Divorces can be painful and complex. That is why most people seek legal help. This is a resource for those who accept the challenge to be their own biggest advocate.
Composed by Texas Young Lawyers Association • Last Updated on January 18, 2023This article is best for people who want a divorce but do not have a lawyer for a simple (uncontested) divorce, but it also discusses:
Special thanks to Texas Young Lawyers Association for its contribution to this article.
Divorces are tricky. So, it is best to find a lawyer to help protect all your rights and prevent mistakes about your property. This guide explains how a person without a lawyer can represent themselves for a “simple uncontested divorce.” “Simple” means that the only thing they want to happen is the divorce. “Uncontested” means that both sides agree on everything. If your divorce has a lot of disagreements, find a lawyer can help guide you. You will find all of this information and what is discussed below in the TYLA Pro Se Divorce Handbook.
If you embrace the challenge of doing your own divorce, you will need a few key tools:
In court, you need to carry yourself a certain way. Dress like it is a special occasion with nice clothes like a suit and tie or a certain dress. Speak up, but be polite by saying “your Honor,” “Mr. or Mrs.” and things like that. Also, turn cell phones on silent and leave children at home.
Property owned by the couple that may be subject to property division.
Texas is a community property state where anything you own or any debt you owe is considered to belong to both of you unless you can prove it doesn’t.
This applies to any property you owned before marriage and any you get after because of inheritance or money that belonged to only one spouse.
Request for one spouse to pay the other spouse back for helping them with their separate property.
Agreements made before or during marriage can decide how to split up the property if you get a divorce. A prenuptial agreement (before marriage) describes things you want to keep separate property. A postnuptial agreement (after marriage), describes things you want to switch from community property you both own to separate property that only one person owns.
When the court decides on property and debts, the debts are not always equally divided because the judge looks at additional factors.
Spousal maintenance or alimony is court ordered payment from one spouse to the other spouse based things like marriage for 10+ years, skills and education, disabilities, and cases of domestic violence.
Navigating quality time and living arrangements.
Planning helps avoid problems. So, Texas makes divorcing families create a parenting plan to map out things like custody, visitation, child support, and medical support.
Often families need guidance. So, Texas sometimes chooses “Parenting Coordinators” and “Parenting Facilitators” to help parents who keep arguing over custody. Both types are social workers and mental health professionals who support families making parenting decisions. Yet, the Parenting Facilitator also monitors whether the parents followed the court orders.
Orders for custody and child support usually last until the child turns 18 or graduates high school whichever comes last. Disabled children who cannot do things on their own can receive child support for longer. Ask a lawyer to help you keep getting the help you need.
Courts may decide who gets the children and a lot of time, they feel that joint custody is best because the children will have both parents in their lives. Children stay with one parent, and the other has visitation rights and helps to make decisions about the children. Sometimes, the court allows split custody where each parent takes one or more children, or alternating custody where the children stay with one parent for a certain amount of time and then switch.
Supervised visitation protects children and families with a history of abuse. Visitation is at a designated location with a family member or other person who the court chooses.
The parent the child(ren) live with chooses where they live, but the court will usually give a limit on how far they can live from the other parent.
The Standard Possession Order (SPO) is the basic plan used when parents don’t agree. Parents can also use the standard possession order form and make changes they want. Whoever the children stay with has primary custody and the other parent has visitation with the following schedule:
Parents can choose to get extra visitation time by starting when school gets out for that day and ending when that parent drops the kid back at school. This means the parent picks the child up from school Friday, then drops the child back off at school Monday morning.
Child support calculations are based on all income after taxes from things like work, self-employment, unemployment, retirement, and SSI. Texas orders 20% for the first child and another 5% more for each child after that. Expect 25% for two children, 30% for three, but 50% is the limit. These calculations are not for anyone who takes home over $8550.00 a month.
The Court can change child support for things like childcare costs, special needs, limited visitation time, and long distances traveled for visits.
The parent who does not have the child(ren) has to pay for health and dental insurance, or they might have to pay the other parent back.
Once the divorce is official, the court orders The Texas Attorney General to send money taken out of their check to the parent with the kids.
A parent can ask to adjust child support payments when circumstances change in a major way like a parent getting a big raise or a child gets sick. The court allows changes every three years and only if the amount would go up or down by 20% or $100.
Step-by-step instruction and explanation of the divorce process.
Whoever files the Original Petition for Divorce is the Petitioner and the other person is the Respondent. The couple must live in Texas for at least six months and in the same county for at least 90 days. The person filing will pay the fees and give three copies to their District Court Clerk: an original, one for the court, and one for the other party. You can do this in person or through the mail. The County Clerk will stamp each copy and assign a case number. If the person filing divorce wants to mail it, they need to remember to send a return envelope with their address and postage in that package so the Court Clerk can send them back their copy.
The spouse who files the divorce has to tell the other person by giving them a stamped copy from the Clerk of Court in one of three ways:
The spouse receiving divorce papers officially has 20 days to file an answer, but the court will still accept it any time before the divorce is final. The answer to the court lets the Court know that the spouse wants to participate in divorce hearings. If the spouse doesn’t answer, the Court may move forward without them.
When the spouse receiving divorce papers files the answer to the court, they can also file a counterpetition against the one who filed for divorce which says why they want the divorce and what they want to happen. Then, they have to arrange for the Constable, Sheriff, or private process server to give the paperwork to the one who filed for divorce. Last, they file a “Certificate of Service” with the Court which as proves they got the paperwork to the other person.
When a person files for divorce, a 60-day waiting period begins which allows people to “cool down”, get back together, or make plans on what happens next. During the 60 days, the Court issues temporary orders on how to handle custody, child support, and who stays in the house. The Court also orders the parties to go through mediation, a legal discussion with a person trained to help parties decide how to work out their problems.
Deciding future interactions and finalizing paperwork.
After the 60th day, you have three ways you can move forward:
The Final Decree of Divorce is the court paperwork showing what the judge decided on community property and debt, as well as child custody and support. It also allows a spouse to change their name back to any legal name used before the marriage.
Many counties make couples take parenting classes and turn in a certificate before they can finalize the divorce. Ask the court coordinator or administrator if the county requires these classes.
The final hearing is called the “prove-up.” For simple uncontested divorces, the couple will talk to the judge, present any proof, and talk about what they want from the divorce. Sample prove-up scripts are available on page 27 of the handbook if you don’t know what to say or do, but the scripts don’t help much when the couple does not agree on things like child custody and dividing property.
Call the court coordinator or administrator to see if the judge needs you to bring the official court file from the Clerk of Court. Then, make sure you bring the following things:
After the hearing, the court administrator will stamp the paperwork and give you copies including the one you have to send to the other spouse. Also, make sure to fill out the Austin form on page 31 of the handbook and the paperwork for the Attorney General to take out the child support. Then, do not try to get married for 30 days, because the other side still has the option to appeal the divorce.
Simplified outline and flow charts.