divorce process in Texas, can be rather daunting, particularly when there are children involved.
divorce case is filed, you need to know that there are two bodies of law involved in
every court case:
- substantive law and
- procedural law
Substantive law is the body of rules that consists of written statutory
rules passed by legislature that govern how people behave. They also define
our rights and responsibilities as citizens. There are elements of substantive
law in both criminal and civil law.
Procedural law is the body of legal rules is the set of procedures for
making, administering, and enforcing substantive law.
This article, and those in this series, will focus on basic procedural
law — the system of court rules that must be followed for the substantive
law to be declared and enforced by the court.
Once you’ve read these materials, you will have a clearer understanding
of how divorce cases travel through our Texas court system.
For Quick Reference, Here Is a Short Summary of the Steps Involved in a
There are 5 basic steps in a Texas Divorce proceeding:
- Filing an Original Petition for Divorce
- Citation and Response
- Discovery Process
- Negotiation and Mediation
- Temporary Orders Hearing
- Divorce Decree
- Closing Documents
STEP #1: Filing an Original Petition for Divorce
The filing of the Original Petition for Divorce formally initiates
divorce proceedings. Every
divorce in Texas even one where the parties are amicable and the
divorce is “uncontested” must begin with the filing of an Original Petition for Divorce in a state
Some Texas counties, such as Harris County have courts that have designated
family courts that handle divorce and other
family law matters. Other counties have general district courts that handle all types of
criminal and civil cases.
Under Texas Family Code Section 6.301 for a divorce action to be commenced
in Texas Superior Court, one of the spouses must have been domiciled in
Texas for 6 months or more and a resident of the county in which the suit
is filed for the preceding 90-day period.
This is a jurisdictional requirement without which a Texas Court would
have no legal power to dissolve the marriage.
Temporary Restraining Order
Many divorce petitions also include a request for a 14 day Temporary Restraining
Order. A temporary restraining order is not a protective order this is
a common misconception. Generally, a
temporary restraining order it has more to do with maintaining the status quo not to keep a particular
individual from being around another individual or location. Below is
an example of a few of the things you might see in a Temporary Restraining Order.
IT IS THEREFORE ORDERED that the clerk of this Court issue a temporary
restraining order restraining Respondent, and Respondent is immediately
- Communicating with Petitioner in person or in any other manner, including
by telephone or another electronic voice transmission, video chat, in
writing, or electronic messaging, by use of vulgar, profane, obscene,
or indecent language or in a coarse or offensive manner.
- Threatening Petitioner in person or in any other manner, including, by
telephone or another electronic voice transmission, video chat, in writing,
or electronic messaging, to take unlawful action against any person.
- Placing one or more telephone calls, anonymously, at any unreasonable hour,
in an offensive and repetitious manner, or without a legitimate purpose
- Causing bodily injury to Petitioner or to a child of either party.
- Threatening Petitioner or a child of either party with imminent bodily injury.
- Destroying, removing, concealing, encumbering, transferring, or otherwise
harming or reducing the value of the property of one or both of the parties.
- Falsifying any writing or record, including an electronic record, relating
to the property of either party.
- Misrepresenting or refusing to disclose to Petitioner or to the Court,
on proper request, the existence, amount, or location of any tangible
or intellectual property of one or both of the parties, including electronically
stored or recorded information.
- Damaging or destroying the tangible or intellectual property of one or
both of the parties, including electronically stored or recorded information.
- Tampering with the tangible or intellectual property of one or both of
the parties, including electronically stored or recorded information,
and causing pecuniary loss to Petitioner.
- Selling, transferring, assigning, mortgaging, encumbering, or in any other
manner alienating any of the property of Petitioner or Respondent, whether
personalty, realty, or intellectual property, and whether separate or
community, except as specifically authorized by this order.
- Incurring any indebtedness, other than legal expenses in connection with
this suit, except as specifically authorized by this order.
Some counties have in place a place an order known as a Standing Order
that goes into effect the moment you file your Original Petition for Divorce.
This standing orders is essentially a standard Temporary Restraining Order.
76 counties in Texas utilize a Standing Order. Out of Harris and contiguous
counties the following do or do not utilize standing orders:
Does or Does not Have a Standing Order
It is important to know whether your county has a standing order. If your
county does use a Standing Order it will automatically be applied to all
open family law cases for the parties protection. If the county does not
utilize a Standing Order the parties will need to ask for a Temporary
Restraining Order if they would like the same sort of protection.
STEP #2: Citation and Response
Once the Original Petition for Divorce has been filed with the Court, your
spouse (the other party) must be made aware about your intention to pursue
court action to obtain a legal divorce. This can be done by either formal
or informal service.
The other party’s response is the acknowledgement that the divorce
procedure has begun. Once this is done your spouse is brought under the
power of the Court and the Court can then make orders regarding the two of you.
Waiver of Service
If your spouse agrees they can accept informal service. With informal service
either you or your lawyer will provide your spouse with a copy of the
divorce paperwork and a waiver of service. The Waiver of service basically
says that your spouse has received a copy of the paperwork and does not
want to be formally served with the paperwork. Your spouse must sign and
have the waiver of service notarized. Then it must be returned to your
attorney so it can be filed with the Court.
Service of Process
If your spouse does not sign and return the waiver of service then it will
be necessary serve your spouse with the paperwork. This is done by asking
the clerk of the court to issue a citation then a process server is hired
to serve your spouse in person with the divorce paperwork and the citation.
The process server then signs a document saying that they served your
spouse and this document is filed with the court.
Filing an Answer
Once a spouse is served with the lawsuit (the divorce papers) they will
need to respond. In Texas divorce papers will a long paper attached by
the court “the citation” saying they have been sued and have
until the Monday next following 20 days after service of the lawsuit to respond.
If they respond by filing an answer this prevents the filing spouse from
being able to obtain a default judgment.
A default Judgment would be judgment in favor of filing spouse based the
spouse served with the paperwork failure to take action.
Step #3: Discovery
Once your divorce is filed and the opposing party has been served it will
be time to conduct "discovery." If time is of the essence it
may be necessary to delay this step and get the case straight into mediation
or into a Temporary Orders hearing first. However, if those two things
can be delayed it is generally a good idea to conduct discovery first.
During our divorce cases it is not uncommon for us to hear from our clients
our clients all kinds of complaints regarding answering discovery requests.
As a Houston Divorce Lawyer I, am not aware of any other Texas Divorce
Lawyer that enjoys the discovery process any more than their clients.
However, Discovery serves an important part of the divorce process.
Discovery is a tool your attorney can use to find evidence to present during
your trial/hearing. Both sides can, and most of the time, participate
in the discovery process which must be complete 60 days prior to the final
trial in your case. This procedure allows both sides to get the information
they need to determine the size of the community estate and to learn the
position the other party will take on certain issues.
The tools of discovery include:
- Written Discovery and
- Oral Discovery
There are typically five types of written discovery relevant to a divorce
case which include:
- Request for Disclosure
- Request for Production
- Request for Admission
- Sworn Inventory
Request for Disclosure
Requests for Disclosure consists of standard questions that are asked in
every civil suit. Spouses are required to identify:
- persons with information relevant to the case
- expert witnesses
- legal contentions and
- economic damages
One of the most useful pretrial discovery methods, interrogatories are
a set of written questions sent to the opposing party that require responses
about relevant issues, such as:
- the location of bank accounts
- balances in those accounts and
- signatory privileges on the accounts.
Although almost anything relevant to the case can be asked, the total number
of questions is limited to 25.
Request for Production of Documents
Request for Production is a discovery tool that allows a party to request
copies of documents relevant to the issues in the case such as:
- bank accounts
- 401(k) plans
- stock options
- gifts to people other than the spouse
- safe deposit boxes
- telephone records
- insurance plans, and
- credit card statements.
Request for Admission
Requests for admission are statements that the opposing party must either
admit or deny.
If they ignore or refuse to answer a request for admission the court will
deem them as admitted.
One of the purposes of making this request is to lock the person story
in. Once they answer the questions they are stuck with their answers.
Sworn Inventory and Appraisement:
A sworn inventory is a discovery tool unique to divorce cases. It requires
a spouse list every asset or debt they know about.
Spouses are also required to characterize the assets as either separate
property or community property and to place a value on it. A sworn inventory
is sworn under oath. This means if spouse deliberately hides an asset
a court can subject to punitive remedies.
Depositions are a form of oral discovery. These are witness examinations
taken under oath in front of a court reporter. Any witness with information
that will affect the case can be deposed. Under Texas law, the deposition
testimony can be presented to the court as if the witness were testifying
in person before the court.
Depositions are often times most useful after the other discovery tools
have been used. This because you can then ask questions regarding their
responses to prior discovery.
Step #4 – Negotiation and Mediation
The parties should make a good faith effort to settle their case prior
to a contested hearing or trial. Settlement negotiations can be attempted
either between the parties or through the attorneys.
Mediation is required by most family law courts in Harris and Montgomery counties
prior to having:
temporary orders hearing or
- final contested trial.
Mediation is a process where the parties and attorneys meet with a neutral
third party “the mediator” to try to reach a settlement. If
settlement is reached, the parties will sign a mediated settlement agreement,
which is irrevocable once signed.
Mediation can be a great process to pursue for many
family law cases.
- It can save the litigants thousands of dollars
- can expedite cases off the court docket, and
- it can possibly salvage what is left of a relationship by keeping parties
from extremely contested litigation.
Mediation isn’t meant to declare one party a winner and the other
a loser, but is rather meant to see what each party can agree to and live with.
When to go to mediation?
Figuring out when to attend mediation requires careful consideration. Generally
I recommend attending mediation when we have clear understanding of the
finances as well as sufficient information regarding the parties situation.
Step #5: Hearings and Temporary Orders
In some instances there are questions or situations that need to be temporarily
resolved before the final divorce agreement is reached or ordered by the court.
Temporary Orders Usually Cover:
- the payment of temporary alimony
- the payment of Temporary child support
- Temporary residency restriction for the children;
- Temporary conservatorship/custody of the children;
- Temporary medical support;
- Temporary possession of and access to the children (possession schedule);
- which spouse pays specific debts during the divorce process
- Temporary exclusive use of motor vehicles;
- Temporary payment of expenses related to the household, including the mortgage
- Temporary payment of insurance premiums, including auto insurance, health
insurance, life insurance, and homeowner’s insurance;
- Temporary exclusive use of personal property and furnishings;
- Payment of attorney fees
- Temporary exclusive use of the marital residence and;
- who has the use of other community property, such as vehicles
Temporary Orders can be put into place either by agreement either informally or through
mediation or after a Temporary Orders Hearing. If an agreement cannot
be reached the parties can ask the court for a hearing and judge after
the hearing will make a decision and Orders on above matters One of the
parties attorneys will usually set or already set a hearing with the court.
This hearing is the formal way settling the same sort of issues discussed
A Temporary Orders hearing is often like a miniature trial where parties
put on testimony, witnesses are called, and evidence is presented in order
for the parties to prove their cased on how the parties should handle
things during the divorce.
Temporary orders generally remain in effect until the final decision is
made at the end of the divorce.
STEP #6: Final Trial
If spouses cannot settle issues between themselves either informally or
through mediation then the case will go before the court for decision
on the contested issues where parties put on testimony, witnesses, friends,
financial experts, psychologists, as well as the submission of other types
of evidence including financial records are presented for the parties
to prove their case.
This is a critical court appearance before the judge unlike in Temporary
Orders in a Final Trial things are going to be decided on a final basis.
Preparation is one of the most important aspects of going to trial. It
is important to have all documents organized so that they can easily be
found when needed. Other tips include:
- Knowing what the judge likes and their preferences
- Knowing the Local Rules
- Having exhibits ready and exhibit lists
- Making sure any amendments to pleadings are made before deadlines
- Supplementing discovery responses
- Issuing necessary subpoenas
- Meeting and preparing witnesses and witness lists
Step #7: Divorce Decree
The final decision by a judge is a judgment that gets prepared by the lawyers
into a document called a Final Decree of Divorce this document will reduce
the judge’s rulings to a writing. In the decree all the issues and
question will covered such as:
- child custody
- child support
- spousal maintenance
- property division, and so on.
Once the divorce is drafted a court date will be set for entry of a final
divorce decree for the judge to accept and sign the decree. It is also
a date for the attorneys to meet with the judge regarding any drafting
disputes and to get clarification from the court.
Step #8: Closing Documents
Once you leave the Courthouse, having either concluded the case through
trial or having proved up an agreement or order the case is not necessarily finished.
Certain closing documents may be necessary to complete the divorce process
to ensure the Judge’s orders will be carried out, or your spouse
will comply with the terms of a settlement agreement.
The documents may include:
- a child support withholding order so the child support amount is automatically
withheld from the obligor’s paycheck.
- Deeds to divide real property
- QDRO’s to divide up retirement accounts
- Power of attorneys to transfer vehicles
- Stock Transfer documents
Some other things you should think about:
- Vehicle and Home Insurance – I remind my clients to contact their
auto insurance and homeowner's insurance carriers to make certain
all coverage now is in your individual name and that the carriers have
correct addresses and information regarding the properties, vehicles,
personal property owned by each spouse.
- Taxes - I remind my clients that we do not give tax advice and they should
accordingly, please contact a certified public accountant, accountant
regarding any tax questions they may have.
- New Will – I suggest my clients if they have not already done so,
please consider having a new will prepared to make certain the people
they want will receive properties owned by them in the event of their death.
- Personal Items – If personal items have not already been divided.
Usually a specific time has been designated for that to take place. I
will remind my clients of that date.
- Financial accounts – I remind my clients to update any beneficiary’s
designations on any bank or financial accounts.
If you want to know more about what you can do,
CLICK the button below to get your
“16 Steps to Help You Plan & Prepare for Your Texas Divorce”
Other Articles you may be interested in:
- How Can I Get My Spouse to Pay My Attorney's Fees in a Texas Divorce?
- How am I going to Pay for My Texas Divorce?
- Should I Hide Money from my Spouse to Get Ready for my Texas Divorce?
- 7 Important Ways to Financially Prepare for Your Texas Divorce
- 6 Tips - On How to prepare for a Texas Divorce
- What are the Steps of a Contested Texas Divorce, and How can I Prepare for Them?
- Can I get child support while my Texas divorce is pending?
- 6 Mistakes that can Destroy Your Texas Divorce Case
- 6 things You Need to Know Before You File for Divorce in Texas
Law Office of Bryan Fagan | Spring Divorce Lawyers
The Law Office of Bryan Fagan routinely handles matters that affect children
and families. If you have questions regarding
divorce, it's important to speak with one of our
Spring, TX Divorce Lawyers right away to protect your rights.
divorce lawyers in Spring TX are skilled at listening to your goals during this trying process and
developing a strategy to meet those goals.
Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online
form. The Law Office of Bryan Fagan handles
Divorce cases in Spring, Texas,
The Woodlands, the FM 1960 area, or surrounding areas, including
Fort Bend County and