In Part Three of the Law Office of Bryan Fagan, PLLC's series of blog posts on Family Law Courts in Texas, we discussed the basic and essential knowledge that you should have before beginning a divorce case in our state. If that is information that you believe you need to learn or want a refresher on, I would highly recommend that you go back and look.
Today's blog will go through some of the mechanics associated with filing and proceeding with a divorce case in Texas. With that said, there is no better place to start than the beginning of a divorce. How does a divorce case originate?
The beginning stages of a divorce case
The first step in filing for divorce is drafting the Original Petition for Divorce document. This is a document that goes through all of the essential information that you must inform the court of, such as:
- Who you are
- Who your spouse is
- Who your children are and
- The reason (if any) that you are filing for divorce
While the Petition is not long (typically less than five pages in length), it does contain a great deal of essential information. The district clerk for the county you live in will receive the Petition, assign your case to a particular court and then collect whatever fees are necessary to file your lawsuit.
Petitioner
If you file the divorce petition, you will be known as the "petitioner"- clever, right?
Respondent
Since your spouse will be the party who has to respond to your Petition, they will be the "respondent"- again, clever, right? You may be asking yourself how your spouse will come to find out about your wanting a divorce.
Some spouses talk about filing for divorce before doing so, but most do not. It's an uncomfortable subject (obviously), and many petitioners are not sure how their spouses will react.
Notice
As the petitioner, it is your responsibility to provide notice to your spouse of your having filed for divorce. If you do not provide information and then show proof to the court of their having been provided notice, your divorce cannot proceed. This can delay your case in the short term.
If you've hired an attorney, you may be paying your attorney to do no work since no notice has been provided. If your case sits in the court's files for an extended period with no work having been done on it, the judge can decide to toss your point out. This is known as a dismissal in court talk.
How to provide notice to your spouse that you have filed for divorce
There are multiple ways to notify your spouse of your intent to divorce them.
Process Server
The most common is service by a court-appointed process server or law enforcement officer. You and your attorney will have hired a process server to collect the Petition from the court once it is filed.
The process server or law enforcement officer will then go out to the location where you've instructed them to serve your spouse. Once your spouse is served successfully, the process server or law enforcement officer will fill out an affidavit to tell the judge when and where your spouse was served. The testimony is then returned to the court for filing.
Waiver of Citation
The second most common method of providing notice to your spouse is not serving them at all. If there are agreements in place on almost all of the issues in your divorce, many spouses will waive their right to be personally served with the Divorce Petition.
A Waiver of Citation will need to be completed and signed by your spouse, and in exchange, you can have your Petition delivered to them by yourself or your attorney. This can save money time and encourage settlement between yourself and your spouse.
Service by Publication
Less common service methods will need to be approved by the judge after you have shown them that multiple attempts at personal service have come up with no results. In that case, a judge may allow you to provide notice to your spouse by publishing information in a newspaper or other publication in your area.
Alternative Service
Finally, sending the Petition to your spouse at their last address via certified mail from the district clerk is another alternative service method. Again, this is not common and can be challenging to have a court approve absent many, many failed attempts at personal service.
Once your spouse is served, what happens next?
Suppose, then, that you were successful in your first attempt to provide your spouse notice of your having filed an Original Petition for Divorce. In that case, the clock begins to tick for them- your responsibility to do anything in the immediate future goes away.
Your spouse now has a specific deadline in which to file an Original Answer to your Original Petition for Divorce. The deadline in Texas is the first Monday at 10:00, after twenty days have expired since your spouse was served.
This sounds complex, but you need to remember that your spouse will have at least twenty days to file an Answer for our purposes.
If they do not meet this deadline, you have the chance to get a default judgment against them. This means you can come up with your order, draft it, sign it and file it. Once sixty days have elapsed since you filed the divorce, you can show up to court with your paperwork and get a divorce without your spouse ever having made an appearance or filed an Answer.
Temporary Orders- The middle stages of a divorce
Tomorrow's blog post will look into what occurs during the middle stages- otherwise known as the Temporary Orders phase.
If you have any questions about the initial stages of a divorce or any other matter related to family law, please do not hesitate to contact the Law Office of Bryan Fagan, PLLC. A licensed family law attorney is standing by to meet with you six days a week in a free-of-charge consultation.
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Other Articles you may be interested in regarding Houston Court Local Rules:
- Texas Family Law Courts: Divorce essentials
- Texas Family Law Courts: Mediation and Divorce Essentials
- Texas Family Law Courts: What to Expect
- Harris County, Texas Family Law Court - 245TH Judicial District Local Rules
- Why is Separate Property Important and How to Keep it Separate in a Texas Divorce?
- What Wikipedia Can't Tell you About Texas Divorce and Marital Property Division
- Texas Divorce Property Division Enforcement
- Separate Property in a Texas Divorce?
- Does it Matter Whose Name is on Title or Deed of Property in a Divorce in Texas?
- Is Social Security Considered Separate Property in a Texas Divorce
- Understanding Texas Divorce
- Can grandparents keep child from father?
