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Are you considered divorced when you file?

It makes sense that if you are in the beginning stages of planning a divorce that your thoughts are already contemplating an end to the case. Who could blame you? A divorce is not fun, not cheap and is a lot of work. If you came to our blog today to get some assurance that divorcing isn’t as bad as people make it out to be, maybe we can have a discussion of that. However, the idea that divorce is anything but longer than you would like it to be, somewhat expensive and a lot of work would be misleading to say. 

Every person who files for divorce in Texas shares in common at least one goal: getting a divorce granted by the judge that your case has been assigned to. Divorces come in all different shapes and sizes but overall, you just want to no longer be married to your spouse. The reasons why that is may differ from person to person but the process and the goal is the same for you as it would be for your neighbor. Divorce is emotional and dwelling on the not so fun steps of the divorce can be difficult for a lot of people.

With that said, a question that I receive with some frequency is when are you actually considered to be divorced. Emotionally, it can feel like you are divorced the second that you decide to move forward with the legal process. It may have been a decision that you have struggled to make over the past few years. Now that you have finally decided to bite the bullet and go through with a divorce the sense of relief is enough to cause you to feel like you are already onto the next phase of your life. 

Still, other folks have told me that their impression is that once you hire an attorney and actually file for divorce is when the divorce is actually official. Sending in the legal documents to the court and telling the State of Texas that you no longer wish to be married to your spouse should be a pretty definitive end to the relationship, right? There’s not really any going back for most people. Besides, now that you have committed time and money to the process that should be enough to at least bring about some degree of formal, legal separation. 

Today’s blog post from the Law Office of Bryan Fagan will center on this question: when is a divorce official? Are you considered to be divorced the moment you decide to get the divorce, when you sign the papers or when you and your spouse sign the final paperwork? When you are dealing with an unpleasant process like divorce time is something that you wish you could speed up. Is there anyway to speed up the divorce so that you are actually, legally divorced sooner rather than later?

First things first: you need to make a decision to get the divorce

Making the decision to get divorced is probably going to be one of the most difficult that you will need to make in your life. A lot of people will tell you that it is no big deal, in this day and age, to get divorced. I would disagree. You are making a decision to split from a person that, not too long ago, you made a lifelong commitment to. In that time you have built a life together: children, pets, property, a home, retirement savings, etc. All the “stuff” that makes up your life you have assembled with the idea that you would be sharing those things with your spouse.

Now that you are moving closer to a divorce you are forcing yourself to make a change to those plans. This could be for the best- especially if your spouse has been violent or abusive with you and/or your children, addiction has crept into the relationship or for a myriad of other reasons. The relationship could have just gotten “stale” and doesn’t hold your attention like it once did. Whatever the case may be, understand that divorce is a permanent thing and is not something that you should enter into without a great deal of forethought. 

Your first step in the divorce process should be to meet with a handful of attorneys to interview them and to learn as much as you can about the divorce process. Just like any other important life event a divorce needs to be studied before you actually begin the process. You wouldn’t travel around the world, have a baby, build a house or do any other complex task without first learning about it, would you? Don’t treat divorce as a war that the attorney is going to fight for you. 

You are the person actually getting divorce. The decisions made within the divorce and the final results of the case impact your life. As such, you should not defer to your attorney just because you are paying him or her to represent you. The attorney’s is to guide you through the case and to educate you on how to make good decisions surrounding divorce. Your job is to use that education and apply it to your specific circumstances. You know what is best for yourself and your children. Your attorney may have an inkling but does not personally know your family. You do and you need to be accountable to them by learning about divorce and then selecting an attorney who can help you accomplish your goals. 

Filing for divorce- are you actually divorced yet?

Now that we have reached the part of the case where you actually file for divorce, it is fair to start wondering whether or not you are actually divorced yet. If you file for divorce you will be known in your case as the Petitioner. The document that you will file is known as the Original Petition for Divorce. This document is filed with the district clerk in the county where either you and/or your spouse is a resident. 

An Original Petition for Divorce contains all of the essential information about your case. Who you are, who your spouse is, the names of any children under the age of 18, etc. You will also be telling the court whether or not there is any community property to divide in the divorce as well as any of the other important circumstances of your case. If you plan on asking for divorce based on a specific fault ground (infidelity, abandonment, abuse) then you would specify this in your Original Petition. 

Keep in mind that if you expect your Original Petition to be able to include a laundry list of all of the bad acts done by your spouse towards you, then you will probably be disappointed. A court can remove any language that it determines to be over the top, vulgar, overly detailed information out of a petition. If you intend to file for divorce because your wife has cheated on you, then you would just need to note that you are basing your divorce on grounds of adultery. The specific allegations made against her may be relevant in a trial, but the petition for divorce is not the place to raise those grievances. 

Multiple copies of the Petition and the appropriate filing fee for your county should be filed with the district clerk. Your petition will be stamped by the clerk to denote the date on which your petition was filed. After all, your case will be assigned a cause number to distinguish it from all of the other divorces in your county. After that, the case will be assigned to a particular family court judge. Any legal disputes that cannot be settled between you and your spouse will go to that judge for a decision. 

So far, you’ll notice that I haven’t said anything about being legally divorced yet. That means we need to continue our discussion to determine when it is that you are actually divorced from your spouse. 

Providing notice of the divorce to your spouse

Here is where things get interesting. You can’t just file for divorce and then expect your spouse to find out about it via a text message. Rather, once you file your Original Petition for Divorce you will have a decision to make. Your spouse has a right to be notified of the divorce. You can choose to have him or her served with the divorce papers by a constable or process server as a first option. The server would pick up your papers from the courthouse, locate your spouse and then present him or her with the papers. Or, your spouse can sign a waiver of service form and accept the documents directly from you. This would do away with the need to hire someone to serve him or her.

Whatever method you choose of notifying your spouse of the divorce, the divorce has not officially begun until service is completed. Your spouse will have approximately twenty days to file an answer to your petition. In that time he or she is likely to hire their own attorney, prepare themselves for the divorce, file an Answer to your Petition and then set about building their own case to counter yours.

Now that the divorce has officially begun it is fair to start asking whether or not you are considered to be divorced at this stage. After all- the cat’s out of the bag now. Your spouse knows you want a divorce and that you have filed the paperwork necessary to get that process started. It would seem like things are on the road towards being done with. True, you are on the road but you are a long ways from being divorced. Let’s press on towards the conclusion of your case.

Getting closer to an official divorced status

Filing your divorce papers, receiving a response from your spouse and beginning to negotiate on all of the important areas of your case are all hallmarks of a typical divorce. There are temporary issues that need to be sorted out. Who stays in the family home during the divorce, who pays the bills, who has primary custody of the kids a host of other questions are sorted out in this phase of the case. 

As you progress towards the conclusion of your divorce you will be working through more difficult concepts like coming up with a visitation schedule for your kids, dividing up your marital estate and figuring out what to do with your family home. You and your spouse will have ample opportunity to attempt to negotiate and settle your case. If you are unable to, a judge will intercede and make decisions for you after a trial. 

Once you have either settled your case or a judge has made decisions in a trial, your attorney will draft a final decree of divorce. Typically it is the party who files the divorce that will have the final decree drafted. It will contain all of the final orders of your case for you and your spouse to refer to after the divorce concludes. Once you, your spouse, your attorneys and the judge signs the final decree it is all over with. At that point, you can consider yourself to be officially divorced. Request copies of the decree from the district clerk, keep those in your desk drawer and then move on to the post-divorce phase of your life?

Questions about divorce? 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 where we can answer your questions and address your specific circumstances directly. Meeting with an attorney who has experience in handing a divorce involving facts like yours is essential to accomplishing your goals. We invite you to learn more about our office and how we can best serve you and your family. 

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