One of the many reasons to hire A divorce attorney in Texas is to be able to have guidance not only on individual matters related to your case but also on the process in general. Like anything else, a divorce has stages and you are responsible for making decisions within each stage. Having an attorney to represent her does not mean that the lawyer will be making those decisions for you. You are not hiring a lawyer to be your brain. You are hiring your lawyer to give you information so that you can use your brain more effectively and make decisions that will positively impact your family.
In today's blog post I would like to share with you the five stages of a divorce in Texas while the individual circumstances of your case will be unique to you and your family the stages of a divorce are uniform for every couple who goes through a divorce. You must be able to plan in act intentionally when you are making decisions. I have seen many people stumble or wander into a divorce but I've never seen a person stumble or wander out of divorce successfully. Rather, preparing for divorce means understanding the stages and being able to make decisions effectively.
Stage one of a divorce in Texas: the planning phase
An attorney will offer you many advantages within a Texas divorce but one place where you can do the work yourself without your attorney is during the stage before you even hire one. For the sake of today's blog post, I'm going to assume that you have done some degree of soul searching and critical thinking regarding whether or not you should get a divorce at all. This is not as easy a question as you might believe and even if your heart of hearts is telling you that a divorce is necessary you need to be introspective in critical of your circumstances to determine whether or not that is the best decision not only for you but for your children. For instance, if you think reconciliation with your spouse is possible then you may want to attempt counseling or therapy.
Once you have done your due diligence and have determined that a divorce is necessary then you should take the steps that are needed to adequately prepare for your divorce. The first question that I would ask myself at this stage would be to determine whether or not you need an attorney. You don't need to be represented by a lawyer to get divorced in Texas. No law states that an attorney must file paperwork or represent you in any court proceeding. People get divorced all the time without attorneys but you need to determine whether or not that is what is best for you and your family.
The only circumstance in which I would be comfortable not going to court with an attorney would be if you do not have any children and lack a significant amount of Community property with your spouse. In that case, and you could probably get away with not having a lawyer to represent you. The stakes are much lower in a divorce like this and you are essentially needing to file paperwork to get the divorce started and then follow through with the basic steps to get divorced in a fairly short amount of time. As long as you can follow instructions and are a generally “on the ball” kind of person then you may be able to pull off a divorce on your own in these circumstances.
For just about everybody else you likely do need a family law attorney to represent you in your divorce. The inverse of a divorce with no children and little property is a divorce where you have children and have a nice amount of wealth shared between you and your spouse. In this scenario, the stakes are much higher frankly than they were in the preceding paragraph. And you should consider how long it took you to build that level of wealth and how much work you had to do to get there. Additionally, you need to consider that your relationship with your children can be harmed in potentially significant ways in a divorce. Do not leave this up to chance and decide to hire an attorney if this sounds like you and your family.
You should make a plan to interview multiple attorneys who practice specifically in the field of family law. Ask that attorney questions about their experience handling divorces like yours and how many divorces they have represented clients in that have gone all the way to a trial. While you can spend a great deal of time talking to your attorney about your specific circumstances down to every minute detail I would take this opportunity as one to listen closely to what the attorney has to say. Once you feel comfortable with an attorney, believe they have the requisite experience, and can afford to hire the lawyer then you should move forward with signing up with an attorney and moving on to stage two of your divorce.
Stage two of a divorce in Texas: Filing for divorce in serving your spouse with notice
An original divorce petition will be the initial filing for your case. Your attorney will collect basic information about you, your spouse, your children, and your Community property and include that in the original divorce petition. Depending upon where you live the divorce will either be filed in a County Court or a District Court. The clerk of that court will assign your case to a specific judge and will make available to you the file documents along with the seal of that court and county.
Once your case is filed it will be assigned A cause number and you will be able to have the documents retrieved by a private process server or constable and then have the documents formally served upon your spouse. Keep in mind that your spouse may be unaware that you are filing for divorce. He or she has a constitutional right to be provided with notice of any lawsuit filed against him or her. A divorce is a type of civil lawsuit and you must serve him or her with notice personally unless he or she waives this right.
Your attorney will have a private process server or constable picked the documents up from the courthouse and drive to a physical location where you want your spouse to be served. Typically, people avoid serving their spouse at work to avoid embarrassment or disruption to their day. Whenever your spouse has been served than your divorce begins in earnest. He or she has essentially 20 days from the date on which they were served to file an Answer to the allegations made in your original petition for divorce. They were failing to file an answer or to participate in the legal proceedings means that you may be able to achieve the divorce without them and essentially create the terms of your divorce.
your spouse will likely hire an attorney if you have as well. Before you begin to worry about this keep in mind that family law attorneys, and attorneys in general, are not overly anxious to delay cases or two create a great deal of fighting within a divorce. Attorneys are there to provide advice in context but also to help you navigate the stages and legal processes involved in a divorce. Having a lawyer representing both sides means that you all will be pushed along in the process in a timely and more efficient manner than you likely would have been had you decided to file for a divorce without representation.
Stage three of a divorce in Texas: setting your case up for temporary orders, discovery, and mediation
The first real opportunity for you to attend a court hearing in your divorce would be a temporary orders hearing. Temporary orders are the ground rules for your divorce. They will dictate how often you see her children, how much child support will be paid from one spouse to another, which parent will determine the primary residence of your children, who will remain in the marital home, who is responsible for paying what bills and a host of other issues. Ascentia Lee, the temporary orders phase of your case will allow you and your family to become adjusted to living life in separate households.
There are two ways to go about getting temporary orders set up in your case: you can attend but contested temporary orders hearing which is a mini-trial or you can attend temporary orders mediation and attempt to negotiate your way through the issues with your spouse. Most family courts in Southeast Texas will require that you and your spouse attend mediation before getting to a temporary order hearing. it is my experience that the vast majority of cases settle on temporary orders rather than proceed to a hearing. This may surprise you and I will explain briefly why I think this is the case.
Keep in mind that nobody knows your family better than you and your spouse do. No matter what sort of conflict you have going on in your marriage between yourselves, your attorneys an experienced family law mediator you all are likely better suited to come up with temporary orders than a judge who doesn't know you or your spouse or your children. Even in the most contentious of divorces people can typically see the forest for the trees and are better off settling in mediation rather than proceeding to a hearing.
If a settlement in mediation is not possible then both you and your spouse will attend a court date with the judge where both sides can produce evidence and attempt to convince the judge through that evidence that certain things should be done about temporary orders. This is where the specifics of your case come into playing and I will not take too much time to discuss or speculate as to what you may want to have done in temporary orders. Keep in mind that temporary orders touched on faces every case ranging from the use of the property during the divorce, child support to the child Visitation period Needless to say this can be a very important hearing and will set the tone for the remainder of your divorce.
Additionally, you and your attorney may choose to submit discovery questions and requests to your spouse and their attorney. This is where you can ask questions, request documents, and obtain information central to their case. When your spouse does this to you as well it allows both sides to learn where each person is coming from and does a lot of benefits to help the parties eventually be able to settle their case rather than need to go To a trial.
Stage four of a divorce in Texas: final orders mediation and trial
the vast majority of divorces in Texas settle before a trial period the reason for this is that a second mediation will be set up where similar issues are discussed as you had in temporary orders mediation but long term issues regarding Visitation with your children in property are also discussed. New issues like the division of retirement benefits, what to do with your marital home, and long term plans for Visitation and custody of your children will be discussed. I estimate that somewhere around 90% of divorce cases settled in mediation.
If your case is not able to settle in mediation then you would go to a contested trial. The vast majority of divorce trials in Texas are heard before judges in not juries. The judge will again consider the evidence and testimony submitted in the trial to determine the final orders for your case. The divorce trial can be as short as one day or as long as one week in duration. After the trial, the judge will need to be part of your final decree of divorce.
Stage five of a divorce in Texas: drafting a final decree of divorce the case and completing the case
The 5th and final stage of a divorce in Texas is taking you are mediated settlement agreement or the orders from a judge and creating a final decree of divorce. The final decree of divorce will be the final orders in your divorce case that will in many ways dictate the path of your post-divorce life. A Visitation schedule for your children, dividing up the rights and duties that each parent owes to your children, determining a final solution for your marital home, and instructions on how to divide up retirement benefits among other orders will be included in this document.
One attorney will be charged with drafting the document for all parties involved will have an opportunity to review it and make potential changes. This stage is a negotiation in and of itself considering how important the final decree of divorce is both you and your attorney will need to read through the document and ask questions if you do not understand something. The attorney will guide you on what to fight for and what is acceptable within the final decree of divorce the document yourself.
Once all parties and their attorneys are comfortable with drafting the document then signatures will be placed on it and a brief appearance in court will be had. This is known as a prove-up hearing. Only one spouse and their lawyer will have to attend a brief hearing with the judge. The attorney will ask questions of the client in front of the judge and your attorney will likely work with you before the hearing to prepare you for the questions going to be asked. Typically, these are very simple yes and no type questions that will be asked of you. The judge wants to ensure that the final decree of divorce is fair and equitable and that there is nothing out of the ordinary contained within it.
Once the judge approves your divorce in this prove up hearing he or she will sign your final decree of divorce. This is the final step of a Texas divorce and your case will be over on the date you are prove appearing occurs. From there, you will be charged with the responsibility of leading the best post-divorce life possible for yourself and your children. While the divorce case can seem like it goes on forever, as long as you understand the stages of divorce you can be prepared for each extremely well it will not be caught off guard by anything that occurs to you during the case.
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 services that our office can provide to you and your family as clients of ours.