Filing the Petition
The spouse who files for divorce is called the Petitioner. The other spouse is called the Respondent. The first decision to be made is where to file for divorce. To file for a divorce in Texas: (i) you and/or your spouse must have lived in Texas for at least six months before filing for divorce; and (ii) you must file in the county in which either you or your spouse has lived for at least ninety days.
The Original Petition For Divorce (the “Petition”), is now normally filed electronically with the District Clerk’s office in the appropriate county but alternative methods of filing exist. The clerk will date stamp and assign a “cause number” that will be listed at the top of the Petition.
Filing fees vary from county to county. If you cannot afford the filing fee, you must file an Affidavit of Inability to Pay Court Costs. If the Judge accepts your Affidavit of Inability to Pay Court Costs, your filing fee and other court costs will be waived.
Important: Once you file for divorce, both you and your spouse are subject to the court’s Standing Order.
Notifying Your Spouse
The second step is to legally notify your soon-to-be ex-spouse (the “Respondent”) of the Petition for divorce. You must serve the Respondent in one of the following ways:
(1) have the Respondent sign a waiver of citation;
(2) hire a private process server or a county constable to personally serve the Respondent with a “citation,” which is formal notice of the filing of the Petition for divorce prepared by the District Clerk; or
(3) if, after a diligent search, you cannot locate the address of the Respondent, you may request that the court order that Respondent be served by publication or posting.
The first and easiest method of legal notice to the Respondent is through a Waiver of Service. A Waiver is only valid if it is signed by the Respondent after the Petition for divorce has been filed with the court and the Respondent has been provided with a file-stamped copy of the Petition. Once the waiver has been signed by the Respondent, the waiver is filed with the Court.The second way to provide legal notice to the Respondent is to personally serve the Respondent with the citation which will generally involve some type of fee. The District Clerk will issue a citation and forward a copy of your Petition to the Constable or Sheriff in the county where the Respondent will be served. If the Respondent will be served in a different county or if you would like to have the Respondent served by an authorized private process server, the District Clerk will return the citation to you. It is then your responsibility to deliver the citation to the appropriate process server. Personal service is considered complete when the process server hands the citation to the Respondent. The process server, whether a sheriff, constable or private process server, must file an affidavit with the Court stating he or she served the citation and Petition on the Respondent. The benefit of a private process server is that he or she will try to serve the Respondent at any place and time you believe the Respondent can be found while a Sheriff or Constable may only attempt service at certain times of the day and week.
The third method of notifying the Respondent of the Petition for divorce is by posting or publication. This method requires a Court order and should only be used if you have tried everything possible and cannot locate the Respondent. Service by posting is done usually when no children or property are involved in a divorce. To obtain service by posting, you must request that the District Clerk post the citation at the courthouse. After a certain amount of time has passed, the clerk will notify the court that service by posting has been completed. Service by publication is done in the newspaper in the city where the Respondent was last known to have resided. To obtain service by publication, request that the District Clerk issue publication in the particular newspaper authorized by the Court. You will be responsible for any fees charged by the newspaper. Once the publication is complete, you must file proof of the publica- tion with the District Clerk’s office.