It will sometimes happen that you will need to make a correction or addition to a Petition that you file in a Texas family law case. A Petition is the initial filing that will start your case. It lists your name, the opposing party’s name, the names of your children as well as the relief that you are seeking from the court. This information is compiled in the petition, is filed with the court and then typically is served upon the opposing party.
As the circumstances in your case change or additional information comes to light you may need to go back and change what you are asking for in the Petition. Maybe in your divorce, you would like to assert a fault ground that your spouse has wasted community property assets on an illegal business venture. Or it could be that you have recently found out about an affair that your wife has been having and would like to assert that adultery has led to the divorce having to be filed. Whatever your individual facts may be, Texas law allows you to amend your Petition. Today's blog post from the Law Office of Bryan Fagan will discuss this topic with you in greater detail.
How can you go about changing something in the Petition?
The first petition that you filed is always called an Original Petition. An Original Petition in a Suit Affecting the Parent-Child Relationship or an Original Petition for Divorce will begin the child custody or divorce case that you are seeking to initiate. If, after filing the Original Petition, you figure out that there is information that you need to remove or add to the document then you would file what is called an "Amended Petition."
Once an Amended Petition has been filed it takes the place of the Original Petition, meaning that the Original Petition is put to the side and has no legal effect for your case any longer. The Amended Petition steps into its place and it will be looked to moving forward by the court and your opposing party as far as what you are requesting and the grounds you are asserting to be awarded those requests.
In what situations would you consider filing an Amended Petition?
To begin with, correcting a mistake in an Original Petition is not as simple as getting some white-out and crossing through a misstatement or misspelling or some sort. Once a document has been filed in your case there is no removing it. As a result, you would need to file an Amended Petition in order to make whatever correction is needed.
Likewise, if you need to add something to the Original Petition that, too, would necessitate an Amended Petition be filed. It happens with some frequency that you and your attorney could come to find out additional information that was unavailable at the time that your Original Petition was filed. In that sort of scenario, you would want to file an Amended Petition to take that additional information into consideration.
When can an amended Petition be filed?
You can file an Amended Petition at any point in your case, so long as it occurs no fewer than seven days prior to the date of your trial or hearing date. The reason that this requirement is in place is to keep you from making changes so close to a court date that your opposing party does not have an opportunity to adequately prepare for the changes that were made in the Petition.
What needs to be included in an Amended Petition?
For starters, the name of the document that your Amended Petition is amending needs to be addressed at the outset of the Amended Petition. This way the court and your opposing party will understand what is going on and there won’t be any confusion about what you are asking to change and why. Most of the time you will see Amended Petitions titled something similar to: “Petitioner’s First Amended Petition for Divorce.”
How are you supposed to let your opposing party know that you are amending the Petition?
Once you have formally served your opposing party with the Original Petition, there is typically no need to do so with any additional filings. You can file your Amended Petition and select an option online to have a copy emailed to your opposing party or their attorney. This will allow him or her to be notified of your Amended Petition having been filed but will not require you to hire a process server to go out to find him or her for service.
What filing an Amended Petition will do to your case’s waiting periods
The filing of a Petition in your family law case will start a number of waiting periods that are important to your case. An Amended Petition will do the same thing. Notably, your opposing party has twenty days after being served with your Petition to file an Answer (give or take a few extra days depending on what day of the week he or she was served). If you file an Amended Petition during this twenty-day period, and he or she has not yet filed their Answer, then the twenty-day waiting period starts over. You must also hire a process server or constable to serve the Amended Petition if he or she has not filed an Answer yet.
The deadline for filing an Answer in a civil case in Texas is from the day that your opposing party (the respondent) is served with the amended petition, the respondent has until 10:00 a.m. on the first Monday twenty days after service in order to file their Answer. You should find out the day that the Petition was served upon the respondent and keep track of it on a calendar. Once you have done that, count out twenty more days on the calendar. The Monday after twenty days has passed is the deadline for the respondent to Answer your Petition.
A sixty-day waiting period is required in a Texas divorce. In most divorces, you must wait sixty days to get a divorce from the date that you file your Original Petition. Amending an Original Petition for Divorce does not re-start the clock, however. You can get your divorce on the sixty-first date after your Original Petition has been filed, regardless of whether or not an Amended Petition is filed.
Why is there a sixty-day waiting period in Texas to get divorced?
The section previous to this one begs the question: why a waiting period at all when it comes to getting a divorce in Texas. When you are considering time and money it can truly be inconvenient to have to wait at least sixty days from the day your divorce petition is filed in order to actually be divorced by the judge. I can’t say that I blame anyone for having concerns like this. Not only is your divorce a difficult time period in your life but it is also expensive to have to hire an attorney and sort out how to handle your life without the assistance of a spouse.
Of course, most Texas divorces will not be completed within sixty-one days. The facts and circumstances of your case need to be looked at before you can even start to believe that your divorce could fall into the category of a relatively simple or conflict-free case. In the event that you and your spouse are on good terms with one another and if you are in agreement that a divorce is necessary then the case is set up well to be completed in as close to sixty days as possible.
If your spouse receives your Petition and agrees to sign a Wavier of Service this can really help you all meet the goal of a quick, sixty-day divorce. The Waiver of Service formally waives your spouse’s right to be legally served with the paperwork. You can have your attorney email it to him or her along with the Petition. The Waiver will need to be signed and notarized, then filed with the court. From that point on you and your spouse can simply negotiate on the terms of your Final Decree of Divorce.
Once a finalized Decree of Divorce has been negotiated upon and signed by all parties to the divorce and their attorneys, then you would need to attend a short, uncontested court hearing before the judge. This is called a “prove up” hearing. This hearing allows the judge to examine the nature of your divorce and the agreement that was arrived at by you and your spouse. Be sure to check with the clerk of your court or the court website before going to court for the prove up. Many courts have regularly scheduled days of the week where prove up hearings can occur.
The sixty day waiting period can be inconvenient but it does allow you and your spouse a period of time to determine whether or not you actually want to get divorced. I have had couples back out on their divorce to continue their marriage. If you can reconcile and remain married that is the best for everyone involved in most cases. In most cases, the prove-up hearing is short. Only you need to attend.
When do you need to file an amended petition for divorce?
If you have had a change in your home address, your employer has changed, any changes in income or situations have developed with your children that need to be accounted for then you should file an amended petition for divorce. If you have failed to provide the court with information that is necessary then the clerk from the court may contact you about this before accepting your Original Petition for Divorce.
In the event that you are attempting to file your Divorce Petition without the assistance of an attorney, you should be aware that there are a handful of potential errors that can be made. It is very difficult to file for divorce on your own- even if yours is a “simple” divorce. One of the major reasons why filing for divorce can be so complex is that there are a lot of opportunities for you to make a mistake. Without ever having done it before, filing for divorce is quite difficult for most non-attorneys.
For instance, if you failed to read the Petition to look for potential mistakes before filing the document there is a good chance that you will need to go back and make corrections in the form of an Amended Petition. Attorneys are trained to be very careful when completing important documents like Original Petitions. If you are not as skilled at identifying potential errors and do not have an eye for detail then you will be placing yourself in a potentially risky situation by filing your own divorce.
Leaving information blank where you are asked to include things in your Petition is a good way to have your Original Petition sent back to you by the judge or clerk of the court. If you do not know a piece of information that is needed then you ought to look the information up before filing your Petition.
Questions about divorce and amending a petition? Contact the Law Office of Bryan Fagan
If you filed your own divorce and are not encountering some issues with your Petition it may be time to contact an attorney to assist you. The fact is that many of our clients started out as representing themselves, only to find out that the time commitment to doing so was more than they were capable of making. If you are questioning whether or not to proceed on your own would recommend that you contact the Law Office of Bryan Fagan before doing so. Our licensed family law attorneys can speak to you about your case and answer questions about your circumstances. A consultation with one of our attorneys is always free of charge.
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Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers
The Law Office of Bryan Fagan, PLLC 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, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, 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.
