To get divorced in Texas you need to be aware of the process in the laws associated with divorce in our state. Anyone who has spent any amount of time in Texas understands that we are a unique people here in the Lone Star State. Texans take a great deal of pride in being from this state and it is not a typical for our state to do things differently than many other states. We're not going to spend a lot of time discussing the specific processes of how other states go about getting people divorced, but we are going to talk in some detail about how to get a divorce in Texas and what you need to do to prepare for your own divorce.
For starters, Texas encourages people to remain married and work at all costs to avoid getting a divorce. No, I don't mean that a judge will sit you and your spouse down at the beginning of your case and provide you with marriage counseling but I do mean that the state has mechanisms in place to encourage people they remain married and to discourage divorce. I think the most obvious of those mechanisms is the 60-day waiting period for divorce to be finalized.
This means that from the day your divorce is filed the quickest your case could likely be resolved is 60 days after this filing date. There are exceptions for specific parties, notably those that involve family violence in the home, but for the most part you can expect your divorce will last at least two months. The rationale for this waiting. Is that the state believes that if given more time to think about the divorce more people will be likely to reconsider their divorce case and work to save their marriage. On the other hand, were the waiting periods shorter I am willing to bet that more people would get divorced sheerly for the reason that it is easier to do so.
There is a public policy reason why divorce is not exactly encouraged in Texas. Like many states, the idea of a no-fault divorce in Texas is a fairly new concept. A no fault divorce means that neither you nor your spouse has to specify a specific reason as to why your divorce should be granted by a court. Rather, you can state that your marriage needs to be dissolved due to irreconcilable differences and discord or conflict and personalities. This basically means that you and your spouse could not get along with one another and have no hope of fixing the marriage.
You can still specify fault grounds for the divorce in Texas. Fault grounds for divorce are things like abuse, adultery, financial fraud, and abandonment. These fault grounds can play a role in your divorce and can impact things like custody and Community property division. However, the key difference now is that you do not have to present a fault ground to get divorced in Texas. What I will tell some clients is that you can get divorced in Texas or anything ranging from adultery too not liking how your spouse chews their meal at dinnertime. this has been a dramatic change in divorce law in Texas and has contributed, in my opinion, to the rise of divorces in our state.
The two phases of a divorce case
In Texas divorces there are basically two phases of the case that you need to become familiar with. Those two phases are the temporary orders phase and the final orders face. Let's go over each of these phases to describe what they mean for you and your family and then talk a little bit more about what you can expect to accomplish during each phase of your case.
the temporary orders phase of your case represents the vast majority of the time you will spend in your divorce case. From the date on which the divorce is filed until preparation for final orders mediation begins, temporary orders can last anywhere from a few weeks to a few months. Basically, most families use this time as a transitionary. Where you and your family will begin to acclimate yourselves to living in separate households if you have children. If you do not have children, you and your spouse will likely have stopped living together and will be figuring out how to divide up your community estate at the conclusion of your divorce.
We call this the temporary order space because you and your spouse will spend the beginning parts of your case preparing for a temporary orders hearing. Don't let the word hearing fool you: a temporary order's hearing is really just a mini trial. Basically, you and your spouse are preparing to present evidence on matters ranging from child custody, conservatorships, Visitation and temporary use of your family home. Basically, the temporary order space is about dividing up your life and your children on a temporary basis and helping your family get used to living separately.
However, most families will attend something called temporary orders mediation before a hearing is necessary. Mediation is a process whereby you and your attorney and your spouse and their returning will mutually agree to have a third-party attorney intercede with in your case and help you all negotiate through the aforementioned issues. A temporary visitation schedule with your children will be created, temporary child support will be ordered and responsibilities in relation to your family home and bills will be decided upon.
Mediation is typically so successful in family law cases that it is rare that your case will proceed to court. That in and of itself maybe a defining characteristic of Texas family law cases when compared to family law cases from other states. Whereas, people get the idea that a divorce case automatically ends up in court this is far from the rule in Texas. Quite the opposite actually: usually going to court means you are the exception rather than the rule in a Texas divorce.
once you and your spouse attend temporary orders mediation and are successful in settling your case then the settlement agreement will be drafted into formal temporary orders that all parties in the judge will sign. At that point, you and your spouse well need to do your best to live under those orders or risk being brought to court by the opposing party for having violated those court orders.
The discovery phase of a Texas divorce case
Another hallmark for the middle section of a Texas divorce is that you and your spouse are likely to submit upon one another something called discovery requests. request for discovery basically ask your spouse to submit back to you answers to questions, documents and other information about your case. Basically, this phase of the case allows you to learn more about your spouse’s positions on various issues and helps you both to prepare for a trial. A lot of times, you are unable to collect information on your own about things like retirement accounts and debts. This is especially true if you are no longer able to have access to your house and have important papers inside of there.
Requests for discovery help you too learn more about the subject matter of your divorce so that you can prepare for a trial. However, much like temporary orders hearings, it is unlikely that your divorce case will go all the way to a trial. What request for discovery also do are to help you and your spouse learn all the facts of your case so that you can negotiate better? Imagine trying to work out a problem with another person when you cannot even agree on what the subject matter is. This will be a tough task even for people who get along very well.
In order to avoid disputes on matters related to your divorce, discovery requests can help you all synthesize information and agree on what is at stake. It will be very difficult for you to negotiate well over dividing up your community estate when you are not sure how much your spouse has in retirement, what the equity positions your home is and how much debt each of you have in the marriage. Once you can agree on what is at stake you can much better negotiate through how to resolve these issues.
The final orders phase of a Texas divorce
The last stage of a Texas divorce is spent preparing for final orders, attending mediation and/or a trial and then drafting final orders. Since you and your spouse already would have had temporary orders in place much of the work for preparing for a final orders trial or mediation has been done. It is unlikely that much will change in regard to custody of your children after temporary orders so many parties simply agree to extend and make permanent the temporary orders in relation to their children if they have been working well for the family so far. Some adjustments may need to be made here in there but for the most part the basic structure of custody during the temporary orders phase of your case may extend into your post-divorce lives.
Where final orders really come into play is in relation to your community estate. You will have to decide what you want to do in relation to your family home. Do you want to sell it? Do you want to remain in it? Would you prefer that your spouse remain in the house so as to provide your children with stability and consistency on a day to day basis? Do either of you have the financial wherewithal to afford mortgage payments, taxes and insurance on a home with just one income? These are some of the questions that will be debated in final orders mediation and ultimately may have to be decided by a judge.
Regarding the remainder of your financial life, you will have to decide how, if it all, to divide up things like retirement accounts, make accounts and any other investments you and your spouse may have. The simpler your financial life is, the more likely this phase of your case will not present you with many difficulties. If you have a complex financial situation with your spouse, own a business with him or her, believe that you will require post-divorce spousal support or have any other circumstances that are concerning from a financial perspective then you can expect to need to negotiate and plan for this part of your divorce much more closely.
Once you and your spouse have either negotiated the issues of your divorce in mediation or have attended a trial the final step of your case is taking the final orders in your case and inserting them into a final decree of divorce. This final decree of divorce will be the marching orders for you and your spouse in your post-divorce lives. While you are able to come up with changes, if they can be agreed upon, in the years following your divorce the final decree of divorce offers you a baseline of orders and guideposts for you all to follow as single adults.
If you have recently moved to Texas and have only knowledge of divorce laws as they pertain to your old state, I recommend that you speak with an experienced Texas family law attorney before proceeding with a divorce here. A lawyer can give you additional perspective on your personal situation and can help you to develop a game plan for accomplishing whatever goals you have for yourself in the divorce regarding you and your family.
Questions about the material contained in today's blog post? 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 in person, over the phone in via video. We take a great deal of pride in serving our community by providing first rate legal services and representation in a range of family law matters.