Divorce in Texas: Community Property, Residency Requirements & How to File
Texas is one of nine community property states — nearly everything acquired during your marriage is owned equally by both spouses. But “community property” doesn't automatically mean a 50/50 split: Texas courts apply a “just and right” standard that can tilt the balance. Here is everything you need to know before filing.
Not Legal Advice
JustiPal™ is not a law firm and does not provide legal advice. This content is for informational purposes only. Laws and court procedures change — consult a licensed Texas family law attorney for advice specific to your situation.
In This Guide
- Introduction: Texas Divorce Overview
- Residency Requirements & Waiting Period
- Community vs. Separate Property
- How Texas Courts Divide Property
- Children: Parenting Orders & Child Support
- The 7-Step Filing Process
- Timeline: Uncontested vs. Contested
- Pro Se Filing: When You Can Do It Yourself
- Frequently Asked Questions
Introduction: Texas Divorce at a Glance
Texas law refers to divorce as a “suit for dissolution of marriage.” The state recognizes both no-fault and fault-based grounds, though most divorces are filed on no-fault grounds — specifically, that the marriage has become insupportable due to discord or conflict of personalities.
As a community property state, Texas treats most assets and debts acquired during the marriage as jointly owned. That means your spouse's income, the home you bought together, and the retirement contributions made while married are all presumed to be community property — subject to division.
The key distinction: Texas courts do not automatically split assets 50/50. They divide community property in a manner that is “just and right” — a flexible standard that considers fault, disparity in earning power, the welfare of children, and other equitable factors.
Residency Requirements & Waiting Period
Texas has two distinct residency requirements that must both be satisfied before a divorce can be filed (Tex. Fam. Code § 6.301):
State Residency
6 Months
At least one spouse must have been a domiciliary of Texas for the 6 months immediately before filing.
County Residency
90 Days
At least one spouse must have been a resident of the county where you file for at least 90 days before filing.
You file in the district court (typically the family court) of the county where either spouse lives. Both requirements must be met by a spouse — it can be the same spouse who satisfies both, or different spouses satisfying each requirement separately.
The 60-Day Waiting Period
Texas law requires a mandatory 60-day waiting period after your Original Petition for Divorce is filed before a final divorce decree can be entered. This clock starts on the day you file — not the day you serve your spouse. Even if both parties agree on everything immediately, the court cannot finalize the divorce before day 61.
Exception: the 60-day waiting period may be waived in cases involving family violence or active-duty military deployment.
Fault-based grounds for divorce in Texas include adultery, cruelty, felony conviction, abandonment (1+ year), living apart (3+ years without cohabitation), and confinement in a mental hospital. While fault is rarely the focus of modern divorces, proving fault can influence the property division under the “just and right” standard.
Community Property vs. Separate Property in Texas
Texas law creates a presumption that all property owned by either spouse during marriage is community property (Tex. Fam. Code § 3.003). To overcome this presumption and classify something as separate property, the claiming spouse must prove it with “clear and convincing evidence.”
Community Property (Subject to Division)
- •Wages and salaries earned during marriage
- •Real property purchased during marriage
- •Retirement contributions made during marriage
- •Bank account balances accumulated during marriage
- •Business value created during marriage
- •Vehicles purchased with marital funds
- •Debts incurred by either spouse during marriage
Separate Property (Not Subject to Division)
- •Assets owned before the marriage
- •Inheritance received at any time (even during marriage)
- •Gifts given specifically to one spouse
- •Personal injury compensation (pain and suffering)
- •Pre-marriage retirement account balances
- •Property recovered by settlement for separate property loss
Watch out for “commingling”
Separate property can lose its protected status if it is mixed with community property — for example, depositing an inherited sum into a joint checking account used for household expenses. Tracing separate property requires detailed financial records.
How Texas Courts Divide Community Property
Texas courts divide community property using the “just and right” standard (Tex. Fam. Code § 7.001) — which means equitable, but not necessarily equal. Judges weigh multiple factors before assigning each asset or debt.
Factors Texas courts consider include: fault in the breakup of the marriage, the disparity in earning capacity between spouses, the education level and employability of each spouse, the health of each spouse, the needs of the children, the length of the marriage, and the age of each spouse.
Retirement accounts are among the most complex assets to divide. The marital portion of a 401(k) or pension requires a Qualified Domestic Relations Order (QDRO) — a separate court order that instructs the plan administrator to divide the account. Without a QDRO, the non-account-holder spouse cannot receive their share.
Children: Parenting Orders & Child Support in Texas
In Texas, the equivalent of a parenting plan is called a Parenting Order, embedded within the Final Decree of Divorce or as a standalone Suit Affecting the Parent-Child Relationship (SAPCR). Texas does not use the term “custody” — instead, courts assign conservatorship (legal decision-making) and a possession schedule (physical time with children).
Conservatorship (Legal Decision-Making)
Texas courts presume Joint Managing Conservatorship (JMC) — both parents share the right and responsibility to make major decisions for the child (education, healthcare, religion). One parent is usually designated the “primary” conservator with the right to determine the child's primary residence.
Standard Possession Order (SPO)
If parents do not agree on a schedule, Texas courts default to the Standard Possession Order — a statewide schedule that gives the non-primary parent every 1st, 3rd, and 5th weekend of the month, Thursday evenings during the school year, 30 days in summer, and alternating holidays. An “Expanded SPO” adds additional possession time.
Child support in Texas is calculated as a percentage of the paying parent's average net monthly resources (gross income minus taxes, Social Security, and health insurance premiums):
Net monthly resources are generally capped at $9,200/month for guideline purposes (adjusted periodically). Courts can deviate from guidelines for children with special needs, proven higher costs, or unusual circumstances.
The 7-Step Texas Divorce Filing Process
Here is how a Texas divorce moves from petition to final decree:
Meet residency requirements
Confirm that at least one spouse has been a Texas resident for 6 months and a resident of the filing county for 90 days.
File the Original Petition for Divorce
The Petitioner files the Original Petition for Divorce with the district court clerk in the appropriate county. You pay a filing fee (typically $250–$350, varies by county). The case is now open.
Serve your spouse
The Respondent (other spouse) must be formally served with the Original Petition. This can be done via a constable, process server, or — if both spouses agree — the Respondent can sign a Waiver of Service to skip formal service.
Exchange financial disclosures
Both parties disclose assets, debts, income, and expenses. Inventory and Appraisement forms are often required. In contested cases, formal discovery may include depositions and subpoenas.
Negotiate or mediate settlement
Texas courts strongly encourage — and often require — mediation before trial. Many divorces settle during mediation without going before a judge. A Mediated Settlement Agreement (MSA) is binding once signed.
Wait out the 60-day period
Texas law mandates a 60-day waiting period from the date of filing. The divorce cannot be finalized before day 61, even if both parties have agreed on everything.
Final hearing and decree
In an uncontested divorce, the Petitioner appears before the judge for a brief hearing to confirm the terms. The judge signs the Final Decree of Divorce. If a QDRO is needed to divide a retirement account, it is submitted separately.
Key Forms in a Texas Divorce
Timeline: How Long Does a Texas Divorce Take?
Uncontested Divorce
60–90 Days
- ✓Both spouses agree on all terms
- ✓Mandatory 60-day waiting period
- ✓Brief final hearing required
- ✓QDRO adds 4–8 weeks if needed
Contested Divorce
6–18 Months
- ✗Discovery, depositions, hearings
- ✗Mandatory mediation in most counties
- ✗Trial if mediation fails
- ✗Complex cases can exceed 18 months
Texas courts widely use mediation to resolve contested divorces without trial. Many county local rules require mediation before a trial date is set. A skilled mediator can often resolve property and custody disputes in a single day — at a fraction of the cost of litigation. Even if talks break down, mediation often narrows the contested issues, reducing trial time.
Pro Se Filing: Can You Do It Yourself in Texas?
Texas law permits self-represented (“pro se”) filers at every level of the state court system. Many Texas counties provide self-help centers with free forms and guidance. But pro se divorce works best in a narrow set of circumstances.
Good candidates for pro se filing
- ✓Both spouses agree on all terms
- ✓No minor children from the marriage
- ✓Total marital property under ~$50,000
- ✓No real estate or retirement accounts
- ✓No significant debts to divide
- ✓Marriage was relatively short
When to hire an attorney
- ✗Minor children are involved
- ✗One spouse does not agree to divorce
- ✗Real estate or mortgage to divide
- ✗Retirement accounts require a QDRO
- ✗Business interests are at stake
- ✗Family violence or safety concerns
Ready to Prepare Your Texas Divorce Paperwork?
JustiPal™ guides you through the full divorce intake — assets, debts, children, and documents — so you walk into mediation or court fully prepared. No law degree required.
JustiPal™ is not a law firm and does not provide legal advice. This content is for informational purposes only.
Frequently Asked Questions
What are the residency requirements to file for divorce in Texas?
To file for divorce in Texas, at least one spouse must have been a resident of Texas for at least 6 months immediately before filing, AND a resident of the county where you plan to file for at least 90 days. Both requirements must be satisfied before your petition can proceed.
How long does a divorce take in Texas?
Texas has a mandatory 60-day waiting period from the date you file before a divorce can be granted. In practice, uncontested divorces are finalized in 60–90 days. Contested divorces typically take 6 to 18 months. Highly complex cases involving significant assets or custody disputes can extend beyond 18 months.
Is Texas a 50/50 divorce state?
Texas is a community property state, meaning marital assets and debts are presumed to be owned equally. However, courts divide community property under the 'just and right' standard — not automatically 50/50. Judges can award more to one spouse based on fault in the marriage breakup, each spouse's earning capacity, the needs of children, and other relevant factors.
Can I file for divorce in Texas without a lawyer?
Yes — pro se divorce is permitted in Texas. It works best when both spouses agree on all terms, there are no minor children, and the total marital estate is relatively modest (generally under $50,000). If children are involved or assets are complex, consulting a family law attorney is strongly recommended.
How is child support calculated in Texas?
Texas child support follows statutory guidelines based on the paying parent's net monthly income: 20% for 1 child, 25% for 2 children, 30% for 3 children, 35% for 4 children, and 40% for 5 or more. Net income is generally capped at $9,200/month for guideline calculations. Courts can deviate for special circumstances.
Disclaimer
JustiPal™ is not a law firm and does not provide legal advice. This content is for informational purposes only. Texas family law procedures, filing fees, and statutory guidelines change — consult the Texas Family Code or a licensed Texas family law attorney for the most current information.
Related Guides