Contents of this Page

Getting Started / Things to Consider Before Filing
Grounds for Divorce
Jurisdiction and Venue
Steps in an Agreed (Minimum Fee) Divorce
Agreed Divorce Checklist
Will a Constable or Process Server See my Spouse at Work?
Can You Represent Both of Us?
Property Division and Alimony
Dividing Retirement Benefits (QDROs)
Social Security Benefits
Name Change
Where are you and where am I?
Forms and Downloads
Divorce Consultation Form
Request a Consultation

Back to the Texas Divorce FAQ

Getting Started / Things to Consider Before Filing

Grounds for Divorce

Texas is now a "no fault" state, meaning that a person desiring a divorce does not have to prove that his/her spouse is at fault in the marriage. The most common grounds for divorce is that "the marriage has become insupportable because of discord or conflict of personalities between you that has destroyed the legitimate ends of the marriage." However, there are several other possible "fault" grounds for divorce which a person may use, including adultery, cruelty, conviction of a felony, abandonment, living apart, and confinement in mental hospital.

Sometimes a client will want to file for divorce and use a fault, such as adultery. I always try to talk them out of it. Well over 99% of all divorces are settled by agreement, and it's just harder to reach an agreement with someone when you have called them names in public.

Jurisdiction and Venue

Jurisdiction and venue can be very complicated. But it's a whole lot simpler if you're planning on doing a Civilized Divorce^SM. That is, if you and your spouse are going to agree on the terms, then you're also going to agree on jurisdiction and venue, and we don't have to get into all the complications of a contested matter.

For example, if you live in Texas, you can file a lawsuit in Texas. But, can Texas assert its authority over your spouse? We could get into all sorts of questions about whether your spouse has ever lived in Texas, whether y'all lived together in Texas, and on and on. But, your spouse can consent to Texas jurisdiction by signing the papers. In that case, it really doesn't matter whether Texas has jurisdiction over your spouse because your spouse has agreed to Texas jurisdiction. So, as a practical matter, you can file in Texas if either one of you has lived in Texas for the last 6 months and if the other spouse will be signing the papers. Or, if one of you is in the military, or working overseas, Texas can still have jurisdiction if the permanent address is in Texas.

If Texas has jurisdiction, which county must the divorce be filed in? Well, the analysis is much the same. You can file in the county where either one of you has lived for the last 90 days, assuming the other party will agree to the venue. It only gets complicated if it's a contested matter where you're expecting hearings or a trial, and one of you doesn't want to have the trial or hearing in that other county.

Motions for modification of existing court orders (such as to change the amount of child support), or to enforce orders (such as to put someone in jail for not paying child support as ordered) must be filed in the court that originally issued the order to be modified or enforced, unless good reason can be shown to transfer the case to another court (such as, that the child now lives in another county).

Steps in an Agreed (Minimum Fee) Divorce

After consultation with my client, I'll file a Petition for divorce. This is usually only about two pages long, and sets out the basic facts: Fred married Wilma on 7/7/1997, they have one child (Pebbles), Fred and Wilma aren't getting along and are asking the court for a divorce. I file the Petition with only my signature on it. The date the Petition is filed with the court starts a 60-day waiting period.

I'll give my client a copy of my Civilized Divorce Guidebook to help the parties craft their own divorce. As soon as I get it back, I'll draft a Decree of Divorce. This will spell out all the terms of the divorce: who gets what, who the child lives with, when the other parent may see the child, how much child support is paid, and so forth. The shortest decree I've written is 7 pages, and a divorce decree with children involved will often run to 42 pages or so. I'll send the draft to my client, and he or she will ask questions, correct mistakes, and change provisions.

Once my client and I are in agreement on the wording of the decree, we'll send it to the other spouse (or his or her attorney, if there is one), along with a Waiver of Service (see next section). There may be some more changes, but when everybody agrees on the wording of the decree, the other spouse will sign the Waiver of Service before a notary, sign the Decree, and return the documents to me.

Under Texas law, the Petition must have been on file at the courthouse for at least 60 days before the divorce may be granted. So, if I get the signed documents back before 60 days from the date of filing, we must wait until day 61.

If the case has been assigned to a court that doesn't approve of "in-office proveups," on day 61 or so, my client and I will pick a day that's convenient for us and go to the courthouse to "prove up" the divorce. No appointment is necessary: civil proveups are always taken care of before any other business.

But, most courts routinely approve my in-office proveups, and as soon as I get the signed papers from my client, I'll mail papers to the court for approval of the in-office proveups. Once the judge has signed this, we can see which regularly scheduled office proveup date works for you (usually, I do proveups in my office on the 1st Thursday of each month at 4:00 p.m.). Click here to watch a video of a divorce proveup in my office.

Agreed Divorce Checklist

Many of my phone calls from clients are about what happens next. Here's the order:

You hire me by signing an agreement and paying me a fee.
I give you a guidebook to complete.
I file a Petition for divorce, which starts a 60-day waiting period.
You return the guidebook to me, with every blank completed, and initials of both spouses on every page. If this step isn't completed, it's not a simple agreed divorce, meaning that fees are subject to increase and I don't guarantee a divorce in 67 days.
I prepare a proposed Final Decree of Divorce and a Waiver of Service and send them to you.
You review the Decree and let me know if there are any changes. If there are none, you sign the decree and give both documents to your spouse.
Your spouse signs the Decree and the Waiver (the Waiver must be signed before a Notary Public), and returns them to me.
We wait until it has been sixty days since the Petition was filed. On about day 58 or so, you call me; we pick a date; I meet you at the courthouse; and we "prove up" the divorce. See also Where's the Courthouse?

Will a Constable or Process Server See My Spouse at Work?

The Court will not grant the divorce until we prove that your spouse knew that the divorce petition had been filed. Oddly enough, your spouse's signature on the Divorce Decree is not enough. There are three ways this can be accomplished:

We hire a constable or private process server to find your spouse and hand them a copy of the Petition for Divorce. The constable or process server then signs a piece of paper called a "return" in which he or she swears that your spouse was given the proper papers. I then file the return with the court.
Your spouse hires an attorney, and the attorney files an "answer" which shows that they knew about the lawsuit.
I prepare a "Waiver of Service" which your spouse will sign before a notary. In this document, your spouse swears that they have received a copy of the Petition for Divorce. I will file the Waiver of Service with the court. This is what usually happens in a divorce where it looks from the beginning like everything will be agreed. I usually do not present a Waiver of Service to your spouse until we have a decree that we believe the spouse will sign at the same time.

Any one of these three will serve our purposes, but the third is the least expensive and causes the least disruption, and most of my divorces are done with a Waiver of Service.

Can You Represent Both of Us?

No. It is a conflict of interest for me to represent both sides in a divorce. I will not even meet with your spouse, except perhaps toward the end of the divorce, but everyone must be clear that I am negotiating against your spouse, and that I simply cannot give any legal advice whatever to your spouse.

However, in many cases, I will be the only lawyer involved. I'll draw up the papers, your spouse will review them and sign them. Sometimes the spouse will take the final papers to a lawyer for a quick review, and sometimes they'll hire a lawyer and we'll proceed with negotiations from there.

I've had so many people who wanted to have their spouse hear what I have to say that I had to figure out a way to get them the information they needed without violating any ethical standards. Finally, I created a 2-hour, 2-CD recording, "Everything I Always Wanted to Say in a Divorce Consultation But Didn't Have the Time." The only thing missing is applying the law and my advice to your particular situation. Click here for more on this offer.

Property Division and Alimony

Community property is all property acquired during the marriage except that acquired by gift or inheritance. The court cannot generally divide separate property, but it can consider separate property when deciding on a just and right division of community property.

The first rule is that if husband and wife agree on a split, that's OK with the courts, whether it's 50/50, or very lopsided. But, to guide you in a decision, you may want to consider what would happen if you didn't agree and had a trial. The divorce court is supposed to make a "just and right" division of the community property. This does not mean 50/50, although that is where most courts start before they begin hearing evidence.

Click here for an Excel spreadsheet you can download and use it to analyze property division.

In making a just and right division of property, the Court may consider a number of factors, including fault in breakup of the marriage, relative earning capacity of each spouse, the needs of any children, and other factors.

Dividing retirement benefits (QDROs)

If your property division includes moving money from one person's retirement account into an account for the other person, we may need to use a Qualified Domestic Relations Order (called a QDRO, pronounced KWAD-row). We do not need a QDRO to move money from one person's IRA to the other, but we do need them to take money out of most other retirement accounts, including 401(k), 403(b), pensions, and so forth. The QDRO is a special order from the court which moves money out of the retirement account into an IRA in the other spouse's name. This doesn't trigger any taxes or penalties, but when you take the money out of the IRA there will be taxes owed, and there may be penalties if they're withdrawn early. The QDRO is a very specialized document, and I have a different lawyer, a specialist, draw it up for us. Her fee is usually $350 for the first QDRO in one divorce, and $100 for each additional QDRO in the same divorce. Plus, the company that administers the retirement plan being divided may charge for processing a QDRO (click here to see an article from the Wall Street Journal)

A couple of other points to keep in mind if you're wrapping up your divorce and a QDRO is involved:

We usually try to have the proposed QDRO "preapproved" by the retirement plan administrator, for them to say that in their opinion it meets the requirements of law, and they'll be able to divide the assets as requested. Depending on who the plan administrator is and how busy they are, getting preapproval of a QDRO can take anywhere from a few days to a few months. And there's nothing we can do to hurry them along.
Proceeding with the divorce without a QDRO leaves the person receiving funds from the QDRO vulnerable. Suppose Husband has the retirement account and Wife is getting a portion of it via a QDRO. If the parties finalize their divorce without a QDRO, with the idea of getting the QDRO signed in a few weeks when it has been preapproved, and then the Husband dies after the divorce is final but before the QDRO is signed, the wife gets nothing from the retirement account. There's nothing the judge can do that will fix the situation. So, the preferred practice is to proceed with the divorce and have the judge sign the draft QDRO (the one that was sent to the plan administrator for preapproval). Then, the receiving party is protected. If the retirement plan administrator doesn't approve the QDRO because it's missing some magic language, the parties can always go back and have the judge sign an amended QDRO to fix the situation.
Even after the Judge signs the QDRO and the QDRO has been sent to the retirement plan administrator, the administrators are often slow as Christmas acting on the QDRO after they receive it. It often takes months. There's no reason for it, but we have absolutely no leverage to make them move faster, either.
Normally, the person getting money out of the retirement account ("alternate payee") gets a certain dollar amount or percentage of what's in the account plus or minus a pro rata share of income, gain, and loss on the account from the date the judge signs the QDRO until the plan administrator actually splits the money. So, if the whole portfolio goes up 5% in the months after divorce until the retirement account is split, the alternate payee gets 5% more. But, if the investments go down in value during that period, so does the amount split out. This is NOT affected by employee contributions after divorce.
Whenever the plan administrator gets around to carving out the funds from the retirement account, they'll probably set up an IRA in the alternate payee's name at their institution, and the alternate payee can transfer it to an IRA somewhere else, without penalty. If the plan administrator isn't normally in the business of having IRA's, they may just ask the alternate payee her to tell them what IRA at another institution the money should be transferred to. So, the alternate payee may have to open an IRA to have a place to receive the funds.

Educational Aside on QDROs -- WARNING: you don't need to know this.

Under the concept of Federalism in the US Constitution (as clarified by the war between the states), states cannot control the federal government. By extension, state divorce courts have no direct power over federal retirement systems. However, the folks who administer federal retirement systems understand that people get divorced and that it's appropriate to provide ways for divorce courts to divide federal retirement accounts. So, the regulations governing federal retirement systems contain provisions whereby an order from a state divorce court can control what happens to a particular retirement plan if the order meets the criteria established in the retirement plan's regulations.

Around 1900 employer-sponsored retirement plans started showing up. In the 1920s the federal income tax came along, and legislation was developed to determine whether a retirement plan was exempt from federal income taxes. In order to regulate private pensions, congress passed the Employee Retirement Income Security Act of 1974. ("ERISA")

ERISA is the law that governs 401(k) plans (in fact, I think that "401(k)" is the section/paragraph number of ERISA legislation that sets up that kind of retirement plan). In the ERISA legislation, they refer to an order from a divorce court to divide benefits as a "domestic relations order", and if the order fits the criteria within ERISA, it becomes a "qualified" order, hence a Qualified Domestic Relations Order, or QDRO.

If the retirement benefits don't fall under ERISA, then we don't need a QDRO to divide them.

Federal retirement benefits (that is, retirement plans for federal employees), military retirement benefits, many state and municipal retirement plans, and some "non-qualified" private retirement plans do not fall under ERISA legislation. They may need a special order to divide the benefits, and the order may look an awful lot like a QDRO, but we don't call them QDROs because we don't need to use the terminology specified in ERISA. I'll probably have my QDRO lawyer prepare an order, and the fee will be the same or a little higher than that for a QDRO.

Individual Retirement Accounts (IRAs) are also outside of ERISA legislation, but we do NOT need a special order to divide the benefits. We just divide the IRA in the Final Decree of Divorce, and you take a certified copy of the Decree to the bank or brokerage company that has the IRA, and they split the funds.

Note on dividing house equity

The biggest trick in dividing house equity is deciding how much equity there is in the house. First, how much could the house really be sold for? Second, if the house really were sold, you'd incur costs of sale around 8%, but they're not really incurred if the house isn't sold -- so should these costs be deducted when figuring how much equity there is? If you and your spouse can agree, there's no problem. If you had a trial, the judge would almost certainly order the house to be sold and the proceeds divided, so the judge doesn't have to decide how much the house is worth.

Having decided how much equity there is in the house, you need to decide how to divide it. First, you can compensate for it with other assets. Suppose Bob and Sue are getting divorced. Bob has a 401(k) plan at work worth about $40,000. Sue has no retirement accounts, and will be keeping the house, and the house has about $40,000 in equity in it. Bob and Sue agree it's fair for Bob to keep all of his retirement and Sue to keep all of the house equity.

You can also deed the house from one person to the other, and provide that the person keeping the house must refinance it to get the other person off of the deed, and to pull out cash to pay them their share of the equity. This is a little more ticklish and involved than it might appear, because under the Texas Constitution, a cash-out refinance cannot bring the total debt on the house to more than 80% of the fair market value (so, if the house is worth $200,000, and $160,000 is owed on it, you can't pull out any cash at refinance to pay off the spouse leaving the home). EXCEPT that there are other ways to take care of this. An owelty lien established in a divorce through an owelty deed can be paid off at refinance, even if that brings the total debt to more than 80% of the fair market value. I'm also a mortgage broker, and I offer a free report with much more information on this topic. Click here for my free report on refinancing your home as part of your divorce.

Alimony

Alimony is periodic payments from one former spouse to another to support the receiving spouse for a specified period, until certain circumstances come to pass, or the death of the receiving spouse. Prior to September 1, 1995, Texas courts could not order alimony unless the parties agreed to alimony contractually. However, the courts can now award alimony without an agreement under certain circumstances. Alimony can be made to survive a bankruptcy, and it can shift the tax burden to the receiving spouse, thereby reducing overall tax liability. There are many tax traps surrounding alimony. Contact a certified public accountant regarding tax implications.

Dividing Debt

Community property law doesn't apply to debt, as debt falls under contract law. If you don't pay your debts, your creditor can only come after whoever signed a contract, or come after whatever property was purchased with the debt. As a general rule, they can't come after the other spouse, although if they don't get paid, they may be able to mess up your credit rating pretty well. Debts incurred during the marriage are also allocated at the time of divorce, as part of making the just and right division of community property. However, if the spouse who is assigned the debt refuses to pay or declares bankruptcy after the divorce, then the creditor may look to the other spouse for repayment. This will occasionally force the second spouse into bankruptcy.

If you're concerned your spouse is going to incur debt in your name, consider contacting a credit bureau and asking them to place a Victim Statement in your record.

Property Division Worksheet

Note on QDROs: If your property division includes moving money from one person's retirement account into an account for the other person, we may need to use a Qualified Domestic Relations Order (called a QDRO, pronounced KWAD-row). This is a special order from the court which moves money out of the retirement account into an IRA in the other spouse's name. This doesn't trigger any taxes or penalties, but when you take the money out of the IRA there will be taxes owed, and there may be penalties if they're withdrawn early. The QDRO is a very specialized document, and I have a different lawyer, a specialist, draw it up for us. His fee is usually $400 per QDRO. Plus, the company that administers the retirement plan being divided may charge for processing a QDRO (click here to see an article from the Wall Street Journal)

Click here for an Excel property division worksheet you can use to analyze your situation.

Social Security Benefits

You need to contact the Social Security Administration for details on how divorce may affect your Social Security Benefits. However, there's nothing that we can put in a divorce decree that affects your Social Security benefits. That is, the Social Security Administration will change your benefits or not as their policy allows, and nothing in the divorce decree changes any of that.

Name Change

In divorce, the name change is properly called a "restoration of former name." If the name change is not at time of divorce, or is not to a former name, other rules apply. The restoration of former name can be done by simply adding a paragraph to the proposed divorce decree, and supported by brief sworn testimony at the time the divorce is "proved up" that (1) this is a change to a previous name; (2) the name change is not sought to avoid criminal prosecution; and (3) the name change is not sought to avoid creditors. There is no additional charge for this type of name change, and can be easily accommodated if you just notify me while we are drafting the decree.

In Dallas County, judges are getting pickier about name changes, and sometimes require an affidavit to be signed and sworn to. This can usually be avoided if the woman is present at the proveup and can give live testimony in support of the name change.

Caution: Whether in a divorce or for other reasons, the judge will usually try to talk a parent out of changing his or her last name if it results in the child having a different last name from the parent. The judges see children fairly frequently who wish they had the same last name as their parents.

Where are you and where am I?

My office is in Plano, Texas, and I work primarily in Collin, Dallas, and Denton counties.

It works best when you come to my office for our first meeting, although in unusual circumstances we can get things started without a face to face meeting. Often in an agreed divorce my client will come to my office only one time, for the initial meeting. Everything else is handled by email, fax, telephone, and mail.

Forms and downloads

The forms in this section require Adobe Acrobat Reader for you to view them and print them. If you experience problems, it may be because you have an older version of Acrobat Reader. Whether you need to download it for the first time, or you need an update, it's a free download from www.adobe.com.

Divorce Consultation Form

Here's a divorce consultation form. Please print it out, fill it out, and bring it with you to our initial consultation. If you're coming to see me about a modification or enforcement action, please just fill out the first page and bring copies of all court papers. It looks best from the Adobe Acrobat format: dvint.pdf.

Also, I strongly suggest, but do not require, that you print out the Civilized Divorce^SM Pledge, and bring it to me with your spouse's signature.

Request a consultation

Click here to request a consultation.

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