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Filing for Divorce with Children

Divorce

This article answers frequently asked questions about filing for divorce with children.

Filing for divorce can be an overwhelming and painful process. This process becomes more complex when children are involved. This article provides information about the essentials of filing for divorce with children. 

What gets decided in a divorce? 

A divorce: 

  • ends your marriage, 

  • divides your property and debts. 

  • changes a spouse’s name back to a name used before if requested by that spouse. 

If you and your spouse have minor children together, a divorce usually includes orders about your children. These would include custody, visitation, and support orders. 

There may be other issues involved in your particular case.  

What paperwork do I need to file for divorce? 

The paperwork for your divorce includes the following:  

  • An Original Petition for Divorce: The Original Petition for Divorce is the paperwork that starts your divorce.  

  • Civil Case Information sheet: This is a cover sheet that goes along with your petition. You may or may not need this depending on where you file your divorce. Electronically filed divorces will not require a civil case information sheet.

Can I file for divorce in Texas? 

You can file for divorce in Texas if you or your spouse has lived: 

  • in Texas for at least the last 6 months, and 

  • in the county where you file for divorce for at least the last 90 days. 

This is true even if you got married elsewhere or are not a U.S. citizen. You can also file in Texas even if your spouse doesn't live in Texas. This is also true if you have a same-sex marriage.  

See Texas Family Code 6.301

Can I file in Texas if I am serving in the military outside of Texas or if my spouse is?  

Yes. If you are serving outside of Texas, you may still file for divorce in Texas if:  

  • Texas has been the home state of either you or your spouse for at least six months, and  

  • he county where you plan to file the divorce has been the home county of either spouse for at least 90 days.  

The same rule applies if you accompanied your spouse who is serving outside of Texas. If Texas is your home state, time spent outside of Texas with your military spouse counts as time spent in Texas.  

See Texas Family Code 6.303.  

Note for military families with children: Talk to a lawyer if your children have lived in another state or country for the last 6 months. A Texas court may not have jurisdiction to make orders about your children. 

What if there is already a court order about our children? 

If you do not want to change the court order and the court order: 

If you want to change the court order or the court order is a temporary order, or does not include all your children, use Ask a Question to chat with a lawyer about your options. 

Note: If the court order is a family violence protective order, you can use the divorce with children toolkit. However, it’s a good idea to talk with a lawyer first. If you were the victim of family violence, you might qualify for free legal help.

What if my spouse already filed for divorce? 

If your spouse already filed for divorce, you are the respondent. Get more information about being a respondent in My spouse filed for divorce.  

Do my spouse and I have to be separated to get a divorce? 

No. You don’t have to be separated to get a divorce. 

How much does it cost to file for divorce? 

When you file for divorce, you must usually pay a “filing fee.” If you need to have your spouse served, you must also pay an “issuance fee” and a “service fee.” These fees vary by county. Contact the district clerk’s office in the county where you plan to file for divorce to learn the fees.  

If you don’t have enough money to pay the fees, you can ask a judge to waive the fees. You do this by completing and filing a Statement of Inability to Afford Payment of Court Costs. Learn more in Court Fees & Fee Waivers

How long will my divorce take? 

In almost all cases, you must wait at least 60 days before you can finish your divorce.  

There are only two exceptions to the 60-day waiting period. Both exceptions involve family violence. The 60-day waiting period is waived:  

  • If your spouse has been convicted of or received deferred adjudication for family violence against you or a member of your household.  

  • If you have an active protective or magistrate's order against your spouse because of family violence during the marriage.  

You can wait longer than 60 days to finish your divorce. However, your divorce cannot be finished in fewer than 60 days unless one of these family violence exceptions applies.  

See Texas Family Code 6.702.  

To count 60 days, first, find the day you filed your Original Petition for Divorce on a calendar. Then, starting with the next day count 60 days (including weekends and holidays). For example, if you file your petition on Tuesday, January 3, 2023, the first day you count is Wednesday, January 4, 2023. Sixty days is Saturday, March 4, 2023. If the 60th day falls on a weekend or holiday, go to the next business day. With this example, you could finish your divorce on Monday, March 6, 2023.  

What if I'm afraid of my spouse? 

Divorce can be a dangerous time. If you are concerned about your safety or the safety of your children, call the National Domestic Violence 24-Hour Hotline at 800-799-SAFE (7233). They can refer you to help in your community. 

For legal help, you can also call: 

For situations involving sexual assault, you can also call Legal Aid for Survivors of Sexual Assault at 800-991-5153. 

If you are an immigrant, you can call Refugee and Immigrant Center for Education and Legal Services (RAICES) 512-994-2199. 

In an emergency, call 911. 

Learn more in TexasLawHelp's Protection from Violence or Abuse topic area.

Do I need a lawyer to help me with my divorce? 

You do not have to have a lawyer to file a divorce case. You can file your divorce case, pro se. Pro se means you’re representing yourself. However, divorce cases can be complicated. Your parental rights and your rights to your property and money may be at risk. 

It’s a good idea to talk with a family law lawyer about your situation. A family law attorney can explain your rights and options. 

It’s really important to talk with a family law lawyer if any of the following are true. 

  • You are afraid for your or your children’s safety. 

  • Your case is contested. 

  • Your spouse has a lawyer. 

  • You or your spouse have a house, retirement, business, other valuable property, or a lot of debt. 

  • You need spousal maintenance (alimony). 

  • You and your spouse have a child with a disability. 

  • You or your spouse have an ongoing bankruptcy or are planning to file for bankruptcy. 

  • You are in a same-sex marriage and you and your spouse have a child but no adoption or other court order states that you are both legal parents. 

  • Your spouse does not live in Texas. 

  • Your children do not live in Texas. 

  • You have already filed a divorce case in another state or county. 

If you need help finding a lawyer, you can: 

What if I can't afford a lawyer? 

If you cannot afford to hire a lawyer, you may ask the judge to order your spouse to pay for a lawyer to represent you. This is called asking for “interim attorney’s fees.” Learn more in Attorneys' Fees in Family Law Cases.  

A judge may or may not grant your interim attorney’s fees request. A judge is more likely to grant your request for interim attorney’s fees if:  

  • your spouse has a lot more money than you do, and  

  • your spouse has a lawyer, and  

  • the issues in your divorce are complicated.  

You can ask for interim attorney’s fees as part of a Motion for Temporary Orders. Learn more in Temporary Orders & Temporary Restraining Orders (TROs).  

It’s a good idea to talk with a lawyer in your county about local practice regarding interim attorney’s fees. 

It is also often less expensive to hire a lawyer for a limited purpose. You can hire a family law lawyer to give you legal advice, look over your forms, draft a document, or help you prepare for a hearing. This is called “limited scope representation.”  

If you need help finding a lawyer, you can: 

What if my spouse doesn’t want a divorce? 

Your spouse cannot stop you from getting a divorce. Texas is a “no-fault” divorce state. This means that a divorce can be granted without either spouse being at fault. As long as one spouse believes that the relationship cannot be fixed, the judge will grant the divorce. 

See Texas Family Code 6.001.  

Do I have to tell my spouse that I’m filing for divorce? 

Yes. Your spouse has the right to know if you file for divorce. Learn more in How to Serve the Initial Court Papers (Family Law)  

Will I need to go to court?  

It depends. If your divorce is uncontested, you may need to go to court to finalize or “prove up” your divorce. Your divorce is uncontested if it can be finished by agreement or by default.  

  • Your divorce can be finished by agreement if you and your spouse:  

  • agree about all the issues, and  

  • are both willing to sign the divorce forms.  

  • Your divorce can be finished by default (without your spouse) if your spouse:  

  • is served, and your spouse does not file an answer or otherwise appear in court. 

Contact the clerk’s office where you filed to ask if you need to appear in court to finish your divorce.  

If your divorce is contested, you will need to set and prepare for a contested hearing. Your divorce is contested if your spouse files an answer or waiver of service and will not sign the Final Decree of Divorce. To finish a contested divorce, you must set a final hearing for your case. You must give your spouse at least 45 days' notice of the hearing. It’s important to talk with a lawyer if your case is contested.  

Learn more in How to Set a Contested Final Hearing (Family Law)

What if I previously filed for divorce in another state or county? 

Before you can file a new divorce case, all prior divorce cases must be dismissed. You must tell the judge about all other court cases between you and your spouse. If a prior case is still active, the court might not have jurisdiction in the new case. Talk to a lawyer if you have a prior case that might be active. 

Can I get a legal separation instead of a divorce? 

No. There is no legal separation in Texas. 

What if my spouse or I have (or had) a protective order? 

You must attach a copy of any protective order involving you and your spouse or your children to your Original Petition for Divorce. 

What if I need orders right away? 

If you need orders right away, you may ask a judge to make a temporary restraining order (TRO), temporary orders, or both. A temporary restraining order lasts until you can have a temporary orders hearing. Temporary orders typically last until the divorce is finished. Learn more in Temporary Orders & Temporary Restraining Orders (TROs)

 Note: A family violence protective order differs from a temporary restraining order. If you need a family violence protective order call the National Domestic Violence 24-Hour Hotline at 800-799-SAFE (7233).

What if I’m pregnant or my spouse is pregnant? 

If you or your spouse is pregnant, you cannot finish your divorce until after the child is born. Learn more in Divorce When the Wife is Pregnant

What if one spouse gave birth to a child with someone other than their spouse while married? 

If one spouse gave birth to a child with someone outside of the marriage, the paternity of the child must be established. You cannot finish the divorce until after paternity is established. This is true even if you have been separated for a long time. Learn more in Divorce when the Husband is Not the Father.  

What if either spouse in a same-sex marriage gave birth during the marriage? 

It’s a good idea to talk with a family law lawyer familiar with LGBTQ+ issues if either spouse in a same-sex marriage is pregnant or gave birth to a child during the marriage. The law in this area is unclear. 

Do we have to include our children in our divorce? 

Yes. You must list all children born or adopted during your marriage in your Original Petition for Divorce. See Texas Family Code 6.406

When it’s time to finish your case, the judge will ask you, under oath, if any children were born or adopted during your marriage.  

Can my spouse and I work out the terms of our divorce? 

Yes. The judge will usually approve an agreed Final Decree of Divorce, as long as you can show that 

  • The proposed orders about property and debt are fair to both you and your spouse, and 

  • The proposed orders about your children (if any) are in their best interest. 

What if I change my mind about getting divorced? 

If you change your mind about getting divorced, you will need to get your case dismissed. You may be able to do this by filing a notice of nonsuit or an agreed motion to dismiss. Learn more in How to Dismiss a Case You Filed.