Texas Divorce: Does It Make a Difference Who Files First?

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 Texas Divorce: Does It Make a Difference Who Files First?

For many couples, the most challenging component of moving on is the divorce procedure. You may be wondering what the divorce process in Texas entails.

The six major stages you can expect to take, from submitting your petition in a Texas court to receiving your final decision, are outlined here.

Step 1: Divorce Grounds
Before submitting it to the district court, you must first pick which reasons you will use in your divorce petition. A basis is a reason you give the court for dissolving your marriage.

To acquire a divorce in Texas, you must choose and prove at least one ground for the district court to issue the divorce. In Texas, the Texas Family Code specifies seven reasons for divorce:

  • Insupportability
  • Cruelty
  • Adultery
  • Felony Conviction for a Crime
  • Abandonment
  • Separation
  • Insanity at a Mental Hospital

Other than a no-fault divorce, the other six grounds for divorce are fault-based. Whether you seek a fault or no-fault divorce, the award of spousal support (alimony) or the partition of assets can significantly impact you.

If you are concerned or unclear about the ramifications of which basis to choose, it may be beneficial to seek legal guidance from a divorce attorney.

Step 2: Filing the Divorce Petition
The petition for the dissolution of the marriage is the first divorce form you or your attorney will fill out once you’ve decided which grounds to include in your divorce papers. This is known as the original divorce petition in Texas.

The spouse who files for divorce is known as the petitioner, and the other spouse is known as the respondent.

The divorce petition is the legal document that initiates your divorce lawsuit. To petition for divorce in Texas, you or your spouse must do the following:

  • Live in Texas for at least six months.
  • File in the county where you or your spouse have resided for at least 90 days.

In Texas, family law cases are often heard in state district courts. A divorce case is usually filed through the district clerk’s office.

The original petition, two extra copies, and the required filing fee are then delivered or mailed to the relevant county’s district clerk’s office.

For example, if you live in Collin County in Dallas, you would hand deliver or send the above to the Collin County district court clerk’s office.

It is crucial to note that filing fees differ per jurisdiction. If you are filing without the assistance of an attorney, you must look up the applicable fee on your county’s website or by calling the clerk’s office.

Your divorce case will begin once you have paid the filing fee and submitted the original petition to the court.

Step 3: Giving Your Spouse Notice
After filing your initial divorce papers with the district court, you must serve legal notice on your spouse. This is not the same as simply informing your spouse. You must serve your spouse in one of the following ways, according to the legal notice:

  1. Your spouse signs a citation waiver.
  2. Publication or posting of a process server

The simplest approach to serve your spouse with divorce papers is through a waiver, in which the respondent waives their right to be properly served with the documents.

The waiver, however, is only legal if your spouse signs it after the original petition is filed with the court.

If your spouse refuses to waive, you must perform some type of personal service. This requires engaging a court-authorized impartial third party to serve the divorce papers on your spouse, such as a process server, county constable, or Sheriff.

Posting or publication enables service through publication in a local newspaper or comparable. This approach involves a court order and should only be used if you have exhausted all other options and can still not locate your spouse.

Step 4: Response and Counter-petition by Your Spouse
The ball is in their court when your spouse is informed that you have filed for divorce.

Your spouse will have twenty days from the service date, with or without an attorney, to file an answer to your petition. After filing an answer, your spouse has the right to attend all court meetings in your divorce procedures.

Your spouse may submit a counter-petition in addition to a response. This form is comparable to the initial petition for divorce. The counter-petition includes the respondent’s reasons for filing for divorce and what the respondent would like the court to do.

A counter-petition does not require the same citation as the original petition, but the response must transmit the counter-petition to the opposing party.

5th Step: The Waiting Period
Unlike other states, Texas requires a waiting time during divorce procedures.

A court cannot grant the initial divorce petition unless it has been pending for at least 60 days. However, the court may grant an exception to the waiting time if domestic or family abuse is implicated.

The waiting period requirement can be used for a variety of objectives. While it may provide a chance for spouses to reconcile, it is more usually used as a period in the middle of a divorce process during which the spouses might try to reach an agreement on the terms of the divorce.

If you and your soon-to-be ex-spouse can agree on issues such as child custody, child support, or marital assets, you may be able to continue with an uncontested divorce.

Uncontested divorces are often less expensive because many people can undergo the procedure without hiring an attorney.

If you and your spouse cannot reach an agreement during the waiting period, you will have a disputed divorce. The court will then decide on issues such as child custody, child support, alimony, and marital property division.

Although you can represent yourself in your divorce, you will most likely need the assistance of an attorney.

In contentious divorces, the court will likely encourage the parties to use alternative conflict resolution options like mediation. A neutral third party (the mediator) assists you and your spouse in reaching an agreement during divorce mediation.

Mediation is a private process that can begin at any moment during your divorce proceedings. It can also be a quicker and less expensive process than engaging an attorney, but the parties bear the cost. If a divorce settlement is made, the agreement is usually deemed binding.

If you are concerned about reaching an agreement through the usual court process, you should investigate mediation, online divorce, or collaborative law.

The court may issue temporary custody, child support, and visitation orders during the waiting time. The court may also order a custody evaluation if custody is likely to be an issue.

Step 6: Your Divorce Decree
If a settlement cannot be achieved using the means described above, the problems will be brought to a judge at a final hearing.

After the 60-day waiting period, your final hearing can be scheduled at any time. A bench trial (only before a judge) or a jury trial may be used for the final hearing.

However, if you and your spouse have reached an agreement in writing, the final hearing may be as simple as answering a few questions from the judge before the agreement is approved.

You will obtain your final divorce decree whether you reached an agreement or had a trial! In general, the divorce decision will detail the allocation of all community property and debt, as well as the child custody and child support orders and alimony.

All you have to do now is take the signed divorce decree to the clerk’s office and file it. Your marriage is officially finished, Viola!

Please remember that getting a military divorce often necessitates more processes than getting a civilian divorce.

It makes no difference in Texas divorce situations who files first. In other words, it makes no difference who is the “petitioner” (i.e., the first to file) or who is the “respondent” (i.e., the person who responds to the divorce petition). This is because a judge must fairly examine different statutory elements while deciding on a matter.

Texas is a community property state, meaning each spouse receives approximately half of the value of property earned during the marriage.

How the Judge Divides the Property During Divorce in Texas?

The judge decides when and by whom the property was acquired and who should receive it in the event of divorce. The credibility of testimony, direct evidence such as a receipt, and any circumstantial evidence surrounding the case are all considered per Texas divorce laws.

As a result, whether one spouse gets to present their version of the story first makes little difference to an experienced trial judge.

What Are the Advantages of Filing First for Divorce in Texas

If the respondent lives in another county, there may be certain advantages to filing for divorce first in the District Court of the Texas county where the petitioner resides.

Furthermore, the petitioner may be able to tailor their lawsuit to secure a specific judge to hear the case.

Some Texas courts are particularly sensitive to children and may award greater child support. Still, others may be particularly sympathetic to spousal abuse cases and restrict visitation privileges to the abuser spouse. A skilled local attorney may be familiar with the specific dispositions of local judges.

Furthermore, when filing for divorce in Texas, if the spouses live in different states, variances in state law may favor the individual who files first.

In Texas, for example, a child 12 years of age or older may write to the court indicating which parent they prefer to live with. Thus, if the child is ready to write a statement, a person who may be denied custody in other jurisdictions (with a higher age requirement) owing to irresponsibility or unlawful activities could try to file in Texas.

The Texas domiciliary requirement of more than six months, on the other hand, may provide an issue. It is more difficult to become a domiciliary (i.e., to permanently reside in Texas) than a regular Texas resident.

In conclusion, when couples live in different states, it may be advantageous to file for divorce first.

Do I Need a Lawyer for a Divorce in Texas?

An expert Texas divorce attorney can assist you with your divorce. She can assist you in properly dividing your community property, determining the appropriate child and spousal support amounts, and setting aside the community debt.

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