Texas Divorce Laws

Uncontested Divorce in Texas: How to Do It

By:
Sophia Merton
Updated
June 12, 2022

Have you been trying to research your options when it comes to ending your marriage? If so, you’re likely interested in whether or not you can get an uncontested divorce in Texas. After all, going this route is often the simplest, least stressful, and least time-consuming way to get divorced.

There are two different types of divorce that fall under the umbrella term “uncontested,” which are an agreed divorce and a default divorce.

If you and your spouse agree on all divorce-related issues, including the division of property, spousal support, child support, and child custody, you might be able to file for an agreed or uncontested divorce in Texas.

Let’s take a look at everything you need to know to help you determine whether or not this option is available given your particular circumstance.

What Is an Uncontested Divorce?

couple at kitchen table talking about uncontested divorce in texas

An uncontested divorce can refer to an agreed divorce or a default divorce in Texas.

The term “uncontested divorce” can refer issue either an agreed divorce or a default divorce. In most instances, you will find that the term is used synonymously with the term agreed divorce. However, it is important to understand that an uncontested divorce can refer to either of these types of divorce to ensure that you are not receiving the incorrect information regarding your particular situation.

In relation to an uncontested divorce being understood as an agreed divorce, both parties agree on all of the terms of the divorce. In these cases, both spouses are willing to sign an agreement stating that they are willing to skip the trial process that typically occurs before a judge. If you are able to file for an agreed divorce in this manner, it can mean that your divorce can be more affordable and faster than going the traditional route.

Are you wondering how much it costs to get divorced in Texas? Take a look at this article to learn everything you need to know about the price of divorce in Texas.

In relation to the term meaning the divorce is granted by default, this means that the Respondent never filed an answer and the divorce was, therefore, granted to the Petitioner without the involvement of the Respondent.

It might seem like using the same term for these different outcomes in a divorce would create confusion. In reality, though, both agreed divorces and default divorces are technically uncontested. In the case of agreed divorces, you both agree on the terms and therefore don’t contest the divorce. In the case of default divorces, the Respondent does not respond and therefore doesn’t contest the divorce.

What Criteria Do You Need to Meet to Get an Uncontested Divorce?

If you want to get an uncontested divorce because you and your spouse agree on all of the terms, there are some criteria you will need to meet. These include:

  • Both of you agree to dissolve the marriage
  • Both of you agree on the reason (grounds) for the divorce
  • There aren’t any court orders for support or custody that are already in place
  • Both of you agree on all divorce-related issues, including child support and custody

If there has been a final order issued by the court in regards to child custody and support, you can request an agreed divorce if you meet the following criteria:

  • Neither spouse desires to change the order
  • The final court order is not a protective order or a temporary order
  • The final court order includes all of the children that you and your spouse have had together

You cannot get an uncontested divorce if you are filing for divorce on fault-based grounds. Instead, you will need to file using one of the two no-fault reasons for divorce under Texas law. These are insupportability or living apart.

You will need to file for a traditional divorce if you don’t meet the above criteria.

What Is the Difference Between an Uncontested Divorce and an Agreed Divorce?

two people talking in kitchen getting an uncontested divorce

An agreed divorce is a type of uncontested divorce, where both parties agree to all of the terms of the divorce.

The terms “uncontested divorce” and “agreed divorce” are often used synonymously in Texas. In many instances, you will find that these phrases are used completely interchangeably. When this occurs, both phrases refer to the fact that the divorce occurred with both spouses agreeing on all of the divorce-related issues and are willing to sign an agreement in order to skip the trial process that occurs before a judge.

In the case of contested divorces, it's important to understand that people can be driven to extremes in stressful situations. If your spouse doesn't want to get divorced, for example, you may see a side of them you've never seen before when it comes to their attempts to sabotage the process at every turn. It's a good idea to be aware of some of the most common sneaky divorce tactics to help you know what to watch out for.

What Is the Difference Between an Uncontested Divorce and a Default Divorce?

woman looking out window who can't find spouse in default divorce in texas

If your spouse never responds to being served with papers and cannot be located, you can still get a divorce in the form of a default divorce. This is also a type of uncontested divorce.

You will sometimes find the term “uncontested divorce” used in relation to a default divorce. A default divorce is when the Respondent fails to respond to the divorce petition. In these cases, the divorce can move forward without the input of the spouse that failed to respond.

What Is the Difference Between an Uncontested Divorce and a Contested Divorce?

In an agreed or uncontested divorce, both parties are able to come to an agreement on all of the terms of the divorce and can therefore go through a much simpler divorce process. A contested divorce, on the other hand, is when the spouses aren’t able to agree on one or more of the significant issues involved in a divorce.

For example, if spouses can't decide on how they are going to divide their property or whether one spouse should receive alimony from the other, they can’t proceed with the simpler uncontested divorce process. Instead, they will have to go through a traditional divorce where a judge will hold a trial and decide on the contested issues for the spouses.

However, contested divorces don’t necessarily have to go to court, either. If spouses are able to come to an agreement through mediation or other methods before it’s time to go to trial, they can avoid the outcome where a judge is making decisions for them.

How to Get an Uncontested Divorce in Texas

man signing divorce papers in uncontested divorce in texas

Getting an uncontested divorce still requires paperwork, but it's a lot simpler than a contested divorce.

No matter what type of divorce you are planning on filing for, in order to get a divorce in Texas you will need to meet the residency requirements of the state. This means that at least one spouse has to have lived in Texas for at least six months before filing the divorce petition. On top of that, you or your spouse will need to have lived in the county where you’re filing for divorce for at least ninety days before filing.

The court where you will file for divorce will be the district court in the county that you live in. If you and your spouse are living in separate counties at the time of filing, the divorce can be filed in either one of the Texas counties.

Prepare the Divorce Forms

The first official step of the divorce process is filling out an “Original Petition for Divorce.” You will then need to file this with the county clerk as well as a number of other required forms.

Which forms are required in order for you to start the divorce process will vary depending on which county you’re filing in. If you’re unsure of which forms you’re going to need, it’s a good idea to ask your local court clerk.

There will be a filing fee that you have to pay at the same time that you submit your paperwork. The fees can also vary between counties as each county sets its own fee schedule. To find out how much you will need to pay to file for divorce, you’ll want to contact your local court clerk.

If you’re struggling financially and you’re worried you won’t be able to cover the filing fees, you might not be out of luck. You can choose to submit a fee waiver to the court asking them to waive all of the fees you would normally need to pay.

Serve Your Spouse

The next step after filing your divorce petition with the court is serving the papers to your spouse. It’s important to note that this doesn’t mean just walking up to them yourself and handing them over– there are specific rules about who can serve others in a lawsuit as well as how.

However, you can avoid this step in the process if you and your spouse are truly getting an amicable divorce. Instead of being served through a private process server or another authorized individual, your spouse can sign and file a Waiver of Service form.

The spouse who receives the divorce paperwork (known as the Respondent) will need to file an “answer” to the petition by a specific deadline. If they don’t file this response to the petition, the divorce can proceed without their participation in the form of a default divorce.

Complete the Divorce

Once you have filed for a divorce in Texas, there is a sixty-day waiting period required by state law. This means that a judge cannot finalize your divorce until sixty days have passed even in the case of uncontested divorces.

Once your waiting period is over, however, you can have your final hearing set with a judge in order to finalize your divorce. If you have filed all of the documents and paperwork required by the court and your settlement agreement has been approved by the court, the next step is having a judge sign the Final Decree of Divorce.

Your divorce is not final until the final divorce decree is signed by the judge. It’s also worth noting that neither spouse can marry someone else until at least thirty-one days have passed since the final, signed documents have been received back from the court.

Do I Need a Lawyer to Get an Uncontested Divorce in Texas?

In order to get an agreed or uncontested divorce in Texas, you don’t have to hire a lawyer. In fact, you aren’t required to get a lawyer regardless of the type of divorce you’re pursuing. That being said, it’s generally only recommended to represent yourself in a divorce case if it is a simple agreed divorce.

It is often recommended that you only try to do a truly DIY divorce if you don't have children and if your finances aren't particularly complicated. Those considerations in addition to the divorce being agreed are often listed as the qualifications that make you a good candidate for a DIY divorce.

It's worth noting that you also might be able to hire a lawyer in an a la carte fashion-- meaning you are only hiring them for specific services. If you feel fairly comfortable going through the process on your own but you would like to be able to speak with a lawyer occasionally in order to ask questions and have them double-check your documents, this could be a good middle ground.

When you avoid hiring a lawyer, you can save a lot of money during the divorce process. However, sometimes the advice and guidance of an attorney is well worth the cost.

You and your spouse also might choose to work with a mediator in order to come to an agreement on all of the divorce terms in order to be able to file for an agreed divorce.

This article takes a deep dive into how a mediated divorce works in Texas.

How Long Does It Take to Get an Uncontested Divorce in Texas?

In pretty much all cases, you will need to wait at least sixty days before your divorce can be finalized. There are only two exceptions to this waiting period:

  • If family violence during your marriage led to an active protective order or an active magistrate’s order for emergency protection against your spouse
  • If family violence occurred during you or a member of your household that your spouse has received deferred adjudication for or been convicted of

What this means is that getting an uncontested divorce will take at least sixty days. However, you shouldn’t expect that you will be able to finalize your divorce on day sixty-one. Depending on the availability of the court, it could take several months to receive an agreed divorce.

What Are the Primary Issues That Need to Be Agreed Upon In Order to Get an Uncontested Divorce in Texas?

The issues that you and your spouse have to work through in order to pursue an uncontested divorce will depend on your particular circumstances. For some couples, agreeing to the terms of the divorce might be quite simple, while others might have a much more complex task ahead of time.

If you and your spouse don’t have children, the main two issues that you’ll need to agree upon have to do with property division and spousal support. If you do have children, you’ll need to agree upon those first two issues plus the issues of legal custody, physical custody, and child support.

Property Division

When you're getting divorced, you and your spouse will have to try and work out how you will divide your marital property. Texas is a community property state, which means that any property acquired during the marriage is assumed to belong to the two of you jointly. If you end up letting the court decide how your property is divided, it will be split up 50-50 or otherwise in a way that the court deems fair.

Spousal Support

Also referred to as alimony, this is when one spouse makes payments to the other after divorce. You might want to set up this type of agreement if there is a big income gap between you and your spouse. In general, Texas law favors alimony payments that have been decided upon through private contracts rather than court ordered alimony.

Child Custody

It is ideal for you and your partner to be able to agree upon child custody rather than having to bring the issue to court. Otherwise, a judge will end up making this decision for you.

Child Support

You can either agree upon child support in order to get an uncontested divorce or, if the two of you don't agree, pursue a contested divorce. When a noncustodial parent pays child support in Texas, they are required to make payments until the child graduates from high school (if they are enrolled and attend regularly) or once the child turns eighteen.

Are you interested in getting a DIY divorce? If so, check out our complete guide on the topic here.

Why Is There a Waiting Period For Uncontested Divorces?

Considering that you and your spouse agree to all of the divorce terms, you might be wondering why you would have to wait at least sixty days between filing the petition and receiving your final divorce decree.

However, the reason for the waiting period is to make sure that everyone involved has time to feel certain about the decision they are making. Even if there wasn’t a big blow-up fight that led to the decision to get divorced and you have both kept a level head through the whole decision-making process, the state of Texas requires that you go through a “cooling off” period.

The waiting period can feel particularly frustrating when you’re getting an agreed divorce. Even though you and your spouse are able to stay amicable during the process, it’s natural to want to be able to get the divorce over with so you can move on with your life.

That being said, getting divorced is a huge decision and there’s nothing wrong with taking some time to make sure you are both comfortable with that outcome. In some instances, the waiting period can actually give spouses the space and time they need to realize that they are willing to try and make the marriage work after all.

Can I Get an Uncontested Divorce If My Spouse Doesn’t Want to Get Divorced?

You certainly won’t be able to get an agreed divorce if your spouse doesn’t want to get divorced, but, depending on whether or not your spouse responds to the divorce paperwork, you might be able to get a default divorce which is technically an uncontested divorce.

Your spouse can’t stop you from filing from divorce. Only one spouse has to believe that a relationship isn’t salvageable in order for a judge to grant a divorce.

Can I Get an Uncontested Divorce If I’m in a Common Law Marriage?

A common law marriage (also known as an informal marriage) is when two people meet a specific set of requirements, which are:

  • Both parties agree to be married
  • Both parties live together as spouses
  • Both parties behave like husband and wife and represent themselves as husband and wife to others

A common myth is that you are automatically common law married if you live together for a certain number of years. This is not the case.

If you want to end a common law marriage, you could choose to simply both go your separate ways without ever obtaining a divorce. However, this is only possible if no documentation was ever created regarding your common law marriage. Additionally, this can create problems down the road similar to those that can arise when couples separate rather than get divorced in other states.

If the two of you filed a declaration of informal marriage, however, or a court decided that a common law marriage exists, then you will need to get a divorce in order to dissolve the marriage.

In many instances, couples don't bother to prove that a marriage existed until they decide to get divorced. The reason for doing this is so that they can have their property and debts divided in the same way they would be if they had gotten formally married, or, similarly, for reasons of child custody or support.

If you can prove that you and your partner agreed to be married and a marriage existed, you can file for an uncontested divorce in Texas. It’s worth noting, however, that you only have two years to file for a divorce in the case of a common-law marriage after the two of you have separated. If you wait longer than two years to start dissolving the marriage, the law assumes that no marriage existed.

Can I Get an Uncontested Divorce in Texas If I Was Married in Another State?

So long as your marriage is valid in the place where you got married and you meet the residency requirements, you can get an uncontested divorce (or any other type of divorce, for that matter) in the state of Texas.

Can My Spouse and I Legally Separate Instead of Getting Divorced?

In the state of Texas, there is no legal separation. However, there are some other options that can provide similar outcomes to the process of legal separation. These include protective orders, temporary orders, separation agreements, or suits affecting the parent-child relationship.

Can I Get an Uncontested Divorce If I’m Married to Someone of the Same-Sex?

Same-sex marriage is treated exactly the same as marriage between a man and a woman in the state of Texas. If you’re married to someone of the same sex and you want to get divorced, you will follow the same process as any other married couple in the state of Texas.

Are You Filing For an Uncontested Divorce in Texas?

If you are filing for an agreed and therefore uncontested divorce in Texas, you’ll be glad to know that you are getting divorced in the easiest way possible in the Lone Star State. While it will likely still be stressful and perhaps a longer process than you would like, you won’t have to deal with many of the most difficult parts of the process by avoiding mediation, trial, and a judge making decisions about your personal life for you.

When you decide that you’re getting a divorce, it’s natural to have a lot of questions and concerns. That’s why we’ve created an ever-growing library of articles to help the good people of Texas answer all of their questions about divorce, marriage, annulments, and more.

Are you looking for more resources about divorce in Texas? Be sure to check out TexasDivorceLaws.org.

Written By:
Sophia Merton
Sophia received her BA from Vassar College. She is a researcher and writer that aims to help make the complexities of the legal system understandable to the layperson. Believing that people can be empowered by understanding their rights and responsibilities under the law, Sophia aims to offer accurate and well-researched information in straightforward and easy-to-digest legal articles.

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