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Instructions & Forms for a Default Divorce with Children

These instructions explain the steps in a default divorce with minor children. Each step includes a link to the form or forms needed for that step.

“Default” means you have your spouse served with the initial divorce papers and your spouse does not file an answer with the court. If your spouse is served and defaults (does not file an answer with the court), you can finish your divorce without your spouse.

Use these instructions if:

  • you don’t think your spouse will participate in the divorce process, and
  • there are no court orders for custody and support of your children already in place (other than a family violence protective order).

Have you read the Frequently Asked Questions and related Articles?

These instructions are part of this TexasLawHelp.org toolkit: I need a divorce. We have minor children. Before getting started, it’s important to read the Frequently Asked Questions and Articles included in the Toolkit.

WARNING! These instructions provide general information and are not a substitute for the advice and help of a lawyer.

You can print these instructions to use as a checklist.

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Step 1: Determine where to file your divorce.

It’s important to file for divorce in the correct county. If you file in the wrong county, your case will be dismissed and you will lose your filing fee.

You can file for divorce in the county where you live or the county where your spouse lives as long as one spouse meets these residency requirements:

  • 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 6 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 6 months.

If neither you nor your spouse meet the residency requirements, talk with a lawyer.

Read the Frequently Asked Questions, FAQs: Filing a Divorce with Children, for additional information.

Step 2: Fill out the starting forms.

Fill out this starting form:

  • Original Petition for Divorce (Set B) (called the Petition for short)
  • You will file (turn in) the Petition at the courthouse to start your divorce case. The Petition tells the judge and your spouse that you want a divorce and states what you want the judge to order in the Final Decree of Divorce. The Frequently Asked Questions and related Articles included with these instructions will help you understand your options.

When you fill out the Petition:

  • Print your answers neatly in blue or black ink. Do not leave blanks.
  • You are the “petitioner” and your spouse is the “respondent.”
  • Talk to a lawyer if you have questions or need help.

Note: The Petition asks for your address. Your spouse will get a copy of the Petition. If you are concerned about your spouse knowing your address, call the Family Violence Legal Line at (800) 374-4673 for free advice.

Fill out these additional starting forms if required for your case:

Make two copies of these completed starting forms:

  • Original Petition for Divorce
  • Exhibit: Out-of-State Party Declaration (only if you or your spouse lives outside of Texas)
  • Statement of Inability to Afford Payment of Court Courts (only if you are asking the court to waive court costs)
Step 3: File (turn in) your starting forms.

File (turn in) your completed Petition and other starting forms with the court.

  • To file your forms online, go to E-File Texas and follow the instructions.
  • To file your divorce forms in person, take the Petition and additional starting forms (and copies) to the district clerk’s office in the county you have determined is the correct county to file your divorce.  

At the clerk’s office:

  • Turn in your Petition and other starting forms (and copies).
  • Tell the clerk you want to have your spouse served in person. This means a sheriff, constable or private process server will deliver the initial divorce papers to your spouse in person. (Note: If your spouse will agree to sign the necessary court forms, you do not need to have your spouse served. Follow these instructions instead: Instructions & Forms for an Agreed Divorce with Children
  • Pay the filing fee (or file your completed Statement of Inability to Afford Payment of Court Costs if you cannot afford the fee). You can call the clerk’s office ahead of time to learn the filing fee for your case.
  • Ask the clerk if there is a local standing order that you need to follow or attach to any of your documents
  • Ask the clerk if there are local rules or procedures you need to know about for your divorce.
  • The clerk will write your “Cause Number” and “Court Number” at the top of the first page of your Petition. (Write these numbers at the top of any document you file in your divorce case.)
  • The clerk will “file-stamp” your copies with the date and time. The clerk will keep the original and return your copies.
  • The clerk will print a form called a “citation.” The citation tells your spouse that you have filed for divorce. The citation also tells your spouse that unless he or she files an answer with the court you will be able to finish your divorce by default (without your spouse). The clerk will attach the other copy of your Petition to the citation. The citation and Petition are the “initial divorce papers” that must be served on your spouse by a constable, sheriff or private process server. Read Step 4 for instructions.
Step 4: Have your spouse served.

It is your responsibility to have your spouse served with the initial divorce papers by a constable, sheriff or private process server. You cannot serve the initial divorce papers yourself.

To have your spouse served in person:

  • send the initial court papers to a constable, sheriff or private process server in the county where your spouse lives or works;
  • include the service fee (call first to learn the fee) or a file-stamped copy of your Statement of Inability to Afford Payment of Court Costs; and
  • a self-addressed and stamped envelope.

The constable, sheriff or private process server will:

  • give the initial divorce papers to your spouse,
  • complete a Return of Service form that says when and where your spouse was served,
  • send the completed Return of Service to you or the court.

The completed Return of Service is proof your spouse was served. Your spouse will NOT have to sign anything.

If the Return of Service is sent to you, file it at the clerk’s office. The Return of Service must be on file for at least 10 days before you can finish your case, not counting the day it is filed or the day you go to court to finish your case.

NOTE: If you have trouble getting your spouse served, read this article: How to Serve the Initial Divorce Papers. If you have questions, you can use Ask a Question to chat with a lawyer or law student online.

Step 5: Notify the Office of the Attorney General (if applicable).

Has your child ever received TANF or Medicaid?

  • If NO, skip this step.
  • If YES, you must send a file-stamped copy of your Petition to the Office of the Attorney General (OAG) Child Support Division (and be able to prove that you did so).
    • Send your Petition by Email – You can scan a file-stamped copy of your Petition and email it. Find the email address for the OAG child support office in the county where your case is filed here: Email Addresses for Child Support Offices. Write the cause number and the county where you filed your case in the subject line of the email. Print a copy of your email. This is your proof. Bring it with you when you go to court to finish your case.
    • Send your Petition by Certified Mail Return Receipt Requested – Or, you can mail a copy of your Petition by certified mail return receipt requested. The post office has the forms for certified mail return receipt requested. Find the mailing address for the OAG child support office in the county where your case is filed here: Mailing Addresses for Child Support Offices. The post office will give you a receipt when you mail the Petition. The OAG will sign the return receipt (often called the “green card”) and mail it back to you. This is your proof. Bring the receipt and the return receipt (green card) with you when you go to court to finish your case.
Step 6: Fill out the Final Decree of Divorce and other ending forms.

Fill out this Final Decree of Divorce form:

You will ask the judge to sign the Final Decree of Divorce form when it’s time to finish your divorce. When signed by the judge, the Final Decree of Divorce ends your marriage and makes orders about your children, property and debt. It may include other orders depending on your case.

The Final Decree of Divorce form must be completely filled out (except for the judge’s signature) before you go to court. You and your spouse may want to fill out the Final Decree of Divorce form together.

When you fill out the Final Decree of Divorce:

  • Print your answers neatly in blue or black ink. Do not leave blanks.
  • You are the petitioner and your spouse is the respondent.
  • Talk to a lawyer if you have questions or need help.

Note: A Standard Possession Order form will print with the Final Decree of Divorce form. If this standard possession schedule works for your family, fill it out and attach it to the Final Decree of Divorce. If it does not work for your family or would not be safe for your children, you can hire a lawyer to write a possession order that meets the specific needs of your family. Or, you may be able to use one of the sample possession orders included with this article: Child Visitation & Possession Orders.

Fill out this additional ending form if required for your case:

Note about retirement benefits: If you are dividing retirement benefits (other than an IRA), you must also complete a form called a Qualified Domestic Relations Order (QDRO). TexasLawHelp.org does not provide QDRO forms. You may contact the employer or retirement plan administrator to see if they have a sample QDRO form. If not, you should hire a lawyer to draft the QDRO form. If you use the employer or plan administrator’s form, you should still have a lawyer review it to make sure you are not giving up important benefits. You should have the QDRO prepared before you go to court, so the judge can sign it when you finish your divorce. Learn more here: Dividing Retirement Benefits Upon Divorce.

Also complete the Information on Suit Affecting the Family Relationship form (also known as the "Austin" form), which must be printed on one page (front and back).

Step 7: Have the Final Decree of Divorce form reviewed (if possible).

Although not required, it’s a good idea to have a family law lawyer review your completed Final Decree of Divorce form. Family law lawyers specialize in cases involving families, such as divorce cases.

You can hire a family law lawyer just to review your forms. This is called “limited scope representation.” You may also be able to talk with a lawyer for free at a legal clinic. If you need help finding a lawyer, you can:

Step 8: Wait the required waiting periods.

Wait the waiting periods that apply to your case.

  • 60-day waiting period – In almost all cases, you must wait at least 60 days before you can finish your divorce.

When counting the 60 days, find the day you filed your Original Petition for Divorce on a calendar, and then count out 60 more days (including weekends and holidays). If the 60th day falls on a weekend or holiday, go to the next business day. Note: When counting the 60 day waiting period, don’t count the day you filed your Original Petition for Divorce. Day 1 is the next day.

There are only two exceptions to the 60-day waiting period.

  1. If your spouse has been convicted of or received deferred adjudication for a crime involving family violence against you or a member of your household, the 60-day waiting period is waived.
  2. If you have an active protective order or an active magistrate’s order for emergency protection against your spouse because of family violence during your marriage, the 60-day waiting period is waived.

Note: You can always wait longer than 60 days, but your divorce cannot be finished in fewer than 60 days unless one of these exceptions applies.

  • 20 + day waiting period – From the day your spouse is served, your spouse must have at least 20 days plus the next Monday at 10:00 a.m. to file an Answer. Find the day your spouse was served on a calendar, count out 20 more days (including weekends), then go to the next Monday. Your spouse must have until this date to file an answer. If your spouse does not file an answer by this date (and all other requirements have been met) you can finish your case by default without your spouse. Note: Your spouse can file an answer until you finish your divorce case, even if the 20 + day waiting period has passed.  
  • 10 + day waiting period – The constable, sheriff, or private process server should have completed a Return of Service form stating when your spouse was served. The Return of Service form must be on file with the court for at least 10 days before you can finish your case. Important: When counting the 10 day waiting period, do not count the day the Return of Service is filed with the court and do not count the day you go to court to finish your case.
Step 9: Determine if your divorce can be finished by default.

Call the clerk’s office to find out if your spouse filed an answer.

If your spouse filed an answer, you CANNOT finish your divorce by default.

  • If your spouse filed an answer and will now agree to sign your completed Final Decree of Divorce, you can finish your case by agreement.
  • If your spouse filed an answer and will not agree to sign your completed Final Decree of Divorce, your case is contested. To finish a contested divorce, you must set a contested final hearing. You must give your spouse at least 45 days’ notice of the final hearing. Read this article to learn more: How to Set a Contested Final Hearing (Family Law). Remember: It’s always best to have a lawyer if your case is contested.

If your spouse did NOT file an answer, you CAN finish your divorce by default as long as:

  • your spouse was successfully served by a constable, sheriff or private process server; and
  • a Return of Service form (stating when and where your spouse was served) has been on file with the clerk’s office for at least 10 days (not counting the day it was filed or the day you go to court); and
  • the 20 + day waiting period for your spouse to file an answer has passed; and  
  • the 60-day waiting period has passed; and
  • your spouse has not filed an answer and does not file an answer before you finish your divorce. (Remember, your spouse can file an answer until you finish your divorce, even if the 20 + day waiting period has passed.)

If you CAN finish your divorce by default, fill out these additional forms and make one copy of each form:

Step 10: Get ready for court.

Call the clerk’s office to learn when and where the court hears uncontested divorce cases.

If you sent a copy of your Petition to the Office of the Attorney General (OAG), ask the clerk if the OAG filed anything in your case.

  • If no, you can finish your divorce without further notice to the OAG.
  • If yes, talk to a lawyer about what to do next. You can use Ask a Question to chat with a lawyer online.

Print and read through the sample testimony (found below). You must read this testimony to the judge when you go to court to finish your divorce. Make sure everything in the sample testimony is true for you. If not, talk to a lawyer. Remember, everything you say in court must be true and correct. You can be charged with a crime for lying in court.

Read the article Tips for the Courtroom for more information about going to Court.

Step 11: Go to court to finish your divorce.

Bring the following with you to the courthouse on the day you plan to finish your divorce.

  • file-stamped copy of your Original Petition for Divorce;
  • file-stamped copy of the Return of Service form showing when and where your spouse was served;
  • the Final Decree of Divorce form completely filled out and signed by you (make sure a completed possession order is attached);
  • Income Withholding Order for Support if child support will be ordered;
  • Certificate of Last Known Mailing Address form and 1 copy;
  • Military Status Declaration (or Military Status Affidavit for Harris County) and 1 copy;
  • Sample Testimony for Divorce with Children (Set B);
  • Any additional documents needed for your specific case, such as a Qualified Domestic Relations Order (QDRO) if you are dividing a retirement account.
  • The completed Information on Suit Affecting the Family Relationship form (also known as the "Austin" form), which must be printed on one sheet of paper (front and back).

When you get to the courthouse, go to the clerk’s office.

  • Ask the clerk if you need the court file or docket sheet (list of what has been filed in your case).
  • Ask the clerk to check one more time to see if your spouse has filed an answer. If your spouse has filed an answer, you will not be able to finish your case by default. Go back to Step 9.
  • File the Certificate of Last Known Mailing Address and the Military Status Declaration (or Military Status Affidavit). Ask the clerk to file stamp your copy of each form. Bring a file-stamped copy of each form with you to court.

When you get to the courtroom tell the clerk you are there and give the clerk your paperwork. Sit down until the judge calls your case.

When the judge calls your case, walk to the front of the courtroom and stand in front of the judge’s bench. The judge will have you raise your right hand and swear to tell the truth. The judge may ask you questions or may ask you to read your testimony. Have your sample testimony ready. The judge will listen to what you say and review your papers. If everything is in order the judge will sign your Final Decree of Divorce.

Step 12: File (turn in) the signed Final Decree of Divorce.

After the judge signs your Final Decree of Divorce, go back to the clerk’s office.

  • File (turn in) the Final Decree of Divorce and any other orders signed by the judge. Your divorce is NOT final until you do so.
  • File the completed Information on Suit Affecting the Family Relationship form (also known as the "Austin" form), which must be printed on one sheet of paper (front and back).
  • Get a certified copy of your Final Decree of Divorce and any other orders signed by the judge from the clerk while you are there. The clerk may charge a fee for the certified copies. 
  • If your name was changed, get at least 3 certified copies of your Final Decree of Divorce to take to the agencies listed in Step 13. The clerk may charge a fee for the certified copies. 
  • If child support was ordered, ask the clerk how to set up a child support account.
Step 13: After your divorce is finished.

Send a file-stamped copy of your Final Decree of Divorce and any other orders signed by the judge to your spouse.

Follow these additional steps if they apply:

  • If you were ordered to pay child support and/or cash medical support and have questions about where to send your payment, you can get information from the Texas Attorney General Website or by calling (800) 252-8014.
  • If your ex-spouse was ordered to pay child support and/or medical support and doesn’t pay, you can contact the Texas Attorney General Child Support Division for help enforcing your order.
  • If your name was changed, take a certified copy of your Final Decree of Divorce to the following agencies:
    • Your local Social Security Administration (SSA) office to change your social security card.
    • Your local Department of Public Safety (DPS) office to change your driver’s license or state identification card.
    • Your County Voter Registrar to change your voter registration card. (For more information, contact the Texas Secretary of State.)
    • Contact the U.S. State Department to change your name on your passport.
  • Transfer car titles. If a vehicle (not already in your name alone) is awarded to you, give a certified copy of the Final Decree of Divorce to your county tax office and apply for title. The vehicle identification number (VIN) must be listed in your divorce decree.
  • File deeds to transfer title to real property (house or land) at the property records office in the county where the property is located.
  • If the judge signed a QDRO dividing a retirement account, send a certified copy of the QDRO to the administrator of the retirement plan by certified mail return receipt requested. If this isn’t done, you won’t get your share of the retirement funds.
  • Revise your will, insurance policies and all financial account beneficiary designations as needed.