If you are contemplating divorce, or your spouse has filed for divorce, then you very likely have at least a few questions about the process in Texas regarding how a divorce proceeds. The following post should shed some light. Although I do strongly suggest that you hire an attorney, if you are planning on proceeding alone then the following blog post "How to Start and Complete an Uncontested Texas Divorce with No Kids or Property" may be of interest to you.
The petition is a document that is used to start a divorce lawsuit. (a divorce is a lawsuit like other lawsuits, but the subject of the lawsuit is the marriage between you and your spouse and the children born during the marriage, if you have any) Technically it is two lawsuits combined into one if you have children, and if you are interested in reading more specifically about child custody then you can read a blog post regarding that here. The petitioner is the person who files a petition and the respondent is the person who receives the petition. The petition asks the court for the specific relief from the court that you desire, if you don't mention something you want in your petition then you can't ask the court for it later, unless you timely amend your petition. For example, if you want a divorce then the petition will ask for that, if you also want a name change, then the petition will ask for that as well. There are a number of things that you can ask for in a petition, but the most common requests you will find in a divorce petition, in addition to the divorce itself, are requests for the division of community property, and issues related to children, such as rights and duties and visitation. The petition can also ask for the court to make orders on a temporary basis and to issue temporary injunctions while the case proceeds, more on those items later. It is important that your petition be drafted correctly and asks for all of the relief you desire. It is advisable to hire a qualified divorce lawyer who is acquainted with the particularities in drafting divorce petitions to avoid costly errors later on.
The Waiting Period
After a petition for divorce is filed then a 60 day waiting period starts to run. Texas has a policy of preserving the marriages in the state, so consequently people who desire the dissolution of their marriages must wait at least 60 days (a cooling off period) before a court will grant a divorce. It may be that all the paperwork is complete, but if you go to court before the 60 day period is up and expect a court to grant your divorce, then you will likely have to go home and come back after the period has expired. There are some instances where the 60 day waiting period can be waived such as when one of the spouses has been convicted of a domestic violence crime against the filing spouse. If this is the issue with you then you should get help and contact a lawyer. Victims of domestic violence can get a good start in getting help by visiting the website for the Texas Health and Human Services Family Violence Program or calling the 24 hour National Domestic Violence Hotline 800-799-SAFE (7233) and if you are deaf then you and use a telecommunications device then the number is 800-787-3224. In addition, the following blog post "A Texas Protective Order, What and Who" may be of interest to you.
Service of Process
It is a constitutional right to be put on notice of a pending divorce lawsuit against you. It is for this reason that if you file for a divorce in Texas you must have a constable or process server hand deliver the divorce papers to your spouse (you cannot serve your spouse yourself). The rationale behind this is that the opposing party should have an opportunity to respond to the divorce lawsuit that has been brought against them. The hand delivery of divorce papers can happen anywhere and can sometimes cause dramatic and emotional feelings, especially if it happens at your spouses workplace. If your spouse knows the divorce is coming, then after the filing of the petition, and receiving a copy of the petition, they have the option of signing a waiver of service which will be filed with the court. Your spouse will then be deemed to have been put on notice of the lawsuit. Alternatively, your spouse can file an answer which is a general appearance and deems the filing party to be on notice to the lawsuit. If your spouse resides overseas then the following blog post "Serving Your Spouse or Opposing Party Overseas" may be of interest to you.
The Temporary Restraining Order and Temporary Orders
Divorce is usually a stressful experience and some people may be tempted to do things that they shouldn't. For example, they may try to hide community assets, or sell community property, or withdraw children from school, or make harassing phone calls to the other spouse, the list goes on and on. Certain courts have different ways to handle this situation, some courts have standing orders which order the parties to refrain from certain behavior while the case is going on and some courts require the petitioner to ask for a temporary restraining order. The rationale behind both of these two orders are essentially the same, to keep the parties to a divorce action from misbehaving during the divorce. The standing order usually lasts during the entirety of the case, but the temporary restraining order expires and either must be renewed or a hearing must be held on whether to make the temporary restraining order a temporary injunction (which will usually last for the duration of the case). The reason for the necessity of the hearing is the notice requirement, a temporary restraining order lasts a very limited time because it can usually be granted without notice to the other side. During the hearing on the temporary restraining order, if you asked for temporary orders in your petition, then often times you can argue those points at the same hearing, this point is a matter of procedure and if you are interested in pursuing temporary orders or getting a temporary restraining order, then you should enlist the help of a qualified Houston divorce lawyer.
After your spouse or you have been served with the divorce paperwork then the respondent must file an answer. The answer is due on the first Monday following the expiration of 20 days from the date of service of the petition. It is important to comply with this due date because if you don't then you could face a default judgment being taken against you. A default judgment can, and usually does, have devastating effects regarding property rights and child custody issues.
The Counter Petition
The counter petition is a document that serves the same purpose as the petition and is of utmost importance if you are the respondent in a divorce. This document asks the court for the relief you desire. For example, if your spouse has asked the court that they be awarded the house in the divorce, or that they be named as the parent who has the exclusive right to designate where a child lives, then you can ask for something different in your counter petition. Similar to the petition, the counter petition must ask for everything you want from the court and if you don't ask for it then you can't get it. It is important that you enlist a divorce attorney to draft a proper counter petition to avoid costly mistakes. The person who files a counter petition is referred to as the counter petitioner.
Discovery is the formal process of "discovering" information in the case. Each side to a lawsuit has the right to propound discovery requests for information and/or documents upon the other side. These requests come in different forms and an understanding of the rules, form, procedure, and substance of proper discovery requests is essential in making full use of the discovery process. The issues in discovery can vary widely, in divorce lawsuits the most common issues are related to property and children. If you have been served with discovery then you must timely respond or you can be subject to a motion to compel you to respond and/or sanctions and you may even be responsible for the opposing party's attorney's fees. Needless to say it is important that you timely respond to any discovery requests. The requests themselves can appear very complex, and as is the case with most things in any lawsuit, you should enlist a qualified lawyer to help you prepare your responses. The responses can have a drastic effect on the outcome of your case.
Mediation is an informal process of settling disputed issues in litigation. It is a very common and useful tool and can help avoid costly and protracted litigation. Mediation can take place more than one time in a divorce and sometimes mediation occurs so that temporary orders can be put in place while the case proceeds. Sometimes courts even require it, for example, if child custody is at issue, then many courts, with some exceptions, will require that the parties try to resolve the dispute in mediation before the court will take up the issue. Another good example of this is if there are very complex property classification or division issues. Courts are very busy and they would like for people to try to resolve their disputes before taking the matters in front of a judge for decision. This actually works well for litigants because no matter how hard a judge tries the parties are much more in tune with the facts and circumstances surrounding their case then a judge could ever hope to be. That being said, litigants are free to craft custom settlements that fit their specific needs. A court is forced to look at the facts for the first time and make a long standing decision that may be completely different than how you think it should be. The goal in mediation is to settle the case and come out of it with what is known as a mediated settlement agreement. These agreements are binding and you cannot change your mind after coming to a mediated settlement agreement. Having a lawyer at this stage is an extremely wise choice as divorce lawyers are accustomed to the issues that arise during the divorce process and are familiar with how to use the law and the facts to negotiate the best settlement possible. If an agreement is reached in mediation then the lawyers draft a final decree of divorce, and once all parties and lawyers are in agreement that the terms of the divorce decree are aligned with the terms of the mediated settlement agreement then the final decree will be submitted to the court for a judge's signature.
If No Agreement is Reached in Mediation
Although most cases settle without the necessity of court intervention, sometimes it is impossible to reach an agreement in mediation, maybe because one side is being unreasonable, or because both sides have sharply different viewpoints about how the case should be concluded and these differences are irreconcilable. When this happens the case will go to trial in front of a judge or jury. A jury is the exception and not the rule and there are certain issues in a divorce that a jury is not permitted to decide under Texas law. In general, the fact finder will listen to the testimony, evidence, and arguments of counsel, and make a decision as to the outcome of the issues in the case. Trial presentation, procedure, and rules of evidence can be very difficult to understand and apply without previous training and experience. If you anticipate a trial in your case then you should hire a qualified divorce lawyer because if you don't then it is almost guaranteed that you will not be able to represent yourself as well as a trained advocate could.
After the trial the judge will render a verdict and assign an entry date. While the judge is announcing the decision you will see the attorneys taking notes and asking questions so that they can clearly understand and remember the entirety of the judge's final decision. If a record of the trial was made then that should be available as well and will contain the judge's order. The attorneys will then work together to draft a final order that complies with the judge's decision and submit the order, by the entry date, for the judge's signature.
A Final Note
A divorce is a very emotional and stressful experience and the complexities of the actual process can work to make the situation much worse than it needs to be for the unfamiliar. A divorce proceeding can consume a person completely at the expense of the other things that can't take a back seat in life, such as work and child care. These proceedings can last anywhere from 60 days to over a year or two and it is to your advantage to hire someone who knows how to navigate the process so that you can use the majority of your energy on the other important aspects of your life.
If you are contemplating divorce, or are involved in one, then contact the Law Office of Chad Zubi to discuss the issues in your case. You will receive sensitive and nonjudgmental treatment from an attorney that takes your interests to heart. The initial consultation is free of charge.
Other articles you may be interested in:
Supervised Child Visitation, Why?
The Scoop on CPS Cases
Court Ordered Testing in Child Custody Cases
How Do You Calculate Child Support in Texas?
Uh Oh, My Spouse is Already Married! Do I Still Have Property Rights in a Divorce?
Are You Married? Informal Marriages in Texas
Serving Your Spouse or Opposing Party Overseas
Child Custody 101
A Texas Protective Order, What and Who?
Dividing Property in a Texas Divorce; Is it Just and Right? Are They Going to Get All the Pie?
Fighting Over Ice Cream; is It Worth Fighting Over Certain Property During a Divorce?
Should you Attend Mediation?
The Initial Documents your Attorney Needs From you In a Divorce
The First Step in a Divorce; Talking to an Attorney
Chad Zubi Houston Family and Criminal Law Attorney.