Texas Divorce
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How do I know if I need a Divorce?
Common-Law Marriage
If you have a common-law marriage, you must obtain a divorce legally to end the relationship. Most students who live with a member of the opposite sex do not form a common-law marriage. Consult with this office to determine if you have a common law marriage,
Legal Separation
There is no legal separation in Texas under present law. Legally you are either married or divorced.
Annulment
Under Texas law, the annulment procedure is similar to the divorce procedure in the amount of paperwork to be filled out and expense incurred. However, annulment may be obtained only in very special cases such as fraud, impotency, duress, mental incompetence, a concealed divorce, marriage under the influence of drugs or alcohol, or one party being under age (only if suit is filed within 90 days of the marriage). This applies to very few student marriages.
To File a Divorce
Residency
You or your spouse must live in the state of Texas six months and in the county you wish to file in for three months immediately prior to the filing of the divorce.
Reason for Divorce
The only reason or "ground" for divorce necessary today is "insupportability" or what is commonly called incompatibility. This "no-fault" divorce can be obtained if either spouse wants it, even if the other spouse does not. The old grounds of cruelty, abandonment, and adultery, although still on the books, are seldom, if ever used.
Who Should File?
It was once an important advantage to be the party to file, but in no longer makes any difference in most cases.
Does One Party Have to Move Out?
As a general rule, YES. It is hard to convince a judge that the marriage is "insupportable" if you can manage to live together.
Do You Need a Lawyer?
Even in a situation where you do not have any Children or Property, it is still a good idea to consult an attorney to ensure that no important detail has been overlooked. But, if there are children involved hiring an attorney is a must in all circumstances. An attorney through the court will make sure that the best interests of the children are represented. In the situation where there are assets such as a house, stocks, or bonds, or if you have liabilities like bank loans and large outstanding debts, you will probably want an attorney. You will always want an attorney if the property division is contested. It is important to note that one lawyer cannot represent both spouses under any circumstances. If one lawyer is hired to file the divorce, s/he represents the spouse who signs the petition. The other spouse does not have to hire an attorney if that spouse is satisfied with the division of the property and the child custody / support agreement. If there is disagreement in either area, that spouse should hire a lawyer at once.
Procedure for Filing a Divorce
Filing Costs and Locations
The divorce petition is filed at the county courthouse in the District Clerk's Office with the fee of $235.00. In Harris County, the cost for filing for divorce where the non-filing spouse signs a waiver is $181.00. The petition is filed in a specific court, either a district court or, in some other counties, in a county court-at-law.
Notification of the Non-filing Spouse
As in all suits, the other party must be legally notified. There are two usual ways in a divorce:
Citation
Formal service by a sheriff's deputy on the other spouse in person. The fee for this is what makes you filing fee go up to $226.00.
Waiver of Citation
Informal service by you or your attorney on your spouse. Your spouse signs the the waiver before a notary, acknowledging receipt of a copy of the petition. There is no added fee for this
Length of Time
The petition must be on file at least 60 days before the final hearing can be held. There are no exceptions.
Final Hearing
The filing spouse MUST appear at this hearing before the judge. The date of the hearing must be arranged by your attorney or by you if you are representing yourself. You should bring the Decree of Divorce with you for the judge to sign if the hearing will be uncontested.
Re-Marriage
You may remarry each other anytime. To marry anyone else, you must wait 30 days after the Decree of Divorce has been signed.
Name Change
If the woman wishes to retake her maiden name, this must be requested in the petition. There is no additional charge for this.
--This content was created and approved for use by Rick Powell of Texas A&M University on June 19, 2006 at 3:50 p.m.
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