Responding to a Divorce Case

A divorce: 

• Ends your marriage, 

• Divides your property and debts, and

• 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 will also include orders about your children (unless there is already a final court order for custody and support of your children and you do not want to change that order).

There may be other issues involved in your particular case.

If you and your spouse have minor children together, the judge will make custody, visitation, child support, and medical support orders as part of your divorce (unless there is already a final court order for custody and support of your children in place and you do not want to change that order).

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.

Texas law says that community property and debt should be divided in a way that is “just and right.” This doesn’t always mean 50/50. Separate property is not divided. Read the article Dividing Your Property & Debt in a Divorce to learn more.

Your divorce does not affect a creditor’s right to collect a debt. So, if your Final Decree of Divorce orders your spouse to pay a debt that is in both of your names (such as a mortgage or car loan) but your spouse doesn’t pay it, the creditor can still seek payment from you. Ask a lawyer how to protect yourself in this situation.

Yes. Retirement funds (such as 401k, pension, profit sharing, stock option plans and IRAs) earned by either spouse during the marriage are usually considered to be community property that can be divided by the judge. This is true even if you or your spouse has not yet retired. 

If you want the Judge to divide retirement funds (other than an IRA), you will need to have the Judge sign an additional form, usually called a “Qualified Domestic Relations Order” (QDRO), to make the division effective. You should have the QDRO prepared before you go to court, so the judge can sign it when you finish your divorce. TexasLawHelp.org does not provide QDRO forms. You may be able to get a sample QDRO form from the employer or retirement fund administrator. If not, you should hire a lawyer to draft the QDRO form. If you use the employer or retirement fund administrator’s QDRO form, you should still have a lawyer review it to make sure you are not giving up important benefits. Read Dividing Retirement Benefits Upon Divorce for more information.

Note: If you and your spouse plan to keep your own retirement funds or do not have retirement funds, you do not need a QDRO.

Temporary spousal support: While the divorce is pending, the judge may order one spouse to make temporary payments for the support of the other spouse. A judge can order temporary spousal support if the judge decides it is necessary and fair. You can ask for temporary spousal support by filing a Motion for Temporary Orders and setting a hearing. Temporary spousal support doesn’t have the same requirements as contractual alimony and spousal maintenance. Read the law at Texas Family Code 6.502.

Contractual alimony: Contractual alimony is money one spouse is ordered to pay the other spouse after the divorce, based on the agreement of the spouses. The agreement to pay contractual alimony should be included in the Final Decree of Divorce. The spouse who receives contractual alimony must usually claim it as income for tax purposes. The spouse who pays contractual alimony can usually deduct it from his or her income for tax purposes.

Spousal maintenance: Spousal maintenance can be ordered by the judge even if the parties do not agree. Spousal maintenance can be hard to get. The judge can only order spousal maintenance if the spouse asking for it will not have enough property after the divorce to provide for the spouse’s minimum reasonable needs and:

1. The other spouse has been convicted or received deferred adjudication for a family violence offense against the other spouse or the other spouse’s child within two years of the filing of the divorce or while the divorce is pending. or   
2. The spouse asking for spousal maintenance is unable to earn enough money to meet his or her minimum reasonable needs because of an incapacitating physical or mental disability. or   
3. The marriage has lasted for at least 10 years and the spouse asking for spousal maintenance lacks sufficient property or income to provide for his or her reasonable needs. or   
4. The spouse asking for spousal maintenance is unable to earn enough money to meet his or her minimum reasonable needs because the spouse is the primary caretaker of a disabled child of the marriage. The disabled child may be an adult.

Read the law in Texas Family Code, Chapter 8.

Like contractual alimony, the spouse who receives spousal maintenance must usually claim it as income for tax purposes. The spouse who pays spousal maintenance can usually deduct it from his or her income for tax purposes.

Warning! The TexasLawHelp.org divorce forms do not include temporary spousal support, contractual alimony, or spousal maintenance. Talk to a lawyer if you want temporary spousal support, contractual alimony, or spousal maintenance.

Note for immigrant spouses: If a spouse is a sponsored immigrant, he or she could enforce the Affidavit of Support executed by the other spouse and ask the judge to order the other spouse to provide support until the immigrant spouse becomes a U.S. citizen or until he or she has earned 40 credits of work history. Talk to a lawyer if you think you qualify.

The TexasLawHelp.org divorce forms do not include continued health insurance for a spouse after divorce. Talk with a lawyer right away if you need continued health insurance coverage from your spouse. If the insurance is cut-off, you may not be able to get it back.

Yes. When you file for divorce, the Original Petition for Divorce has a section to mark that you want the court to change your name. If you are the respondent, the Respondent's Original Answer also has a section to mark that you are asking the court to change your name.

When the judge grants the divorce you can change your name to a name you used before you got married. This means you can use your maiden (birth) name or a different former name. But, you cannot change it to a new name. A separate lawsuit is required if you want to change your name to an entirely new one.

If you want to change your name to a name you have not used before, you must file a separate case. Use the guide I want to change my name. if you want to change your name to a name you haven't used before.

No. You can keep your married name or go back to your maiden name. It’s your choice.

If you and your spouse don’t agree on the terms of your divorce, you may want to consider mediation. In mediation, an independent person (the mediator) will try to help you reach an agreement. The divorce process is usually easier when you have an agreement. Be sure to talk with a lawyer first. A lawyer can help you understand your options and negotiate a fair agreement. Read Divorce and Mediation to learn more.

Mediation can be helpful when both people have equal power. Both people must be able to say what they want without being afraid or pressured.

Threats and control are common in relationships where one person is abusive. If the abuser is used to being in charge and making all the decisions, mediation probably won’t work very well.

Mediation may be even more of a problem if your spouse abused you and you don’t have a lawyer. 

You can object to mediation if there is family abuse. See Texas Family Code 6.602.

If your divorce is agreed, you and your spouse can fill out and both sign a Final Decree of Divorce form.

Read the instructions for filing an agreed divorce to learn the steps in an agreed divorce. 

• Instructions & Forms for an Agreed Divorce without Children
• Instructions & Forms for an Agreed Divorce with Children
• Instructions & Forms for an Agreed Divorce (When there is Already a Final Court Order for Custody and Support of Your Children)

If your divorce is contested, you or your spouse must schedule a contested final hearing to finish the divorce. Read this article to learn more: How to Set a Contested Final Hearing (Family Law).

You must wait 30 days from the date of divorce before you can marry someone else. This 30-day waiting period can be waived by the judge if there is a good reason to do so.

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.  

There may be other issues involved in your particular case. 

If you are the person who filed the Original Petition for Divorce, you are the petitioner. If you received paperwork about the divorce filed by your spouse, you are the respondent.  

Read the divorce papers right away.  

While you’re reviewing the papers make note of the following: 

What orders does your spouse want the judge to make?  

• Is there a standing order?  

• Has the judge signed a temporary restraining order?  

• Are there any hearing dates? 

You may want to talk to a lawyer at this point to find out your options.  

You cannot stop your spouse 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. 

You do not have to have a lawyer to respond to a divorce case. 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 attorney about your situation. A family law attorney can explain your rights and options. 

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

• You do not live in Texas. 

• 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 there’s no court order stating that you are both legal parents. 

If you need help finding a lawyer, you can: 

• Use our Legal Help Directory to search for a lawyer referral service, legal aid office, or self-help center in your area. 

• Check out Legal Events and Clinics for free legal clinics in your area. 

• Use Ask a Question to chat online with a lawyer or law student. 

Yes! You can hire a family law lawyer just to give you advice, review your forms, draft a document, or help you prepare for a hearing. You may then be able to handle the other parts of your divorce yourself. Hiring a lawyer for a limited purpose is called “limited scope representation.” 

If you cannot afford to hire a lawyer, you may ask that your spouse be ordered 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, 

• 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. 

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

If you do not want to have a say in how the case is decided, you can do nothing. The person who filed the case will be able to finish the divorce without you. This is a “default judgment.” You will not have a say in any of the issues involved in your divorce. This includes decisions about property, child custody, and debt. 

If you have been served with divorce papers and want to have a say, you must file a Respondent’s Original Answer.  

A Respondent’s Original Answer is a legal form you file with the court to protect your right to have a say in the divorce. 

If you file an answer, your spouse cannot finish the divorce unless: 

• you agree to and sign a Final Decree of Divorce or 

• your spouse gives you written notice of a contested hearing date.   

If your divorce is contested, you may also want to file a Respondent’s Original Counter-Petition for Divorce. A counter-petition for divorce tells the judge what orders you want the judge to make in your divorce. You would file this with your Original Answer.  

Before you file anything, talk to a lawyer if you don’t live in Texas or if you think the divorce should be transferred to another court in Texas. 

There is a fee to file a counter-petition for divorce. The fee varies by county. Contact the district clerk’s office in the county where your spouse filed for divorce to learn the fee.  

If you don’t have enough money to pay the fee, you can ask a judge to waive the fee. You do this by completing and filing a Statement of Inability to Afford Payment of Court Costs.

To calculate the answer deadline for your answer, do the following: 

• Find the date you were served on the calendar.  

• Count 20 days (including weekends and holidays) 

• 10 a.m. on the following Monday is the deadline.  

If the 20th day is a Monday, the following Monday will be the deadline. If the courts are closed on the day your answer is due, then your answer is due the next day the courts are open.  

Example 1: If you are served Wednesday, November 9, 2022, you would count twenty days. Twenty days from November 9, 2023, is Tuesday, November 29, 2022. Then you go to the following Monday, which is December 5, 2022. Your answer deadline would be Monday, December 5, 2022. 

Example 2: If you are served on Tuesday, November 15, 2022, you would count twenty days. Twenty days from Tuesday, November 15, 2022, is Monday, December 5, 2022. Then you go to the following Monday, which is December 12, 2022. Your answer deadline would be Monday, December 12, 2022.  

Example 3: If you are served Friday, December 23, 2022, you would count twenty days. Twenty days from Friday, December 23, 2022, is Thursday, January 12, 2023. Then you go to the following Monday, which is January 16, 2023. Monday, January 16, 2023, is a holiday, so the deadline is the next day that the courts are open. Your answer deadline would be Tuesday, January 17, 2023.  

If you don’t want to be served with the divorce papers, you can voluntarily file an answer (or waiver of service only form). Filing either form tells the judge that you know about the case and have received a file-stamped copy of the Original Petition for Divorce. Your spouse will not need to have you served if you voluntarily file an answer (or waiver of service only form).  

If you do not wish to be served with divorce papers, use one of the methods above. Do not attempt to dodge service. It will not prevent the divorce from going forward. In addition, your spouse can use alternative means of serving you.

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: 

• Texas Advocacy Project Hope Line at 800-374-HOPE (4673) 

• Crime Victims at 888-343-4414 

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 also call: Refugee and Immigrant Center for Education and Legal Services (RAICES) 512-994-2199.
 

In an emergency, call 911. 

Attach a copy of any protective order involving you and your spouse or your children to your answer. 

If you have been served with divorce papers that include a hearing date: 

• Make plans to go to the hearing. If you do not go to the hearing, the judge can make orders about your money, property and children (if applicable) without any input from you. 

• Talk with a lawyer about your legal rights and what to expect at the hearing. If possible, hire a lawyer to represent you at the hearing. 

• If you need more time to hire a lawyer or time to get ready for the hearing, you can ask the judge to reset the hearing date. You do this by filing a Motion for Continuance.  

Sometimes the spouse who files for divorce will ask the judge to sign a Temporary Restraining Order (TRO). A TRO orders you not to do certain things until a temporary orders hearing can be held. A TRO usually lasts for 14 days or until the hearing, whichever is sooner.  

If you have been served with a TRO: 

• Read the TRO carefully and obey it. The judge can hold you in contempt if you do not obey a court order. 

• Make plans to go to the hearing. If you do not go to the hearing, the judge can make orders about your money, property, and children (if applicable) without any input from you. 

• Talk with a lawyer about your legal rights and what to expect at the hearing. If possible, hire a lawyer to represent you at the hearing. 

• If you need more time to hire a lawyer or time to get ready for the hearing, you can ask the judge to reset the hearing date. You do this by filing a Motion for Continuance.  

A Temporary Restraining Order is different from a family violence protective order. Getting served with a TRO does not necessarily mean you’ve done anything wrong. 

You must tell the court about any other cases involving you, your spouse, and your children. Talk to a lawyer if you or your spouse has already filed for divorce in another state or county. 

If you need orders right away, you may ask a judge to make a temporary restraining order (TRO) and/or temporary orders. A temporary restraining order lasts until you can have a temporary orders hearing. Temporary orders typically last until the divorce is finished.  

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). 

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

• the proposed orders about dividing the 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.