. Once the court issues a citation, it is time to have them served with both the citation and a copy of your petition.
A waiver of service can eliminate the need for personal service and eliminate some of the drama that is associated with having a sheriff or process server deliver divorce paperwork. A waiver of service can only be executed by the respondent after the petition has been filed and is only valid if the respondent has received a copy of the petition, also, the document must be notarized and filed with the court to be valid. It is important to read the contents of a waiver of service carefully because some of them are very broad and if you sign one without thoughtful consideration then you may be signing away very valuable rights such as the right to be notified of court hearings. If you have been asked to sign a waiver of service then consult with an attorney to review it before doing so.
The Answer and the Counterpetition
Once the respondent has been served with the citation and the petition then they have until the first Monday following the expiration of 20 days after the date of service to file what is known as an answer. An answer is a fairly straight forward document and most times will state a general denial to everything that was in the petition. If no answer is filed within the specified time period then the respondent risks having a default judgment taken against them.
The counterpetition is similar to the petition except it is filed by the respondent. The respondent will use a counterpetition to ask for any relief that they desire. Remember if it isn't asked for then the court cannot grant it. In the counterpetition the respondent is referred to as the counterpetitioner and the petitioner is referred to as the counterrespondent.
The Divorce Decree and the "Prove Up"
A final decree of divorce is a final court order in which a court grants a divorce and orders a division of any community property, confirmation of separate property, and issues orders regarding children. A divorce decree can include several other issues. This guide is designed for people who have accumulated no community property other than personal effects, have no separate property, and have no children, and in which there is no dispute as to the contents of the decree. If there is any type of dispute or there is property or children then I strongly suggest retaining a qualified family law attorney.
For a court to grant a divorce you will have to draft a proposed divorce decree for the judge to sign. There are several forms available and these vary in quality and price. Like the petition you should check with your court to verify whether a specific form is acceptable to them. The divorce decree is not to be taken lightly, it is a longstanding document and mistakes here can be very costly. Enlisting the help of a qualified family law attorney can be invaluable. Once you have drafted your decree and both parties have signed off on it then it should be filed with the court.
After the decree is filed you should check with the court on the procedure for having the order signed by the judge. Many times you will have to appear in court and answer questions for the judge before he or she will sign off on your decree. Some courts will provide a script for you to read.
Ancillary Documents and Fees
You should make sure that any other documentation that a court requires is completed and filed before appearing, and that you are following all of the proper procedures for filing these documents. Additionally make sure all court and filing fees due have been paid. One example of a necessary ancillary document is the case information sheet. The court will usually have forms available or to download, so check with your court about obtaining all necessary ancillary documents.
If you need more information regarding how to obtain a divorce then you can reach out to any qualified family lawyer and they will point you in the right direction. Additionally, you can contact your local law library or law school. There are also various free or low cost legal aid offices that may be able to offer you assistance. If you would like to talk more about a divorce you can reach out to my office The Law Office of Chad Zubi by calling (832)-777-8924.
On a final note, I do not encourage you to complete your own divorce and this guide is for educational purposes only, it is not intended to be legal advice. If you need a lawyer then call us, let's see what we can do for you!
Chad Zubi Houston Family and Criminal Law Attorney.