The Texas 60-Day Divorce
by Travis Thompson
A question that I am frequently asked by a potential divorce client is what is the quickest and least expensive way to get divorced in Texas. This is a reasonable question, as the subject of divorce is not something that we typically associate with pleasure and gladness. And, like most other things that we perceive as being unpleasant or unfortunate, it is natural to want to put these events behind us as quickly and as painlessly as possible.
The purpose of this article is to offer a brief summary of the factors and criteria that must be in place in order for a married person to obtain a quick and uncontested divorce under Texas law. This brief article cannot possibly address the myriad of vital issues that frequently arise in many contested or complicated divorce cases. However, this article should be of assistance in allowing the reader who is contemplating filing for divorce in Texas to assess whether or not his/her particular divorce is one that might be capable of being completed rather quickly, or whether a quick divorce is a not a realistic option under the reader’s existing circumstances.
By quick divorce, I refer to a divorce that, from start to finish, requires no more than 60 days to accomplish. A period of 60 consecutive days is the shortest amount of time that a divorce can be accomplished under Texas law if certain criteria are fulfilled. There are a couple of very limited exceptions to this concept of the mandatory 60-day waiting period. But more on this in a moment. First, we must begin with the actual filing of the divorce. This requires a petition.
The petition is the legal document (also known as a pleading) that formally begins the divorce process in Texas. The petition is prepared by the spouse who is filing divorce or by that spouse’s attorney. The filing spouse or the attorney must sign the petition. The Texas Family Code prescribes certain information that must be included in all divorce petitions.
The divorce petition is filed in the clerk’s office for the family court system associated with the county where the spouses reside. If the spouses reside in separate counties, then the divorce petition can be filed in the county where either spouse resides.
The filing of the divorce petition formally commences the divorce process. The Texas Family Code prescribes that the divorce may not be granted before the 60th day after the date the divorce was filed. A court may, in its discretion, waive the 60-day required waiting period in certain cases where the other spouse has been convicted of a crime of family violence committed against the filing spouse or member of the household. However, what is customary among most courts in the considerable majority of divorce cases is to require the completion of the 60-day waiting period before the court will consider granting the divorce.
At this point, it is important to keep in mind that just because all (or most) Texas divorces have a 60-day mandatory minimum waiting period, that does not mean that the divorce is automatically granted or finalized by day 61. Not every divorce case is ready or eligible to be finalized immediately upon expiration of the 60-day waiting period.
Assuming that Texas has jurisdiction over the parties and that the divorce was filed in the correct Texas county, there are two additional important criteria that must be fulfilled before the divorce case is minimally eligible for finalization. These two criteria are: (1) legal notice to the other spouse and (2) written agreement (or absence of disagreement) between the spouses as to the proposed settlement terms or final orders subject of the divorce case.
First, regarding legal notice, this is not the same thing as actual notice. In other words, informally notifying your spouse that you have “filed for divorce” may furnish your spouse with actual notice of the divorce, but that actual or informal notice is not the same thing as legal notice.
Legal notice to your spouse is what is required, and it is commonly accomplished in one of two ways. One way is for your spouse to sign a written document known as a Waiver of Citation. Certain information must be included in the waiver, as specified under the Texas Family Code, and the waiver must be signed by your spouse in the presence of a notary public. Also, the waiver must be signed on a calendar date after the divorce petition has already been filed. Waivers that are not notarized are invalid, as are waivers that are signed on a date that precedes the actual filing date of the divorce petition. The function served by the waiver is to furnish the court with satisfactory proof that your spouse has proper legal notice of the divorce proceedings.
If you and your spouse are on reasonably good terms, and if both of you are in agreement with getting a divorce and with the settlement terms for the divorce, then the chances may be good that your spouse will agree to sign a waiver.
Of course, not every spouse will agree to sign a waiver. If your spouse does not sign a waiver or has not otherwise engaged the services of his/her own attorney to respond to the divorce on his or her behalf, then you will need to proceed with the other method of furnishing legal notice to your spouse. This other method is known as service of citation.
Service of citation involves having a sheriff or constable or court-authorized neutral third party (usually a process server) go out to where your spouse resides or works or can otherwise be found and hand-deliver a copy of the divorce petition with the attached citation to your spouse. The citation is a legal document that furnishes your spouse with prescribed due process notifications that the spouse is being sued for divorce, and that the spouse is admonished to respond to the divorce within a certain manner and time frame, otherwise the divorce may be finalized without further notice to that spouse. In certain cases, the court may approve alternative methods of service of citation if the court is satisfied that the spouse’s whereabouts are unknown or if the court is satisfied that the spouse is avoiding personal service of citation.
Either way, once your spouse has received proper legal notice of this divorce, that is to say, once your spouse has either properly signed a Waiver of Citation or has been served with the citation, then the next step is to determine the specific legal and factual issues that are required to settle the divorce. In order for the divorce to be eligible for finalization upon expiration of the 60-day waiting period, it will be necessary for there to be a written and signed agreement between the spouses as to the settlement terms or there must be an absence of disagreement between the spouses as to the divorce and its terms.
Texas law as applied to the circumstances of your own marriage will determine the legal requirements that must be included in any written settlement or final decree rendered by the Court in the divorce case. For instance, if there are children of the marriage and if there are no prior Court orders addressing custody and support issues, then the final decree will need to include provisions for allocation of the parental rights and duties between the two parents, as well as provisions for custody and possession of the children, and provisions for child support.
Similarly, the final decree will also need to include provisions regarding the arrangement for dividing the marital property between the two spouses. Also, in certain marriages of considerable duration (10 years or more), a spouse might be entitled to some post-divorce spousal support if certain additional criteria are fulfilled.
Texas law prescribes numerous criteria and guidelines for determining the correct and appropriate orders regarding issues of child custody, property division, and child and spousal support. These important issues are beyond the scope of this article. In many or most instances, the determination of the appropriate settlement terms on these important issues will require legal guidance from an experienced divorce attorney. In most cases, it is recommended that an attorney prepare or supervise the preparation of the final decree and other related documents.
But the important point for determining whether or not the divorce can be a quick divorce is to determine whether or not you and your spouse can come to an agreement, or have an absence of disagreement, as to these ultimate terms.
If your spouse has received legal notice by voluntarily signing a Waiver of Citation, then this is usually a reliable indicator that the two of you may be able to reach an agreement on these important settlement terms, which can then be included in the written final decree that you and your spouse can sign.
Or, if your spouse has received legal notice by being served with citation, and if your spouse has not subsequently hired an attorney or otherwise filed a written pleading with the court challenging some aspect of this divorce, then that may be a reliable indicator that your spouse is not interested in challenging or contesting the divorce. In other words, if your spouse receives legal notice of this divorce by being served with the citation, but your spouse does not subsequently respond to this divorce within the time prescribed, then that may indicate that there is an absence of disagreement between you and your spouse as to the terms of the divorce. If your spouse has been furnished with proper legal notice of the divorce and has not expressed any proper challenge to the divorce proceedings, then you may be eligible to finalize the divorce without further notice to your spouse. This is what is known as finalizing the divorce on a default basis.
In summary, if the above criteria have been accomplished within 60 days of the filing of the petition, namely, your spouse has either 1) received proper legal notice and has joined you in approving the written settlement terms and signing the final decree or2) has received proper legal notice but has declined to respond to the divorce within the 60-day period, then your case should be eligible for immediate finalization.
The finalization of an agreed or uncontested 60-day quick divorce will require that you make a personal court appearance. The court appearance in connection with an uncontested divorce is usually a very brief proceeding, and the court to which your case is assigned will typically have regularly scheduled days and times when the court is available to hear its uncontested cases. Your spouse is not required to appear with you in court on the date of finalization of an uncontested divorce, and the testimony and formal finalization requirements in front of the judge are usually quite brief. Your attorney will typically appear with you for the court appearance and will guide you through the process.
To conclude, it has been the purpose of this article to summarize the basic criteria for obtaining an uncontested, quick divorce under Texas law. Such divorce can be done and finalized in Texas as quickly as 60 days from date the divorce petition has been filed if all legal criteria for the divorce have been satisfied within that 60-day period. Needless to say, not every divorce case can or even should be finalized as a quick divorce. Some cases may have issues of considerable complexity that cannot possibly be resolved within 60 days. Other cases may present issues that do not lend themselves to immediate settlement or resolution between the parties. Such cases can and frequently do take considerably longer than 60 days to finish. Finally, there are some cases where it may not be a good idea to be in a hurry to finish a divorce, particularly if there is a possibility of reconciliation.
Whether your marriage has been a marriage of many years’ duration or of very brief duration, the decision to end the marriage is a decision not to be made lightly. It will involve considerable contemplation and personal decision on your part. It will most surely necessitate effective legal guidance and representation as well.