Book an appointment using SetMore

What if my spouse already filed for divorce?

As it happens, sometimes you and your spouse may both be working towards filing a divorce but have never communicated that fact to the other person. The result could be that your spouse ends up filing first, and you become the responding party in a Texas divorce case. This whole time you have been planning on surprising your spouse with divorce papers, but now it is you who was served first. What happens now? How should you respond? These are just a few of the questions that we will answer in today's blog post.

For starters, you need to understand that responsibilities are inherent in both the filing party and the responding party in a divorce. You will need to respond in some way to the petition that was filed and then presented to you. How you respond, the deadline by which a response must be filed, and what steps you need to take after these initial steps are completed will be the focus of today's blog post as well.

Choosing to do nothing, either out of neglect or fear, is not an option. A divorce can proceed without your input and participation, which would be to your detriment. If you have children, own property with your spouse, or own a small business, then these are all your responsibilities that you cannot look past or afford to do nothing about. With some planning and the ability to act intentionally, you can quickly shift toward responding to a Texas divorce rather than filing a Texas divorce. In this blog post, I'm going to help you do just that.

What is the service of the process?

First of all, likely, it was not your spouse who handed you the divorce paperwork. Rather, a constable or professional process server likely picked up the original petition for divorce at the courthouse along with the citation, which provided you with the official notification that your spouse was suing you for divorce. Along with these documents was likely to be a notice of hearing for temporary orders and any other documents that your spouse filed.

What steps should you take if you are served with divorce papers?

Putting myself into your shoes, I may have been caught off guard if my spouse suddenly files for divorce from me and then hired a person to come to serve me with those divorce papers. It would be completely normal, in my opinion, to be a bit shellshocked by this for some time Anne for that surprise to turn into a paralysis where you did not know what to do. However, feeling like you can't move is not an excuse to fail to answer or respond to the original petition for divorce.

This may go without saying, but the first thing I would do if I were in the position of receiving divorce papers from my spouse would be to read the paperwork. The original divorce petition will include everything your spouse is asking for, at least generally speaking. You can begin to figure out what they are trying to accomplish. Depending on the County where you live, there may also be some standing orders that go into place as soon as the divorce is filed. If that is the case, you need to be aware of the standing orders because any violation of them can and will be held against you by your opposing party in the judge in the future.

The next point that I would make is that there is a timeline in Texas for a divorce. That timeline begins to go into effect once you are properly served with notice of the divorce. As a result, you need to act sooner rather than later to ensure that you and your rights are protected. The specific deadline for a respondent in a divorce or other civil case to file an answer is determined by counting out 20 days from the date you were served and then going to the next Monday following that date. This is the date on which you must file your answer by 10:00 that morning.

With the search for a specific deadline in mind, a reasonable question to ask would be what happens if you fail to meet the deadline that we just noted in the above paragraph. Failing to file your answer by this date and time means that your spouse can go ahead and complete the divorce without your participation. There would still be an approximate 60-day deadline from the date on which the divorce was filed for them to wait but assuming that this waiting period is met, then you would be in danger of having a default judgment rendered against you.

There are three ways for you to choose to respond to the original petition for divorce. We just finished talking about the consequences of doing nothing, but that is certainly an option for you to choose from. The other two options would be to either file an answer to the petition or file an answer and counter-petition. Let's go through each option in greater detail, and you can determine which course you are likely to go down, considering your current circumstances.

What can you do in response to a divorce petition?

The first option most people are the likeliest to choose would be to file an answer to the original petition for divorce. Filing an answer means that you are formally responding to the allegations and petitions made in your spouse's filing document. The answer also allows you to make sure that your spouse cannot proceed with the divorce without your being able to participate. This is a huge deal since, without an answer, your spouse can file her final orders after the expiration of sixty days from the date on which the divorce was filed. This would not be ideal- to say the least.

Next, an answer and a counter-petition could be filed. The counter-petition allows you to make allegations and petitions to the judge about what you want to see happen in your final orders after your divorce. The counter-petition does not have to be filed simultaneously as your answer, but there is certainly no harm in doing so. If your divorce is contested or has differences of opinion across the board on a major issue, then a counter-petition is a great idea to file.

Finally, you may choose to do nothing and file no documents in response to the original petition for divorce. This is an option that I would not advise any client to partake of. Certainly, if you hire an attorney, they will work with you to ensure that an answer is filed in a timely fashion. Make sure that if you hire a lawyer, you allow them to respond with enough time to an original petition for divorce.

What is the first date on which you could expect to attend a hearing in court?

Filing or responding to a divorce to many people means going to court. There is no guarantee that you will need to go to court, however. The facts and circumstances of your case will play a major role in determining whether or not your case will ultimately need to see the inside of the courthouse. However, your personality, habits, and spouse's will also play a role in determining whether or not you all will ultimately need to go to a contested hearing. Once you hire an attorney, you can talk to them about how your case is shaping up and whether or not a hearing will likely be necessary at some stage.

The typical divorce functions with a temporary orders hearing being the first possible opportunity for you and your spouse to appear in court together. Sometimes you may even find that a hearing has been set in your case as soon as you receive the original divorce petition. Even if you have not yet responded to the divorce, hired an attorney, or taking any other measure to get ready for your case, you should attend this hearing. Most of the time, this hearing would be set for the period after you respond to the original petition for divorce.

A temporary orders hearing will attempt to set forth the orders by which you, your spouse, and your children will abide until the completion of your divorce case. This is not something that you should ignore or think is unimportant because it is the only temporary and not a permanent period; the reality of your situation is that the final orders in a divorce will often look like the temporary order is a great deal. As a result, I would never recommend that you not attend this hearing; they would pay close attention to any other paperwork included with your original divorce petition.

How is a temporary restraining order different than a temporary order?

The judge assigned to your divorce may end up signing something called a temporary restraining order. This temporary restraining order is good for up to 14 days and can be extended by an additional 14 days upon request by the petitioning party. A temporary restraining order goes into effect until a temporary orders hearing can be held, or temporary orders can be agreed to in mediation.

Just as we recommended earlier in these blog posts, you should read through the temporary restraining order if you have received one. Even if you disagree with some aspects of the temporary restraining order or feel that the restraining order goes too far in your opinion, it is your responsibility to understand and obey it. The result of failing to follow a temporary restraining order would be the possibility of a judge finding you in contempt. This is a dire situation that can result in you spending time in jail or, at the very least, ping finds and attorney fees to your spouse.

What are the issues that will be sorted out in your divorce?

I've had more than one person with whom I have worked on a divorce case asked me whether or not there are two divorces: one for property issues in one for children's issues. Since this issue has come up before working with clients, I would like to walk you through what gets decided in a Texas divorce case. That way, you can know what to expect and understand what will go into being after your divorce case.

Notice that I used the singular “case” after the preceding paragraph. It is important to note that there is only one divorce case. You will not have to go through a different divorce to deal with property issues and then another to deal with if she's related to your children. Both types of issues will be sorted out in the case, although how those issues are determined or negotiated upon may be different.

The most noticeable and important way that a divorce impact your life is that it ends your marriage. No, the divorce does not end your marriage from the moment a case is filed, but upon completion of your case and once a judge signs the final orders in your divorce, you and your spouse will be single individuals and not married to one another moving forward. The legal relationship shared by you and your spouse will have ended, and you all will be free to get married, bearing in mind a few restrictions here and there, specifically regarding how long you must wait after a divorce to remarry.

As we alluded to earlier, a divorce will also divide the property owned between you and your spouse. Texas is a Community property state, which means that all property and income earned when a divorce is filed is presumed to be owned both by you and your spouse. It is possible and likely in most cases that some of this property will be better classified as owned By either you or your spouse individually. The main component of your divorce will be to formally move all property owned by you and your spouse into three columns: your separate property, your spouse is separate property, and Community property owned by both of you in full.

After that, a lot of your divorce depends on how you all divide up the community-owned property. There is no set way to define how your Community property will be divided. You and your spouse will have ample opportunity to set your course and negotiate on this subject, TV shore. The ultimate way you all divide the property depends on your circumstances and each of your financial wherewithal after the divorce ends. A great part of having an attorney in your divorce is that you will be able to them for their experience in how to divide up property best and ensure that you are on solid financial footing after your divorce comes to a close.

Finally, your divorce will also establish orders about conservatorships, Visitation, possession, child support, and other issues related to your children. For parents who go through a divorce, there can be a delicate balancing act between focusing on issues related to your finances and ensuring that your children will be in a position to thrive in their post-divorce lives. As a parent, I'm sure you are concerned with your ability to care for and provide for your children after a divorce and maintain and strengthen your relationship with them.

For those of you wondering, it is doubtful that one parent or the other in your divorce would end up with orders that allow them to both have their children much more than the other Or to be able to make decisions independently or solely to the detriment of the other parent. Most of the time, parents end up sharing nearly equal rights regarding responsibilities and decision-making capabilities. Additionally, although one parent is almost always designated as the one who has the right to determine the primary residence of the children, otherwise parenting time is fairly well divided in divorces.

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 consultation six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law and how the law could impact your circumstances regarding child custody and divorce cases. I appreciate your interest in our law office, and we hope you will join us again on our blog tomorrow.

Fill Out To Watch Now!

  • Please enter your first name.
  • Please enter your last name.
  • Please enter your phone number.
    This isn't a valid phone number.
  • Please enter your email address.
    This isn't a valid email address.
  • Please make a selection.
  • Please enter a message.