Understanding the roadmap of basic divorce procedure in Texas is essential for anyone navigating this complex legal process, as it outlines the essential steps and legal requirements involved in dissolving a marriage in the Lone Star State.
In this article, we delve into the roadmap of basic divorce procedure in Texas, providing a clear and concise guide to the essential steps, legal requirements, and critical considerations one must navigate when seeking a divorce in the Lone Star State. From filing the initial petition to the final decree, this overview aims to demystify the process and offer valuable insights for those facing this challenging journey.
The Divorce Process 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:
- 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 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 the material, you will have a clearer understanding of how divorce cases travel through our Texas court system.
The 5 Basic Steps Involved in a Texas Divorce:
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 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.
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
In divorce cases, a 14-day Temporary Restraining Order (TRO) often accompanies the petition to help maintain the status quo. Key provisions in a TRO typically include:
- Prohibiting communication with the Petitioner in any offensive or harmful manner, including through electronic means.
- Banning threats or unlawful actions against the Petitioner or any children involved.
- Restricting anonymous or harassing phone calls at unreasonable hours.
- Preventing any form of bodily harm to the Petitioner or children.
- Forbidding the destruction, concealment, or tampering with the couple’s property, including intellectual and tangible assets.
- Disallowing any falsification of records or misrepresentation of property details.
- Prohibiting major financial actions such as selling, transferring, or encumbering property, except as approved by the court.
- Restricting the incurring of new debts, except for legal expenses related to the divorce.
These measures aim to prevent either party from engaging in actions that could prejudice the other or impact the divorce outcome.
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
Knowing whether your county implements a standing order is crucial. Counties with a standing order automatically apply it to all open family law cases for the parties’ protection. In contrast, in counties without a standing order, parties must request a Temporary Restraining Order for similar protection.
STEP #2: Citation and Response
After filing the Original Petition for Divorce with the Court, you need to inform your spouse (the other party) of your intention to pursue a legal divorce. You can achieve this through either formal or informal service.
The response from the other party signifies the start of the divorce proceedings. Once they respond, the court gains jurisdiction over both parties and can issue orders affecting both.
Waiver of Service
The Waiver of Service essentially confirms that your spouse has received the divorce paperwork and chooses not to be formally served. Your spouse should sign this waiver and get it notarized before returning it to your attorney for filing with the Court.
Service of Process
If your spouse does not sign and return the Waiver of Service, you must initiate the service of process. To do this, request that the court clerk issue a citation. Then, hire a process server to deliver the divorce paperwork and citation to your spouse in person. After serving your spouse, the process server will sign a document to certify the service, which you then file with the court.
Filing an Answer
When a spouse receives the lawsuit (the divorce papers), they must respond. In Texas, divorce papers come with a court citation, which informs the served spouse of the lawsuit against them and requires a response by the Monday after 20 days from the date of service.
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:
1. 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.
3. 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.
4. 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.
5. 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. If a spouse intentionally conceals an asset, the court may impose punitive remedies.
Oral discovery includes depositions, where witnesses give testimony under oath in the presence of a court reporter. Witnesses with case-relevant information are subject to deposition. In Texas, the court can consider deposition testimony as if the witness were testifying in person.
Depositions are most effective after using other discovery methods. They allow for questions about responses given during earlier discovery stages.
Step #4 – Negotiation and Mediation
Parties are encouraged to earnestly seek a settlement before going to a contested hearing or trial. They can engage in settlement negotiations directly or through their attorneys. This step is crucial for potentially avoiding the complexities and uncertainties of a trial.
Mediation is required by most family law courts in Harris and Montgomery counties prior to having:
- a 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.
- 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 and utilities;
- 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 in mediation.
In a Temporary Orders hearing, which often resembles a miniature trial, parties actively present testimonies, call witnesses, and submit evidence to assert their positions on how to manage affairs during the divorce. These orders typically remain effective until the court makes a final decision at the divorce’s conclusion.
STEP #6: Final Trial
Should spouses fail to resolve their issues either informally or through mediation, they must present their case in court for a decision on contested matters. At this stage, parties actively engage in the process, presenting testimonies from witnesses, friends, financial experts, and psychologists, alongside various forms of evidence, including financial records, to support their claims. This critical court appearance before the judge is decisive, with the final trial resolving issues on a permanent basis, unlike in Temporary Orders hearings.
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.
After drafting the divorce decree, the parties will schedule a court date for the judge to review, accept, and sign the decree. This date also allows attorneys to discuss any drafting disputes directly with the judge and seek clarifications.
Step #8: Closing Documents
Upon leaving the Courthouse, whether after a trial conclusion or an agreement ratification, the case may still require further action. Parties need to prepare specific closing documents to finalize the divorce process, ensuring the implementation of the Judge’s orders and compliance with the settlement agreement terms by the spouse.
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.
In conclusion, navigating the divorce process in Texas involves understanding both substantive and procedural laws, complying with specific jurisdictional requirements, and navigating through multiple steps from filing the petition to finalizing the divorce decree. This article has provided an in-depth look at the stages involved, including the nuances of temporary restraining orders, discovery processes, mediation, and the complexities of temporary and final orders.
It is crucial for individuals undergoing divorce in Texas to be well-informed and prepared for each step, potentially seeking professional legal assistance to ensure their rights and interests are adequately represented.
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