Roadmap of Basic Divorce Procedure in Texas

The divorce process in Texas, can be rather daunting, particularly when there are children involved. Before your divorce case is filed, you need to know that there are two bodies of law involved in every court case:

1. substantive law and
2. procedural law

Substantive 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

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 Texas Divorce:

There are 5 basic steps in a Texas Divorce proceeding:

1. Filing an Original Petition for Divorce
2. Citation and Response
3. Discovery Process
4. Negotiation and Mediation
5. Temporary Orders Hearing
6. Trial
7. Divorce Decree
8. 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 district court.

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.

Residency Requirement

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 restrained, from:

1. 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.
2. 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.
3. Placing one or more telephone calls, anonymously, at any unreasonable hour, in an offensive and repetitious manner, or without a legitimate purpose of communication.
4. Causing bodily injury to Petitioner or to a child of either party.
5. Threatening Petitioner or a child of either party with imminent bodily injury.
6. Destroying, removing, concealing, encumbering, transferring, or otherwise harming or reducing the value of the property of one or both of the parties.
7. Falsifying any writing or record, including an electronic record, relating to the property of either party.
8. 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.
9. Damaging or destroying the tangible or intellectual property of one or both of the parties, including electronically stored or recorded information.
10. 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.
11. 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.
12. Incurring any indebtedness, other than legal expenses in connection with this suit, except as specifically authorized by this order.

Standing Orders

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:

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:

1. Written Discovery and
2. Oral Discovery

Written Discovery

There are typically five types of written discovery relevant to a divorce case which include:

1. Request for Disclosure
2. Interrogatories
3. Request for Production
4. Request for Admission
5. Sworn Inventory

Request for Disclosure

Requests for Disclosure consists of standard questions that are asked in every civil suit. Spouses are required to identify:

1. persons with information relevant to the case
2. expert witnesses
3. legal contentions and
4. economic damages

Interrogatories

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:

1. the location of bank accounts
2. balances in those accounts and
3. 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:

1. bank accounts
2. 401(k) plans
3. stock options
4. income
5. gifts to people other than the spouse
6. safe deposit boxes
7. telephone records
8. insurance plans, and
9. 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.

Oral Discovery

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:

1. a temporary orders hearing or
2. 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.

Why Mediation?

Mediation can be a great process to pursue for many family law cases.

1. It can save the litigants thousands of dollars
2. can expedite cases off the court docket, and
3. 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:

1. the payment of temporary alimony
2. the payment of Temporary child support
3. Temporary residency restriction for the children;
4. Temporary conservatorship/custody of the children;
5. Temporary medical support;
6. Temporary possession of and access to the children (possession schedule);
7. which spouse pays specific debts during the divorce process
8. Temporary exclusive use of motor vehicles;
9. Temporary payment of expenses related to the household, including the mortgage and utilities;
10. Temporary payment of insurance premiums, including auto insurance, health insurance, life insurance, and homeowner’s insurance;
11. Temporary exclusive use of personal property and furnishings;
12. Payment of attorney fees
13. Temporary exclusive use of the marital residence and;
14. 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 in mediation.

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.

Trial Preparation

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:

1. Knowing what the judge likes and their preferences
2. Knowing the Local Rules
3. Having exhibits ready and exhibit lists
4. Making sure any amendments to pleadings are made before deadlines
5. Supplementing discovery responses
6. Issuing necessary subpoenas
7. 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:

1. child custody
2. visitation
3. child support
4. spousal maintenance
5. 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:

1. a child support withholding order so the child support amount is automatically withheld from the obligor’s paycheck.
2. Deeds to divide real property
3. QDRO’s to divide up retirement accounts
4. Power of attorneys to transfer vehicles
5. Stock Transfer documents

Some other things you should think about:

1. 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.
2. 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.
3. 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.
4. 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.
5. Financial accounts – I remind my clients to update any beneficiary’s designations on any bank or financial accounts.

Ebook

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