The law in Texas is that you can get divorced for any reason- or for no reason at all. As a family law attorney, I run into clients all the time who have filed for divorce from their spouse for extremely serious reasons. On the other hand, I have seen people file for divorce from their husband or wife for reasons that many of us would consider to be trivial.
A divorce where you are not asserting a specific reason (or grounds as they are known in the family law world) for the split is known as a “no fault” divorce. This means that neither you nor your spouse are telling the court that your divorce needs to be completed due to a specific reason like adultery or spousal abuse. Irreconcilable differences or conflict/discord of personalities is the type of language you will see in your final orders. Basically, you all couldn’t get along well enough to maintain the marriage and there was no hope of reconciling.
However, in some situations it may make sense for you to plead a specific cause for the breakup of your marriage. This is both because the situation warrants it and because there are advantages that you can gain from a strategic standpoint within your divorce that are important to the overall success of your case. That is not to say that you shouldn’t be careful or judicious in the grounds that you cite within your Original Petition for Divorce.
For example, if you are seeking an unequal distribution of your community estate, it would be to your advantage for the judge in your case to know that there has been marital conflict that led to your being abused by your spouse. If the judge finds sufficient cause to believe that marital abuse did occur, he or she would likely feel compelled to award you greater than 50% of the marital property.
Take caution when alleging certain causes for the breakup of your marriage
Again, you should not jump head-first into alleging fault grounds for your divorce without first considering the impact on your life and on your case. The family laws in Texas allow the judge in your case to remove any indecent or inflammatory language about your spouse from your Original Petition for Divorce. I have received many Petitions that go into graphic and sometimes gory detail about all sorts of bad acts that our clients have committed that led to the filing of the divorce. Not only do those allegations often times end up being unfounded and untrue, but the judge will likely strike through that sort of material and not allow it to become a part of the record of your case.
The way to allege fault grounds in your Petition for Divorce is to specify the fault ground and state that your spouse engaged in those type of actions. Leave it at that and move on. You do not need to detail the time, place and number of occurrences of an adulterous affair that your spouse has been engaging in. That may be relevant to your case and ultimately the details may come out in court, but they do not need to come out in the Petition.
Providing notice to your spouse that you have filed for divorce
Filing for divorce is one thing. Letting your spouse know that you have filed is an entirely different and independent step. While it may feel like your divorce began the second your Petition was filed, it does not actually have any legal effect until your spouse is served with notice of the lawsuit. A divorce petition, if not served on a spouse, can sit in a court’s files and then will ultimately be dismissed for lack of action on your part.
There are two ways to achieve legal service on your spouse of the Original Petition for Divorce which you had just filed with the court. The first would be to have your spouse sign a Waiver of Service. A Waiver of Service basically states that your spouse confirms receipt and knowledge of the Divorce Petition having been filed. An Answer would still need to be filed, however. An Answer is the legal response to an Original Petition for Divorce. All the Waiver of Service does is do away with the requirement that your spouse be served by a process server or constable with your Original Petition.
The second manner in which a person can be served in your divorce is the most common. You would either hire a private process server or a constable to pick the documents up from the courthouse and serve them on your spouse. The process server or constable would then fill out an affidavit of service that states the time, date and location of the service having occurred. That affidavit is then filed with the other documents in your case. Along with your Petition for Divorce, a citation will be attached that informs your spouse of the need to file an Answer to your Petition within a certain period of time. If there are any pending court dates that will be made known to your spouse in a document known as a Notice of Hearing.
More on the Wavier of Service
Your spouse agreeing to sign a Waiver of Service is the easiest option available of all the ways to provide notice of your divorce Petition to your him or her. A waiver must be signed after your Petition has been filed in order to be considered valid. You cannot have your spouse sign a Waiver in anticipation of the Petition being filed. The reason for this is that if the Petition has not been filed, and a file stamped version made available to him or her your spouse cannot know what he or she is waiving their rights to.
Service by publication or by posting
A third method of providing legal notice to your spouse of your divorce suit having been filed is to serve him or her by publishing your Petition in a newspaper or periodical. You can only do so after a court order is granted by the judge that allows you to serve your spouse in this manner. To get to the point where a judge allows you to serve your spouse this way you will need to show that you have tried everything possible to locate and serve your spouse personally.
The publication will occur in a newspaper or magazine that is available in the city or town where your spouse is thought to have resided. The district clerk would see to it that the citation is posted for a certain period of time. You would pay the costs of having him or her legally served by this method.
Another method that can be utilized in certain circumstances to serve your spouse with notice of your divorce is to do so via posting your citation on the courthouse steps or on a bulletin board or other public area in and around the courthouse. If the court gives you permission to serve your spouse this way you would need to contact the clerk and have him or her post your citation. Once it has been posted for a long enough period of time the clerk will notify your court that service has occurred.
The next step: having an Answer filed
Let’s flip the script, now. Suppose that it was your spouse who filed for divorce and served you with notice of the lawsuit by one of the above methods. You now have a duty to respond to that Original Petition for Divorce with a pleading of your own. That pleading is known as an Answer.
The citation that we just finished discussing in the sections prior to this one requires that you file an Answer by 10:00 a.m. on the Monday following twenty days after the date that you were served with a copy of the Petition and the citation. Keep in mind that while the law requires that you file an Answer by this time, you can file an Answer any time prior to the entering of a final order in your case and it will be considered valid.
The reason why filing an Answer is so crucial in a lawsuit is because after the Answer is filed you will be legally entitled to receive every single document that is filed in your case. This means that you will be notified of any court date that comes up so that nothing will occur without your having an opportunity to voice your position on that subject. If you do not file an Answer, your spouse can move forward with their own version of the final orders in your case. After sixty days of the citation having been served upon you, your spouse can then go to the judge and have those orders ratified by the judge.
What is a counterpetition and should you file one?
You may also choose to file and serve upon your spouse a counterpetition for divorce. This document looks a whole lot like the Original Petition for Divorce. It will allow you to state your own grounds for the divorce and will detail what you are requesting the court do in the divorce as far as relief is concerned.
Now you play the waiting game
Once all of the aforementioned steps have been completed, you and your spouse will have to wait at least 60 days in order to complete your case. The state of Texas wants you and your spouse to be absolutely sure that you want this divorce, so they mandate a sixty day waiting period as the minimal waiting period from the time the petition is served.
During this time period, you and your spouse will engage in negotiation on the property and child related aspects of your case. The ability for you and your spouse to negotiate and settle your case without having to resort to intervention by the judge is generally a good thing for everyone involved. Think about it like this: you and your spouse know each other, your children and your situation better than anyone. Who is better suited, therefore, to make decisions about your future? Certainly not a judge. Use this time to negotiate both temporary and final orders in your case.
Temporary Orders in a Texas divorce
Temporary orders in a divorce will set the ground rules for your case by establishing what you and your spouse can and cannot do, as well as determining a visitation schedule for your child as well as a schedule for which of you are responsible for what bills. One of you will be asked to leave the family home and the details about this move will be included in your temporary orders as well.
Even though they are known as temporary orders, these decisions can impact the final orders in your case substantially. Since we are out of time today, I will pick back up with this topic tomorrow.
Questions about family law cases in Texas? Contact the Law Office of Bryan Fagan
Thank you for joining us today as we discussed a very important topic in Texas family law. If you have any questions about the material that we covered or need clarification on something that you read please consider contacting the Law Office of Bryan Fagan today. Our licensed family law attorneys offer free of charge consultations six days a week here in our office. These consultations are a great opportunity to ask questions and receive feedback about your specific circumstances.
Our attorneys and staff take a great deal of pride in being able to help families in our community achieve desirable outcomes in family law cases across southeast Texas. We work tirelessly on behalf of these families and invite you to see what your law practice is all about. Thank you for joining us today and we hope that you will return tomorrow as we continue to share information about family law in Texas.