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Filing the Divorce Petition

The divorce process in Texas begins with the filing of a divorce petition. This document starts the legal proceedings, assigns a case number, and designates a court for the case. Importantly, the petition itself does not address the division of property, child custody, or other specific issues related to the divorce. Instead, it serves as a formal request to end the marriage.

• What the Petition Includes: The petition might include requests for custody arrangements, property division, and other terms, or it could simply state that the parties are expected to agree on these matters.
• Where to File: The petition must be filed in the District Clerk’s office of the county where one of the parties has lived for at least 90 days, and in Texas for at least six months.
• Cooling-Off Period: The court cannot grant the divorce until at least the 61st day after the petition is filed, due to a mandatory 60-day “cooling off” period. 

Finalizing the Divorce

Once the 60-day cooling-off period has passed, and if all parties have agreed on the terms and signed the necessary documents, including the divorce decree and waiver of service, the court will set a date for a final hearing.

• Harris County Process: In Harris County, family courts hear cases on a first-come, first-served basis starting around 8:30 a.m. It is not necessary to set the date in advance.
• Montgomery County Process: In Montgomery County, you must contact the court to get on the docket, usually about two weeks after the request is made.

This scenario, where all terms are agreed upon and documents are signed, represents the simplest and most cost-effective way to obtain a divorce.

Serving the Respondent

If the respondent (the spouse who did not file the petition) refuses to sign the divorce decree, they must be officially notified of the divorce proceedings. This step is essential as the court cannot finalize the divorce without proper notification.

A person cannot get a divorce in Texas unless the respondent has either signed the divorce decree and a waiver (or filed an answer to the divorce suit), or has been served by a person with the authority to serve papers in Texas.

• Who Can Serve Papers: The service must be carried out by an authorized individual, which could be a private process server, constable, or sheriff’s deputy. It cannot be done by the filing spouse or their attorney. (Please note, even if the papers are served by a law enforcement official, the act is not of a criminal nature.)
• Service of Process: The respondent will be served with a copy of the original petition and an instruction sheet from the District Clerk. This process is essential for providing official notice of the lawsuit.
• Alternative Methods: If the respondent cannot be found or is evading service, other methods may be used, though this is less common.
• Post-Service Requirements: Once the 60-day cooling-off period has passed, and the requisite number of days have passed since the respondent has been served (the Monday following twenty days after service), the judge may grant the divorce based on the petitioner’s testimony, even if the respondent is not present. The requirements for notification to the respondent, if any, differ from court to court.

Handling a Contested Case

When the respondent files a timely response to the petition, the divorce becomes contested. This scenario requires additional legal steps and can extend the timeline significantly.

• Requesting a Trial Date: Depending on the court, the petitioner may need to request a trial date or the court may automatically schedule one. This trial is typically set several months in advance to allow for legal preparations.
• Settling Before Trial: If the parties reach an agreement and sign a divorce decree before the trial date, either party can present the signed documents to the court and request a brief hearing to finalize the agreement.

Preparing for Trial

If settlement efforts fail and the trial date approaches, the preparation for trial begins. This phase involves several key steps:

Discovery Phase:

Attorneys must exchange information at least 60 days before the trial. This includes witness lists, property inventories, interrogatories (written questions) about the issues and a party’s position on the issues, and document requests. This process helps both sides understand the case and prepare effectively.

The Texas Rules of Civil Procedure set certain deadlines for when this information can be exchanged and what must be exchanged. Going into trial without doing discovery is equivalent to going into a major battle without knowing what weapons your enemy will have, the number of soldiers involved, etc.

Mediation:

Most Texas courts require mediation before a trial. Mediation is the process in which the parties and their attorneys meet with a neutral party trained to help litigants reach a mutually-satisfactory agreement. While mediation is usually mandatory, reaching an agreement is not. If the parties reach an agreement and sign the appropriate papers, no contested trial will be necessary. If mediation fails, both parties are entitled to a trial at which a judge decides the contested issues.

In cases where immediate issues need to be addressed—such as starting child support, removing a spouse from the home, or establishing rules for spending—temporary orders can be requested by your attorney.

Purpose of Temporary Orders

These orders function like a mini-trial, providing temporary rulings that last until the full trial. They help manage urgent matters while the divorce is pending.

Scheduling

Depending on the court’s procedures, a temporary orders hearing can typically be scheduled within three to four weeks after the request.