A counter-petition for divorce in Texas is the pleading you file in response to your spouse’s Original Petition that lets you make your own affirmative requests for custody, property, support, and the grounds of divorce, rather than only defending against what your spouse asked for. Texas provides a combined form, the Respondent’s Original Answer and Counter-Petition for Divorce, that handles both your response and your counter-claims in one document. Filing one keeps you on equal procedural footing with your spouse and, just as important, keeps the case alive if your spouse later tries to drop it.
Why File a Counter-Petition Instead of Just an Answer
When you’ve been served, you can file an Answer, a counter-petition, or both together. The difference is control.
An Answer is the minimum. It tells the court you received the suit and want to participate, and it lets you dispute your spouse’s claims. What it does not do is let you ask the court for anything of your own. If your spouse asks to be named the primary parent, an Answer lets you argue against that; it does not let you ask the court to name you as the primary parent instead.
A counter-petition does. It puts your requests on the record: how you want property divided, who should have primary custody, whether you’re asking for spousal maintenance, and the grounds on which you want the divorce granted. Once it’s filed, the court has two live sets of claims in front of it, not one.
Your Deadline to Respond
You must file your response by 10:00 a.m. on the first Monday after 20 days have passed from the date you were served.1South Texas College of Law. Texas Rules of Civil Procedure Rule 99 – Issuance and Form of Citation Count carefully. The 20-day clock starts the day after service, and the deadline lands on the following Monday morning.
Miss it and your spouse can ask for a default judgment, meaning the court may grant everything they requested in their petition without hearing from you.2Texas Judicial Branch. Texas Rules of Civil Procedure Rule 239 – Judgment by Default A judge will still review the proposed decree for legal soundness and children’s interests, but you lose your voice in it. If the deadline is close and your counter-petition isn’t ready, file a general denial Answer first to preserve your standing, then follow with the counter-petition.
What to Include
The document has to say plainly what you’re asking the court to do. Specific requests give you a stronger position in negotiation or at trial.
Grounds for Divorce
State the legal reason. Most Texas filers use insupportability, the state’s no-fault option, which means conflict has destroyed the marriage with no reasonable prospect of reconciliation.3State of Texas. Texas Code Family Code 6.001 – Insupportability Texas also recognizes fault grounds including cruelty, adultery, felony conviction, abandonment, living apart for at least three years, and confinement in a mental hospital. A fault ground can affect property division, but you have to prove it.
Custody and Child Support
If you have children, describe the conservatorship arrangement you want: who makes major decisions and the possession schedule setting each parent’s time. Address child support too. Texas calculates it as a percentage of the paying parent’s monthly net resources, starting at 20% for one child and 25% for two, with the scale rising from there.4State of Texas. Texas Code Family Code 154.125 – Application of Guidelines to Net Resources If the guideline number doesn’t fit your circumstances, ask the court to deviate and explain why.
Property Division
Texas is a community property state, so assets and debts acquired during the marriage are subject to division. The court must divide the marital estate in a manner it considers just and right, which is not automatically 50/50.5State of Texas. Texas Code Family Code 7.001 – General Rule of Property Division Spell out how you want the home, vehicles, bank accounts, and retirement plans divided. Retirement accounts need particular care: dividing a 401(k) or pension requires a separate Qualified Domestic Relations Order, and mishandling that during the divorce can cost you the benefits later.6U.S. Department of Labor. Qualified Domestic Relations Orders Under ERISA – A Practical Guide to Dividing Retirement Benefits
Spousal Maintenance
If you need support after the divorce, ask for it in the counter-petition. Texas limits spousal maintenance to spouses who can show they will lack sufficient property to meet minimum reasonable needs, and you must also meet one of these: the marriage lasted 10 years or longer, you have a disability that prevents you from earning enough, or you’re caring for a child of the marriage with a disability requiring substantial supervision.7State of Texas. Texas Code Family Code 8.051 – Eligibility for Maintenance Maintenance is also available if your spouse was convicted of or received deferred adjudication for family violence during the marriage.
Filing and Serving It
File with the district clerk in the same county where your spouse filed the original petition. Attorneys must e-file through eFileTexas.gov. Self-represented filers are encouraged to e-file but can still file in person at the clerk’s office.8eFileTexas.Gov. Official E-Filing System for Texas
There’s a filing fee that varies by county. If you can’t afford it, file a Statement of Inability to Afford Payment of Court Costs and ask the judge to waive it.9Texas Judicial Branch. Statement of Inability to Afford Payment of Court Costs or an Appeal Bond
After the clerk accepts the filing, serve a copy on your spouse or their attorney. Service on a counter-petition is lighter than the original service of process. If both sides use e-filing, electronic service through the filing manager satisfies the rule. Otherwise, certified mail, commercial delivery, or email will work.10South Texas College of Law. Texas Rules of Civil Procedure Rule 21a – Methods of Service
The Nonsuit Protection
This is the strategic reason a counter-petition matters. Under Texas procedure, the spouse who filed the original petition can voluntarily dismiss the case at almost any time by filing a nonsuit.11South Texas College of Law. Texas Rules of Civil Procedure Rule 162 – Dismissal or Nonsuit If all you filed was an Answer, a nonsuit ends the case. You’d have to start over: new petition, new filing fee, new service.
A counter-petition changes that. Because it’s an independent claim for relief, your spouse’s nonsuit dismisses only their petition; your request for divorce stays before the court and the case keeps moving.11South Texas College of Law. Texas Rules of Civil Procedure Rule 162 – Dismissal or Nonsuit Spouses sometimes file and then use the threat of dismissal as leverage. Your counter-petition removes that leverage.
After You File
With both petitions on file, both spouses have active claims pending and neither has a procedural edge. Texas then imposes a mandatory 60-day waiting period from the date the original petition was filed before any divorce can be finalized, even in complete agreement. The only exception involves family violence.12State of Texas. Texas Code Family Code 6.702 – Waiting Period
During those weeks and any time after, either side can ask for temporary orders covering who stays in the home, how bills get paid, and where the children live while the case is pending. Both sides can also start discovery, exchanging financial records and other documents needed to reach a settlement in mediation or take the case to trial.