Do Both Parties Have to Agree to a Divorce in Texas?

Divorcing your spouse is a lot more complex than breaking up with your boyfriend/girlfriend, both legally and emotionally. Ultimately, Texas will not force spouses to stay together if even one of them wants to leave the marriage. Even though a spouse who is unwilling to divorce cannot stop a divorce from happening, they can add considerable complexity to the process.

Texas divorce law basics

Like every other state, Texas is a no-fault divorce state, in the sense that you can get a divorce without proving fault on the part of the other spouse. Unlike 17 states, Texas does allow a spouse to assert fault-based grounds for divorce; it’s just that this is optional.

Insupportability

Insupportability is the most common ground of divorce in Texas. Don’t be misled by this term  — insupportability is also known as “irreconcilable differences.” It allows you to get a divorce, even over your spouse’s objections, without providing any specific justification. All it really means is that you cannot get along with your spouse so you want out of the marriage.

What happens if one spouse doesn’t want the divorce?

Filing for divorce in Texas is a fairly straightforward process.

Establish residency

Either you or your spouse must have resided in Texas for at least six months prior to filing for divorce. Additionally, at least one spouse must have resided in the county where you file the divorce petition for at least 90 days.

File the petition

File an Original Petition for Divorce with the county clerk district court where at least one spouse resides. Normally you will need to pay a filing fee of $250 to $300. You can obtain a waiver of this fee under certain circumstances.

Serve process

Arrange for a neutral third party to serve a copy of the petition and a court summons on your spouse. This is known as “service of process.” It ensures that your spouse will know of the divorce proceedings and have the opportunity to respond.

Wait for your spouse’s answer

Once served, your spouse must file a written answer by 10 a.m. on the first Monday after 20 days from the date of service. If it was your spouse who filed for divorce, then it is you who will be subject to this deadline.

Default judgment

If your spouse does not wish to divorce, they might ignore your petition. If they do not respond after you have properly served them, you can seek a default judgment against them (and vice versa if the situation is reversed). If one spouse wins a default judgment, they might get everything they ask for in terms of property division, child custody, child support, alimony, etc. Refusal to file an answer will not stop the divorce from happening.

A Texas family court will treat a default judgment like an uncontested divorce. A court might balk at giving the winning spouse everything they want if it is not in the best interests of the children or if it is unconscionable, for example. The other spouse can challenge the default judgment by filing a Motion for New Trial but typically has only 30 days to do so. It becomes extremely difficult to challenge a default judgment outside of this 30-day window.

Contested divorces

Although one spouse cannot stop a divorce in Texas, they can stop the other spouse from getting their preferred terms of divorce — at least if the facts are on their side and they can prove it.

Common disputed issues

Below is a listing of key areas where spouses often disagree:

Division of property

Texas is a community property state. Many people believe that means that in the event of divorce, “everything gets split 50/50.” That’s not exactly true. For example, anything a spouse owned before the marriage or received during the marriage as a gift or inheritance belongs solely to that spouse. Other ambiguities exist as well, and this is where spouses will fight during a contested divorce.

Child custody and child support

Child custody and child support are hot-button emotional triggers for a lot of divorcing couples, especially in contested divorce hearings. One of the ways you can “win” is to keep cool under pressure, especially when your spouse or just the general circumstances are pushing all your buttons.

Issues like these often require third-party intervention in the form of a trained mediator to calm things down. An experienced San Antonio family lawyer can also help ensure that cool heads prevail.

How delay tactics can affect the divorce timeline

The very first “delay tactic” comes from the state of Texas itself. Texas imposes a 60-day waiting period between the filing of a divorce petition and the finalization of the divorce.

Delay tactics initiated by an unwilling spouse include:

• Failing to respond to the divorce petition, which results in a default judgment.
• Refusing mediation. A San Antonio court can order mediation and impose sanctions.

No delay tactic, short of changing the mind of the divorcing spouse, can prevent the divorce from proceeding.

Tips for dealing with an uncooperative spouse

Being proactive about how you are going to handle your divorce if your spouse proves uncooperative can save you time, money, and stress. Subject to your lawyer’s advice, take the following measures:

• Gather financial and personal documents before you file for divorce.
• Use proper service of process procedures to avoid delays.
• Seriously consider mediation as a way to resolve disputes efficiently.
• Keep records of communications and actions taken by you, your spouse, and any third parties.

Perhaps the most important tip is to consult with an experienced San Antonio family law attorney.

Don’t risk navigating a divorce without a lawyer

It cannot be overemphasized that Texas law does not require both spouses to agree to a divorce. Although cooperation can streamline the process, one spouse’s refusal to cooperate cannot prevent a divorce from happening.

Whether you’re the spouse who wants a divorce or the spouse who doesn’t, you’re going to need an experienced San Antonio divorce lawyer to guide you through the process. At Grimshaw Divorce and Child Custody Lawyers, we represent our clients with unparalleled focus, integrity, and passion. Schedule an initial consultation with us at your earliest convenience.