If you are going to move forward with divorcing your spouse, then the first thing that you need to plan for is where to file your case. If you have moved recently then you may have questions about where the proper county for you to file is. For starters, you should file your divorce based on the county in which you and/or your spouse reside. It does not matter if you file your divorce in the county where you reside or the county where your spouse resides. Although, it would make sense out of convenience for you to be able to file your divorce in your county of residence.
There is a specific length of time that you or your spouse would need to reside in a county to qualify to file your divorce there. In Texas, a county can gain jurisdiction over your divorce when you have resided there for at least 90 days and in the state of Texas for at least the past 6 months. It is important to note that you can still file for divorce in Texas even if you do not reside in Texas. Remember that all it takes is one spouse living in Texas and being a resident of a particular county here.
By choosing an electronic filing method you can avoid having to send in paper copies to your district or county clerk’s office. The website: efileTexas.gov has a self-help page for people who will be filing a divorce without an attorney. However, if you hire a lawyer to represent you in the divorce, he or she will handle the filing of any documents associated with the divorce, such as the Original Petition for Divorce.
In a Texas divorce, there is a 60-day waiting period that is mandatory in cases that do not involve domestic or family violence. This means that the earliest you will be able to legally be divorced from your spouse can occur is 60 days after you file the Original Petition for Divorce. This is known as a “cooling off” period where you and your spouse will have time and distance to determine whether you want to get divorced. If you do decide to go forward with your case, then the next step in the process will be to provide notice to your spouse that you have filed for divorce.
Providing notice to your spouse of the divorce
There is a difference between providing actual notice to your spouse of the divorce and providing legal notice. Actual notice would be driving to their work or telling him when he got home that you have filed for divorce. He will know that the divorce has been filed but that is not how the law intends for you to notify him. Legal notice is what the state of Texas requires you to provide your spouse with when you file for divorce. This is how you can accomplish that sort of notice.
You can accomplish the necessary notice by providing a service of citation to your spouse or by having him sign a waiver of citation. A waiver of citation does not involve providing him with notice of the divorce legally speaking. Rather, this process involves him waiving his legal right to receive notice of the divorce. Rather, he would sign a paper agreeing to this and certifying under oath that he is comfortable moving forward in the divorce without having received the legal notice.
Note that by signing a waiver of service your spouse does not also waive their right to receive notice of any hearings, mediations, or any other dates associated with your case. If you set a hearing, trial, or mediation date you would still be obligated to provide him with notice of those events. It also does not mean that your spouse agrees with every allegation that you made in your Original Petition for Divorce. Once your spouse signs the waiver in front of a notary the waiver should be returned to you so it can be filed. The clerk will make note of the waiver and your divorce can truly be said to have begun at that point.
Usually, a waiver of service is considered only when you and your spouse agree on the issues associated with your case. Having a civil relationship with your spouse can benefit you in many ways and this is just one of them. A waiver of service can save you time and money in conjunction with the divorce. That should sound appealing to you given that these are the most common complaints that an attorney will hear about the divorce process. You should talk with your spouse, if possible, about the divorce so that you can learn more about the possibility of this option rather than having to go forward with the service process.
Providing your spouse with notice regarding the divorce will be necessary if he is unwilling to sign a waiver of service. Legal notice of the divorce means providing a service of citation to your spouse which informs him of the deadline to file an Answer as well as his rights about the divorce. You are not able to provide direct notice to your spouse of the divorce as we discussed earlier. Rather, you would need to hire a process server or constable to pick up the documents from the courthouse and then serve them to your spouse.
This is normally a straightforward step in the process, but it can be difficult if your spouse attempts to avoid service. You should provide the process server or constable with multiple addresses where service may be accomplished.
What are the main issues in a divorce?
There are a total of three issues that can be decided in a divorce. These issues are child custody and conservatorship, division of community property, and ending the marriage legally. Depending upon the number of outstanding issues in your case you may require a handful of hearings to complete your case. However, you and your spouse will also be provided with an opportunity to attend mediation where you can settle your issues formally with a family law mediator. Additionally, the process will also afford you and your spouse ample opportunity to negotiate informally with one another.
This is one of the great misnomers about divorce- that the case is always decided by a judge. The truth of the matter is that you and your spouse are likely going to be able to settle issues related to your divorce amongst yourselves rather than having a judge decide the issues for you. This is much preferable because nobody knows your circumstances better than you and your spouse. This is an issue in many divorces when spouses are not able to work together to resolve any issues.
Once you complete your divorce, either in mediation or in a trial, a final decree of divorce will need to be drafted and signed by the parties. Either you or your spouse would have to appear before the judge for a "prove up" hearing where you go over your decree and discuss any issues in your case that have been sorted out through the divorce process. However, due to the pandemic, many courts are no longer requiring prove-up hearings and are instead willing to accept a prove-up affidavit that answers in the affirmative the questions typically posed and answered in person.
The judge will sign your final decree of divorce and at that point, you will be legally divorced from your spouse. You should request a certified copy of your final decree of divorce from the district or county clerk to have one for your records. You should read through the final decree of divorce to make sure you are familiar with the orders and what is expected and required of you in conjunction with your divorce.
Frequently asked questions about divorce
Do I have to hire an attorney to get divorced?
No, you don't need to hire an attorney to represent you in a divorce. However, it may be preferable for you to hire one depending upon the circumstances of your case. The general position that I will talk to people about is if you have children, community property to divide, or both, then you have too much at stake in your divorce to not consider hiring an attorney. An attorney does not make decisions for you in your divorce. Rather, the attorney will guide you throughout your case to help you arrive at good decisions based on the specific circumstances of your case. A family law attorney practices before family court judges so you can be assured that the attorney will have some added perspective regarding whatever you are facing in your divorce.
Divorce attorneys all cost a lot of money, right?
Not necessarily, no. We would not be telling the truth if we said that some attorneys are expensive and do cost a lot of money. There is a range of costs associated with hiring a family law attorney. Family law attorneys bill by the hour, which means that the more work that is done on your case the more money you will be charged. Most attorneys also ask for an upfront payment, known as a retainer, to get your case off the ground and to pay for initial filing fees and other expenses that are predictable at the beginning of your divorce.
We believe that the hourly rates and other expenses associated with hiring the Law Office of Bryan Fagan are extremely reasonable based on several factors including our level of experience, the results that we have earned for our clients as well as the specific circumstances of your case. For example, if you come into our office and want to hire us for your divorce- but you have a temporary order hearing in one week- we may charge you more money to accept your case given that your attorney will need to work hard to prepare for a hearing in the immediate future.
Some attorneys may be able to accept your case at a reduced fee or even free of charge basis. This certainly is not the norm, but you may be able to find an attorney who can accept your case and represent you on a limited-fee basis. The attorney must represent you in that instance the same way and with the same skill and preparation that the attorney would do if you were a paying client. You can reach out to organizations like the State Bar of Texas or Texas Rio Grande Legal Aide to find out what options may be available to you as far as finding counsel who can represent you for free or for a limited fee.
Can your children choose which parent they want to live with?
It is not exactly true that your children can outright select which parent they want to live with. If your child is 12 or older then he or she can speak to the judge about their preference in this regard if you or your spouse file a motion with the court to have them consult with the judge. If this type of motion is filed, then the judge must grant the motion and speak to your children. That does not mean the judge has to ask a specific question, but it does mean that the judge must ask questions of your child.
The judge can consider what your child has to say about their living preferences, but their opinion is typically not the deciding factor or certainly not the only factor that a judge will consider in those instances. The age of your child, their maturity level, and the needs of your child are all considered by the judge in this regard. This is known as the best interest assessment.
Do fathers have a chance to win primary custody of the kids in a divorce?
Fathers have every opportunity in the world to be named as the primary conservator of their children. If you are a father who is reading this blog post, you should not lose hope or assume that your wife will automatically be named as the primary conservator of your children. Many people assume that mothers must be named as the primary conservator or at least are given preference in that regard. This is not true.
The Texas Family Code specifically states that mothers and fathers are to be treated equally when it comes to conservatorship and custody issues. When we talk about mothers having an apparent advantage over fathers when it comes to being named as primary conservators this typically has to do with an ability to be present for your children at different times of the day. Since most fathers work outside the home this puts fathers at a disadvantage when it comes to custody and conservatorship designations.
Ultimately, if you have been the primary caretaker of your children previously then you should also have an opportunity to continue to act in that capacity for your children. The parent who has taken the children to the doctor, cooked for them, been there for them after school, and been able to have time for them is the parent who has an advantage when it comes to the issues of custody and conservatorship. This is not a man/woman or mother/father issue, but rather an issue related to the roles that many fathers and many mothers take on for their families. Since fathers more typically are outside the home and work that puts them at a disadvantage when it comes to these issues.
So, what can you do to improve your chance of being named as the primary conservator of your children if you are a father? The answer is probably not much once your divorce gets filed and started. A judge will be looking at your history as a parent rather than any changes that you can make once your case starts. However, changing your job to take a position that has more flexible or remote hours then that could be a factor for a judge to consider these topics.
What will likely end up happening, however, is that you and your spouse will work together to negotiate a settlement on these subjects. If your spouse understands that you have always taken an active role when parenting your children, then you should be able to negotiate a great deal of time with your children. Sometimes a 50/50 split in custody or similar arrangement works out well for all parties involved. You should talk with your attorney about your options and how the circumstances of your case will impact this discussion.
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, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as how your family's circumstances may be impacted by the filing of a divorce or child custody case.