Pro Se AcademyDivorce
Filing, grounds, property, debts, maintenance, and finishing an agreed, default, or contested divorce.
1. Can I file here? Residency, venue, and the waiting period
- State the Texas residency and county requirements for divorce.
- Count the 60-day waiting period correctly.
- Identify the two exceptions to the waiting period.
To file for divorce in Texas, you or your spouse must have lived in Texas for the last six months and in the county where you file for the last 90 days (Tex. Fam. Code § 6.301). Military rules are in Tex. Fam. Code § 6.303.
A court cannot sign a divorce until at least 60 days after the petition was filed (Tex. Fam. Code § 6.702). Day 1 is the day after filing. The court can sign on day 60 or any later day it is open. The waiting period does not apply if your spouse was convicted of, or got deferred adjudication for, family violence against you or your household. It also does not apply if you have an active protective order or emergency magistrate's order against your spouse for family violence during the marriage.
Practice questions
Practice 1. Maria moved from Oklahoma to Plano four months ago. Her husband has lived in Plano for three years. Can a divorce be filed in their county now?
Practice 2. James filed his petition on March 1. There is no family violence history. What is the earliest date the judge could sign the decree, assuming it is a business day?
2. Grounds and the petition
- Name the most common ground for Texas divorce.
- Explain what the Original Petition does and who the parties are.
Most Texas divorces are filed on the ground of insupportability, meaning discord or conflict has made the marriage insupportable with no reasonable chance of reconciliation (Tex. Fam. Code § 6.001). Fault grounds also exist, such as cruelty, adultery, felony conviction, abandonment, and living apart for three years (Tex. Fam. Code § 6.002–6.007). Fault can affect how the court divides property, but fault cases are more complex. Talk to a lawyer before pleading fault.
The Original Petition for Divorce starts the case. You are the petitioner and your spouse is the respondent. Use the TexasLawHelp.org petition that matches your case: Set A (no children) or Set B (children, no prior custody order). See What to file.
Practice questions
Practice 1. Dana wants a divorce because she and her husband simply cannot get along anymore. There is no violence or adultery. Which ground fits best?
3. Property and debts: community vs. separate
- Define community and separate property.
- Explain the community property presumption and the burden to prove separate property.
- Describe "just and right" division.
Texas is a community property state. Property either spouse owns when the marriage ends is presumed to be community property (Tex. Fam. Code § 3.003). Separate property is what a spouse owned before marriage or received during marriage by gift, inheritance, or certain personal-injury recoveries (Tex. Fam. Code § 3.001). A spouse claiming separate property must prove it by clear and convincing evidence, which usually means records that trace the property.
The court divides the community estate in a manner it finds "just and right" (Tex. Fam. Code § 7.001). That is not always 50/50. A court cannot take one spouse's separate property (real or personal) and award it to the other spouse (Eggemeyer v. Eggemeyer, 554 S.W.2d 137 (Tex. 1977); Cameron v. Cameron, 641 S.W.2d 210 (Tex. 1982)).
Retirement plans (other than IRAs) usually need a separate order called a QDRO, which TexasLawHelp.org does not provide. Real estate may need a deed. These are good reasons to hire a lawyer for limited help.
Practice questions
Practice 1. During the marriage, Leo inherited $40,000 from his grandmother and kept it in an account in his name only. At divorce, his wife says it is community property. What does the law presume, and who must prove what?
Practice 2. A judge awards one spouse 60% of the community estate. Is that automatically wrong?
4. Spousal maintenance
- Distinguish court-ordered maintenance from contractual alimony.
- Recall the basic eligibility rule and payment cap.
Court-ordered spousal maintenance is limited (Tex. Fam. Code ch. 8). In general, the spouse asking for it must lack enough property to meet minimum reasonable needs. They must also show one of the following: family violence by the other spouse within certain time limits, a disabling condition, care of a disabled child, or a marriage of 10+ years combined with an inability to earn enough (Tex. Fam. Code § 8.051). Monthly payments are capped at the lesser of $5,000 or 20% of the paying spouse's average monthly gross income (Tex. Fam. Code § 8.055). Duration limits apply (Tex. Fam. Code § 8.054). If you need maintenance, TexasLawHelp.org recommends talking to a lawyer.
Practice questions
Practice 1. Pat and Sam were married 12 years. Sam earns $10,000/month gross. If maintenance is ordered, what is the most the court can order per month?
5. Agreed, default, or contested: finishing the case
- Distinguish agreed, default, and contested divorces.
- List what the respondent can file and the answer deadline.
- Describe a prove-up.
Agreed: both spouses sign the Final Decree. The respondent signs a Waiver of Service (notarized, signed at least one day after the petition is filed) or files an Answer. Default: the respondent is formally served and does not answer. Contested: the respondent answered and won't sign. You must set a final trial, generally with at least 45 days' notice of the first trial setting (Tex. R. Civ. P. 245).
A served respondent's answer is due by 10:00 a.m. on the Monday after 20 days from service (Tex. R. Civ. P. 99(b)). Use the deadline calculator. Many district clerks charge no fee for an answer but do charge one for a counter-petition. Check your clerk's fee schedule. If you can't afford fees, file a Statement of Inability to Afford Payment of Court Costs (Tex. R. Civ. P. 145).
A prove-up is a short hearing where the petitioner testifies under oath to the facts needed for the decree: residency, grounds, the children, property, and that the agreement is fair and in the children's best interest. Some judges accept a sworn prove-up affidavit instead. Ask the court coordinator. TexasLawHelp.org publishes sample testimony.
After the decree: neither party may marry someone else before the 31st day after the divorce, unless the court waives this (Tex. Fam. Code § 6.801, 6.802).
Practice questions
Practice 1. Kim was personally served with a divorce petition on Wednesday, June 3. When is her answer due?
Practice 2. The judge announces her ruling at the end of a contested divorce trial on May 1. Nobody submits a decree. What risk does the petitioner face?