To get divorced in Texas, you need to be aware of the process in the laws associated with divorce in our state. Anyone who has spent time in Texas understands that we are a unique people here in the Lone Star State. Texans take a great deal of pride in being from this state, and it is not typical for our state to do things differently than many other states. We're not going to spend a lot of time discussing the specific processes of how other states go about getting people divorced. Still, we will talk in some detail about how to get a divorce in Texas and what you need to do to prepare for your divorce.
For starters, Texas encourages people to remain married and work at all costs to avoid getting a divorce. No, I don't mean that a judge will sit you and your spouse down at the beginning of your case and provide you with marriage counseling, but I do mean that the state has mechanisms to encourage people to remain married and discourage divorce. I think the most obvious of those mechanisms is the 60-day waiting period for divorce to be finalized.
This means that from the day your divorce is filed, the quickest your case could likely be resolved in 60 days after this filing date. There are exceptions for specific parties, notably those that involve family violence in the home, but for the most part, you can expect your divorce will last at least two months—the rationale for this waiting. The state believes that if given more time to think about the divorce, more people will reconsider their divorce cases and work to save their marriage. On the other hand, were the waiting periods shorter, I am willing to bet that more people would get divorced sheerly because it is easier to do so.
There is a public policy reason why divorce is not exactly encouraged in Texas. Like many states, the idea of no-fault divorce in Texas is a relatively new concept. A no-fault divorce means that neither you nor your spouse has to specify a specific reason why a court should grant your divorce. Instead, you can state that your marriage needs to be dissolved due to irreconcilable differences and discord or conflict and personalities. This means that you and your spouse could not get along with one another and have no hope of fixing the marriage.
You can still specify fault grounds for the divorce in Texas. Fault grounds for divorce are things like abuse, adultery, financial fraud, and abandonment. These fault grounds can play a role in your divorce and impact things like custody and Community property division. However, the key difference now is that you do not have to present a fault ground to get divorced in Texas. I will tell some clients that you can get divorced in Texas or anything ranging from adultery to not liking how your spouse chews their meal at dinnertime. this has been a dramatic change in divorce law in Texas and has contributed, in my opinion, to the rise of divorces in our state.
The two phases of a divorce case
In Texas divorces, there are two phases of the case that you need to become familiar with. Those two phases are the temporary orders phase, and the final orders face. Let's go over each of these phrases to describe what they mean for you and your family and then talk a little bit more about what you can expect to accomplish during each phase of your case.
The temporary orders phase of your case represents the vast majority of the time you will spend in your divorce case. From the date the divorce is filed until preparation for final orders mediation begins, temporary orders can last anywhere from a few weeks to a few months. Most families use this time as a transitionary. You and your family will begin to acclimate yourselves to living in separate households if you have children. If you do not have children, you and your spouse will likely have stopped living together and will be figuring out how to divide up your community estate after your divorce.
We call this the temporary order space because you and your spouse will spend the beginning parts of your case preparing for a temporary orders hearing. Don't let the word hearing fool you: a temporary order's hearing is just a mini-trial. You and your spouse are preparing to present evidence on matters ranging from child custody, conservatorships, Visitation, and temporary use of your family home. The interim order space is about temporarily dividing up your life and your children and helping your family get used to living separately.
However, most families will attend something called temporary orders mediation before a hearing is necessary. Mediation is a process whereby you and your attorney and your spouse and their returning will mutually agree to have a third-party attorney intercede in your case and help you all negotiate through the issues mentioned above. A temporary visitation schedule with your children will be created, quick child support will be ordered, and responsibilities about your family home and bills will be decided upon.
Mediation is typically so successful in family law cases that it is rare that your case will proceed to court. That in and of itself may be a defining characteristic of Texas family law cases when compared to family law cases from other states. Whereas people get the idea that a divorce case automatically ends up in court, this is far from the rule in Texas. Quite the opposite actually: usually going to court means you are the exception rather than the government in a Texas divorce.
Once you and your spouse attend temporary orders mediation and are successful in settling your case, the settlement agreement will be drafted into formal temporary orders that all parties in the judge will sign. At that point, you and your spouse will need to do your best to live under those orders or risk being brought to court by the opposing party for having violated those court orders.
The discovery phase of a Texas divorce case
Another hallmark for the middle section of a Texas divorce is that you and your spouse are likely to submit upon one another something called discovery requests. Discovery request asks your spouse to present your questions, documents, and other information about your case. This phase of the case allows you to learn more about your spouse's positions on various issues and helps you both to prepare for a trial. Often, you are unable to collect information on your own about things like retirement accounts and debts. This is especially true if you can no longer have access to your house and have essential papers inside of there.
Discovery requests help you learn more about the subject matter of your divorce to preparing for a trial. However, much like temporary orders hearings, it is unlikely that your divorce case will go all the way to a problem. What discovery request also does is to help you and your spouse learn all the facts of your case so that you can negotiate better? Imagine working out a problem with another person when you cannot even agree on what the subject matter is. This will be a challenging task even for people who get along very well.
To avoid disputes on matters related to your divorce, discovery requests can help you all synthesize information and agree on what is at stake. It will be challenging for you to negotiate well over dividing up your community estate when you are unsure how much your spouse has in retirement, what the equity positions your home is, and how much debt each of you has in the marriage. Once you can agree on what is at stake, you can much better negotiate how to resolve these issues.
The final orders phase of a Texas divorce
The last stage of a Texas divorce is preparing for final orders, attending mediation and a trial, and drafting final orders. Since you and your spouse already would have had temporary orders in place much of the work for preparing for a final orders trial or mediation has been done. It is unlikely that much will change regarding custody of your children after temporary orders. Hence, many parties agree to extend and make the interim orders about their children if they have been working well for the family so far. Some adjustments may need to be made here in there, but for the most part, the basic structure of custody during the temporary orders phase of your case may extend into your post-divorce lives.
Where final orders come into play is about your community estate. You will have to decide what you want to do to your family home. Do you want to sell it? Do you want to remain in it? Would you prefer that your spouse stay in the house to provide your children with stability and consistency on a day-to-day basis? Does either of you have the financial wherewithal to afford mortgage payments, taxes, and insurance on a home with just one income? These are some of the questions that will be debated in final orders mediation and ultimately may have to be decided by a judge.
Regarding the remainder of your financial life, you will have to decide how, if it all, to divide up things like retirement accounts, make accounts, and any other investments you and your spouse may have. The simpler your financial life is, the more likely this case phase will not present you with many difficulties. If you have a complex financial situation with your spouse, own a business with them, believe that you will require post-divorce spousal support, or have any other circumstances that are concerning from a financial perspective, then you can expect to need to negotiate and plan for this part of your divorce much more closely.
Once you and your spouse have either negotiated the issues of your divorce in mediation or have attended a trial, the final step of your case is taking the last orders in your case and inserting them into a final decree of divorce. This final divorce decree will be the marching orders for you and your spouse in your post-divorce lives. While you can come up with changes, if they can be agreed upon, in the years following your divorce, the final decree of divorce offers you a baseline of orders and guideposts for you all to follow as single adults.
Suppose you have recently moved to Texas and have only knowledge of divorce laws as they pertain to your old state. In that case, I recommend that you speak with an experienced Texas family law attorney before proceeding with divorce here. A lawyer can give you additional perspective on your situation and help you develop a game plan for accomplishing whatever goals you have for yourself in the divorce regarding you and your family.
Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week in person, over the phone, in via video. We take a great deal of pride in serving our community by providing first-rate legal services and representation in a range of family law matters.