Filing for divorce is a concept that anyone who has been around the world of family law is aware of. Even someone like you who is not an attorney and probably has little to no experience in the law has likely heard of filing for divorce. To get a divorce you cannot simply climb on top of your house and declare that you are getting a divorce. No, you have to go about getting a divorce by using the processes prescribed and approved by the State of Texas.
Knowing the process behind getting a divorce is especially important when you do not have an attorney. Even if you have an attorney it is a good idea to know the basics of what your attorney is doing to help you accomplish whatever goals you have in relation to your divorce. On the flip side, if you do not have an attorney it is essential that you know how to get your divorce case off the ground. Filing the petition is how you do just that.
Filing a petition- getting the your divorce off the ground
Once you have completed drafting your original petition for divorce you will need to file it with the Harris County District Clerk’s office if you live in Houston. If you live in Sugar Land, The Woodlands, Waller, Galveston or Beaumont you will need to file it with the appropriate clerk in the county where you reside. For the most part, you will need an electronic version to file. Many courts will no longer accept paper filings of divorce documents.
A signed petition with three copies, the fees associated with filing these documents as well as any other documents that you need to file in your home county should be filed in order to begin your case. Contact the clerk of your county prior to filing anything to make sure if there are any pieces of information that he or she can provide to you that will make the filing process easier for you.
I will take this opportunity to point out to you and the clerk of the court is not there to provide you with legal advice. In fact, if you ask him or her or their staff to help you do something from a legal perspective their answer will likely be that they cannot assist you. Rely on the clerk to help you when it comes to administrative and logistical issues with your case but seek legal advice elsewhere.
Copies will be provided to you that are stamped with your cause number. The cause number is the unique number provided to your case by the court. While the names of the parties (you and your spouse) are important, the cause number is how the court will identify and refer to your case moving forward. You should provide this number to the clerk when and if you have to contact them for any reason.
In the event that you are asking that a citation be prepared for service upon your spouse (to notify them of your having filed the divorce lawsuit) then you will be asked by the clerk if you want a constable or a private process server to serve the papers on your spouse. Either option is fine. Often times the private process server will cost more money but will be able to take the time to get him or her served earlier than the constable would be able to. A process server will not be provided by the court. You will have to locate and hire one yourself. Attorneys typically have one or two process servers that they trust and utilize frequently so you will have to hire one without any personal experience, most likely.
Property- what is the community property presumption
The State of Texas is a community property state. This means that no matter whose name appears on the title, deed, receipts or other ownership documents associated with a piece of property it will be presumed that you and your spouse share in ownership of debts and property. For example, the credit card that only your spouse uses can end up being partially or totally your responsibility in a divorce. It is up to the court to divide community property and debt in your divorce.
As opposed to community property, separate property cannot be divided by the court in your divorce. Any property that you owned before the time that you got married is counted as separate property. Also, any property that you come into possession of during your marriage either by gift (solely to you) or inheritance is also considered to be separate property in Texas.
The key thing for you to understand is that the presumption in Texas is that all property is community property. This is commonly referred to in the family law world as the community property presumption. You would need to prove that a piece of property is your separate from your spouse (and vice versa) in the event that you are challenged in relation to the property. Meaning, if you are attempting to argue that a boat you own is your separate property, but your wife disagrees, you would need to present evidence to a court that shows that the property was owned by you prior to your marriage.
If community property (including money from community bank accounts) was used to benefit a piece of separate property belonging to your spouse, then you likely have a valid reimbursement claim to make. This means that you are asking the court to have the community estate reimbursed for money or property utilized to benefit the separate property of your spouse. However, the laws associated with reimbursement are complicated. This is another good example of why having a family law attorney representing you in a divorce is a good idea.
How will the court divide up community property?
In the event that you and your spouse cannot work out between yourselves the manner in which community property is going to be divided, you are going to leave it up to the judge to decide. The judge is guided by the Texas Family Code in how to do so but for the most part he or she has a wide degree of latitude to make decisions on this subject. The general principle of “fairness” will be utilized. So, the specific circumstances of your case will guide the judge in large part to make a determination as to how the property will be divided up.
On the other hand, you and your spouse can divide up your community estate in just about any way that you would like. The judge does not want to get involved in these type of issues if he can avoid it. If you believe a division of the property is fair, you can propose that to your spouse and wait for a response back. This is a lot of what attorneys do for clients during divorce cases. Make settlement offers and receive counter-offers in response. For the first few weeks of a divorce, offers and counter offers in relation to property are not as common since these issues are typically not dealt with fully until the end of a divorce.
What happens in the middle of a Texas divorce?
Once your divorce petition is filed in your home county, you ought to settle in and plan on at least a two month wait until your case can be finalized. The reason for this is that by law a divorce in Texas may take no shorter than sixty days to complete from the date that your petition is filed. The reason for this is that the court wants to give you and your spouse that amount of time to potentially reconsider whether or the divorce is what you actually want to do.
During the pendency of divorce you may encounter the following stages common to many cases. The first is called temporary orders. This is often times the longest stage of a case. Most every divorce case will see to it that some ground rules get laid down that will govern your behavior and that of your spouse during the divorce case. Where each of you will live, how much money can be spent, what can be said to one another. Your habits and behavior will be kept in check with temporary orders.
Who will pay what bills, who will see the kids at what time and where the kids will live on a full time basis would likely be decided as well. Basically, temporary orders seek to keep you and your spouse playing nice in the sandbox until your case can be settled and completed. Keep in mind that there are many more issues that are sorted out in temporary orders than the ones that I just discussed with you. All the more reason to hire an attorney, in my opinion.
Discovery is another part of a divorce case that often times fits within the temporary orders phase. You and your spouse may need to learn more about the other person’s theories of the case, financial situation or other tidbits of information that are relevant to the divorce. As such, discovery is a mechanism by which this type of information can be sought. Basically each side is trying to get an idea of the arguments that will be made in a trial and the evidence that will be utilized in order to support those arguments.
I will say that I would doubt that you and your spouse would engage in discovery during your divorce if neither of you have an attorney. Discovery requests are difficult to draft and take time to respond to, as well. Certain information does not have to be disclosed to the other side. You can object to requests for information and documentation. However, knowing how to go about responding and objecting to requests for discovery is one of those things that an attorney is better positioned to do than you are. If you think that your spouse is hiding information from you and that you may need to issue discovery requests then you ought to hire an attorney to represent you.
What do you need to do in order to finalize your Texas divorce?
Now that we have discussed the initial phases of a divorce (Filing and Temporary Orders) we can get into the stage of the divorce where you and your spouse put the finishing touches on your case and bid each other goodbye. After all of the difficulties associated with divorce you are likely asking yourselves how you can go about finishing the case with the least amount of time and effort expended as possible. This is a reasonable concern. Let’s get into how to do just that.
You and/or your spouse will need to appear before the judge for a short hearing known as a prove up hearing before your case can be completed. The prove up hearing sets before the judge your final decree of divorce and any other documents your judge will need to sign off on before you case concludes. You should contact the clerk of your court and become familiar with the local rules in order to learn what your court requires prior to the finalization of the divorce. Go online and pull up the website for your court. There you will find what your judge needs to be in place prior to heading to court.
Finalizing a pro se divorce- tomorrow’s blog post topic
In tomorrow’s blog post we will conclude this topic by going through the final stage of a divorce as a person who is representing him or herself. If you have any questions about the material that we have written about today or any day previous to today, I recommend that you 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 concerns directly.