How to file an agreed divorce with minor children in Texas
We can help make the process of filing for divorce less difficult and scary. Below we will guide you through the steps of a Texas divorce agreement with minor children. It is important to note that there may be differences between you and your spouse if they are military personnel.
If your children are under 18, you must file for an Agreed Dissolution with Children.
Filing for an agreed divorce with children
Couples with minor children cannot get an uncontested divorce. A form of “agreed divorcement” is allowed. This means that both you and your spouse must agree to all aspects of the divorce (including child support and custody) and you will both sign all court forms. Also, there must not be any child support or custody orders already in place.
What are the Texas residency requirements in divorce proceedings?
You can file for divorce within the county in which you live, or in the county where your spouse is living (if you don’t live in the exact same county). Either you or your spouse must possess:
- lived in the same county as you plan to file your application for at least ninety days.
- A resident of Texas for at most six months immediately before filing your divorce petition.
This applies to military personnel and their spouses even though they are not residents.
There are residency requirements for children. Children must have one of the following:
- Texas residents who have lived there for six months or more,
- Texas must be considered the home state for the child. Further, Texas must be where the child has been living since Texas was established.
When filing for divorce, make sure that you use the correct forms. Different court forms are required for different families. The Uniform Child Custody Jurisdiction and Enforcement Act might be helpful for you if each parent lives in another state.
What are the special considerations Texas has for spouses of same-sex?
If you are part the LGBTQ+ community, please be aware that neither the Texas Family Code nor the corresponding court forms have any provision for divorces involving the same-sex couple with children.
For couples of same sex with children, you may be able to use the Set B form (labeled “for couple with minor children”) Depending on your specific circumstances, the court might allow you to continue using that set of form or deny it. If you are part of a couple that is identical, seek legal counsel before filing your divorce.
Who is the Petitioner Who is the Respondent
The person who files the petition to divorce becomes the “Petitioner.” The “Respondent”, the other spouse, is named.
What are the grounds for divorce in Texas
Texas allows the petitioner to choose whether they want a divorce with fault or without. Uncontested divorces require that the parties first agree on the grounds and then file the appropriate no-fault ground. Texas offers seven different grounds for divorcing. We have separated them into fault and non-fault:
- Fault Grounds: cruelty and adultery, abandonment (for at minimum one year), and felony crime conviction
- No-fault: inability, living apart for a minimum of three years, or confinement to a mental institution
What are the most popular grounds for divorce?
Divorce is most commonly based on insupportability. It occurs when one or both spouses claim “irreconcilable differing” as the reason for their divorce. There is no chance of reconciliation. This ground is not subject to the requirement that either the respondent or the petitioner prove that the other spouse did something wrong.
Notice: All fault grounds require evidence and testimony from the other spouse, which can affect the divisions of assets, spousal maintenance and child custody. You must have proof to support your claim if you intend to file under a fault basis. However, the court may not grant your divorce based on fault. Even if they don’t, the court might still grant your divorce based upon a no fault ground such as insupportability. A no-fault ground, such as insupportability, is the best option.
How can I file and deliver forms to my Texas spouse?
Your original divorce petition can be filed with all other forms in your case to the court in your county or in the county in which your spouse resides (if you don’t reside in the same county). Your desired orders are included in the petition. They are described in the “Final Decree of Divorce”.
After you file your petition for divorce with the court, you must deliver (serve) your spouse a file-stamped duplicate of the Original Petition For Divorce or Citation and any other forms that you have filed with the court. These forms will only be valid if:
- They are served by a constable (or sheriff), or private process server.
- The court will receive a completed “Return of Service” form.
Texas divorce waiting period
Between filing a Petition for Divorce or signing a Final Decree of Divorce there must be a minimum of 60 days. This requirement cannot be waived in exceptional cases such as domestic violence, and is granted at court’s discretion.
After filing
It is important to finalize your agreements together during this time. Each spouse must fill out the form entitled Required Initial Disclosures In Dissolution of Marriage. The completed form must be given to the other spouse within 30 calendar days of the answer.
Before you appear before the court for your prove up hearing, you must have completed and signed the Final Decree on Divorce. Your Final Decree may have to be reviewed by an attorney, depending on the county in which you filed. Contact your local district clerk to find out if it applies to you.
Apart from the Final Decree you must also fill out and sign your Qualified Domestic Relations Order. You can find more information about QDRO here.
What happens if we have a postnuptial or prenuptial arrangement?
If there is a prenuptial/postnuptial arrangement, the Final Decree should reflect that agreement. All prenuptial and postnuptial agreements must be listed in the Required Initial disclosures. These agreements can be presented to the court as evidence during status hearings. The court will look deeper to determine why there isn’t a match between the settlement agreement and the Final Decree. The court will look for duress. This is when one spouse is forced to agree to something they do not want.
Texas provides Spousal Support in the event of Divorce
You cannot ask the court for spousal maintenance in an uncontested divorce. Although the terms of an uncontested divorce are not applicable, spouses can agree on “contractual maintenance”, which is almost the same thing but is not calculated nor ordered by the court. You can include details about your contractual alimony in the Final Decree, and present them to the court during the prove-up hearing.
Texas Prove-up Hearing for Divorce
You may need to attend a brief, informal prove up hearing if you are involved in an agreement divorce with your children. The prove-up is where you present your Final Decree of Divorce and complete your uncontested divorce before the judge. You ask the court to uphold the terms of the agreement between the parties. The judge is the ultimate authority.
Are there any prove-up hearings available for parents with children?
The court might not grant a prove up in certain situations, such as when minor children are involved. A judge may instead order an initial hearing with you and your spouse to review the information contained in the Original Petition/Original Answer. This hearing allows the judge to assess your case and make recommendations regarding issues such as custody, visitation, or child support.
Additional Resource:
https://www.gov.uk/divorce
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4012696/
https://www.wf-lawyers.com/divorce-statistics-and-facts/
