how to file an agreed divorce with minor children in

How to File an Agreed Divorce with Minor Children in Texas

Introduction

Filing for divorce can be a daunting and emotionally challenging process, especially when children are involved. However, understanding the steps involved in an agreed divorce can make the journey less stressful. In this guide, we will walk you through the process of filing for an agreed divorce with minor children in Texas, from the initial requirements to the final decree. Please note that the process may vary for military service members and same-sex couples, so it’s essential to seek legal advice if you fall into these categories.

Filing for an Agreed Divorce with Children

In Texas, couples with minor children cannot obtain uncontested divorces. Instead, they must pursue an “agreed divorce,” meaning both parties must agree on all issues related to the divorce, including child custody and support, and be willing to sign all court forms. There should not be any existing court orders for custody or child support in place.

Texas Residency Requirements for Divorce

To file for divorce in Texas, either you or your spouse must have lived in the county where you plan to file for at least 90 days. Additionally, one of you must have been a resident of Texas for at least six months before filing the divorce petition.

Children’s Residency Requirements

For Texas courts to have jurisdiction over initial orders for custody and visitation, the children must meet one of the following conditions:

  • They have lived in Texas for at least the previous six months.
  • Texas is their home state, where they have lived since birth.
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Grounds for Divorce in Texas

In Texas, the petitioner can choose whether to file for a fault or no-fault divorce. In an agreed divorce, both parties must agree on the grounds for divorce and typically file using one of the no-fault grounds:

Fault Grounds:

  • Cruelty
  • Adultery
  • Abandonment (for at least one year)
  • Felony criminal conviction

No-Fault Grounds:

  • Insupportability (irreconcilable differences)
  • Living apart for at least three years
  • Confinement to a mental hospital

Most Common Grounds for Divorce in Texas

Insupportability is the most common grounds for divorce in Texas. It allows spouses to claim “irreconcilable differences” as the reason for the divorce without the need to prove any wrongdoing. Filing under no-fault grounds like insupportability is generally the most straightforward path, as it doesn’t require presenting evidence of the other spouse’s behavior.

Filing Forms and Delivering Them to Your Spouse

When filing for divorce in Texas, you need to submit the original petition for divorce and any other relevant forms to the court in the county where either you or your spouse resides. It’s crucial to ensure the correct set of forms are used, as different family situations require different court forms.

Alternatives to Formal Service

If both parties are willing to work together, there are alternatives to formal service:

  • In an agreed divorce, the respondent (the one being served) can sign a “Waiver of Service Only,” waiving the right to be formally served.
  • The respondent can file an “Answer” form, negating the need for formal service.

Temporary Restraining Order (TRO) and Domestic Violence Situations

The court may issue a Temporary Restraining Order (TRO) when a divorce is filed, affecting property use, debt payment, child custody, and support until the divorce is finalized. In cases of domestic violence, safety measures should be considered when serving forms to the other party.

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Protective Order for Family Violence

If there has been family violence in the relationship, a protective order can be requested. The order aims to protect the petitioner and their children by prohibiting harassment and contact from the other spouse.

Mandatory Waiting Period for Divorce in Texas

Texas requires a mandatory 60-day waiting period between filing the Petition for Divorce and signing the Final Decree of Divorce. In exceptional circumstances, such as domestic violence, this waiting period may be waived at the court’s discretion.

Finalizing Agreements

During the waiting period, both parties should finalize their agreements. Since January 1st, 2021, in an uncontested divorce or once an answer is filed, both spouses must complete the “Required Initial Disclosures in Dissolution of Marriage” form and exchange copies.

Prenuptial or Postnuptial Agreements

If you have a prenuptial or postnuptial agreement, it should be disclosed as a settlement agreement in the Required Initial Disclosures. The court may review it during status or prove-up hearings to ensure it aligns with the Final Decree.

Spousal Maintenance in Texas

In an uncontested divorce, court-ordered spousal maintenance is not available. However, spouses can agree to “contractual alimony,” which is not calculated or ordered by the court.

FAQ about Texas Prove-Up Hearings

In agreed divorces with children, a short, informal prove-up hearing may be required. Both parties attend the hearing to present a Final Decree of Divorce. The court will evaluate the case and make recommendations on child custody, visitation, and support.

Conclusion

Filing for an agreed divorce with minor children in Texas may seem complex, but understanding the process can ease the stress. By following the outlined steps and seeking legal advice when needed, couples can navigate the divorce process more smoothly. Remember, every divorce is unique, so it’s crucial to tailor the agreements and arrangements to your family’s specific needs.

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FAQs

  1. Can I get a prove-up hearing if we have kids? In certain situations involving minor children, the court may not grant a prove-up hearing. Instead, an initial status hearing may be scheduled to discuss the information provided in the Original Petition or Original Answer.
  2. When does the prove-up happen? The prove-up hearing can take place after the 60-day waiting period has passed. Contact the court coordinator’s office where your divorce was filed to determine the hearing date.
  3. Who must attend the prove-up hearing? Both parties must attend the prove-up hearing in person, with some exceptions granted at the court’s discretion. Alternative arrangements, such as appearing by telephone or video, may be possible.
  4. What do I say during a prove-up hearing? During the prove-up hearing, you will need to answer simple questions related to your divorce. A sample script can be referred to for guidance.
  5. What documents do I need to bring to the prove-up hearing? You must bring the Final Decree of Divorce, Information on Suit Affecting the Family Relationship form, Possession Order, Income Withholding for Support, and the Vital Statistics Form. These documents are essential for finalizing the divorce in court.

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