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What is an Original Petition for Divorce?

Have you been thinking about getting a divorce? The fact that you are reading a family lawyer's blog tells me that the thought has crossed your mind a time or two. If that's not the case, then you have some interesting reading habits, to say the least! In all seriousness, what you are doing right now is a great idea: learning about how to get a divorce in Texas. Many people who get divorced never actually learn anything about the process. They simply hire a lawyer (or not) and then file paperwork. That's not a great idea. 

Getting a divorce is serious. You probably didn’t need me to tell you that but I will do it anyway just to make sure that this isn't thought up for debate. No matter how ready you feel for the divorce or no matter the reasons you want to get the divorce, the process and the subject matter is serious. You may know a thousand people who have gotten a divorce and downplayed the process but I am here to tell you that those folks are wrong. The process, the emotions, the outcome, and the impact on you and your family are enormous. 

For that reason, reading through blog posts like this one are a good start to this journey that you are pondering the start of. Starting small is a good thing. Learning the basics of a family case like divorce is a wise decision to make. Like anything in life, there are procedures in place through the family courts of Texas that will allow you to obtain a divorce. However, you must follow those steps exactly or risk losing time and money correcting errors that you have made. Throughout the process, you also need to keep in mind that you are working to negotiate a settlement that is fair to you and your children. That's a lot of responsibility. 

I would like to use this blog post as a jumping-off point for you as you begin to learn more about how to get a divorce in the best and most efficient manner possible. I am fond of telling people that ask me about getting a divorce that you can wander into a divorce but you cannot wander out of a divorce. More accurately, you can wander out of a divorce but the outcome of that case is not going to be one that you like. Let’s get into what a divorce is and where you begin the process of getting a divorce in Texas.

What is divorce?

We all have a general understanding of what a divorce is: a legal process that ends a marriage. A divorce is the legal recognition of the termination and dissolution of your marital relationship. For many, marriage represents and is a spiritual bond between you and your spouse. The civil law in Texas doesn't have quite those lofty expectations surrounding your marriage but the law does allow a formal and legal combining of your life and that of your spouse. In many ways, your life and that of your spouse become one and indistinguishable from one another once you get married.

A divorce ends all of that. Once you get a divorce you and your spouse are just two people. The marriage relationship has been terminated and you are free to live separate and distinct lives. That’s the idea, right? Well, for starters, if you have children together it will be virtually impossible for you and your spouse to ever truly be separate people. For the rest of your lives, you will share children and therefore share a relationship with those kids. It is very difficult to completely separate yourself from your ex-spouse if you have kids- especially during the early years of your children's lives. We will not get into this subject all that much today but the term “co-parent” is one that you should become familiar with if you are about to get a divorce and have young kids. 

Divorce is forever. Technically you can re-marry your spouse but the emotional barriers that you must climb over to do that can be many. At this point, it is best to give yourself some time to determine if you want to get a divorce. Every one of you reading this has individual circumstances involved in your lives that have led you to consider getting a divorce. Whether those circumstances (and the ones that came before them) justify your getting a divorce is up to you. 

Texas is a "no-fault" divorce state just like every other state in our country. This means that you do not have to specify in an Original Petition for Divorce what the cause of your divorce is. Essentially, you can tell a judge that you are filing for divorce because you and your spouse cannot get along with one another and there is no opportunity for reconciliation. You can file for divorce just because you don't like the way that your spouse chews their food during dinner. 

Starting the divorce: Filing an Original Petition for Divorce

Once you determine that you want to move forward with a divorce the next thing you need to do is decide whether or not you should hire an attorney to represent you. I won't spend a ton of time going through this step in the process because I have written blogs on this subject several times recently. Feel free to search our website for blogs on how to interview an attorney. 

Once you have an attorney to represent you, the next step is to file for divorce. This is a term that we have all heard many times in our life: file for divorce. But what does it mean? Do files even exist anymore in the age of the internet? What is the process like for going through the process of getting a divorce filed? This is what we are going to talk about in this section of today's blog post. 

An Original divorce petition is an initial document that is filed to begin a divorce case. It is not a complex and most of the time lengthy document it is, however, important to get done right the first time. If you have chosen to select an attorney to represent you in your divorce, then all you need to do is provide some basic information to your attorney and he or she will go about drafting the document for you. Information like your spouse’s name, their birth date, the day you got married, the day you separated, and the last four digits of her children's Social Security numbers and their birthdays will be needed. 

Essentially what you are doing in the original divorce petition is to provide an introduction to the court for your family. You are formally filing a divorce lawsuit against your spouse and introducing your family to the court to obtain a divorce. The details of your case will be spelled out in later documents but for now, all you need to do is tell the court who you are, what you want, and what the basic issues of your case will be. 

Serving the Original Petition on your spouse

Once you have drafted, signed, and filed your Original Petition for Divorce with the court that has jurisdiction over your divorce you will need to serve the Original Petition for Divorce on your spouse. Serving the Original Petition for Divorce means that your spouse has a legal right to be physically handed a copy of the Petition along with other court documents. This is how he or she will gain the formal, legal notice of the divorce having been filed. 

What this means is that you cannot simply drop off the petition in the lap of your spouse while he or she is watching television and call it a day. You cannot simply mention to him or her at dinner that you are getting a divorce. Rather, you must hire a private process server or constable to pick the paperwork up from the courthouse and that person will serve your spouse. 

A citation will be attached to the Original Petition for Divorce that provides all the necessary legal information to your spouse about what these documents are, what their rights are, and what they must do as far as filing an answer in response to your original petition. An Answer is a formal response to your original petition for divorce that your spouse will file. He or she must do so within 20 days of having been served with the paperwork for divorce. If he or she fails to file an answer you may be able to obtain a divorce without their participation in the process. 

Once your spouse has been served with notice of the lawsuit the process server or constable will return paperwork to the courthouse that provides proof to the court that service was accomplished correctly. This begins the timeline of your case where your spouse will file an answer in your case can begin in earnest. You should spend the time in between serving your spouse with notice and going through their response by organizing your case and developing a strategy for your divorce with your lawyer. 

Do you have to spend the divorce arguing with your spouse? 

There is nothing in the rulebook or the Texas family code that states you and your spouse must engage in hand-to-hand combat during the divorce. I know that movies and television shows make it seem like a knockdown, the drag-out fight must ensue as soon as divorce paperwork is filed but this is not the case. Rather, many spouses choose to negotiate with one another directly and through their attorneys to eventually settled their divorce before trips to court need to occur. 

From my experience, something like 90% of divorces does not go to a trial but rather settle at some point along the way. Settling your divorce allows you and your spouse to have direct control over the final documentation in your case and the orders that you two will have to live under moving forward. Being able to chart your course and determine your destiny is a great benefit that spouses like you can take advantage of if you can put aside your differences and negotiate in good faith with your opposing party. 

However, going into a negotiation session without clear cut goals is a very bad idea. Developing a strategy for what you want to accomplish is important to the success of your case. I call this being intentional and you can work with your attorney to develop strategies on how to become more intentional with the goals you develop throughout your case. He or she can help you to create goals that are realistic and are good long-term strategies for you. This is especially important when it comes to dividing up your community's state and in determining how you want your Visitation to end up with your children. 

Sometimes a client will come to me with a goal in a divorce that is either not a good long-term idea or is completely not feasible given the circumstances of their case. It is at that point where you are relying upon your attorney to be able to educate you on the divorce process, your facts, and how the law relates to both. From there, it is up to you whether or not you want to take your attorney's advice or to press on with your own goals. Remember that this divorce case is your own it is not your attorney’s. He or she is there to guide you and provide you with advice but the lawyer in your case should not be making the final decisions. That responsibility falls to you. 

What are you trying to get accomplished in your divorce? 

All this information is good and well but what we want to know is how does a divorce end in what are you trying to accomplish. Divorce isn't just a long, expensive, and annoying journey to go on just to be separated from your spouse. Rather, a divorce is a process that allows you to achieve some results that are expected to benefit you moving forward. Let's spend some time walking through what the end goal of a divorce is and what you and your spouse will both try to accomplish during the pendency of your case. 

If the document that starts your case is called the original divorce petition, then the document that ends your case is called the final decree of divorce. The final decree of divorce contains all of the orders from your case that were determined either by settlement in mediation or by a judge rendering decisions in a trial. No matter how your divorce comes to an end the decisions made by you and your spouse in the judge are meaningless until they are put into writing for final orders. The final decree of divorce orders.

The original divorce petition is a basic, fairly short document of just a few pages. On the other hand, the final decree of divorce empty and detailed document that can be many pages long. The more complex your divorce is the more pages in length your case will be. The final decree of divorce touches on matters relating to your property, your children, and everything in between. Since it covers so many topics and stands to impact your life for years to come after your divorce ends a great deal of energy and exactitude must go into drafting the document. 

If you have preceded your divorce without having an attorney, you should strongly consider hiring a divorce attorney to draft your paperwork if nothing else. This will ensure that an expert at divorce cases can apply their craft to your case and ensure that all the work that went into getting your divorce accomplished was not done in vain. Many, if not most, family law attorneys will represent you in a limited scope arrangement where you can pay him or her simply to review what occurred in a trial or at mediation and take those pronouncements and put them down into the paper. You can request a consultation with a divorce attorney and ask him or her, but they would charge to review paperwork and ultimately draft her final decree of divorce. 

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, and via video. These consultations are a great way for you to learn more about the world of Texas family law as well as about the circumstances that impact you and your family daily. Thank you for your interest in our law office and we hope that you will join us again tomorrow as we continue to post relevant and unique content about Texas family law. 

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