No Fault Divorce – What It Means

In Texas, there are two general categories of divorces: no-fault divorce and fault divorces.

No Fault Divorces

A divorce may be granted without fault by either spouse under any of 3 scenarios: insupportability, the spouses living apart for at least 3 years, or if one spouse has been confined in a mental hospital for at least 3 years.

By far the most common no fault ground for divorce is insupportability. To establish insupportability, the petitioning spouse must show that:

…the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.

Texas Family Code Section 6.001

Once one spouse establishes the ground of insupportability, the court must grant the divorce even if the other spouse is not at fault for causing the situation.

Residency Requirements

A court only has jurisdiction to render a divorce if the petitioning spouse or the defendant spouse has resided in the State of Texas for the preceding 6 months and the county in which the divorce is filed for the preceding 90 day period.

For military service members, residency is established by the geographic location of the service member’s primary posting.

Out of State Spouses

If your spouse lives out of state, then things are slightly more complicated. You can still file for divorce in Texas in the county in which you reside if you meet the residency requirements set forth above.

However, the court will not have jurisdiction over your spouse or any property not located in the State of Texas in rendering a divorce decree and dividing marital property.

Your out of state spouse can voluntarily submit to the court’s jurisdiction by appearing in the case but that is unlikely except in agreed divorce cases.

Serving Your Spouse With Citation

Upon filing a petition for divorce, you will have to serve your spouse with a copy of the petition and the citation to appear.

This is a legal protection that affords your spouse the opportunity to appear and defend his or her self in court.

There is an exception that allows your spouse to waive service of citation which means that you do not have to have a sheriff show up to serve your spouse with divorce papers. Your spouse will have to agree to sign the waiver though.

Time to Respond to the Petition

After being served with the divorce petition, your spouse will have until the first Monday after the expiration of 20 days from the date of service to file an answer to the petition for divorce.

60-Day Waiting Period

By law, a court cannot grant a divorce in Texas until at least 60 days have lapsed from the date the petition for divorce was filed.

There are important exceptions to this rule in situations involving family or domestic violence.

In addition, you should note that the 60-day period runs from the date of filing the petition and not from the date your spouse is served with divorce papers.

Uncontested Divorce Cases

Uncontested divorces should proceed to a final hearing fairly quickly after the expiration of that 60-day waiting period.

Uncontested divorces are divorces in which the spouses agree on all of the issues present in their divorce such as property division, child custody, child support, and spousal maintenance.

In uncontested divorces, most of the work is focused on documenting the spouses’ agreement in an agreed final decree of divorce.

Contested Divorce Cases

If the spouses do not agree on every issue present in their case, then the case is considered a contested divorce.

Contested divorces take more time. The parties will usually begin by attempting to negotiate an agreement informally and perhaps exchange property inventories or other documents to support their positions.

If the parties do not reach an agreement or if they do not have sufficient information to evaluate the merits of a proposed settlement, then they may proceed to discovery.

If the parties are unable to reach an agreement on their own, then they will voluntarily or by court order proceed to mediation.

If the parties are still unable to reach an agreement after mediation, then they will likely proceed to a trial in court and the judge will rule on any outstanding issues in the case.

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