With the struggling economy, and the increasing cost of litigation and attorney’s fees, many people are looking for a low-cost option for a simple, agreed divorce. There are many websites now available that provide online divorce kits that allow you to represent yourself in your divorce.  With these new flexible options, you no longer have to locate  an attorney, call and schedule an appointment,  meet with the attorney, and fill out form after form of information for your attorney to prepare your divorce documents. Instead, you can go online, fill out a few forms, pay online, and have all your divorce documents in hand and ready to go.

There are still steps that must be taken that aren’t as simple as point and click to complete your divorce. Once you receive your paperwork for your agreed divorce, you will need to file it in your county. (Many counties now allow you do even file your divorce online or via mail/fax.)  Then, you must wait the required 60 day “cooling off” period before you can go to court to finalize your divorce.

Be cautious, however, in attempting to represent yourself in your agreed divorce. If you and your spouse are not in agreement with all of the terms of your divorce, or you have complex property issues, then an online divorce kit is not the best way to go. You should seek the advice and expertise of an experienced family law attorney.

You must also be careful about which website you choose to complete your online divorce kit. Many websites that complete online divorce kits are national companies that may not be as familiar with the laws in Texas, as divorce law varies from state to state. Be certain you are using a website that is based in Texas. Also, if possible, be sure you use a website that has a licensed attorney complete and review your documents. Not all agreed divorces are the same, so you want to make sure a Texas attorney has reviewed your documents to verify they are legally sound.

The new wave of online divorce provides an economical and convenient option for many couples who are looking for an inexpensive alternative to paying high attorney’s fees. The truth is, regardless of how much of your paperwork is done over the internet, you still have to appear in court to finalize your divorce, making an online divorce great in theory, but not a reality- yet.

The following are five common mistakes made when using online divorce kits:

Mistake #1: Not properly serving the other spouse

Although many online divorce kits provide you with the documents you need to get divorced, they don’t always provide you with proper or thorough instructions on how to navigate the legal maze to obtain your divorce. Many times, they do not give any advice at all about how to make sure your spouse is properly served.

In any lawsuit, all parties must be “served.” This means that your spouse must be properly notified of the divorce proceedings. Your spouse must either be personally handed the divorce papers by a constable or sheriff, or she or he has to properly execute a “Waiver of Service.” Mailing the papers to your spouse is not proper service.  A party can sign a “Waiver of Service” to avoid having to be personally served by a constable or sheriff. However, a very common mistake people make when using a “Waiver of Service” from an online kit is having the spouse sign the waiver before the Petition for Divorce is filed. Many divorce kits fail to tell you that this Waiver of Service must be signed after you file your Petition for Divorce, or it is not valid.

If you show up to court ready to finalize your divorce with all of your documents, and your Waiver of Service was signed by your spouse before your Petition for Divorce was filed, the judge will turn you away and make sure you properly serve your spouse before your divorce can be granted.

Mistake #2: Failing to properly calculate child support

Many online divorce kits do not provide you all of the information necessary to properly calculate the amount of child support your spouse will need to pay.  Some services will tell you that the child support amount for 1 child is 20%, 2 children is 25%, etc. Although this is basically true, it does not take into account many other factors that the court must consider. The percentage of child support is calculated from the parent’s net resources. This means the parent’s take home pay after taxes and after the cost of medical insurance for the child(ren). Also, most online services do not explain that if the parent who is going to pay child support has other children, then the percentage amount of child support will be different.

Mistake #3: Leaving out required provisions in the Decree

Most online divorce kits are provided by national businesses that use cookie-cutter, boiler plate language. This can be dangerous because divorce laws vary from state to state. In Texas, for example, there are many provisions, or statements, that must be in your divorce decree for it to be valid and enforceable. For instance, if you have children, there must be a statement about whether or not there has been a history or pattern of family violence in your relationship in the last two years. Many divorce kits neglect to include this provision and others that are required by law. If you are using a kit to get divorced in Texas, you should make sure your divorce kit is prepared by someone familiar with Texas laws and procedures so that you avoid using a divorce kit that does not include important statements required by law.

Mistake #4: Using an unenforceable order

Many divorce kits provide you with a final decree of divorce that is not enforceable. This means that if one of the parties does not follow the terms of the order (such as visitation or child support), then you cannot take your spouse back to court to enforce the order. In order to hold a party responsible for what he or she has been ordered to do, the order must contain very specific language.  The problem with many online divorce kits is that they provide fill-in-the-blank, or “check-the-box” provisions that are not specific enough for a court to hold the party responsible for the terms of the order. This can be very devastating for a parent, for example, to learn that he or she cannot take the other parent to court to enforce a child support order and get paid the money he or she is owed, all because the parent used a poorly written divorce kit.

Mistake #5: Going to court unprepared

Most divorce kits do not give you any specific information about the court you will be filing your paperwork in, what you need to bring with you, or what you will need to say for your divorce to be finalized.  Many divorce kits simply send you the paperwork and send you on your way, completely unprepared.  If you are using a divorce kit to dissolve your marriage, you must be prepared when you go to court.  You should know where to go, what building, what courtroom, etc. You should also have a personalized script that tells you exactly what to say when you testify in front of the judge. You should also know what paperwork you will need and how many copies you will need of each set of papers. Many divorce kits lack these basic instructions, so you must be careful to select a divorce kit that will give you all of the information you need.

Divorce kits can be a great tool to help you divorce yourself.  However, it is important that you select a kit that is accurate and legally sound. Choosing the proper kit is very important.  If possible, you should seek one that is prepared by an attorney in your state.

–Angela C. Holmes

Attorney at Law, Texas Divorce Law, Texas Legal Partner

I constantly hear people saying, “I need a divorce, but I can’t afford it right now,” which is understandable given how expensive the services of an attorney can be. The percentage of people filing for divorce is on the decline, according to Fox News in Houston. Unfortunately, this doesn’t mean that marriages are happier and couples are more committed to staying together.  These statistics just show that the financial reality of divorce is more than many people can bear.  While the cost of maintaining separate households and dividing assets can be prohibitive, the divorce itself may not be.  You may be able to divorce yourself.

If your divorce is truly uncontested, meaning you agree to all of the terms of your divorce, it is possible to “divorce yourself” and save hundreds or thousands of dollars. Let me first be clear that nothing can substitute for the advice and expertise of an attorney, and if there is any matter in your divorce that you and your spouse do not agree about, I highly advise you to contact an attorney.

If you know where your spouse is living, the first step is for you and your spouse to speak with each other about the terms of your divorce. If you are able to come to an agreement about how you will divide up all of your assets and debts, and you have agreed to the terms of custody, visitation, and child support if you have children, then it is possible for you to “divorce yourself” using free forms or an inexpensive divorce kit.  The following are commonly asked questions and answers regarding representing yourself in a divorce.

Where do I file for Divorce?

In order to file for divorce in Texas, you must have resided in the state of Texas for at least six months. You can file in either the county of your residence or your spouse’s residence, but you or your spouse must have resided in that county for at least ninety days before you file for divorce.

What forms will I need?

You will at least need a Petition for Divorce and Decree of Divorce to obtain a divorce. If you and your spouse agree to all the terms of your divorce, you will also need a Waiver of Citation for your spouse to sign after you file your Petition for Divorce. If you have children, there are other forms you may need, such as a Wage Withholding Order for the court to order your spouse’s employer to withhold a portion of his or her wages from his or her paycheck.

Where can I get the forms I need?

Most of the larger county courthouses in Texas have law libraries that provide fill-in-the-blank forms for representing yourself. There are also many websites that help you to divorce yourself by providing inexpensive divorce kits- auto-generated or fill-in-the-blank forms.

Can I still get divorced if I don’t know where my spouse is?

Yes. In this case, it can be harder to divorce yourself.  There are a few more steps that must be taken if you are unable to locate your spouse. If your spouse isn’t available or willing to sign a Waiver of Service and agree to the divorce, your spouse must be “served.” This means that a constable or sheriff must personally hand your spouse a copy of your Petition for Divorce. If you cannot locate your spouse, he or she must be notified of the divorce by either a publication in a newspaper or a posting at the courthouse.

How quickly can I get divorced?

In the State of Texas, there is a 60 day “cooling off” period after you file your Petition for Divorce. This means that you cannot get divorced until at least 61 days after you file for divorce.

While the prospect of obtaining a divorce yourself may seem overwhelming, we are at a point in the economy where it may be the best (or only) solution to ending an unhappy or even unsafe marriage.  Nothing can take the place of good legal counsel, but if you can come to an agreement with your spouse, a divorce kit could help you divorce yourself and enable you to start over and move on with your life.

Angela C. Holmes

Attorney at Law