The majority of family law cases in Texas involve one or more self-represented party. That’s a hard reality when courts make it so difficult for pro se (meaning, self-represented) litigants. But not everyone can afford an attorney and the courts aren’t allowed to hand out legal advice. In this guide we want to give you some free information about handling your own divorce.
In many cases, if you are able to afford a little attorney guidance, we’d recommend it. Law firms often will do limited scope agreements for simpler cases and you might be able to get affordable help. Whether you end up getting help or not, use this guide to understand your options. We’ll tell you about the process and the red flags to look out for.
(If you get to the point that you want someone to look over your options and give you a custom plan, schedule a Divorce Strategy Session. There’s no obligation to hire us beyond that meeting, but it can be an invaluable resource in your divorce planning.)
We’ll discuss the debate over whether you should do this yourself, how to get ready for representing yourself, the legal legwork you have to do, and finally revisit the debate over representing yourself.
Why is Robert Sharing this Information?.
What we share in this guide is not the secret sauce. The internet has taken down a lot of barriers that have kept people in the dark. We know that people in your situation sometimes decide they need to handle a divorce on their own, whatever the reason. We’d rather you do that with good information.
This guide is a service to our community. It’s a little something we can do for people in the Houston area to help improve lives and do our duty to the courts. Obviously none of this is custom legal advice because we don’t know you personally, but we can teach you some principles. If you follow the principles, we know you’ll have a better chance of protecting what matters to you, and that matters to us.
The Debate: Should I Hire a Lawyer?
Data from the American Bar Association shows that people don’t know if they need a lawyer or not for their particular situation. That confusion is a big reason that people don’t end up hiring one. So let’s talk about some of the issues that might trigger hiring a lawyer for your divorce.
What Issues are at Stake in a Divorce?
A divorce is actually two or three lawsuits in one: there’s the issue of dividing the marriage, there’s money and property issues, and sometimes children are involved.
No matter how simple your divorce, the state has an interest in making sure it’s handled well. Every divorce is reviewed by a judge, particularly when children are involved. This is not as simple as ending an agreement between you and your spouse. The state was in your business at the beginning and will be there at the end, so make sure you know what questions the judge will dig into.
When you think about hiring a lawyer to help with your divorce, do a simple risk-versus-cost analysis. How much will it cost you to get help and how much do you have on the table? You could certainly DIY to build a house, or fix a car, or handle your divorce, so question representing yourself the same way you would if you wanted to do any DIY project.
Do you have special knowledge or experience that makes you feel comfortable handling the divorce yourself? To stretch the house-building analogy, are you good at building but have no idea how to deal with all the regulations around building house? Meaning, could you handle parts of the DIY project then bring in help for the parts you don’t understand?
Are you dealing with something complex? You might feel comfortable building a DIY shack outside, but you wouldn’t build a skyscraper on your own. Similarly, how complex is your divorce? Do you have significant property, like real estate? Or large debts that need to be assigned to each spouse? Do you have disagreement over the children? Lay all of the issues out on the table and see if they add up to something more analogous to a simple shed or the skyscraper. What’s at risk?
How do I Balance the Costs of a Divorce?
Getting a little more mathematical, consider the odds. If you could gamble five dollars for a ten percent chance to win a million dollars, maybe you make that bet. If instead it costs you a million dollars for a ninety percent chance to win five dollars, you’ll skip that gamble. That’s a three-part evaluation: what you stand to gain (or not lose), the costs to go after what you want, and the chances you’ll get it. In your divorce case, what do you stand to gain or lose, what are the odds that you’ll get what you want, and how much would hiring an attorney impact those odds? If you can change the odds of that important lottery, maybe hiring an attorney is more like an investment than an expense.
Obviously it’s easier to do that math when you know the odds (which is really difficult in the human endeavor of family law courts) and when you’re debating something mathematical (like money). How does this change when you’re dealing with something non-numerical, like your relationship with your child or your future independence? That’s a question that only you can answer. What are those things worth to you?
Hiring an attorney is complicated. We give a lot of advice on how to do that here. But consider it before you handle things yourself. You may still land on a DIY divorce, and that’s fine, but make that decisions with your eyes wide open.
Again, we’d always suggest gathering as much information as you can about the divorce process. The very best free resource for that is a site called TexasLawHelp.org. Before you do anything with your divorce, spend a day on that site.
There are many good resources on the internet, like local county libraries and commercial guides, but suggest you start with Texas Law Help. That site brings together information from many other sites, including legal aid organizations in Harris and surrounding counties.
Consider county-level resources as a second step. Large counties often have full-time lawyers on staff to review documents that you create and help a bit with the process, but they need something to work with. Starting with Texas Law Help will get you on your way with draft forms and a general understanding of the process. Once you have that, if your county has free resources, take advantage of them. They’re limited and overrun with family law cases, but they’ll let you know when your case is too complicated for free services and advise you to hire an attorney.
One resource that few pro se litigants (DIY divorcers) know about is the local law school library. Most law schools have enormous collections of legal texts. Librarians there obviously can’t give you legal advice, but they might help point you to a resource that can be useful to you.
Generally speaking, law school libraries are connected to the local library network. Meaning, if you have a library card in your town, you might be able to get access to the law libraries and even borrow texts. Check with your local library to see if you can use TexShare or other resources to connect to your law school’s library.
In short, be very, very careful.
The internet is a dark place, not just because there are people there purposely misleading you, but because article-based marketing is all the rage. There are many companies that stand to gain from attracting your eyeballs to their site. The content they create usually has less to do with helping you than with keeping your attention.
This is even true of law firm websites. Many lawyers don’t take the time to write helpful articles like the ones we have on our site. They hire non-lawyers to create words, and often the information they create is flat wrong. That can be very frustrating for people in your position.
Even this resource should be taken with a grain of salt. We don’t know you. We’ve never chatted about your particular situation. We can teach you principles, but we can’t tell you what’s best for you. We just don’t have the kind of personal contact needed to be individually helpful yet. You’d need to schedule a Divorce Strategy Session to get that.
So please be careful. We’ve vetted Texas Law Help and consider it a helpful and accurate resource. Beyond that, however, we can’t endorse anything on the Web.
We’ve covered the questions you want to ask yourself before starting a DIY divorce, now we’ll cover how you get going well.
We get calls all the time from people saying they have an “uncontested divorce.” It’s impossible to know what every caller means when they use that term, but it usually means they don’t have money for a high-conflict divorce so they are asking for less help. People using the term rarely know how their spouse will react and how uncontested the case will really be.
So, how do you predict your spouse’s intentions and whether they’re really going to work with you? We always say that a truly uncontested divorce occurs when a married couple can sit down at the kitchen table peacefully and agree on every single term of every single item of what the divorce is going to touch on. Meaning, they can agree on a fair and exact division of every piece of property and agree precisely on child-related issues if they’re involved. You can test right now whether you have that kind of case.
Look through the forms from Texas Law Help. You’ll find a number of questionnaires that ask you how you want to handle the different issues in your divorce. Schedule a time to sit at the kitchen table with your spouse and talk through the form. If you can’t do that peacefully, and if you can’t agree on every term, you don’t have an uncontested divorce. You’ll want to know that before you get started.
Every divorce is a lawsuit. You can’t just sign a piece of paper and declare yourself divorced. As much as a marriage is a contract between two parties, it’s an institution with state support, so breaking it up means state intervention. One party of the marriage must sue the other party and ask the state to intervene to do certain things, including dividing the marriage and its property. This document that asks the court to intervene is called the “petition,” and it can bring up a number of hairy issues.
Take jurisdiction, for example. “Justification” refers to whether a court has the power to intervene in your particular situation. Judges in Michigan or Taiwan or the next county over have no power to split your marriage or property. You have to tell the court why it has power to get into your case. In Texas, that generally means you’ve lived in the state for 6 months and in the particular county for more than 90 days. There are some ways around that but, frankly, if you have to dig deeper that that then you probably need a lawyer. Jurisdiction can be a very complicated issue, but it’s generally straightforward.
You’ll also want to send the signal that you’ll work with your spouse to get the case resolved. Indicate in the petition that you anticipate reaching an agreement on the division of the property and what you’ll do with the kids.
If there are children in the case, the petition becomes more complicated. You’ll need to list the children and their ages, and you may have to include attachments that list the kids’ insurance and where they’ve lived in the last six months. These documents are required under the Family Code so you can’t get around them.
Remember that you can amend your petition later. If it’s not perfect, or if you end up hiring an attorney in the future, the petition can be fixed. There are some limits to that, but the form on Texas Law Help will guide you through the necessary steps.
Once you’ve filed the lawsuit you have to give notice of the suit to the other party. There are special rules around this step, called “service of process,” and they’re rooted in the constitutional idea of due process.
Let’s simplify service by going back to the idea of the uncontested divorce. We always say that, if the other party won’t sign a waiver, you don’t have an uncontested divorce. So what’s what’s a waiver?
A waiver of service is signed by the party you’ve sued and basically says “You don’t have to come find me using the usual due process standards.” Meaning, you don’t need to send the constable to drop paperwork off to your spouse. This is the “You’re served” scene you see in movies. That’s the usual process required under rules of service. Everyone has a constitutional right to know they’re being sued, and this is how we do it.
We recommend that, if you’re handling the case yourself, you try to get a waiver of service from the other party. It overcomes a lot of the technical issues that can undermine a case. And, as we mentioned, if the other side won’t sign a waiver it indicates your case is likely to involve struggle.
If you can’t get a waiver, go through your local constable’s office for service. They understand what’s needed, are relatively inexpensive, and plugged into the court system. You can also search for private servers in the area. They tend to be a little faster but cost more. You’ll need to balance that cost and benefit.
We occasionally get calls from people who’ve filed themselves and want us to help negotiate an agreement for the divorce. They usually say something like, “I’ve done the hard part of filing, I just need you to help us agree.” To be clear, filing is not the hard part. As you’ll find out, reaching an agreement can be very difficult, so let’s talk about how you make that easier.
First, know that you have certain communication requirements while your case is pending. You have to keep the other side informed of every change or update in the case. That includes any time you file something, bring in a lawyer, or schedule a hearing. Those updates are also consistent with due process, so courts will not appreciate you failing to keep the other party updated. You also have to keep the court updated in terms of changes in your contact information.
Non-lawyer professionals can be a big help in resolving a divorce case, even when you’ve hired a lawyer. Therapists are a great resource, for example. There are different therapist specialties, including practitioners who assist divorcing couples or individuals going through a divorce. Similarly, pastors and other clergy often have the experience and inclination to talk you through many of the struggles of divorce.
You might also seek financial guidance. As you transition from a family unit to an independent person, you might might need help planning your money. More than likely, finances are part of what’s driving your divorce. That’s very common. It’d be wise to break the financial habits that create personal turmoil as you make this change.
Finally, you’ll likely find many qualified mediators in your area. We have several in the Houston metro, many of whom are ether currently or formerly family law attorneys. These people can’t give legal advice, but they are neutrals who can help divorcing spouses recognize and talk through the issues. Many counties have local rules that require a mediation before a divorce can be finalized, including Harris County. There are exceptions, as in the case of family violence, but a mediation can get you to an informed resolution within the space of an afternoon. You’ll walk out with a Mediated Settlement Agreement, a document that has many strict protections under the Texas Family Code.
We always recommend seeking a mediation in divorce cases (again, unless there’s been family violence). Find someone qualified and go in ready to reach an agreement. By definition you probably won’t get everything you wanted when you walked in, but a resolution that you control is better than an order that a court dictates.
Once you have a Mediated Settlement Agreement, you might look at hiring an attorney to act as what we call a “scrivener.” These lawyers are hired for the limited purpose of turning your Mediated Settlement Agreement into an order that the court can sign. Between the mediator and scrivener, you can get a quality agreed order that saves you significant time and money.
If you have an agreed order signed by both parties, whether you got it from Texas Law Help or a mediator and scrivener, you’ll need to get it signed by the judge. Most counties require that you file everything with the court, like the Mediated Settlement Agreement and the draft order that you want the judge to sign. Sometimes judges will want to read those documents before signing so make sure you have them on file. Check with your local county or district clerk’s office to learn how to do that.
Most courts in Texas will require you to file what’s called the Bureau of Vital Statistics form. That document tells the state of Texas that you’re getting divorced and to update your personal information. You might have other required forms, so make sure you check with your county’s local rules.
Once everything is filed, find out if your court has an uncontested docket. Many courts will set aside a morning each week to get through quick agreed orders. You can ask the court’s coordinator or the information desk at your local courthouse when unconstested dockets are held. In larger counties, that means you’ll likely appear before a different judge than the one assigned to your case. They just make sure that your agreed order meets the requirements and either sign it or let you know what’s missing.
Other counties don’t have unconstested dockets but can schedule you for a 15 minute hearing. That’s more than enough time to get a signature on an agreed order.
There are some specific things you need to say when you present your agreed order to the court. Again we’d point you to Texas Law Help for a script that you can read when entering your agreed order. When you read the script you’re actually testifying as a witness. They’ll ask you to raise your hand and you’ll be sworn in. Someone could theoretically show up and contest your evidence, but that almost never happens. You really just need one of the two parties to show up and and read the script.
Once the judge has signed the order, he or she typically hands it back to you so that you can take it to the clerk for filing. You might have other forms to file, like a support withholding form if child support is an issue.
The court retains what’s called “plenary power” over your case for 30 days following the signing of your divorce decree. There are ways to extend that time, but broadly speaking, the court has control of your order for that period. (That’s why we have a law in Texas that you cannot get remarried for 30 days following a divorce,) During that time, either party can file a motion for new trial to revisit the decree, though they are rarely granted, except in the case of a default order (meaning, one in which one of the parties didn’t show up so had no say in the outcome). When a motion for new trial is granted, you’re essentially starting over so courts don’t love to grant them.
Generally speaking, if both parties were part of the agreement and had a chance to debate their rights, the courts will stick with the existing order. Theoretically a party can debate the property division for up to two years after the divorce, and there are ways to change a child-related order depending on best interest findings, but the final order is generally very final.
Modifications of a final order are fairly common where children are involved. Within three years of the order that requires a finding of a “significant and substantial change.” That means that a basis of an agreed or court order has changed so much that the previous order has actually become bad for the child.
Beyond three years, modifying a custody-focused order is likely. If a court signed your order when the child was three, it would be very unusual for that order to never change before the child is eighteen. Remember that the child’s best interest is always supreme, and that may change. So know that the custody part of the divorce decree has much more future flexibility than the splitting of the marriage and the property.
If someone decides not to follow the signed order, the other party can file an enforcement action. These suits are meant to incentivize people to follow orders, not generally to change the order or to fill in blanks that should have been filled before it was signed.
A motion for enforcement comes with strict penalties. Violating a signed order is contempt of court, which can come with imprisonment and hefty fines. This is especially true where child support is concerned. Not paying support can become a much bigger financial nightmare, as we often see.
Remember that, once the court signs your order, it is no longer a simple agreement between the parties. That means that you can’t agree around it, except in the case of child visitation, because it’s in the order that you can work around that. Co-parenting after a divorce requires an ability to negotiate and agree, but be careful not to violate the order. You have a duty to the court as well as to each other.
Let’s revisit the question of whether you should hire an attorney or handle your divorce yourself. Now you have a better sense of what you’re risking, what’s on the table. That helps you better balance the risk against the costs.
The analogy that we give all the time is dealing with car problems. Meaning, is this problem in your divorce more like an oil change or is it more like replacing the transmission? Do you have a low-level problem that can be solved by watching a YouTube video or do you need a professional to help you out?
One deciding factor might be how much state involvement there is. For example, as you know now, the state is very interested in your child’s best interest. That means they’ll poke their nose in a lot, which makes that more like a transmission than an oil change. We always recommend that you hire an attorney to help with kid issues.
The same is true of your property. If you are splitting up clothing and office supplies, there’s not much on the table to risk. Hiring an attorney might be overkill. But if you have real property or debts to assign, you’re into replace-the-transmission territory and should really look at hiring an attorney.
Again, consider the complications around your case. If there are few, you might be fine using the forms on Texas Law Help and handling things yourself. If, however, you read this article and feel like you’re in a fog, seriously consider hiring help.
If you’re ready to see how we can help you, sign up here for a Divorce Strategy Session. For $395 you’ll get a packet of instructional documents and forms, a half hour meeting with one of our experienced divorce attorneys, and a customized map forward for your particular situation.
We schedule these meetings fairly far out in advance. If you are seriously considering hiring us to help with your situation, know that our availability is limited. We are very committed to our current clients, as we would be to you, so please be patient. We’ll give you that same attention when you commit to letting us help you.
Attorney Robert Von Dohlen helps Houston families make an important transition. Learn how his unique approach, focused on client education and independence-focused decisions, can help you.