Filing for divorce can be overwhelming and confusing, especially when prior court orders are involved. This article explains the essentials of filing for divorce with children when there is already a final custody and support order in place.
What gets decided in 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. However, if there are already court orders about your children, and you do not want to modify them, those existing orders will remain in effect.
There may be other issues involved in your particular case.
What divorce forms should I use if there is already a court order about our children (such as an attorney general child support order)?
You can use the divorce forms in this guide: I need a divorce. We have minor children. A final custody and support order is already in place if
- The existing court order is a final custody and support order (such as an attorney general child support order),
- The order includes all the children you and your spouse have together, and
- You do not want to change the order.
Note: If the existing order is not a Texas order, talk with a lawyer before using these forms.
Do not use the TexasLawHelp.org divorce forms if the existing court order (1) is a temporary order or (2) does not include all the children you and your spouse have together, or (3) you want to change the order. If one of these situations applies, use Ask a Question for help determining your next step.
Note: If the existing court order is a family violence protective order, you can use the divorce forms in this toolkit: I need a divorce. We have minor children. It’s a good idea to talk with a lawyer first. If you were the victim of family violence, you may qualify for free legal help.
Where can I get a copy of the existing order for custody and support of our children?
You will need a file-stamped copy of the existing order for custody and support of your children.
If you already have a copy, make sure it includes the judge’s signature.
If you need a copy, get it from the district clerk’s office in the county where the order was made.
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 six months, and
in the county where you file for divorce for at least the last 90 days.
This is true even if you 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.
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
the 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.
Note for military families with children: Talk to a lawyer if your children have lived in another state or country for the last six months. A Texas court may not have jurisdiction to make orders about your children.
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.
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 and Fee Waivers.
Should I file for divorce in the county where the court order about our children was made?
Not necessarily. In deciding where to file for divorce, you must follow these rules:
You can file for divorce in the county where you live as long as you have lived in that county for at least the last 90 days, and you have lived in Texas for at least the last six months.
Or, you can file for divorce in the county where your spouse lives as long as your spouse has lived in that county for at least the last 90 days and your spouse has lived in Texas for at least the last six months.
If you must file for divorce in a different county, you have the option of leaving the custody order in the original county or transferring it to the county where you file your divorce.
If you file for divorce in the same county, you should file your divorce using the same cause number and court number used for the custody order.
IMPORTANT: Talk to a lawyer if the case involving your children is still active.
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.
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 would be able to 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 1-800-991-5153
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 Protection from Violence or Abuse.
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.
The case involving your children is still active.
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 request for interim attorney’s fees. 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:
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)
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.
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.
What if I previously filed for divorce in another state or county?
Before filing 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. See Alternatives to 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 immediately, 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 and Temporary Restraining Orders (TROs).
Note: A family violence protective order is different 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 a Spouse Is Pregnant.
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 unresolved.
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 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.
This article answers frequently asked questions about filing for divorce with children.
This article tells you about getting divorced when you and your spouse own (or are purchasing) a house or land.
This article tells you about dividing your property and debt in a divorce.
This article explains retirement benefits and how they can be divided in a divorce.
This article explains community property under Texas law.
Learn about Texas custody orders.