Steps to Take before Filing for a San Antonio Divorce

When divorce seems imminent, spouses may find themselves uncertain of how to proceed and what to expect from a Texas divorce. While each state sets forth the laws that may impact how a legal divorce dissolves the marriage, the Lone Star State has established specific legal procedures and steps that must be followed to begin and ultimately finalize a divorce.

Texas laws regarding divorce are complex. To ensure you proactively protect your legal rights and interests, you must reach out to a qualified attorney with the knowledge and experience to explain your legal options and help file for a divorce in San Antonio, Texas.

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Texas Is A No-Fault Divorce State.

While a court of law in Texas may consider misconduct in the marriage as an aspect of divorce, there is no legal requirement that one spouse proves ‘fault’ to succeed in obtaining a Texas divorce or the legal termination of a marriage.

In San Antonio and other Texas locations, one can file for divorce if one meets these basic mandates –

  • If one or both spouses are continuous residents of Texas for six months, AND –
  • Either has lived in the county where the divorce will be filed for at least 90 days before the appropriate paperwork is filed.

The spouse filing the petition for divorce is known as the petitioner, while their spouse is referred to as the respondent.

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Considerations before Filing for Divorce in San Antonio.

Grounds for Divorce in Texas

Before filing a petition of divorce in the relevant district court, the petitioner must decide which grounds (a.k.a. the justification) for divorce will be the basis of the claim requesting the dissolution of a legal Texas marriage.

Texas law requires that the petitioner prove at least one of the following grounds for divorce to be granted by a district court. [See Texas Family Code Title 1C Chapter 6A]

  • No-Fault Divorce or In-supportability – which includes conflicting personalities, discord, or simply the inability of the spouses to get along.
  • Fault-Based Reasons for Divorce –
    • Cruelty
    • Adultery
    • Abandonment – intentional abandonment requires the couple to remain separate for one year
    • Separation or Living Apart – a minimum of three years is required
    • Felony Criminal Conviction
    • Confinement to a Mental Health Facility/Hospital

Texas Is Not A 50/50 Community Property State.

While you do not need grounds for divorce in Texas, divorces in which one spouse alleges fault may ultimately impact the just and fair division of the marital or community property and assets. Therefore, one’s decision as the grounds for divorce should be carefully considered because a no-fault divorce in Texas may significantly impact asset divisions and even spousal support.

In a divorce in the Lone Star State, only the couple’s community property is subject to division. Note that community property, according to Texas law, is defined as all property acquired (or earned) during the time of the marriage. Conversely, separate property includes assets acquired as inheritance or a gift – or property that one spouse owned before the marriage began.

If you are unsure about how these grounds for divorce may impact your situation, reaching out for help to file the paperwork for a divorce is a wise decision.

How Will the Couple’s Living Situation be Handled upon the Paperwork Filing?

If the spouses are not in agreement, a temporary order hearing will likely be held to clarify these important considerations –

  • Where will each spouse live?
  • Who is responsible for each of the obligations?
  • Custody/possession of children.
  • Temporary spousal and/or child support.
  • Who will care for family pets, to name a few?

The petitioner and the respondent must abide by these temporary orders until the divorce is finalized.

Filing a Petition for Divorce & The Next Steps

Filing the Original Petition for Divorce

Divorce issues are filed through the Texas district clerk’s office in Bexar County for San Antonio and surrounding area residents.

Once you have decided which of the seven legal grounds for divorce in Texas applies to your situation, a petition (known as the Original Petition for Divorce) must be drafted requesting the legal dissolution of the marriage. The filed petition (and appropriate filing fee) is the paperwork that starts the legal process that will, over time, lead to divorce.

Providing Notice to Spouse

Once you have filed the initial divorce paperwork, you (as a petitioner) must provide legal notice to your spouse. The legal notice is specific and may be accomplished by –

  1. The spouse, as the respondent, agrees to waive the legal requirement to be formally served divorce paperwork. A waiver, in this case, is only valid if signed after the petitioner has filed the original paperwork with the district court.
  2. The other option would be to perform personal service using a court-authorized individual who can serve divorce papers. This may be the county constable, a Sheriff, a process server, etc.
  3. If you are unable to locate the spouse and have a court order, a legal notice can be posted in a local newspaper (or equivalent).

The Spouse’s Answer & Counter-petition

The next move is theirs when your spouse (now the respondent) has been given notice of the divorce filing. The respondent in the divorce proceeding has 20 days to file an answer – starting from the day of service. However, they may also file a counter-petition – which defines their grounds for divorce and their requests from the court. The respondent is responsible for ensuring the counter-petition is sent to the original petitioner or opposing party.

The Waiting Period in Texas

Texas, unlike other states, requires a waiting period before a divorce is granted. A Texas court cannot grant a divorce until the divorce is pending for at least 60 days. However, a court may grant an exception to this required waiting period if there is family or domestic violence involved.

The Texas-mandated waiting period serves a variety of purposes. It offers a cool-down time, often encouraging spouses to reach an agreement where there once was none. So, while the shortest theoretical amount of time for a Texas divorce would be on the 61st day, the reality is that it can take six months to one year to receive your final divorce decree.

Uncontested Divorces in San Antonio

An uncontested divorce is possible if spouses can reach an agreement regarding child custody, support, and marital assets during the state-mandated waiting period. Most individuals can avoid lengthy court time if you can proceed with an uncontested divorce. An uncontested Texas divorce will reduce costs and the time it takes to complete the divorce process. In Texas, you may qualify for an online process.

Contested Divorces in San Antonio

If spouses are unable to come to an agreement during this waiting period, the divorce will be considered a contested divorce. The court will encourage both spouses to explore alternate dispute resolution techniques, like mediation. In a mediated session for divorce, a neutral third party (known as the mediator) facilitates a process that encourages you and your spouse to reach a deal.

What is Mediation?

Mediation is a confidential dispute resolution process that can be used during a divorce. It can offer a faster divorce path. If an agreement for the divorce settlement is reached, it is usually considered binding.

It is likely that you will benefit greatly from an attorney’s guidance during this process, although it is possible (although not advised) to represent yourself.

Attend a Final Hearing to Receive Your Divorce Decree 

If the mediation generates an agreement, the final divorce hearing may only be a few questions from a judge prior to their signing of the written final divorce decree.

Suppose a settlement cannot be reached and mediation is unsuccessful. In that case, the outstanding divorce issues will be presented at a final hearing to a judge (at a bench trial) or a jury trial. The final hearing will be set for some time after the sixty-day waiting period has elapsed.

The court will make determinations regarding issues that include -–

  • Child support and child custody – and related visitation issues.
  • Alimony, if applicable
  • Division of marital assets, among others.

Either way, the final hearing will be when the final decree of divorce is granted. Once both parties sign the divorce decree (and it is filed with the appropriate clerk’s office), your legal marriage in Texas is dissolved.

Note, however, that at least one spouse must be present in the courtroom for the final hearing.

Start Your Divorce with Guidance From Our San Antonio Divorce Attorneys

The decision to file for Texas divorce is an important, difficult, and highly personal choice. In fact, it may be one of the most emotionally challenging decisions one makes in life. If you are facing a failing marriage in San Antonio – contested or otherwise, it is important to understand how to protect your rights within the confines of Texas law. Reach out to our experienced divorce lawyers today.

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