The law in Texas is that you can get divorced for any reason- or no reason at all. As a family law attorney, I run into clients all the time who have filed for divorce from their spouse for severe reasons. On the other hand, I have seen people file for Divorce from their husband or wife for reasons that many of us would consider trivial.
A divorce where you are not asserting a specific reason (or grounds as they are known in the family law world) for the split is known as a "no-fault" divorce. This means that neither you nor your spouse is telling the court that your Divorce needs to be completed due to a specific reason like adultery or spousal abuse. Irreconcilable differences or conflict/discord of personalities is the type of language you will see in your final orders. You all couldn't get along well enough to maintain the marriage, and there was no hope of reconciling.
However, in some situations, it may make sense for you to plead a specific cause for the breakup of your marriage. This is both because the situation warrants it and because there are advantages that you can gain from a strategic standpoint within your Divorce that is important to the overall success of your case. That is not to say that you shouldn't be prudent because you cite within your Original Petition for Divorce.
For example, if you are seeking an unequal distribution of your community estate, it would be to your advantage for the judge in your case to know that there has been a marital conflict that led to your being abused by your spouse. If the judge finds sufficient cause to believe that spousal abuse did occur, they would likely feel compelled to award you more significant than 50% of the marital property.
Take caution when alleging specific causes for the breakup of your marriage.
Again, it would help if you did not jump head-first into alleging fault grounds for your Divorce without first considering the impact on your life and your case. The family laws in Texas allow the judge in your case to remove any indecent or inflammatory language about your spouse from your Original Petition for Divorce. I have received many Petitions that go into graphic and sometimes gory detail about all sorts of evil acts that our clients have committed that led to the filing of the Divorce. Not only do those allegations often end up being unfounded and untrue, but the judge will likely strike through that sort of material and not allow it to become a part of the record of your case.
The way to allege fault grounds in your Petition for Divorce is to specify the fault ground and state that your spouse engaged in those types of actions. Leave it at that and move on. You do not need to detail the time, place, and number of occurrences of an adulterous affair that your spouse has been engaging in. That may be relevant to your case, and ultimately the details may come out in court, but they do not need to come out in the Petition.
Providing notice to your spouse that you have filed for Divorce
Filing for Divorce is one thing. You are letting your spouse know that you have filed an entirely different and independent step. While it may feel like your Divorce began the second your Petition was filed, it does not have any legal effect until your spouse is served with notice of the lawsuit. If not fit on a spouse, a divorce petition can sit in a court's files and then will ultimately be dismissed for lack of action on your part.
There are two ways to achieve legal service on your spouse of the Original Petition for Divorce, which you had just filed with the court. The first would be to have your spouse sign a Waiver of Service. A Waiver of Service states that your spouse confirms receipt and knowledge of the Divorce Petition having been filed. An Answer would still need to be filed, however. An Answer is a legal response to an Original Petition for Divorce. All the Waiver of Service does is do away with the requirement that your spouse is served by a process server or constable with your Original Petition.
The second manner in which a person can be served in your Divorce is the most common. You would either hire a private process server or a constable to pick the documents up from the courthouse and serve them to your spouse. The process server or constable would then fill out an affidavit of service that states the time, date, and location of the service has occurred. That affidavit is then filed with the other documents in your case. Along with your Petition for Divorce, a citation will be attached that informs your spouse of the need to file an Answer to your Petition within a certain period if any pending court dates are made known to your spouse in a document known as a Notice of Hearing.
More on the Wavier of Service
Your spouse agrees to sign a Waiver of Service is the easiest option available of all the ways to provide notice of your divorce Petition to them. A waiver must be signed after your Petition has been filed to be considered valid. You cannot have your spouse sign a Waiver in anticipation of the Petition being filed. The reason for this is that if the Petition has not been filed and a file-stamped version made available to them, your spouse cannot know what they are waiving their rights to.
Service by publication or by posting
A third method of providing legal notice to your spouse of your divorce suit being filed is to serve them by publishing your Petition in a newspaper or periodical. You can only do so after a court order is granted by the judge that allows you to serve your spouse in this manner. To get to the point where a judge will enable you to serve your spouse this way, you will need to show that you have tried everything possible to locate and serve your spouse personally.
The publication will occur in a newspaper or magazine available in the city or town where your spouse is thought to have resided. The district clerk would see to it that the citation is posted for a certain period. You would pay the costs of having them legally served by this method.
Another method that can be utilized in certain circumstances to serve your spouse with notice of your Divorce is to do so via posting your citation on the courthouse steps or a bulletin board or another public area in and around the courthouse. If the court permits you to serve your spouse this way, you must contact the clerk and have them post your citation. Once it has been posted for a long enough period, the clerk will notify your court that service has occurred.
The next step: having an Answer filed
Let's flip the script now. Suppose that your spouse filed for Divorce and served you with notice of the lawsuit by one of the above methods. You currently must respond to that Original Petition for Divorce with a pleading of your own. That pleading is known as an Answer.
The citation that we just finished discussing in the sections before this one requires that you file an Answer by 10:00 a.m. on the Monday following twenty days after the date you were served with a copy of the Petition and the citation. Keep in mind that while the law requires that you file an Answer by this time, you can file an Answer any time before entering a final order in your case, and it will be considered valid.
The reason why filing an Answer is so crucial in a lawsuit is that you will be legally entitled to receive every single document filed in your case after the Answer is filed. This means that you will be notified of any court date that comes up so that nothing will occur without having an opportunity to voice your position on that subject. If you do not file an Answer, your spouse can move forward with their version of the final orders in your case. After sixty days of the citation being served upon you, your spouse can then go to the judge and have those orders ratified by the judge.
What is a counterpetition, and should you file one?
You may also choose to file and serve upon your spouse a counterpetition for Divorce. This document looks a whole lot like the Original Petition for Divorce. It will allow you to state your grounds for the Divorce and detail what you are requesting the court does in the Divorce as far as relief is concerned.
Now you play the waiting game.
Once all of the steps mentioned above have been completed, you and your spouse will have to wait at least 60 days to meet your case. The state of Texas wants you and your spouse to be sure that you wish to this Divorce, so they mandate a sixty-day waiting period as the minimum waiting period from the time the Petition is served.
During this period, you and your spouse will negotiate on the property and child-related aspects of your case. The ability for you and your spouse to negotiate and settle your case without resorting to intervention by the judge is generally a good thing for everyone involved. Think about it like this: you and your spouse know each other, your children, and your situation better than anyone. Who is better suited, therefore, to make decisions about your future? Indeed not a judge. Use this time to negotiate both temporary and final orders in your case.
Temporary Orders in a Texas divorce
Temporary Orders in a divorce will set the ground rules for your case by establishing what you and your spouse can and cannot do, determining a visitation schedule for your child, and a plan for which of you are responsible for your bills. One of you will be asked to leave the family home, and the details about this move will be included in your temporary orders.
Even though they are known as temporary orders, these decisions can impact the final orders in your case substantially. Since we are out of time today, I will pick back up with this topic tomorrow.
Questions about family law cases in Texas? Contact the Law Office of Bryan Fagan
Thank you for joining us today as we discussed a critical topic in Texas family law. If you have any questions about the material that we covered or need clarification on something that you read, please consider contacting the Law Office of Bryan Fagan today. Our licensed family law attorneys offer free-of-charge consultations six days a week here in our office. These consultations are an excellent opportunity to ask questions and receive feedback about your specific circumstances.
Our attorneys and staff take a great deal of pride in being able to help families in our community achieve desirable outcomes in family law cases across southeast Texas. We work tirelessly on behalf of these families and invite you to see what your law practice is all about. Thank you for joining us today, and we hope you will return tomorrow as we continue to share information about family law in Texas.
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Other Articles you may be interested in:
- What is and Why do I need to make Discovery in my Texas Divorce?
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- Six things You Need to Know Before You File for Divorce in Texas
- I Want a Texas Divorce, but My Husband Doesn't: What can I do?
- Am I Married? - Marital Status in Texas
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- 6 Tips - On How to prepare for a Texas Divorce
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Law Office of Bryan Fagan, PLLC | Spring Divorce Attorneys
The Law Office of Bryan Fagan, PLLC, routinely handles matters that affect children and families. If you have questions regarding Divorce, it's essential to speak with one of our Spring, TX Divorce Attorneys right away to protect your rights.
Our divorce attorneys in Spring, TX, are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact the 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 Spring, Texas, Cypress, Spring, 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.