Thursday, June 07, 2007

do it yourself divorce in Texas Part 2

Many months ago we discussed where to file your divorce and how to contact the clerks for help with your “pro se” divorce. In this episode we will discuss the starting paperwork.

If you are still unclear where to file, please review my earlier posts or log onto my website, go to the “Resource Links” page and click on the Texas Family Code link at the bottom of “Organizations”. From there you want to go to Title 1, Chapter 6 - Suit for Dissolution of Marriage. The specific code sections are Sections 6.301 through 6.308. These should help.

Again, I am not your lawyer. I don't represent you unless you retain me and sign an attorney employment contract. The forms below are just for purposes of illustration and are not intended to apply in every case, or your case for that matter. If you use these, and they are wrong for your jurisdiction, or incomplete, do not blame me...I have warned you not to use them. To get up to date forms, go to your local law library or hire an attorney!

To begin a divorce you will need an Original Petition for Divorce. This document “petitions” the court for the relief you are seeking, or in English, tells the court what you want them to do.

The requirements for what is to be included in the petition are found following the instructions above for my website Sections 6.401 and 6.402.

Section 6.401 discusses the “Caption” for your pleading. The caption is the top part of the document as seen on the left.

Section 6.402 discusses the requirements for the language in the “pleadings” or in English, the “paperwork”. The statute is telling you that you need to list the grounds for divorce, which has been discussed earlier in my blog. Typically that will be “insupportability” which is the no fault divorce in Texas. The statue also tells you to not put factual allegations in your document, just the general requests for the court. To the left is a sample petition for divorce. Notice that there are no facts in there like "my wife beat me on the head with a frying pan", or "I want the

toaster oven from our wedding, and the lifetime supply of funnel cakes we won at the fair". No facts, just simple requests.

Remember, this is a simple divorce scenario with no property or children. Part 1 is the discovery level. It has to be included, but what it is is not really important at this point. If discovery is involved in your case, you need an attorney. Typically if your estate is less than $50,000 and there are no children, then it is Level 1. If there are children or the estate is worth more than $50,000 it is Level 2.

Part 2 is self explanatory. Part 3 is where you tell the court that you are in the right court because you met the residency requirement discussed above and in my prior post. Part 4 regards service. Any person sued for divorce in Texas is entitled to know that they are being sued for divorce. You can show the court that your soon to be ex knows about the divorce either by 1. having the constable serve them with papers or 2. having them sign a Waiver of Service. We will discuss this issue in later posts. Part 5 should be self explanatory and simply tells the court there has been no protective order filed. If one has, you need to make the court aware of it, and you made need a lawyer.

Part 6 is easy, date of your demise (i mean divorce) and the greatest day of your life (separation). Kidding. Not always fun and games...but sometimes it is! Part 7 is the grounds for divorce which has been discussed in earlier posts. Insupportability is the no fault divorce. You can list other grounds if you like, but you probably need an attorney if you are concerned about grounds for divorce. Part 8, children, none according to our scenario. If you have em, your form will look different as they will be listed in the "caption" and there are other sections to include regarding conservatorship, visitation and child support. If you have child related issues, you may need a lawyer.

Part 9 deals with property. This example says that there is property, but the parties are trying to reach agreements as to its division. Another example of language here would be "no community property was accumulated by the parties" or something to that effect. Part 10 is where you pray (and beg) for the court to give you a divorce. Just legal mumbo jumbo.

At the bottom you would sign it in the appropriate place and you are ready to file your documents. In my next post we will discuss how to file your petition for divorce.

These documents can be found at any law library in "form" books. Track down a legal library in your area and ask them for a form book for divorces. These are NOT the ones that you find at Borders, etc..., these are forms approved by the State of Texas and should provide you with the most reliable forms.

UPDATE: I now offer online forms that are created and reviewed by an attorney (me). Once created, the documents are forwarded to you with instructions on how to proceed in representing yourself in your own divorce. Visit my website at for further information.

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!


Anonymous said...

Dear sir,

I came across your blog while searching for temp spousal maintenace in TX. I filed last week against my wife. She has shown no willingness to contribute financially since 2003 always starting and quitting work and or school. Married 20 years, two kids 12 (soon to be 13) and 7. my son signed the document indicating he wished to stay with me.

She knew we were always pushing the envelope as far as meeting monthly needs. After big arguements at the end of last year, she finally agreed to get a job - May 1. At that same time my 110 k base was cut to 80 k. Instead of getting a full time job which were open, she took a part time job.

We have no savings except kids 529 fund, out of work last year for 2 months and we had to take the money out of 401 k. Even then she refused to work.

She refused to contribute to any expenses in May - i asked her to pay for the car she drives and cell phone and sitter. I had to withdraw the 529 money in order to get ahead. She took the 4500 dollars and is refusing to pay the expenses as I had planned. The week before that she hocked my wedding band - stole it and hocked it.

with this limited knowledge what are her chances of temp and perm spousal support? She left the day i told her i was filing and is living at her dad's with my our daughter. Son - 12 wants to be with me.

Think i will stay in house, i also work from home. I am ok with child support but could they kick me out and force me to pay house note and child support.

Thanks for any advice.

Anonymous said...

Chris mine is a question not related to the above postings.

What if the spouse has moved out of state to CA and has been there for more than 6 months. Should I file for divorce in CA (LA to be exact)? I want to file for divorce but not sure if to do it here in TX or in CA where spouse moved to. Please advise on this. Thanks!

Chris Schmiedeke said...

Anonymous number one, you need to get a lawyer. The answers to your questions are too expansive and could have different answers dependent on what jurisdiction you are in.

Sorry, but you really should meet with a lawyer to get these answered.

Chris Schmiedeke said...

You may be able to file there, but I am not certain of California laws for residency restrictions, and you could file here since you live here.

Texas can exercise jurisdiction over her (meaning she would have to come here and defend herself) if this was your last marital residence (Texas) and you file withing 2 years of separation.

What you did not tell me was if you have property or children.

If there are children with her, then Texas can do nothing for you because California will have juridiction over the children most likely.

If you have property in Texas, a Texas court can divide that if you file here. California on the other hand will probably not have jurisdiction (the right) to divide Texas property on a case filed in California. Likewise, Texas cannot divide property in California.

Good luck.

Lauren said...

Hi Chris-
I found your blog when searching for documents needed to petition in TX. We have an atty who is unfortunately on vacation, and we're ready to file now. Is this the only thing we'd need to bring to the County Clerk? Thanks.

Mike_M said...

Thank you for this helpful information. I do have one question for you. We've been married for 3 years and recently moved, purchased a new home. The mortgage is in my name only. I understand that TX is community property, but if we are not able to sell the house [and if she cannot get refinanced by herself] will the court order me to move or her? I'm fine with moving, but then she won't be able to make the payments alone and my name's on the note. Any comments, ideas? Thanks in advance!

joeocho88 said...

I am studying Family Law and we have a question. Since there is so much written to help"the little lady" who files for divorce, what three things should the Respondent file when there is a Divorce Action Pending with children-- and he has been served with the Citation, a Copy of the original Divorce Petition and probably a Copy of the Temporary Restraining Order and the Protective Order as well ( Which I would want to file to show that there were irreconcilable differences in the marriage and to make the Respondent look bad.)

What am I missing?

I know that I should file some paperwork concerning something about the children but none of us in my group are sure what that would be?

So I saw your blog and thought I would ask you. Family law is a highly charged, emotional legal specialty and somebody has to do it. It seems very complex.

Chris Schmiedeke said...

Joeocho88 - If i understand your question correctly, the husband has been served with a petition for divorce, temporary restraining order and a protective order.

First of all, I am not sure if you are aware, but a protective order (PO) is much different than a temporary restraining order (TRO). A TRO is used often and simply restrains an action of the respondents...such as dont empty the ban account, or dont turn off the electricity. A PO however, involves family violence or something to that effect. A PO will include language restricting the respondent from going within a certain distance of work or school, etc... A TRO does not do this.

In your hypothetical, you wouldnt be able to file the PO without and affidavit supporting it, sworn under oath. Therefore I assume that there was some violence. Not really importnat to your question, but i thought i'd make the distinction.

The first and most important document to file is an Original Answer to the lawsuit within the time frame set out in the citation. Once that is filed, every allegation in the Wife's petition, TRO, and PO are put into questions and she must prove them.

If this is not enough, then the Respondent could file a counter petition for divorce and allege whatever he feels is applicable in his case.

If the PO was granted ex parte, which means without a hearing, the father may want to file a motion to dissolve the protective order and attach his own affidavits. This is not really necessary because an ex parte PO is only valid for a short period of time and will have been set for hearing by the court in the near future after sigining it.

Hope that answers your question.

Anonymous said...

Chris..., my husband and I have two kids but are willing to agree on all terms of the divorce. Do we need a lawyer? If not, where can I find out what paperwork we need to file (we're in TX)? Thanks for the help!

Chris Schmiedeke said...

Anonymous, funny you should mention that. The answer is no, you do not need a lawyer to finalize your divorce.

I have been mulling over adding functionality to my website by where people could purchase their own documents and file their own divorce. It is intended to assist people just like yourself who agree on everything and do not want to spend tons of money on lawyers.

Unfortunately, i have not made the final decision, nor has anything been published to my website.

There are other "form" sights out there, but they do not offer attorney review of the forms and the forms are usually inaccurate.

If you are interested in this type of service, log onto my website and shoot me an email. We can discuss it further there.

Anonymous said...

Hi Chris,
I found your blog to be very helpful to me while I file "pro se". I'm in Collin County and filed the petition in the court 30 days ago. I filed a non-contested divorce because we have no children and do not own a home. We have been separated for 6 months. I give him the petition with the waiver of citation and he refused to sign. Recently, I had him served by a constable. Here's my dilemma. Since our separation he has been staying with different friends and is never in one given place at a long period of time. The constable called me and said he could not locate him at the address I last had for him. Do I go ahead and do the public posting?

Chris Schmiedeke said...

Anonymous, you can do what is called a "posting" since there are no children or property. Rather than post it in the paper, they just post it on the courthouse wall. This is the cheaper route to go, but it takes some time as it has to be on file or posted for a good bit of time to allow him the chance to see it...which he never will.

A better idea may be to get the paperwork from the constable (the petition and "citation")...track down a private process service company, and then coordinate a "sting". If you know where he will be at any give time, you just call your process server and have them meet you at that place or give them a description of him and they will be there.

That would take care of your problem.

If you do not mind me asking, where did you get your paperwork to file yourself? Let me

Good luck.

Anonymous said...

Chris: 2 questions
1. I want my 2 529 accounts to be community property, my wife wants them as separate property of the children, who is right?
2. Wife admits to putting child support money for my stepson into concealed account, even claiming that I owe her back ($50K) for withdrawals she made for community expenses. She had almost no (<$1000) income during marriage, so my income supported this child. My lawyer is ignoring my pleas to pursue discovery of this account, but wants to drive on to mediation. Should I dig in my heels or give in? Wouldn't any judge honor a motion to compel and order her to cough it up?

Anonymous said...

We were married 20 years in February and have two children together, and he adopted my oldest at 10 years old. We are in the final stages of a divorce that has been dragged out for four years, partially due to his dragging his feet in getting me information, and mine in dealing with it; we have agreed on property and financial settlements, spousal support, etc. so there is no fighting here, and we have a draft of the final decree.

Here's the question: our youngest son will be 18 in May, before the divorce is finalized. I need to know what wording I can remove from the Texas "Boilerplate" model language in the decree for simplifying this divorce? There are around 15 pages dealing with a minor child that we will not need, so that I can get this to the attorney soon.

Second question: In lieu of Spousal Support, he will be signing a document to pay me the equivalent of $3,000.00 (grossed-up to include the taxes I will have to pay) per month for 36 months. Half of this will be paid up front, within 3 days of signing of the decree, from his half of the 401K and the balance will be in payments over 36 months, secured with the deed to his house.
Where can I get a template for this type of document?

Finally, a suggestion: Please get information out here on Qualifying Domestic Relations Orders (QDRO), where to find them, and that the Plan Administrator will have the Requirements and Model Language in a PDF format, and how to file them. This has been a nightmare and my attorney has not offered me any information. She said she would contact the plan administrators, etc. but that just drives the price up for clients. If we are bright enough to find out that we HAVE a 401K or Pension we are entitled to, I think most of us are capable of contacting the plan administrator ourselves to get the documents. It would be so helpful. Thanks

Anonymous said...

Chris, I just left a question and wanted to add to it...

We purchased Texas Tomorrow College Funds for our youngest children, when they were 3 and 5 years old. They are in their father's name, and with this, their father COULD cash them in if he wanted to. How can this be spelled out in the decree? Or should it be done through the Texas Tomorrow Fund administrator?

Chris Schmiedeke said...

Anonymous, I understand your dilemma and the issues you are going through.

Unfortunately, you have an attorney that can answer all the same questions for you. I know that costs you money, but I am not in the business of stepping on other people toes while they are trying to do their job.

Perhaps ask these questions to your attorney and see if she will give you "free" advise on the issue.

Good luck.