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Divorce Process
So you decide that you are legally married and want to get a divorce. Where do you start? In
most cases, you will file an "Original Petition for Divorce" with your local district court. The
Original Petition contains all your pleadings and may be amended without seeking permission
from the court up to seven days prior to final trial (as long such amendment doesn't unfairly
"surprise" the other side with a whole new set of legal issues) (TRCP 63).
State law controls the requirements for a divorce in Texas. There are seven statutory grounds
for divorce. The first, and by far the most common, is "insupportability" (TFC 6.001). This is
the catch all grounds which brings Texas in line with the modern trend among most all states
to allow people a "no fault" divorce. Basically, if you don't want to be married anymore, then
you don't have to come up with an excuse. For strategic purposes, such as trying to get a
disproportionate share of the community estate, or obtain primary custody of a child, or to
further a tort claim, then pleading a divorce "for cause" may be done. These grounds include
Cruelty (6.002); Adultery (6.003); Conviction of a Felony (6.004); Abandonment (6.005);
Living Apart (6.006); or Confinement in a Mental Hospital (6.007).
In general some of the things you may plead for in your initial petition is for spousal
alimony(maintenance); temporary orders (court orders while the case is pending); temporary
restraining orders (restricting the actions of one or both parties).
It is also usually necessary to plead that the court divide the community property. It is not
necessary to get into any detail about the property- only that property exists and should be
divided. Although it is possible to make a statement that there is no community property, it is
my opinion that there is always some kind of community property even if you are getting
divorced from your quickee marriage in Vegas and all you ever got together was a few poker
chips from Harrah's. Better to plead for it now then cry about it later.
Related to this is the necessity to plead for any reimbursement or economic contribution claim
(when community funds where unfairly spent on separate property).
Also, you must generally make a pleading involving the children of the marriage (if any).
Although a suit involving children is technically a separate law suit (called a "Suit Involving
the Parent Child Relationship" or "SAPCR"); in Texas, you must include the children issues
in your divorce case and they are tried together as one case. The only exceptions to that is if
you already have a SAPCR order in place (usually if there is a long separation and one of the
parties was seeking child support) or if the children are adults.
Name changes for an adult or a child are also plead for. Under TFC 6.706, the court shall
change the name of a party specifically seeking the change, unless the court specifically gives
a reason why it won't in the final decree. The name change requires that the person previously
used the name being changed to and that the change is not to avoid creditors or avoid criminal
prosecution. Now usually this is a woman changing her name back to her maiden name, but in
theory a guy could do this too. I recommend to my clients that they plead for the change even
if they are unsure about it. You can make sure in the end that you keep your name if you
want to. (And by the way, no one can force you to change your name if you don't want to).
Otherwise, if you change you name after the divorce, you have to file a separate suit and pay
the fees. If you do it now, it is free with your other fees.
And on the topic of fees, this varies for county to county. In Harris County Texas, fees to file
a divorce are around $200.
Another thing that is commonly plead in the original petition is a request that the other side
pay your attorney fees. You may not get them awarded to you by the judge at the end of the
case, but you definitely won't get them awarded to you if you don't plead for them at the
beginning of the case.
So you decide that you are legally married and want to get a divorce. Where do you start? In
most cases, you will file an "Original Petition for Divorce" with your local district court. The
Original Petition contains all your pleadings and may be amended without seeking permission
from the court up to seven days prior to final trial (as long such amendment doesn't unfairly
"surprise" the other side with a whole new set of legal issues) (TRCP 63).
State law controls the requirements for a divorce in Texas. There are seven statutory grounds
for divorce. The first, and by far the most common, is "insupportability" (TFC 6.001). This is
the catch all grounds which brings Texas in line with the modern trend among most all states
to allow people a "no fault" divorce. Basically, if you don't want to be married anymore, then
you don't have to come up with an excuse. For strategic purposes, such as trying to get a
disproportionate share of the community estate, or obtain primary custody of a child, or to
further a tort claim, then pleading a divorce "for cause" may be done. These grounds include
Cruelty (6.002); Adultery (6.003); Conviction of a Felony (6.004); Abandonment (6.005);
Living Apart (6.006); or Confinement in a Mental Hospital (6.007).
In general some of the things you may plead for in your initial petition is for spousal
alimony(maintenance); temporary orders (court orders while the case is pending); temporary
restraining orders (restricting the actions of one or both parties).
It is also usually necessary to plead that the court divide the community property. It is not
necessary to get into any detail about the property- only that property exists and should be
divided. Although it is possible to make a statement that there is no community property, it is
my opinion that there is always some kind of community property even if you are getting
divorced from your quickee marriage in Vegas and all you ever got together was a few poker
chips from Harrah's. Better to plead for it now then cry about it later.
Related to this is the necessity to plead for any reimbursement or economic contribution claim
(when community funds where unfairly spent on separate property).
Also, you must generally make a pleading involving the children of the marriage (if any).
Although a suit involving children is technically a separate law suit (called a "Suit Involving
the Parent Child Relationship" or "SAPCR"); in Texas, you must include the children issues
in your divorce case and they are tried together as one case. The only exceptions to that is if
you already have a SAPCR order in place (usually if there is a long separation and one of the
parties was seeking child support) or if the children are adults.
Name changes for an adult or a child are also plead for. Under TFC 6.706, the court shall
change the name of a party specifically seeking the change, unless the court specifically gives
a reason why it won't in the final decree. The name change requires that the person previously
used the name being changed to and that the change is not to avoid creditors or avoid criminal
prosecution. Now usually this is a woman changing her name back to her maiden name, but in
theory a guy could do this too. I recommend to my clients that they plead for the change even
if they are unsure about it. You can make sure in the end that you keep your name if you
want to. (And by the way, no one can force you to change your name if you don't want to).
Otherwise, if you change you name after the divorce, you have to file a separate suit and pay
the fees. If you do it now, it is free with your other fees.
And on the topic of fees, this varies for county to county. In Harris County Texas, fees to file
a divorce are around $200.
Another thing that is commonly plead in the original petition is a request that the other side
pay your attorney fees. You may not get them awarded to you by the judge at the end of the
case, but you definitely won't get them awarded to you if you don't plead for them at the
beginning of the case.