Depending on the dynamics of your family, you may consult with a family lawattorney and decide to file for divorce without first having discussed the subject with your spouse. Alternatives would be to attend counseling or to attempt to work out the issues of your marriage on your own without formal assistance.
There can be circumstances that necessitate a quick removal of yourself and your children from a marriage where either of these two options would not make sense. However, for most people reading this blog it is recommended that you attempt to salvage your marriage before making any hasty decisions regarding a divorce.
However, if you decide it is to simply move forward with a divorce without first alerting your spouse you will need to figure out where and how to have him or her served. Today’s blog post from the attorneys with the Law Office of Bryan Fagan will focus on this issue.
Notification of your spouse of a pending divorce suit
There are basically three ways to notify your spouse that you have filed for divorce against him or her. The first example is the easy one. In divorce cases that are uncontested or have few issues that need to be negotiated, it is possible to simply have your spouse sign a Waiver of Citation/Service.
This is an affidavit that states under oath that your spouse did receive the Original Petition for Divorce and that he or she waives their right to be served with a Citation alerting him or her to the divorce in a formal manner. This Waiver of Citation/Service would be filed with the court. Theoretically, this is the fastest, most efficient way to get a divorce in Texas.
The traditional and most common method of providing notice to your spouse of a pending divorce case is to personally serve him or her with the citation and the Original Petition for Divorce.
A constable, sheriff, police officer or professional process server would collect your Original Petition for Divorce, the citation and any other documents you filed with your Petition and will serve them upon your spouse at the address you specified in the Petition. When the citation is in the hands of your spouse then service is complete.
Once service has been completed the server will file an affidavit with the court stating under oath the details of the service- when, where, etc. A private process server will work with you to serve your spouse and is more flexible as to when service attempts can be made. A constable or sheriff will likely tell you when he or she is able to attempt service upon your spouse.
Finally, the third method of serving notice upon your spouse of a divorce suit is by publication or posting at the courthouse. This is a means of service that should only be attempted as a last resort if personal service is not possible. You will need to log all of your attempts at service and then file a motion with the court to allow service by publication.
The district clerk, upon the granting of your motion by the court, will post your citation on the courthouse steps or at whatever location your county designates on the courthouse grounds. A certain amount of time will need to pass before the clerk will notify your court of the completion of the posting requirement.
Service by publication is accomplished by publishing your citation in the newspaper in the city or town where your spouse was last known to reside. Your court will authorize publication in certain publications and the District Clerk will see to it that the citation is published there. Proof of publication should be filed with the district clerk’s office once completed.
Filing an Answer
Once you have served your spouse successfully with your Petition for Divorce as well as the Citation, your spouse then has a deadline to file their Answer before the First Monday following 20 days after your spouse has been served. This applies to whatever method of service was chosen- even if a Waiver was signed by your spouse.
The Answer entitles your spouse to receive notification from the court on any court dates or other important information such as deadlines to file discovery, trial/pre-trial dates and deadlines to attend mediation.
The important part about filing an Answer is that by doing so your spouse keeps you from being able to get a default judgment against him or her. A default judgment can occur if you properly serve your spouse, he or she does not file an answer within the twenty-day timeframe I laid out a few paragraphs ago, and you have an order drafted and approved by the judge once the sixty-day waiting period has expired. Filing an Answer requires you to negotiate with your spouse for a final order instead of being able to push one through that reflects only what you want.
Speaking of the sixty-day waiting period…
Your court cannot grant your divorce until your Original Petition for Divorce has been on file for sixty days. Believe it or not, many couples use this time to figure out if a divorce is actually the best course of action for them. It is not uncommon for me to receive a phone call from a client telling me that he or she does not want to move forward with a divorce after all.
The other purpose of the sixty-day waiting period is to allow you and your spouse to work out an agreement on any outstanding issues in your case. Children and property issues abound in a divorce and the two months in between filing and resolving a divorce can act as a good time period to negotiate on those issues. Failing to reach an agreement with your spouse on them can result in having to go before a judge in a trial or first a temporary orders hearing.
Temporary Orders Hearing
Once your divorce has been filed you and your spouse will need to figure out how to divide responsibilities and your children for the duration of the divorce. Which of you is going to pay what bill and what is the visitation schedule with the children going to look like? With whom will your children reside primarily? Basically, these will be the ground rules for your divorce to make sure the status quo is maintained as much as possible before the divorce can be finalized.
In the event that you and your spouse cannot come to an agreement in mediation or in an informal settlement negotiation, your case will go before a judge for a temporary orders hearing.
A temporary orders hearing is a mini-trial where you and your spouse will be able to present arguments on the issues that I mentioned in the previous paragraph. Once all of the evidence has been presented the judge will make a decision on what he or she believes is fair and what is in the best interests of your child. Keep in mind that what ends up being ordered in temporary orders is largely what you can expect final orders to look like.
More on the different phases of a divorce case- tomorrow’s blog post from the Law Office of Bryan Fagan
Join us tomorrow as we continue discussing the middle phase or a divorce case. If you have questions on this subject or any other in family law please do not hesitate to contact the Law Office of Bryan Fagan today.
Our team of licensed family law attorneys would be honored to meet with you free of charge in order to answer your questions and prepare you for what your life could look like before, during and after the filing of a family law case.
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Other Articles you may be interested in:
- How to Draft and File an Answer to a Texas Divorce - Free Downloadable Forms
- Methods of Service Including Facebook in a Divorce
- What does a Default Judgment Mean in a Texas Divorce?
- 6 Mistakes that can Destroy Your Texas Divorce Case
- Cost Cutting Tips for your Texas Divorce
- 49 Best Texas Divorce Advice Tips
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- 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?
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Law Office of Bryan Fagan | Houston, Texas 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 Houston, TX Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Houston 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 Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.