Can I Get Divorced in Texas Without My Spouse’s Consent?

Yes, you can get divorced in Texas without your spouse’s consent. You do need to meet the standard requirements, such as residency, filing, and serving the papers properly. If your spouse says, “I don’t agree to get divorced,” your case can still move forward. Even if your spouse does nothing and does not respond to your petition, you can pursue a default divorce. A divorce lawyer in San Antonio can guide you and help you avoid expensive mistakes.

What happens if my spouse won’t sign divorce papers?

Many people worry that a divorce is not possible without signed papers. However, the divorce can still proceed when handled properly. Note that while Texas allows fault-based divorces, most cases are no-fault with “insupportability” as the basis. A family lawyer can evaluate your case to see if fault-based grounds, such as cruelty or adultery, might apply and help with property division.

• Petition: To start the process, one spouse files a petition for divorce. In San Antonio, that usually means filing in Bexar County if you meet residency requirements. You must have lived in Texas for at least six months and lived in the county of filing for at least 90 days. You can ask for temporary orders, such as temporary custody schedules.
• Service of process: Your spouse needs proper notice that you filed for divorce. A constable, sheriff, or private process server usually delivers the paperwork.
• Deadline to reply: Most of the time, spouses have until 10 a.m. on the Monday next following the expiration of 20 days after service. If your spouse ignores this deadline, the case can proceed. What happens next depends on whether your spouse is outright ignoring the papers or is contesting the divorce (perhaps refusing to agree to your proposed terms).

If your spouse does nothing

A default divorce may be your path forward. There is a mandatory 60-day waiting period after you file the divorce petition. After this period passes (day 61), unless limited exceptions apply, you can ask the court to finalize the divorce. If your proposed terms are legal and fair, approval may be quick. Of course, issues such as dividing community property and deciding child custody (conservatorship) can complicate matters. Divorce attorneys can help you prepare and present your case at a default hearing.

If your spouse refuses to sign because they are contesting the divorce

You still do not need your spouse’s OK to get divorced. The issues do need resolution, though, which occurs through negotiation, mediation, or trial. The court makes the final decisions if agreement is not possible. Common areas of contention include property division, child custody, and child or spousal support.

If your spouse vanishes to avoid the divorce

What if your spouse refuses to answer the door, moves without telling you their new address, or just outright disappears? You have several options, one being service by alternative means. You must prove to the court that you made genuine efforts to find your spouse and could not. The court might then authorize service substitutions such as service by posting or service by publication.

How long do I have to wait for a divorce if my spouse does not cooperate?

You may have to wait longer (perhaps a few weeks to a few months) than if your spouse cooperated. Texas has a 60-day minimum waiting period for divorce from the day of filing, with exceptions for family violence in certain cases.

Thus, no matter what, full cooperation or absolute noncooperation, there will usually be a wait of at least 60 days. With a default divorce, the wait may not be too much longer. With a spouse contesting the divorce or a spouse disappearing, the nuances of the situation can determine just how much longer you must wait.

How can we divide property if my spouse does not consent to a divorce?

Without consent, the division gets more complicated, but still doable. Relying mostly on the information and evidence you provide, the court can identify community property as well as separate property, and divide assets and debts in a way that is just and right. Division is possible for all manner of assets, including real estate, bank accounts, vehicles, and businesses.

Can my spouse block the divorce by refusing to agree on child custody?

No. The court can decide matters such as conservatorship (child custody), possession and access (visitation), and child support. You propose a custody arrangement with evidence to support your reasoning. The court will scrutinize your arrangement since it takes custody matters seriously.

The standard is in the best interests of the child. Judges often ask who historically has cared for the child, whether both parents are fit, and if your proposed schedule follows the standard possession order. The more unusual your requests (such as sole managing conservatorship, or sole custody and authority), the more proof you need to back up your requests. If you allege the other parent is dangerous, perhaps putting the child at risk through drug addiction, you should have evidence.

Texas courts do not assume a parent is unfit just because they do not respond. If there are no safety concerns and the other parent does not participate, the court might appoint both parents as joint managing conservators (joint legal and decision-making authority), opt for a standard possession order, and use state guidelines to determine child support.

It is possible to ask for 50/50 time with your child or even for the other parent to have most of the time with your child, and for the judge to approve it. Approval is most likely if history supports the type of schedule you propose. For instance, if you are asking for the other parent to have primary custody, success usually depends on whether the child is currently with the other parent (if your proposal matches the child’s current living situation), if the other parent is the primary caregiver, and related factors.

What if I want to file for divorce but expect no cooperation?

Proactive thinking from the beginning matters a great deal. The strategy you go with from the beginning can have a huge impact on how your case proceeds. Consulting with a divorce lawyer can streamline the process and help it go as smoothly as possible.

One thing to keep in mind is this: With a spouse who is not cooperative, your chances of making mistakes go up. Procedural errors, improper service, weak evidence, and other factors can hurt you badly. At the Law Office of Matthew A. Grimshaw PLLC, our San Antonio divorce lawyer can give you a clear path forward. Contact us today and see if we can help.