Before filing for divorce, a person should decide whether or not they feel ready to get a divorce. Many people begin the divorce process before they are truly ready. Sometimes people need more time to emotionally prepare for a divorce. Other times, people need to gain a better understanding of their finances or want to wait until their children graduate from school. Regardless of the reason, make sure you feel ready to start the divorce process before filing for divorce.
Feeling ready to file for divorce does not mean that you will not experience a wide range of emotions throughout the divorce process. Rather, people who feel ready to file for divorce recognize that divorce is the right next step for them and they feel the time has come to proceed forward.
The following blog will describe the steps in a typical Texas divorce to help you understand what you can expect from the process.
- Decide Whether You Want to Hire an Attorney
Divorces can be complicated. Attorneys can help their clients navigate the divorce process by providing legal advice on asset division or child custody issues, drafting pleadings, conducting discovery, negotiating with the opposing side, and attending mediations and court. You will want to find an attorney that focuses on family law matters. The attorney should provide you with the opportunity to consult with them prior to them taking your case. Use the consult as a way to get to know the attorney, their experience, and how they work. Remember, you will be working very closely with your attorney so you want to make sure you feel comfortable with them.
If you do not retain an attorney, the legal system will refer to you as a “pro se” party. People can get a divorce without an attorney although, in most cases, it is not advisable. Oftentimes, divorces involve dividing assets and determining child related legal issues, which require extensive knowledge of the law. However, the following steps will remain the same whether or not you have an attorney.
- Original Petition for Divorce
To “file for divorce”, a party or their attorney will file what is called an Original Petition for Divorce in the county where the party resides. The party who files the Original Petition for Divorce is called the Petitioner and the other party is called the Respondent. A party must live in the county for at least ninety days and in Texas for at least six months prior to filing for the court to have jurisdiction over the case. The petition will include general information about the case, including the parties to the case, the dates of marriage and separation, and grounds for divorce. A Petitioner will also have the opportunity to make general requests regarding decision making rights for the children, possession of and access to the children, property division, and changing one’s name. During the divorce process, a party will file other pleadings with more detailed requests. Think of the Original Petition for Divorce as a way to inform the court that you are wanting to get a divorce from your spouse.
- Court and Cause Number Assigned
A party will not know their court or cause number when they initially file for divorce. After filing an Original Petition for Divorce, the District Clerk’s office in the county where you filed will assign the case a court and cause number. Every court has a presiding judge and associate judge who will preside over hearings and trials in addition to signing orders filed with the court. All of the documents filed in relation to your divorce will be under the same cause number.
- Respondent Served
Once the Petitioner files the Original Petition for Divorce, the Respondent must be served with the document. In a divorce, the two most common ways of getting a Respondent served is either by having the Respondent sign a Waiver of Service or personally serving the Respondent.
If the divorce is amicable, sometimes Respondents would be willing to sign a Waiver of Service, which basically states that they are accepting service and do not need to be personally served with the Original Petition for Divorce. To accomplish this, the attorney usually provides the Original Petition for Divorce with the Waiver of Service to the Respondent. Once signed, the Waiver of Service is filed with the court.
Otherwise, a Petitioner can request a process server or a constable to personally serve the Respondent with the Original Petition for Divorce, which involves someone physically handing over documents to the Respondent. It is important to know that the Petitioner or his/her attorney cannot personally serve the Respondent.
- Temporary Restraining Order and Order Setting Hearing for Temporary Orders
Next, a party will decide whether their case requires temporary orders. Not all cases require temporary orders, but certain more contested cases might need temporary orders while the divorce case is pending.
Parties can request a judge sign a Temporary Restraining Order that prohibits the parties from engaging in a long list of activities, including transferring money out of their bank accounts and taking possession of the other spouse’s car. Remember, a Temporary Restraining Order in a family law case is not the same as a Restraining Order or Protective Order in a criminal case. Once signed by the judge, a Temporary Restraining Order remains valid for 14 days. Upon request, a Temporary Restraining Order can be extended for another 14 days. After the 28 days pass, the parties will need to seek Temporary Orders.
Depending on the county you reside in, a Temporary Restraining Order may not be necessary. The Court could have Standing Orders which are rules parties must regulate themselves by during the divorce. You can read more about Temporary Restraining Orders and Standing Orders here.
Temporary Orders establish how parties should manage their estate and address parents’ conservatorship rights and possession schedules with their children while their divorce is pending. When possible, a court’s goal with Temporary Orders is to maintain the status quo and preserve the marital estate until the parties finalize their divorce. For example, the parties can continue using their credit cards and other bank accounts as they did prior to filing for divorce, but the Temporary Orders may forbide one party from moving all money out of the parties’ accounts.
Oftentimes, Temporary Orders will award temporary use of the marital residence to one party and order the other party to move out of the marital residence during the divorce. This does not mean that the party who remains in the marital residence will be awarded the marital residence upon divorce nor does it mean the person who leave the marital residence will not be awarded the marital residence upon divorce. Rather, courts recognize that parties will likely fight during the divorce process and it is often healthier, and safer, for parties to leave separately.
Temporary Orders will also establish conservatorship and a possession schedule for parents during the divorce. Conservatorship is the legal term in Texas for what many people refer to as “custody”. Conservatorship includes the rights and duties parents have to their children, including the right to make psychological and psychiatric invasive medical, and educational decisions regarding the children. Additionally, parents might have to a new possession schedule that lays out which days and times they can see their children, including holidays and other school breaks.
- Mediation for Temporary Orders
If one or both parties decide to move forward with Temporary Orders, Texas law requires that the parties attend mediation prior to a Temporary Orders hearing. Mediation involves a neutral third party, called a mediator, helping the parties come to an agreement. Mediators are experienced attorneys and, oftentimes, former judges. Both parties attend mediation either by themselves if they are pro se or with their attorneys.
At an in person mediation, Petitioner will go in one room with their attorney and Respondent will go in a separate room with their attorney. The mediator will move in between the rooms during the mediation and typically starts in the Petitioner’s room. It is good practice for an attorney to send a confidential mediation memo to the mediator prior to mediation to give the mediator an understanding of the case. Even in cases where the attorney sends a memo, oftentimes the first time the mediator comes into the party’s room the discussion will revolve around background information on the case and what the party is wanting to achieve. For example, one party might want to stay in the house while the divorce is pending and will need to voice this to the mediator. Everything you say to the mediator should remain confidential. However, it is helpful to clearly state what the mediator can and cannot say to the other side when the mediator goes into their room. Realistically, the mediator will have to provide the other side with some information because the goal is to reach an agreement.
If the parties come to an agreement, the mediator will draft what is called a Mediated Settlement Agreement. Both parties and their attorneys will review and sign the Mediated Settlement Agreement which is final, binding and irrevocable. Once the Mediated Settlement Agreement is signed, the document will be filed with the Court. One party’s attorney will then draft and circulate an Agreed Temporary Orders for the attorneys and parties to review and sign. The Agreed Temporary Orders will also be filed for the Court.
It is possible to get a partial Mediated Settlement Agreement if the parties are able to agree on certain issues, but not others. For example, parties may agree to everything related to property issues, but not child issues. In this instance, the parties will move forward with their Temporary Orders hearing only on the outstanding issues. In this example, that would mean the parties would only litigate issues surrounding the parties’ property.
If the parties are not able to come to an agreement then they will proceed to a Temporary Orders hearing and have the court rule on how the parties will conduct themselves on a temporary basis.
- Temporary Orders Hearing
At the Temporary Orders hearing, the judge will decide what orders will stay in place while the divorce is pending. The contents of the Temporary Order will vary based on the case’s subject matter and issues. Generally, a Temporary Order would decide the temporary use of property, payment of debts and bills, possible spousal maintenance, and interim attorney’s fees. In family law cases with kids, the Temporary Order will also include, a possession and access schedule, child support, and conservatorship.
Remember, a Temporary Order will only be in effect until the divorce is finalized and the parties have a Final Decree of Divorce. However, it is important to take a Temporary Orders hearing seriously because it can impact you case on a final basis. For example, if the court names your spouse as the Sole Managing Conservator of the child in Temporary Orders, it might make it more difficult for you to be named Joint Managing Conservator at the conclusion of your case. Therefore, treat the Temporary Orders hearing as a mini trial and come prepared with exhibits and arguments on issues that matter to you.
- Conduct Discovery
The next step in a divorce is discovery. Parties conduct discovery to ask the opposing side for documents and answers to questions that the party finds necessary to either settle the case or have the case heard before the court.
Written Discovery Requests
Parties or attorneys on behalf of parties can send the opposing side documents, such as Request for Production, Written Interrogatories, Request for Initial Disclosures, and Request for Admissions, to gather information for the case.
Request for Production requires the opposing party to produce requested documents and evidence. In typical cases, parties request statements relating to bank accounts, retirement accounts, mortgages, cars, and credit cards. A party is not limited to a certain number of Request for Production.
Written Interrogatories are questions a party asks the opposing side in order to gather more information about specific details that might be pertinent to the case. For example, a party might ask Written Interrogatories focused on gathering information about employment, affairs, or the opposing side’s legal theories for certain issues. A party is limited to asking 25 written interrogatories.
Request for Initial Disclosures are standard questions a party can require the other side to disclose. A Request for Initial Disclosure is used to gather information on the parties, legal theories, economic damages, if plead for, potential witnesses, testifying experts, settlement agreements, and medical records and bills if a party claims physical or mental injury.
Request for Admissions is a document that requests the opposing party to either admit or deny certain statements, facts, or opinions. For example, in cases where substance abuse is at issue, a party might ask the other party to admit or deny whether they used cocaine on a certain date or during a certain time frame. The opposing party would therefore be required to admit or deny their substance use.
Depositions
Although not common in divorce cases, a party can also depose the other side as a part of the discovery process. A deposition usually involves the parties, their attorneys, a court reporter, possibly paralegals, and a videographer sitting in one room together while one party’s attorney asks the other side questions related to the case. A party’s attorney can make certain objections to questions during a deposition, but the client is required to answer all questions. The answers given by the client during the deposition can then be used for limited circumstances at a final trial in the divorce, if necessary.
- Complete a Financial Information Statement
A Financial Information Statement, often referred to as an FIS, is a document typically required by courts in family law cases. An FIS is a document that clients must complete that detail their monthly expenses. For example, parties must disclose their monthly income, expenses related to mortgage or rent, insurance, utilities, food, clothing, and debts, such as credit card debts. Courts use parties’ FIS when determining things such as child support and spousal maintenance.
- Inventory and Appraisement
Parties will also need to complete an Inventory and Appraisement, oftentimes referred to as an Inventory, during their divorce. An Inventory is typically a spreadsheet with all the assets owned by the parties, including both community property and separate property assets. Each asset should have a purported value associated with that asset. The Inventory will also include all the debts the parties have, including home mortgages, car loans and credit card debt. An Inventory is then used by the parties or by the court to divide the estate in a just and equitable manner. Once the inventory has been completed by a party, he or she must verify it under oath and in front of a notary.
- Mediation for Final
In addition to attending mediation for Temporary Orders, parties must attend mediation before they can request a court date to decide their case on final. The mediation for final will look very similar to the mediation for temporary with the parties separated into different rooms and the mediator going back and forth between the rooms in the hopes of reaching an agreement.
Most divorces end in mediation. Parties often do not want a judge or, rarely, a jury deciding important life issues for them, such as where their children live, who gets to make decisions regarding their children, and how their estate should be divided.
If the parties come to an agreement, the mediator will draft the Mediated Settlement Agreement. All the parties and attorneys will sign the Mediated Settlement Agreement before it is filed with the Court. Then, one of the attorneys will draft the final order, which is called the Agreed Final Decree of Divorce. The parties and the attorneys will sign the Agreed Final Decree of Divorce before filing it with the court. The Petitioner’s attorney and the Petitioner will then go to court to “prove-up” the divorce. A party can prove up a case sometimes by filing with the court what is called a Prove-Up Affidavit. A Prove-Up Affidavit is a document that asks basic questions related to the divorce, such as the parties, whether the party thinks the property agreement is just and equitable, and whether the agreed child provisions are in the child’s best interest. If the court accepts Prove-Up Affidavits, the Judge will review the Affidavit and the Agreed Final Decree of Divorce before signing the Decree. If the court does not accept Prove-Up Affidavits, the Petitioner and their attorney will need to appear before the court, either in person or on Zoom depending on the court’s rules and ask the same information they would have included in the Prove-Up Affidavit live in front of the judge. Once the judge hears the Petitioner’s testimony, the judge will review the Decree and sign it unless the Decree requires modification.
If the parties do not come to an agreement, the parties will move forward with scheduling a final trial.
- Final Trial
A party can have two types of final trials in their divorce: a jury trial or a bench trial. A jury trial is what most people think of when they think of a trial. A jury trial involves 12 jurors deciding the case. In family law, jury trials are not as common. A bench trial is the trial most common in divorce cases. A bench trial involves a judge hearing the case and then deciding the child and property issues. The Judge’s decision is given in what is called a rendition.
Following the rendition, one party’s attorney will draft the Final Decree of Divorce and send it to opposing counsel to review. Once the attorneys and the parties agree that the Final Decree of Divorce accurately reflects the rendition, the parties and the attorneys will sign the Decree and file it with the Court. Then, the Judge will review the order to ensure that the Decree is drafted correctly before signing the Order.