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Frequently Asked Questions Regarding the Divorce Process

If you are considering filing for divorce, it’s a given that you will have questions about the divorce process such as How do I file for divorce? Read on as we answer some of the of our most frequently asked questions regarding the divorce process.

What is a Texas Divorce?

From a legal standpoint, divorce is the method of terminating a marriage contract between two individuals (the parties). A divorce ends a valid marriage. It is the legal procedure that returns both parties to single status with the ability to remarry.

In Texas a divorce takes care of three issues:

  1. Children – it gives both spouses the right to determine the future care and conservatorship of their children,
  2. Property and Debts – it divides property and debts in a “just and right manner”.
  3. Divorce - Once the divorce is final, either is free to marry someone new.

What is a “no-fault Divorce?

A majority of states have at least one form of “no-fault” grounds for divorce. Texas is no exception and allows people to plead for divorce on “no-fault” grounds. This means a spouse can file for divorce under the ground that the marriage has become insupportable.

What every spouse needs to know when pleading “no-fault” in Texas divorce is that a divorce will be granted without either spouse alleging or having to prove marital fault or guilt.

What are the fault grounds in Divorce?

A divorce in Texas can be granted without having to prove fault. However, it is still possible to plead fault under Section 6 of the Texas Family Code such as:

  1. living apart
  2. confinement in a mental hospital
  3. cruelty
  4. Abandonment
  5. Conviction of a felony and
  6. adultery

Who is the Petitioner in a Divorce in Texas?

The petitioner is the term used for the spouse who starts the case by filing an Original Petition for Divorce.

Who is the Respondent in a Divorce in Texas?

The Petitioner in a divorce is the spouse who starts the case by filing an Original Petition for Divorce. The other spouse is called a Respondent because they can respond to the Original Petition for Divorce by filing an answer.

What is an Original Petition for Divorce in Texas?

A divorce is started in Texas by filing an Original Petition for Divorce.

What is Notice?

It is your responsibility as the petitioner to provide notice to your spouse of your having filed for divorce.

If you do not provide notice and then show proof to the court of there having been provided notice your divorce cannot proceed. This can delay your case in the short-term.

How do I provide my spouse notice of the divorce?

There are multiple ways to serve notice to your spouse of your intent to divorce him or her. These methods include:

  1. Process Server – Service of Process
  2. Waiver of service
  3. Service by publication

What is Service of Process?

When a divorce is filed with the courts. In order to proceed with the divorce, the law requires everyone who is a party to the divorce to be notified of the divorce.

To comply with Rule 106 of the Texas Rules of Civil Procedure, the Original Petition for Divorce and court citation must be served on the other spouse. This is referred to as “service of process.”

What is a Waiver of Service in Texas?

It is required under the Texas Family Code requires that a spouse is notified when a divorce case has been opened. One method for doing this is to have them served by a process server.

Another method under the Texas Family Code is if they are willing to sign a Waiver of Service. A waiver of service is a document the Respondent spouse signs waiving the requirement for service. By signing the waiver of services, the spouse agrees that it is not necessary to have them served by a process server.

What is service by publication?

Service by publication is a less common method of service that will need to be approved by the judge after you have shown him or her that multiple attempts at personal service have come up with no results.

I approved by a judge may you will be allowed to provide notice to your spouse by publishing a notice in a newspaper or other publication in your area.

What is an Answer?

The formal document you draft in response to the Original Petition for Divorce is called an “Answer.”

At its most basic an Answer is a response you file with the court letting the court know that you are planning to participate in the divorce process and do not want the court grant a default judgment.

What happens if the respondent does not respond?

If the respondent does not respond to the Petition within the correct amount of time, the petitioner can file a request for default judgment.

What is a Default Divorce?

Default divorces are certainly not uncommon in Texas. When no responsive pleading is filed by the other spouse (who was properly served with process under Rule 106 of the Texas Rules of Civil Procedure), the Petitioner may proceed with the divorce by seeking a default judgment.

What is a divorce decree?

A divorce decree is a final document that the judge signs granting a divorce. A divorce decree will contain all the agreements of the parties and orders of the court with respect to all issues in the case, including child custody and possession, child support, alimony and division of the community estate.

What is an Agreed Final Decree of Divorce in Texas?

An Agreed Final Decree of Divorce is the document that Judge signs ending the divorce and approving the agreements that you and your spouse have made regarding all of the specifics of your divorce.

A divorce decree does not have to be an agreed final divorce decree. It could be just a final divorce decree. However, when a decree is agreed upon it is customary to add the word “Agree” in front to indicate to the court that an agreement was reached.

What is the basic divorce process?

Consultation - A good first step in a divorce case or family law is to schedule and have a consultation with a family law attorney.

Filing for Divorce - The next step in the divorce process involves opening a file, drafting the initial paperwork.

Service - Once the Original Petition for Divorce has been filed with the Court, the other spouse must be made aware of the divorce action and be brought under the power of the Court. This can be done by either formal or informal service.

Negotiation and Mediation - The parties may agree upon Temporary Orders.

Temporary Orders hearing - A hearing on Temporary Order are usually held after an unsuccessful mediation. This hearing is the formal way of settling the same sort of issues discussed in mediation. However, where mediation requires the parties to agree in order to resolve the issues. In a Temporary Orders Hearing the Judge makes the decision based upon the testimony of the parties any evidence or witness testimony presented.

Discovery -This may include: (1) exchanging an Inventory and Appraisement (a list of assets and debts); (2) Interrogatories (a list of written questions); (3) Request for Disclosure (a written request for basic information about a case and a list of witnesses); (4) Request for Production of Documents (a written request for documents); (5) Request for Admissions (a written list of statements one spouse is asking the other to admit or deny); and (6) Depositions (questions asked and answered under oath).

Trial – Sometimes a husband and wife are so far apart in what they want that is not possible to reach an informal settlement agreement or to settle in mediation. In this case, just as with the Temporary Orders Hearing is necessary to present their case to the judge.

What Happens at the Trial?

A trial is a final court hearing. All issues must be presented to a judge. If there are issues that are agreed upon you can let the court know what the agreement is. If there are issues that are contested those issues must be presented to a judge or jury that will make the final decision.

The issues are presented through the testimony of the parties, presenting evidence, and witnesses. If you are having a trial before a judge the judge will decide both child and property issues. If the case is before a jury only certain issues will be decided by the jury (the character of the property, whether or not there is a common law marriage, and custody of children) the remaining issues will be heard by a judge.

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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 Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston 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, Houston, 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.

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