Texas Divorce Laws

Getting Divorced in Texas: To commence a lawsuit for divorce in Texas, the complaining spouse, or the “petitioner”, must file a petition for the dissolution of marriage with a Texas District Court. The caption of the petition for divorce must state “In the Matter of the Marriage of ________ and ________”. The petition must assert grounds for Texas divorce and must state whether there are children born or adopted of the marriage who are under 18 years of age or otherwise entitled to support. If there are such children of the marriage, the lawsuit for divorce must include a lawsuit affecting the parent-child relationship, as set forth in the “Texas Custody” subsection of this website.

After the Texas Divorce petition is filed, there is a sixty (60) day waiting period before a Decree of Divorce may be granted by the District Court. In response to the petition, the non-complaining spouse, or the “respondent” typically files an answer, which need not be on oath or affirmation of the respondent, or the parties may enter into a mediated settlement agreement or a collaborative law agreement, as is further defined below.

Jurisdiction, Venue and Residence Qualification: At the time a lawsuit for Texas divorce is filed, either the petitioner or the respondent must be a resident of Texas for the preceding six (6) month period and a resident of the county in which the lawsuit is filed for the preceding ninety (90) day period. If one spouse has been a resident of Texas for at least the preceding six month period, a spouse who lives in another state or country may file a suit for divorce in the county in which the resident spouse resides at the time the petition is filed. If the petitioner is a resident of Texas at the time the lawsuit for divorce is filed, the District Court may exercise personal jurisdiction over the non-resident spouse to grant the Decree of Divorce if the state of Texas was the last marital residence of the parties and the lawsuit is filed before two (2) years have elapsed since the state of Texas was no longer the site of marital residence.

Grounds for Texas Divorce: A Texas District Court may grant a divorce based on either “fault” grounds or “no fault” grounds, which are set out by Texas state statute:

No Fault Grounds:

  • Insupportability: The only “no fault” ground in Texas; a divorce is granted due to marital discord or a conflict of personalities that destroys the marital relationship and prevents any expectation of reconciliation.

Fault Grounds:

  • Cruelty -  Such cruel treatment of the spouse seeking a divorce that renders further living together insupportable;
  • Adultery;
  •  Conviction of a Felony - The complaining spouse may be granted a divorce if, during the marriage, his or her spouse is convicted of a felony, imprisoned for at least one (1) year in a Texas state penitentiary, a federal penitentiary or in a penitentiary of another state, and has not been pardoned;
  • Abandonment -  Intentional abandonment of the complaining spouse for at least one (1) year;
  • Living Apart - The spouses have lived apart without cohabitation for at least three (3) years;
  • Confinement in a Mental Hospital - At the time the lawsuit for divorce is filed, a spouse is confined in a state or private mental hospital in Texas or another state for at least three (3) years and it appears that the hospitalized spouse’s mental disorder is of such a degree and nature that adjustment is unlikely, or that, if adjustment occurs, a relapse is probable.

Defense: The Texas District Courts will accept only the defense of condonation to an action for divorce. That is, the District Courts will not grant a Texas divorce if they determine that there is a reasonable expectation of reconciliation by the parties.

Remarriage: Neither party to a divorce may marry a third party before the 31st day after the date on which the Decree of Divorce is granted.

Mediation: On written agreement of the parties or on the court’s own motion, the court may refer a lawsuit for the dissolution of marriage to mediation. A mediated settlement agreement is binding on the parties if the agreement provides that it is not subject to revocation, is signed by the parties and is signed by the parties’ attorneys, if any, present when the agreement is signed. Either party to an action for Texas divorce may be granted a Decree of Divorce based upon the mediated settlement agreement.

Uncontested Divorce or “Collaborative Law Agreement”: On the written agreement of the parties and their attorneys, dissolution of marriage may be conducted under the Texas Collaborative Law procedures. A collaborative law agreement must include provisions for:

  • The full and candid exchange of information between the parties and their attorneys as necessary to make a proper evaluation of the case;
  • Suspending court intervention in the dispute while the parties are using collaborative law procedures;
  • Hiring experts, as jointly agreed, to be used in the procedures;
  • Withdrawal of all counsel involved in the collaborative law procedures if the collaborative law procedure does not result in settlement of the dispute;
  • Other provisions as agreed by the parties consistent with a good faith effort to collaboratively settle the matter.

Either party to an action for divorce is entitled to a Decree of Divorce based upon the collaborative law agreement if the agreement provides that it is not subject to revocation and is signed by each party to the agreement and the attorney for each party.

Prove Up: When there is complete agreement between the parties on all relevant issues in an action for Texas divorce and the parties sign a proposed Agreed Decree of Divorce incorporating either a mediated settlement agreement or a collaborative law agreement, at least one of the parties must appear before the presiding judge in District Court and give sworn testimony. If the judge approves of the provided sworn testimony and the parties’ proposed agreement, he or she will sign the Agreed Decree of Divorce, which in most cases concludes the divorce action.

Common Law Marriage: Common law marriage is recognized in Texas if there is an agreement between the parties that they intend to have a marriage relationship, there is cohabitation by the parties, and the parties hold themselves out to others as being married. Evidence of a common law marriage includes, but is not limited to, changing one’s name on a driver’s license and/or credit cards, or filing joint tax returns. A couple can register their common law marriage with the county clerk in the county in which they reside.

Same Sex Marriage: In November 2005, Texas voters overwhelmingly approved a constitutional ban of same sex marriages. The approved amendment to the Texas constitution establishes that marriage in the state consists only of the union of one man and one woman.

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