Making the decision to move forward with a divorce in Texas without representation by an attorney can be a risky and difficult decision to come to. You are attempting to accomplish something that is not only procedurally complex but also emotionally draining. If you want to accomplish whatever goals you have for yourself then you would be wise to seek as much information on divorce as you can get your hands on. While today’s blog post should not be taken as legal advice it will hopefully provide useful information that you can consider in your own circumstances.
Going to court to finalize your divorce means attending what is known in Texas as a “prove up” hearing. You will be responsible for providing to the judge your final decree of divorce as well as any other documents that the court needs to approve and sign in order to complete your divorce. Refer to the website for your court and the clerk’s office before showing up without a document that you need. It can be frustrating to take a day off from work and show up to court only to be told that the judge cannot grant your divorce because you left out an important piece of paper.
If you asked to have your spouse served with citation of the divorce and he or she never responded (answered) your petition, you may be attempting to get what is called a default judgment in your divorce. This means that you were able to draft and sign a final decree of divorce that reflects your desired outcomes in connection with the divorce. Your spouse was notified of the proceedings and chose not to participate. That is their loss. However, in order to get the judge to approve your default divorce you will need to provide proof of service. That proof of service (usually returned to the court by the process server or constable) must be on file at least ten days in order to be valid.
You need to be sure that your spouse has not filed an answer before you attempt to move forward with a default divorce. I know this may seem silly, but you may not have been in contact with your spouse for years prior to your divorce. If you believe that you were fortunate to track him or her down to have them served initially then you should not take it for granted that an answer was filed without you being notified. Check the website for your case to verify that no answer has been filed without your knowledge.
Nobody is going to do this all for you. You will need to take it upon yourself to review the documents, verify what has and what hasn’t been filed and then make decisions on what needs to be done. Normally an attorney would go through these steps for you but if you have chosen to represent yourself it is you who is responsible to administer your case and make sure it is handled properly.
What to do when you actually have to come to the courthouse
Many people, due to movies and television shows that play up courtroom drama, have an idea in their minds that all divorces wind up in a courtroom where a lot of yelling and screaming will resolve the case. I don’t want you to be one of those people. The vast majority of Texas divorces conclude in court but not in the kind of courtroom appearance that you may be envisioning. Let’s go through what a typical courtroom experience looks like for most people getting divorced in Texas.
Once you have made sure that you have all the paperwork you need to get divorced is ready to go, you will need to appear in court in order to get your divorce finalized. This is usually just a short hearing where only you or your spouse need to appear. It is not contested and you do not need to give formal notice of your going to your spouse. You will basically take some information from your final decree of divorce and read it into the record for your case. That way the judge can be sure that you hit on all of the necessary parts that a divorce decree must touch on.
Some of the family courts in Harris County will require that you submit your documents at least twenty four hours before appearing in court. Some will require that you schedule a time online before coming into court before the morning docket is read by the judge. What I am trying to tell you is that different judges have different rules for administering these prove up hearings. You would be wise to read their website before appearing in court.
Keep in mind that you are not the only persons who are trying to get a divorce granted by your judge. If you sign up for a time to appear for the prove up hearing it in your best interest to have everything ready to go at that time. If you are not ready the judge is likely to tell you that you need to come back another time when you are ready. He or she will move on to the next person. Your case will be a distant memory to the judge. You will still be married. Your spouse and you will not be happy.
Just to be on the safe side. Collect documents that need to be filed well in advance of the day you plan to go to court. File them and then call the clerk to make sure that they have been received and are ready for the judge to review at the time of your hearing. You do not need to ask the clerk for advice or anything like that, but you can at least get the impression that it is worth your while to take off from work and come down to the courthouse.
How to testify in court and present yourself to a judge
Assuming that all of your ducks are in a row you should appear in court for a hearing that should take no more than 10 minutes- hopefully less. It is not out of the realm of possibilities that you could make it back to work by mid-morning. I wouldn’t plan on it (especially considering traffic in Houston), so I would take off the whole day from work if I were you. Think of it as the first day of the rest of your life.
You should plan to bring hard copies of all of your divorce paperwork to court with you. Yes, the judge will have electronic versions on the computer but you should plan on something happening where the judge cannot access the documents that way. Better to be safe than sorry, right? Have some copies there for him to sign if he would like but likely he will wait until later that day to sign all of the final decrees of divorce that he has approved that day. If approved, your divorce will be granted that morning, however.
Most of these prove up hearings are held on the uncontested docket early in the morning beginning at 8:00. An uncontested case means that your appearance is not seeking to grant you any right that goes against the wishes of your spouse. You are there in agreement with her and your appearance does not stand to harm her in any way. You should check in with the clerk of the court when you arrive and she will point you towards where the judge wants you to sit while you wait to hear your case called.
You should approach the bench (where the judge sits) only when your name and cause number is called. There will be an area where the judge, courtroom personnel and attorneys are sitting behind a rail with a swinging door. You should not attempt to cross that area unless invited to do so by the judge. You will approach the judge and be placed under oath prior to your being able to give testimony.
You will be “on the record” meaning that what you say will be transcribed by the court reporter as an official part of your case. You should speak into a microphone if you are seated at a table. Otherwise, you should speak clearly to the point where both the judge and the court reporter can hear you. Do not refer to the judge by their first name. “Your honor” is the term typically used by attorneys and courtroom staff when addressing the court. You should follow suit and use that terminology as well.
What do you need to say to prove up your divorce?
There is literally a script that you should follow when presenting your testimony. You will likely have heard other people go through the same testimony while you waited to have your case called by the judge. Some of those folks who had attorneys will have only had to answer yes or no to various questions asked to them by the lawyer. Since you are going by yourself you will read from a script. Here is the essence of what you need to say:
- Tell the judge your name and that you are the petitioner (party who filed the divorce); You would point out to the judge that you are representing yourself in the divorce case
- You would confirm to the judge that you have been a resident of Texas for at least the past six months and your home county for at least 90 days
- You would tell the judge the name of your spouse, the day you were married and the day you were separated and ceased living together as husband and wife
- You would specify what grounds you have chosen to get divorced based on. For the most part this would sound like discord and conflict of personalities. You would confirm that there is not chance at reconciliation that you can foresee.
- If you have any children who are under 18 years of age you would tell the judge their name and age; otherwise, you would tell the judge that there are no children born of the marriage who are now under age 18 and none were adopted during the marriage
- You would take note that each person owns separate property that was unaffected by the divorce; any community property that was divided between the two of you would need to be acknowledged. You would confirm that the division of property between you and your spouse is fair and equitable
- Finally you would conclude by asking the judge to grant your divorce
After court- wrapping up the divorce and moving on with your life
After you go through that script with the judge you may be asked a question or two by the court to clarify particular items of your final decree of divorce. Once you have done so the divorce will be granted. A copy of your final decree of divorce will likely be ready the following day. You can contact the clerk and ask who you need to get in touch with to receive either certified (copy with stamp) or uncertified (copy without a stamp) copies of the decree and any other paperwork.
Keep multiple copies handy- just in case. You never know when you may need one or who may need to verify that you and your spouse are divorced. The divorce is over with. You can breath a sign of relief
Questions about how to handle a pro se divorce with kids? Read tomorrow’s blog post
Noticeably absent from any of the information provided over the past few days were topics related to children and divorce. I decided to save those until we completed a general overview of pro se divorce. Stay tuned tomorrow as we shift our attention towards children and divorce in Texas.
Any questions that you have about the material contained in today’s blog post can be addressed by contacting the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week where we can address your concerns and answer your questions.