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Marriage and Divorce in Texas

Posted on July 29th, 2015 by The Red Headed Lawyer

An overview of how marriage and divorce works in Texas, taken from the Houston Bar Assocation Family Law Handbook.

Marriage and Divorce

  • Does Texas have an age requirement for marriage?
    Yes. Both parties must be at least 18 years old to obtain a marriage license. If either party is under 18 years of age, parental consent or a court order is required.
  • Can I marry someone who is related to me?
    It depends. You may not marry (1) someone who is an ancestor (mother, father, grandmother, grandfather, etc.) or descendent (son, daughter, grandson, granddaughter, etc.); (2) your brother or sister; (3) your parent’s brother or sister (aunt or uncle); (4) your niece or nephew; (5) your cousin; or (6) your step-children or your step-parents.
  • Can I legally marry someone of the same sex?
    In Texas, you may not marry someone of the same sex.
  • What is a “licensed marriage?”
    A “licensed” or “ceremonial marriage” requires a marriage license and is performed by an authorized official (minister, priest, rabbi, judge, etc.).
  • What is an informal marriage or “common-law marriage?”
    An informal marriage (sometimes called a common-law marriage) can be created when a man and woman sign and register an official document of marriage at the county clerk’s office. A man and woman may also
    enter into an informal marriage if they agree to be married, live together in Texas as husband and wife, and represent to others in Texas that they are married. There is no minimum time period necessary to create an informal marriage, and living together, by itself, is not enough to create one. An informal marriage may not be entered into if either party is less than 18 years old.
  • Is there a “common-law divorce?”
    No. If the parties to a non-registered informal marriage separate and live apart for two (2) years or more, the parties may or may not need a divorce depending on the circumstances. Parties to a registered informal marriage must be divorced the same as parties who were married in a ceremony with a marriage license.
  • Is an annulment different from a divorce?
    Yes. An “annulment” is a proceeding to have a marriage declared void as if it never took place. A “divorce” is the proceeding to end a valid marriage. However, in both an annulment and a divorce, the court will divide property and issue orders regarding any children.
  • What are the grounds for an annulment?
    An annulment will be granted if (1) the parties are related, by blood or adoption, or (2) either party was previously married and the prior marriage has not been dissolved. An annulment may be granted if at the time of the marriage one party to the marriage was (1) underage, (2) under the influence of alcohol or drugs, (3) impotent, (4) mentally incompetent, (5) forced to marry by fraud or duress, or (6) was misled about a prior divorce. In most cases, the law requires that the person seeking an annulment must stop living with the other party once the problem is discovered.
  • Must fault be found against a party for a divorce to be granted?
    No. In Texas, a divorce may be granted without either party being at fault. However, a divorce may also be granted when one party is found to be at fault in the break-up of the marriage.
  • How long must I live in Texas to get a divorce here?
    Before filing, one of the spouses must live in Texas for at least six (6) months and in the county where the divorce is filed for at least ninety (90) days.
  • Is this different if I am in the military?
    Not really. Time spent by a Texas resident outside of Texas, while in the military, satisfies the residency requirement in Texas for a divorce.
  • Am I entitled to a court-appointed attorney?
    Not unless there are special circumstances.
  • What do I do if I can’t afford an attorney?
    There are several programs in Harris County that offer help to persons who cannot afford to hire an attorney; however, you will be required to meet certain financial guidelines. See the resource guide at the back of this handbook for more information. The Houston Volunteer Lawyer program provides limited document review in the basement of the Family Law building at 1115 Congress, Houston Texas 77002. Also, an extensive set of forms approved by the Family Law Section of the State Bar of Texas are available to help litigants at the Harris County Law Library located next door to the Family Law Building at 1019 Congress, 17th Floor, Houston, Texas 77002.
  • What is a board-certified family attorney?
    Attorneys who meet certain qualifications and pass a special examination may become board certified in family law by the State Bar of Texas, evidencing their level of knowledge and experience in this area of the law.
  • Do the rates charged by attorneys differ?
    Yes, attorneys set their hourly rates based upon their knowledge, experience, qualifications, and the complexity of the case.
  • How do I begin my divorce suit?
    A petition for divorce must be filed in the district clerk’s office and the required fees paid.
  • What if there are children of the marriage?
    If there are children born, adopted, or expected during the marriage, the suit for divorce must also address matters of custody, visitation, and child support. If a wife has given birth to a child or is expecting a child since the time she married, but the child is not, or may not be the biological child of her husband, that information must be given to the court as soon as possible. If the wife is pregnant or becomes pregnant while the divorce action is pending, the parties must wait until the baby is born before the court can grant a divorce. This is true regardless of whether the husband is the baby’s father.
  • Who is the “Petitioner” and who is the “Respondent?”
    The party who files for divorce first is called the “Petitioner” and the other party is called the “Respondent.”
  • Does my spouse get notified after I file my petition?
    Yes, if you make certain the proper steps are followed to notify your spouse.
  • How is my spouse notified?
    It is up to the party filing the suit to make sure the proper steps are followed to notify your spouse of the divorce case. Failure to notify him or her can result in a delay of your case or in some cases, dismissal of the case. Several methods to notify your spouse are available depending on the circumstances:
    1. By receiving a copy of the petition from a sheriff, constable, or court approved private process server after you have made the request and paid the required fees; or
    2. By certified mailing from the district clerk’s office; or
    3. If the parties agree, the non-filing spouse may, after the petition has been filed, sign and notarize a document called a “Waiver of Citation,” which indicates that the non-filing spouse is accepting service of the lawsuit; or
    4. If your spouse cannot be located, notice can be published in a court-approved newspaper or other court-approved publication.
  • What happens after my spouse is notified of the filing?
    Once a respondent is officially notified, there is a deadline to file a response to the petition. If the deadline is not met, the petitioner may be able to go forward and obtain a divorce by “default.”
  • What is a temporary restraining order?
    A temporary restraining order is a court order that sets forth the acts which either one or both parties are prohibited from doing immediately after the petition is filed. Sometimes this order is called a “TRO.” A TRO usually prohibits bad acts such as committing family violence, harassment, hiding money from the other spouse, attempting to hide a child of the parties, etc.
    Can I get a Temporary Restraining Order (TRO) without notice to my spouse?
    Yes, if the court approves the request for a TRO; however, it is effective only for a limited amount of time before you must go before the judge at a court hearing and ask that the TRO be put into effect until the divorce is granted.
  • What happens if the TRO is violated?
    A person who violates a TRO, or any other court order, can be held in contempt of court and punished by a fine and/or a jail sentence.
  • Can my spouse ask for a divorce also?
    Yes. The Respondent may file his or her own request for divorce in a document usually called a counter-petition for divorce.
  • What happens if I reconcile with my spouse?
    You may dismiss your divorce proceedings by filing a request for nonsuit.
  • How soon can the court grant a divorce?
    A petition for divorce must be on file with the court for at least sixty (60) days before the court can grant a divorce. The sixty (60) day waiting period may be waived in certain cases involving convictions for family violence and protective orders.
  • How long does it take to get a divorce?
    If the parties are in agreement, a divorce proceeding can be finalized soon after the sixty (60) day waiting period is over. If the parties are not in agreement, the time it takes will depend on the court’s schedule and the complexity of the case. From start to finish, the divorce process may go through a number of phases which might include temporary orders, exchange of financial information, psychological evaluations (in custody cases), alternative dispute resolution, trial, and appeal. A divorce in which the parties are not in agreement on some or all issues will usually take several months and up to one year if a trial is necessary.
  • How do I know when my case is set for trial?
    The court will issue a scheduling order that will inform you of all the deadlines you are expected to follow. Each party must make sure that the court and other parties are notified in writing at their current address, so that each will receive the scheduling order and other notices.
  • When am I divorced?
    You are divorced when all the property and child related issues are resolved and the presiding judge signs an order, usually called a Decree of Divorce.
  • How long must I wait to get married again?
    In most cases, you must wait thirty (30) days, but the court can grant a waiver to permit you to marry sooner.