- An Original Petition for Divorce is always filed and
- Sometimes a Temporary Restraining Order
The person who files for divorce first is called the Petitioner and the person who is served with the petition is called the respondent.
Original Petition for Divorce:
The purpose of the petition is to give notice to the family court and your ex what you are asking for. This petition is a simple document that names the husband and wife and any children of the marriage and states that the petitioner, is seeking a divorce and the reason for the divorce.
The petitioner must pay a filing fee to the court, usually around $300. The filing of the petition begins the mandatory 60-day waiting period before the parties may divorce.
The Original Petition for Divorce is not a court order and does not establish anything legally. It is merely a request from the petitioner to the Court that they wish to have the marriage dissolved.
The petition may also be asking for other things from the court. The Original Petition for Divorce will general include the following basic information:
- Personal information about both parties: full names, last the 3 number of the Social Security Number, Last 3 numbers of driver’s license, and service address of respondent.
- Date of marriage
- Date of Separation
- Grounds for Divorce such as that the “the marriage has become insupportable because of a discord or conflict of personalities that destroys the legitimate ends of the marriage relationship” with “no reasonable prospect of reconciliation”
- One or both spouses has been domiciled in Texas for at least 6 months and a resident of the county for the last 90 days.
- Personal information about all minor children born to or adopted by the couple and whether they have property.
- What kind of Orders you are asking the Court to make in regards to the children as to rights and duties, visitation, and child support.
- Information about whether the wife is pregnant or not
- Information regarding assets and debts, including marital and separate property.
- Statement of what assets should be given to which spouse (bank accounts, real property, household furnishings, retirement accounts, vehicles, etc.).
- Information about the debts incurred during the marriage and which spouse should be obligated to pay each debt.
- Request for spousal maintenance if you are seeking spousal support
- Has a protective order been sought or is one in place
Grounds for Divorce
A Texas divorce petition must also allege a ground or basis for the divorce. It is one of the elements of a divorce lawsuit. If you do not allege a ground then a Judge cannot grant you a divorce.
Texas is a no-fault divorce state and most Original Petition’s for Divorce will simply state that the marriage has become “insupportable.” In other words, the divorce is occurring because the Petitioner wants a divorce.
A divorce petition may also allege grounds for divorce such cruelty or maybe adultery. Such bad acts can serve as a basis for asking the Court for a disproportionate division of property.
Divorce and division of property
Many people come into my office and announce to me that Texas is a “50-50” state. This is not true. Your typical divorce petition will say something like, “in a manner that the Court deems just and right, as provided by law.” “Equal” is not a word that is used. In many case the division of community property will be divided in a 50-50 split.
However, a 60-40 split is not unheard of, depending on the circumstances. Some divorce petitions will request a disproportionate division. The petition will go on to list various laundry list of reasons for the unequal split.
Children and Requests for Conservatorship and Support
Next, the typical divorce petition will identify your children and request the court to enter orders for their conservatorship and support.
Most Original Petitions for Divorce will plead that you and your spouse should be named joint managing conservators and that either your spouse or you should be named the “primary” parent.
In some cases, it may make sense to plead for sole managing conservator. This is mostly seen in cases where there are allegations of child abuse or neglect. Often these allegations will be supported with an affidavit describing why access to the children should be restricted.
Divorce Temporary Orders
Many times, an Original Petition for Divorce will include a request for:
- temporary restraining order and
- temporary orders after a hearing
A divorce in Texas cannot be finalized for at least 60 days after the date of filing and, if there are points of disagreement between you and your spouse, the process can drag on for months, even a year! Temporary orders establish a “holding pattern” while your divorce is being finalized.
Here are some things you can expect to be covered at a hearing on divorce temporary orders:
- Exclusive possession of the family home, automobiles and
- other marital property;
- Payment of bills and living expenses;
- Conservatorship of the children;
- Parenting time with the children;
- Support of the children;
- Drug testing;
- Psychological evaluations; and,
- Appointment of any other expert deemed necessary by the court.
If you are going to court for a temporary orders hearing, it is important to be prepared. It is not uncommon for a divorce case to drag on for several months. If that is your case, you may be living under those temporary orders a long time.
Attorneys’ Fees in Divorce
Most Texas Original Petitions for Divorce will also conclude with a request that the opposing party pay all attorneys’ fees incurred.
Generally, unless there is a clear income disparity between you and your spouse, you each will pay your own attorneys’ fees and court cost. However, if there is a disparity in income, courts will sometimes “equalize” attorneys’ fees at the temporary orders hearing.
Examples of a disparity of income include:
- One party in control of the family finances or if
- One party has raided the joint bank account and left the other party with no money
Divorce Temporary Restraining Orders and Standing Orders in Texas:
As mentioned earlier sometimes filed with the Original Petition for Divorce is a request for the court to issue a mutual temporary restraining order (TRO) without a hearing to facilitate maintaining the status quo until the spouses can reach an agreement or until there can be a hearing for Temporary Orders.
Generally, these requests are made in counties do not have Standing Orders. Standing Orders are Orders that automatically go into place after a divorce or family law case is filed. Generally, they include similar provisions as temporary restraining orders.
Temporary Restraining Orders Do Not Last
In most divorce cases, a standard temporary restraining order will be granted if it is requested by one or both spouses. There will be hearing date in which you are to appear in court. The purpose of this hearing date is to give you and your ex a chance to be heard before the court makes an order regarding Temporary Orders that will be in place for the duration of the divorce.
Temporary restraining orders are good 14 days once issued by the court and then it expires by operation of law. A TRO can be extended for another 14 days if requested by one of the parties. The idea of a temporary restraining order is to maintain the status quo until the temporary orders are in effect.
It is a Real Court Order
As mentioned earlier the Original Petition for Divorce is not a court order but merely a request from the Court on what the Petitioner is Asking for.
If the Petitioner has asked for a Temporary Restraining Order (TRO) in their petition. Then A judge may grant their request if the Petitioner has also filed a proposed Temporary Restraining Order along with their request.
The rule is that for every motion or request there is an order. In this case the Original Petition for Divorce is the motion and the Temporary Restraining Order would be the Order. Much later down the road the Final Decree will also be the Order based on the Original Petition for Divorce.
A TRO is an order that has the full weight and authority of the divorce court behind it. If a party to the divorce violates a TRO, the court can hold that person in contempt of court. That may mean a fine, having the pleadings truck, and possible jail time.
One of the unique things regarding Temporary Restraining Orders is that they are issued ex parte, or without prior notice to you. Also, divorce courts require no proof to issue such orders and, provided it is in proper form, a temporary restraining order will be issued automatically by the divorce court, no questions asked.
Temporary Restraining Orders are Not Protective Orders
Some questions I get asked regarding a TRO include:
- Can I sleep at home tonight?
- Can I talk to my spouse?
- Can I use my credit card?
- Can I see my kids?
- Can my kids stay with me?
- Can I hire a lawyer?
A temporary restraining order is not a protective order this is a common misconception. Generally, a temporary restraining order it has more to do with maintaining the status quo and in most cases not to keep an individual from being around another individual or location.
A temporary restraining order is serious; you should review the order with a divorce attorney to help you understand exactly what you can and ca not do once you have been served with a restraining order.
What Does a TRO Do?
A typical Texas divorce temporary restraining order general restricts activity regarding:
- Conduct Regarding your children
- Conduct Regarding Property
- Preserves Documents
Your conduct towards your spouse and your kids:
- Do not use foul language when talking with your spouse, don’t harass her with e-mails, phone calls or text messages.
- Do not threaten him with bodily harm.
- Do not threaten your spouse with doing something that’s just stupid.
- Do not withdraw your kids from school or daycare.
- Do not hide your kids from your spouse.
- Do not move off with your children.
- Do not say bad things to your children about the other parent.
Your conduct towards your property:
- Do not sell any marital property.
- Do not alter any important documents.
- Do not give away property to your mother.
- Do not cash out your retirement, money market or stock accounts
- Do not cancel your spouse from health insurance coverage
- Do not spend money on anything other than:
Your duty to preserve documents:
- Do not alter or dispose of financial records.
- Do not intercept mail that isn’t yours.
- Do not wipe your computer hard drive clean.
Temporary Restraining Orders Allow
Even with a TRO in place you are in most cases allowed to:
- You may talk to your spouse in a civil and constructive manner.
- You may spend time with your children and even keep them in your care.
- You are allowed to spend money related to your business, your living expenses, and your attorneys’ fees.
- You may hire a divorce attorney
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “16 Steps to Help You Plan & Prepare for Your Texas Divorce”
Other Articles you may be interested in:
- 6 Mistakes that can Destroy Your Texas Divorce Case
- Cost Cutting Tips for your Texas Divorce
- 49 Best Texas Divorce Advice Tips
- 15 Quick Tips Regarding Filing for Divorce in Texas
- When is, Cheating Considered Adultery in a Texas Divorce?
- Sex, Lies, Rock-and-roll, and Adultery in a Texas Divorce
- Can I Sue My Spouse for Mental Abuse in My Texas Divorce?
- 6 things You Need to Know Before You File for Divorce in Texas
- Texas Divorce Morality Clause: Be Careful What You Ask For
- What does Insupportability or No-Fault in a Texas Divorce Mean?
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 Child Divorce Lawyers right away to protect your rights.
Our Divorce lawyers in Spring 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.