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Written By:
Divorce.com Staff
If you have decided that it’s time to divorce your spouse, then the ins and outs of the actual divorce process may seem really confusing.
Are you looking at a contested divorce, or do you think that you and your spouse can work things out together and go the uncontested divorce route? Should you find a divorce lawyer and head to court, or should you look into a simpler, more streamlined online divorce?
The sheer number of decisions you’ll have to make before getting to a final divorce decree could make anybody’s head spin. However, those who have to figure out how to get a divorce in Texas without spouse approval may feel particularly lost and alone.
While the absence of your spouse can be limiting in certain ways -- for instance, you’ll probably have to get a lawyer instead of making it a pro se divorce case -- the good news is that Texas law has your back.
In this article, we’ll arm you with all of the knowledge of Texas family law that you need to get through your divorce proceedings and end your marriage with that long-awaited final decree, whether or not your spouse cares to show up for the divorce process.
How to Get a Divorce in Texas Without Your Spouse
If you’re filing for divorce and you know that you do not have the cooperation of your spouse, then the first thing you’re going to want to do is make sure that you meet the state’s residency requirement.
The requirement is the same for common law marriage, although the Texas court system does take a more flexible approach to residency when it comes to military divorce.
What it all comes down to is establishing personal jurisdiction over at least one party. In general, that means that one or both spouses have lived in Texas for at least six months, and in the county in which they are filing for at least 90 days.
Service members who are unable to meet that requirement can instead show that their permanent address is in Texas while stationed elsewhere, or that they are temporarily stationed or deployed from Texas while their permanent address is elsewhere.
Once you’re certain that you’re filing in the right place, you’re (unfortunately) going to want to visit a family law firm or two and find the right Texas divorce attorney to guide you through the divorce process.
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Now, you’re a smart person, and we know you can handle a divorce form or two if you set your mind to it. And even if you’d rather skip it (as long as you’re engaged in an uncontested divorce), online divorce Texas style tends to be a much less stressful, more economical option.
However, that just isn’t the best idea if you’re going through this without the cooperation of your spouse. That’s because, if they’re absent, then the court obviously can’t hear their perspective when it comes to child support, child custody, alimony, and the division of marital property.
Now, why does this matter? Well, with good reason, Texas divorce law is very hesitant to infringe on the rights of the absent spouse, which means a lot more red tape, and therefore, a lot more need for the expertise of an experienced family law attorney.
From this point forward, the ways in which the process of ending your marriage will differ on whether they are absent because you can’t locate them or because they refuse to participate, both of which we will address below.
In either scenario, we cannot overstate this: It is in your best interest to hire an attorney. A Texas divorce lawyer is the only person who can give you specific legal advice and help you navigate an unusually complicated trip through the court system.
How Do You Get a Divorce if Your Spouse Refuses in Texas?
Luckily for you, even if your spouse has the best attorney in Texas, they cannot legally prevent you from dissolving your marriage. As a result, your spouse’s “refusal” can only come in the form of failing to answer when you serve them with divorce papers.
This will cause the court to resort to what’s called a default judgment, which basically just means that the court will only take your side of the story into account. As your attorney will tell you, this is mostly good news.
This means that you and your attorney will only have to focus on proving your own points, instead of also having to disprove your spouse’s.
In a no-fault divorce, this basically just comes down to presenting your preferred divorce terms like child support and custody, alimony (sometimes called spousal support or spousal maintenance), and the division of any debts and assets accrued throughout your marriage. Now, make no mistake.
Just because your spouse isn’t amicably sitting down for collaborative divorce talks doesn’t mean that the court is going to copy whatever terms you put down in your divorce paperwork right into your final decree.
When only one party to the marriage fills out their divorce papers like they’re supposed to, the court still has the final say about whether or not their proposed terms are fair and legal. Additionally, the court will usually still honor contractual alimony set forth in a prenup.
The same basic idea goes for if you’re alleging fault, like adultery or domestic violence. You and your attorney will do your best to prove that the adultery or family violence occurred, and the court will determine whether you did so adequately.
The only difference is that, while ordinarily, your spouse would also be presenting the court with defenses intended to show that they didn’t commit adultery, you won’t have to respond to any defenses in a default divorce.
A good way to think about it is this: Obtaining a divorce decree via default judgment works much like any other uncontested divorce. There is only one side to the story of your marriage, but the court still has the power to make the final call.
How Long Do You Have to Be Separated in Texas Before Divorce?
Now, if your spouse is refusing to participate in your divorce, then your marriage has probably been pretty messed up for a pretty long time.
This may lead you to wonder how long you have to be separated from your spouse before the opportunity to dissolve your marriage arises. Well, here’s some more good news for you and your attorney: Texas does not require any period of legal separation before you may file for divorce.
In fact, Texas doesn’t even recognize legal separation. Although, physical separation from your spouse for a period of three years is one of the possible grounds for divorce available to you. However, you will want to note that 90 days must elapse between when you file for divorce and when the court will issue you a final decree.
Can I Get a Divorce Without Knowing Where My Spouse Is?
If you can’t locate your spouse, then you can still get a divorce decree. What it all comes down to is legal notice.
In most cases, Texas law requires the personal service of divorce papers. However, if you do your due diligence and still cannot find your spouse, the court will allow substitute service by either publication or posting.
The former consists of publishing notice of your divorce in a local newspaper. The latter consists of posting a notice to the physical courthouse itself.
If your spouse fails to respond to this “constructive notice”, then you and your attorney may proceed with dissolving the marriage.
Your spouse’s absence may, of course, impact your ability to enforce the terms of your divorce. After all, how can you enforce a court order for child support or custody against a spouse you can’t find?
The former consists of publishing notice of your divorce in a local newspaper. The latter consists of posting a notice to the physical courthouse itself.
If your spouse fails to respond to this “constructive notice”, then you and your attorney may proceed with dissolving the marriage.
Your spouse’s absence may, of course, impact your ability to enforce the terms of your divorce. After all, how can you enforce a court order for child support or custody against a spouse you can’t find?
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How Hard Do I Have to Look For My Spouse?
As much as we’d love to help, this is something about which you’ll want to speak to an attorney because it varies a lot based on your situation. When all is said and done, there are no hard and fast rules, and the court will make the final call.
Conclusion
Divorce can be scary, and a lack of cooperation from your spouse can make things even scarier. However, armed with a little knowledge and the right legal help, you can absolutely get out of this marriage in one piece.
