Going into a divorce case without an attorney is typically not a good idea. There are risks associated with the divorce process that are important to be aware of. Even having an attorney cannot guarantee any particular result in your case. An attorney cannot promise that you will get to keep your house, your kids or your retirement. With that said, an attorney has been through the process and knows how to work the case to a point where you are in a position to accomplish your goals. If at all possible (and for most of us it definitely is) please interview attorneys and eventually hire on to represent you in your divorce.
However, today’s blog post is going to center around what you would do if you chose to represent yourself in a Texas divorce. While I cannot predict the future and I do not know your specific circumstances, there are common elements to every single divorce case. I will seek to walk you through the elements of a divorce and will hopefully provide you with some insight and a little bit of guidance. Though, like I stated yesterday, the information contained in this blog post should not be taken as legal advice, does not create an attorney-client relationship between you and the Law Office of Bryan Fagan and is not an effective substitute for quality legal representation.
Drafting and filing a Petition for Divorce
The document that officially begins a divorce is an Original Petition for Divorce. In this document you are telling the court who you are, who your spouse is, who your children are and what elements will be present in your specific divorce. This is your side of the story and will be asking for certain relief that the court can grant and will ask the court do certain things for you inside of the divorce.
Information like the address of your spouse, the age of your children, and the date that you and your spouse married will be essential when it comes to drafting this document. You will be asked to provide the date on which you and your spouse separated. You do not have to remember the exact date- an approximate one will work under most circumstances. You will also need to tell the court that you have lived in Texas and your home county for the requisite length of time (6 months and ninety days, respectively) in order that the court knows that it has jurisdiction to hear your case and eventually issue orders related to it.
How does your spouse learn that you are filing for divorce?
In some situations, the person who has filed for divorce will have told their spouse about it ahead of time so as to not surprise the other person. On the other hand, you may have kept your intentions secret from your spouse and he or she will learn of the filing by being served with notice by a process server or constable. There are two methods that you can choose to undertake in order to provide your spouse with the formal, legal notice of your having filed for divorce.
The first one that I will cover today is called a waiver of citation. A waiver of citation is a form that is signed by your spouse in front of a notary that states he or she has not objection to the entering of a divorce decree at the conclusion of your case. The final decree of divorce is the last document that is filed and drafted. It will contain all of the orders that you and your spouse will live by in your post-divorce life as far as parenting your kids, dividing your property and any other subject that is related to your divorce.
If your spouse is willing to sign a waiver of citation you should provide him or her will a copy of the original petition for divorce. You do not need to hire a constable or process server to have the petition served upon him or her. A citation would not be necessary, either, since he or she is not being formally served. The key to having a waiver of citation signed is that the original petition for divorce must be on file first before the waiver of citation can be signed. Typically, it makes sense to file your petition and then provide your spouse with a copy and a waiver of citation the following day.
Formally serving a citation upon your spouse as notice of the divorce having been filed
In the event that you know where your spouse is (at work or home most likely) then you can choose to serve a citation upon him or her. This means that he or she is not cooperating with you to the extent that he or she will sign a waiver of citation. It could also be the case that he or she does not know that the divorce has been initiated or you have chosen not to tell him or her.
The citation is not prepared by you. The citation is prepared by the clerk of the court where your divorce has been filed. This is done only after the clerk has accepted your original petition for divorce as being complete and in the correct format. Otherwise, you will be receiving phone calls from their staff to make changes/additions to the document. This can be time consuming and ultimately money consuming since you are taking time away from other endeavors (like work).
It sometimes happens that once the petition is filed and the citation is ready that your spouse can be difficult to locate. This divorce may have been a long time coming and you do not know exactly where he or she is living at the moment. In other circumstances you may find that your spouse is purposefully avoiding being served so as to delay the start of the divorce. Whatever the circumstance, it is always best to work to get him or her served personally. There are other methods of service but those can take more time and end up costing you in other ways down the road in your divorce.
Jumping to the end: what is the final decree of divorce?
Ultimately, every person going through a divorce is looking to get a document known as the final decree of divorce drafted and signed by both spouses. If you are handling your divorce without an attorney you will need to spend some time learning about what needs to be included in the divorce, how the language needs to read and what mistakes to avoid. You do not want to spend months on a divorce case only to incorrectly draft the final decree of divorce. You will not only have wasted your time but could be setting yourself for a disaster (or two) in your post-divorce life.
There are basically two parts to a final decree of divorce- the part that deals with your kids and a second part that deals with your property/money. Let’s discuss the part that deals with your property/money first. All elements of property are addressed in your final decree of divorce. Possession of real estate, business interests, personal property, automobiles, ownership of your home and the status of retirement/investment accounts will all be dealt with in this document.
If you are already at a loss as to how you are going to get all of this organized and into a format that a judge is willing to sign his name to, you should seriously consider hiring an attorney. Getting all of this information into the document in a way that corresponds to the agreements you made with your spouse or the decisions of a judge in a trial can be difficult even for attorneys with experience in family law. There is no shame in admitting that you do not know how to proceed in this area. In fact, you can likely hire an attorney to just draft the divorce decree and do nothing else. That is how important this document is to your case and to your future.
Some of the property that you own is owned by you separate from your spouse. Some of the property that you own is owned jointly between you and your spouse (community property). Finally, your spouse owns property separate and apart from you. The final decree of divorce should spell out all of the property and to whom ownership rights will go after your divorce. In the event that the final decree of divorce specifies that property in your possession on the date of your divorce goes to that spouse, you may not need to type out a full list of items. If not, it is not a bad idea to type out a full list of personal property owned by you and your spouse and to whom ownership rights will be belong to in relation to each individual piece of property.
The more “important” the piece of property the more specific you should be in identifying the property. For example, if you are going to be awarded your vehicle in the divorce then you should take the time to spell out the year, make and model of your vehicle. A vehicle identification number (VIN) and any other description terminology you wish to use should be clearly noted in the final decree of divorce.
How should you handle debts in your divorce?
Debts are a part of the divorce case that lots of people don’t give much thought to. It is much easier to think about your kids or your property than it is your debts. However, I am willing to bet that you at least have a little bit of credit card debt to your name- not to mention house debt, student loan debt and other types of consumer debt.
All debts that you currently owe should be listed in the final decree of divorce just as I recommending doing for property that you own. Even if a debt is solely in your name or that of your spouse, it is still worthwhile to list that debt and clearly note that its payment is your responsibility after the divorce. If you own a vehicle that still have debt on it, you will likely be awarded the debt in addition to the property. Unlikely is the situation where you get to have your cake and eat it, too.
Once the final decree of divorce is in a format that is acceptable to you and your spouse, each of you will need to sign the document. Signing a legal document gives the judge or any other person who reviews the document the impression and assumption that you have read the entirety of the decree and agree what is contained therein. Do not sign the document unless you have read every word it contains and agree with them.
How do you file the original petition for divorce?
Now that we have discussed the general stages of a divorce and a little more in-depth material regarding the conclusion of the case, let’s go back and talk about how you actually file a document with a court. This is a key step not only because it’s the first step but because nothing else can happen in your divorce until you complete it. This is where we will pick up tomorrow in our series of blog posts on how to handle a divorce without the assistance of an attorney.
In the meantime, if you have any questions about the material that was shared with you today 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. These consultations are a great opportunity to answer questions and address your concerns directly. Thank you for joining us today and I hope that you will return tomorrow to read more about this important topic in family law.