This article is best for people who want a divorce but do not have a lawyer for a simple (uncontested) divorce, but it also discusses:
- Division of marital property,
- Child support,
- Child custody,
- Proper behavior in court, and
- Important deadlines.
Special thanks to Texas Young Lawyers Association for its contribution to this article.
What is in the Texas Young Lawyers Association (TYLA) pro se divorce handbook? (page 1)
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:
- Texas Rules of Civil Procedure which are the rules Texas courts follow.
- Texas Civil Practice and Remedies Code which talks about the possible solutions available for your legal situations; and
- Local Rules let you know how and when to submit paperwork and important tips for your exact county court.
- Use online resources with the State Law Library where you can create an account and they have legal topics, forms, and FAQ’s.
- Find your Local Law Library.
Things to know before you get started (page 1).
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.
Marital property (page 2).
Property owned by the couple that may be subject to property division.
Presumption of Community Property (page 2).
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.
Separate property (page 3).
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.
Claims for reimbursement (page 3).
Request for one spouse to pay the other spouse back for helping them with their separate property.
Premarital and marital property agreements (page 3).
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.
Division of community property (page 4).
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 (page 4).
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.
Issues concerning children (page 5).
Navigating quality time and living arrangements.
Parenting Plans (page 5).
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.
Parenting coordinator and parenting facilitator (page 5).
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.
Duration of a Child Custody and Child Support Order (page 6).
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.
Child custody (page 6).
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 (page 7).
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 right to decide where a child will live (page 7).
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.
Standard possession order (page 7).
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:
- *1st, 3rd, and 5th weekends of the month beginning 6 p.m. Friday to 6 p.m. Sunday;
- Thursday evenings from 6–8 p.m. during the school year;
- In summer, the other parent gets 30 days with the children and 42 if they live 100+ miles away; and
- Each year, parents take turns with holidays and school breaks meaning that if dad has the kids for Christmas this year, mom will have them next year.
Expanded standard possession order (page 8).
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.
Establishing child support (page 8).
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.
Additional factors in determining child support (page 9).
The Court can change child support for things like childcare costs, special needs, limited visitation time, and long distances traveled for visits.
Medical expenses as additional child support (page 9).
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.
Employer's Order to Withhold (page 9)
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.
Modifying child support (page 10).
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.
Getting started (page 10).
Step-by-step instruction and explanation of the divorce process.
Filing the petition (page 10).
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.
Notify your spouse (page 11).
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:
- With a Waiver of Citation/ Service – Once the other spouse receives the stamped paperwork, they can sign and notarize the Waiver which allows you to finalize the divorce 10 days after you file it with the Clerk of Court.
- “Personal service” means that you pay the Constable or Sheriff deliver the paperwork. Some people pay private process servers to deliver because they go anyplace the other person can be found. You are done once the other spouse receives the paperwork. If you can’t afford the filing fees, a form for Inability to Pay Court Costs could lower or waive the fee.
- Service by Publication is used mainly for divorces with no children or property when the spouse filing for divorce can’t find the other spouse. Notice by Publication allows the Court to post the citation at the courthouse and the person filing can put the information in the newspaper wherever the other spouse lived last.
The Answer (page 12).
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.
The Counterpetition (page 12).
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.
Middle of the case (the "waiting period") (page 12).
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.
Concluding divorce proceedings (page 13).
Deciding future interactions and finalizing paperwork.
Timing issues (page 13).
After the 60th day, you have three ways you can move forward:
- Joint Agreement – If you both agree on everything and you put it in writing, the Court will ask a few questions and be done.
- Bench Trial – This is a hearing with only the judge and the divorcing couple.
- Jury Trial – This is a hearing with the judge, the divorcing couple, and a special group of people from the community that will help decide the issues.
Final Decree of Divorce (page 13).
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.
Court mandated parenting courses (page 14).
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 day of the divorce (page 14).
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:
- The Final Divorce Decree
- Employer’s Withholding Order
- Either the Proof of Service or Waiver of Service
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.
Reviewing the uncontested divorce process (page 15).
Simplified outline and flow charts.
Helpful tips (page 20).
Avoid common mistakes.
Common words in a Texas divorces (page 20).
An important list of words you will need to understand.
Legal Resources (page 26).
- Office of the Attorney General - Child Support Division,
- Legal aid offices,
- Online Legal Assistance, and
- Lawyer Referral Services.
Sample documents (page 27).
Appendix A – Sample Prove Up Questions for Uncontested Divorce Without Children.
Appendix B – Sample Prove Up Questions for Uncontested Divorce With Children.
Appendix C – Austin Form. This form documents civil suits that affect the parent child relationship.
Where can I find the resources mentioned you talked about?
Look on pages 15-31 of the Texas Young Lawyers Association (TYLA) Handbook on Pro Se Divorce .
Family, Divorce & Children
This article lists resources for people with low incomes who are divorcing.
This article answers frequently asked questions about getting a divorce in Texas.
This article addresses same-sex divorce in Texas.