The Divorce Process
Couples that get married almost never plan on getting divorced. But, it happens. Here is a quick guide to what you can expect.
A divorce action is really a lawsuit with several parts. One part is child custody, if the couple has kids. This includes issues like time to be spent with the child by each parent,who makes decisions for the child with respect to healthcare, education and religious training, child support, medical insurance and related items. Another part is division of Community Property. Other issues include Spousal Maintenance (Alimony) and payment of Attorney Fees, and related.
The person who files the divorce is called the Petitioner. Their spouse is the Respondent. Filing first allows you to take the initiative in the lawsuit and also in court. These days there is not much stigma attached with being the spouse who files a divorce.
The process for filing a divorce is straightforward. To file for a divorce in Texas, one spouse has to have been a resident of the state for a continuious six-month period, and one spouse must have been a resident of the county where the divorce is filed for at least 90 days.
At the time of filing, the Petitioner can ask the Court issue a Temporary Restraining Order, or TRO. TRO’s in divorce cases often require (a) that no assets disappear before they can be divided by the court, and (b) that the spouses act civilly toward each other and not threaten or harass each. If a TRO is issued, the Court schedules a hearing to be held within 14 days. At that time, the Court can convert the TRO into a Temporary Injunction against both parties.
Your divorce must be on file at least 60 days before it can become final. The idea behind this delay is to make sure that you really want to get divorced. Sometimes people need some more time to figure out things are not working out.
You are not required to plead specific grounds for a divorce in Texas. The law in Texas allows "no-fault" divorces. However, if a spouse is at fault for the breakup, the Court can consider that fault when deciding what is an equitable (fair) division of the couple's property. You may want to include fault grounds in your petition for divorce in order to try to get a better property settlement. Texas’ statutory grounds for a fault divorce are: adultery, cruel treatment (that renders further living together insupportable), abandonment (for at least one year with the intent to abandon), long-term incarceration (more than one year), confinement to a mental hospital for at least three years, or living apart for at least three years. For a no-fault divorce, the divorce petition often alleges "insupportability," which is generally defined as discord or conflict of personalities that destroys the legitimate ends of the marriage and prevents any reasonable expectation of reconciliation.
Usually the first major step after filing for divorce is to establish obtain Temporary Orders from the Court. Temporary Orders typically set forth custody, arranagements, who can use which assets, and child support obligations, among other items. Parties can agree to Termporary Orders with Court approval, or Temporary Orders can be contested at a hearing. Cases are sometimes won or lost as a practical matter at Temporary Orders hearings. Since Temporary Orders hearing usually these occur very early in a case (as soon as 4 days after the Petitioner files), it is can be an advantage in a case that is expected to be contested to be the party who files the divorce petition in order to be have time to prepare for the Temporary Orders hearing.
The middle part of most divorce cases is dominated by Discovery. Discovery is the process of exchanging relevant information thru the Texas Rules of Civil Procedure.
Most cases settle prior to trial on the merits. Many times your attorney can trade settlement offers and resolve a case. In more complex or difficult cases, Mediation (assisted settlement negotiation) is usually required to settle the case. Many Texas courts require mediation in all cases unless they are settled outside of Court.
A few cases require a trial on the merits in order to be resolved. These are usually the cases with the most at stake - child custody and/or large amounts of money. While rational people with good attorneys should be able to settle a case, that is not always the case. Frequently one party is not rational. Other times there are issues that just cannot be settled, such as when a parent wants to move far away with the kids.
In Texas, trials can be in front of a Judge or Jury. There is an enormous amount of theorizing about which is better. The answer is: it depends. Be sure to consult with an experienced attorney about this issue.
Jury Trials are more expensive, and that can be a factor in choosing whether to try your case in front of a Judge or Jury. If one side is more able or willing to spend money on lawyers, he or she may ask for a Jury Trial in an attempt to weaken their opponent financially.
Regardless of how a case is finalized, there may be one more chance for your attorney to help you: drafting the final documents. A cleverly written Divorce Decree can recover some lost ground, or add some things, to a client's case. Sometimes this is because a Court ruling is vague or other times it is because the settlement is vague.
The divorce process can be fairly simple in some situations when there are no kids, a short marriage, no significant property, and the divorce is between people who get along. In other situations, it can be tricky. We recommend hiring an experienced attorney to represent your interests in almost all of these situations, especially the complex ones.