The Linder Firm
How a Divorce Works
The divorce process starts with the filing of a document entitled Original Petition for Divorce. This may be 2 pages or 40 pages, depending on your circumstances and the relief you request. As a general rule, you are not required to sign the petition unless you are acting as your own lawyer. Accordingly, if you want to review it before it is filed and delivered to your spouse, please let your lawyer know. The Petition is required by statutes to contain certain information and must also include certain representations by the party. For instance, if there is a premarital agreement between the parties, it should be called to the Court’s–and the other side’s– attention in the first pleading.
In Texas, the Court cannot grant a divorce without disposing of property issues. Additionally, if children were born to or adopted during the marriage, orders concerning their conservatorship (custody) and support will be determined at the same time. In other words, it all happens at the same time in the same proceeding (for lawyers– no bifurcation). Of course, the Court must have jurisdiction to grant a divorce, which is based on one or both parties domicile and residency not only in the State of Texas but also in the County where the action is to be filed. The voters of Texas indicate that a marriage is only between a man and a woman, and same sex couples, even if legally married in another state, cannot get a divorce in Texas. In certain instances, military personnel stationed in other places can get a divorce in Texas. Texas statutes define a marriage as being between a man and a woman.
This petition is filed with the District Clerk in most counties, and your case is assigned to a Court. Each county has one or more courts handling family cases. In Dallas, there are seven Family Law District Courts. In Ft. Worth, there are also seven. The filing of cases is random. Your lawyer cannot select the Court or the Judge. In other counties, the courts that handle divorces also handle general civil cases and also criminal cases; for instance, Collin County has eight District Courts that handle family law cases as well as the other types of cases; Denton County has six. In some smaller counties, a County Court at Law may also handle divorce and family law matters.
After processing at the Courthouse, the Original Petition for Divorce must be delivered to your spouse. The most common formal means of delivery is by having a Sheriff, Constable, or private process server hand your spouse the petition and a Citation. This is called “service.” Citation is essentially a cover sheet that tells your spouse a lawsuit has been filed, and there is a limited number of days in which a response must be made. It puts the party served with the divorce papers on legal notice that they have been sued for divorce (and in several counties. puts them under the restraint of a Standing Order that is attached to the Petition and Citation) In some instances, you may wish to personally deliver or mail the papers to your spouse. However, this cannot be done effectively if you have requested a Temporary Restraining Order or a hearing, because you can not show that your spouse has been legally served with notice to be at the hearing. Additionally, if your spouse does not waive service or file an answer in Court, your delivery does not constitute effective service, and this would have to be accomplished before your case could proceed.
Either party in the divorce lawsuit may feel a need for court to issue orders between the date the divorce is filed and when the divorce is granted, which are called temporary orders that are effective while the divorce proceeds. Another order, which can be issued by the Court upon request and without notice to the other party, is called a temporary restraining order (TRO) and prevents the transfer or disposition of property and/or to prevent harassment or other specific actions. (A more specialized type of restraining order is a Temporary ex Parte Protective Order, which prevents acts of violence but will be issued only after the court hears sworn testimony about the acts of past family violence and the prospect of such continuing.) After a hearing, the restraints contained in a TRO can become a temporary injunction, both of which grant the same relief which, often times is intended to maintain the “status quo” and preserve property, or “the peace” between the parties. A TRO is only good for 14 days, and is granted without notice to your spouse or a hearing. A temporary injunction is granted after notice and hearing (or agreement), and remains in effect until your divorce is granted. Realistically, temporary injunctions are routinely granted upon request, and are made mutual as to the parties. In extreme circumstances, the Court may consider the granting of a Protective Order, which not only has the powers of a TRO, but also gets law enforcement involved if there is any question about a violation of the order, and can be in effect for a much longer period of time. But remember the Standing Order, as described below.
The Dallas Family Courts have implemented a standing order that is applicable in ALL divorces and family law cases when they are filed. The Dallas Family Courts’ standing order grants uniformly much of the relief previously only available with a TRO, and was amended in January, 2007. Collin County has also implemented a similar standing order in family law cases. So has Denton County. Check with your lawyer so that you will know what YOU are prohibited from doing as soon as YOU file for a divorce.
Temporary orders can determine which spouse shall remain in the family home, mandate the payment of bills, the conservatorship (custody), possession time with and support of the children, payment of attorney’s fees, the filing of sworn inventories, production of documents, and other matters such as living arrangements for your children, the schedule of parental possession of the children, spousal support, use and possession of property and other assets; and possible restrictions on contact with the other parent. The custody, or conservatorship, of the children is NOW called a “Parenting Plan” likened to terms and conditions used in most other states.
If you have obtained a Temporary Restraining Order or requested a hearing for temporary orders, the Court will set a hearing to occur within days or weeks of the date of the request for the hearing. If you cannot reach an agreement with your spouse concerning temporary matters before the scheduled hearing, it will be necessary for you to appear in Court at that time and give testimony. Your lawyer will give you a form entitled “Financial Information Statement” for use at that hearing, and will explain to you what your court appearance may be like. In Dallas and Ft. Worth, an “Associate Judge” will hear evidence at the temporary hearing and make the appropriate orders.
Discovery is the process where one side learns from the other side what is relevant to the lawsuit. Discovery can be achieved formally or informally. Some common formal discovery methods include Requests for Disclosure (general information about the claims being made and who knows about them) depositions (oral testimony before a court reporter); interrogatories (written questions requiring written responses); requests for production of documents (such as tax returns, bank account records, deeds, vehicle titles, loan documents, credit card statements, etc.); and requests for admissions. Whether your lawyer utilizes these methods will depend on a number of factors that they will discuss with you. If you are served with discovery requests or a notice to take your deposition, your lawyer will guide you accordingly. Your lawyer learns from you what you know. Your lawyer can request from the other side that they disclose what they know as part of discovery requests. It is problematic trying to resolve a case without knowing the facts that are necessary to evaluate the case. A major issue in many cases involves the valuation of property and how to divide it. Discovery helps in understanding what the property is (or was or should be). Ditto with debt. You have to know what there is to divide before you decide how you would like to divide it. This often mandates the preparation of a Sworn Inventory and Appraisement by both parties where each lists all the property and debts and their opinion of values and of claims, including any claims of separate property. Discovery may also be accomplished on a voluntary, or informal, basis. It is generally cheaper but there are some caveats of which your lawyer will be aware. Valuation sometimes requires the assistance of expert witnesses to opine upon the value of certain assets, like a residence or business.
SETTLEMENT OR TRIAL
Once each side is fairly comfortable that they have enough information, obtained through Discovery, probably including a Sworn Inventory and Appraisement, the parties should try to resolve their case, preferably by agreement. Direct negotiation works in many cases. Mediation is a very useful aid in helping reach a settlement. A different way of resolving a divorce is Collaborative Law. This is a method where the parties and their lawyers formally agree to resolve their case out of court and on a voluntary basis. This method works in a surprising number of cases, and is beloved by those clients who use it. If there are issues that cannot be settled, either party can request that the Court set the case for Trial. At the trial, the Court will hear all the proper evidence presented to it and will make a ruling, sometimes directly from the bench and sometimes after cogitating about the issues for a period of time.
The standard for the Court to divide the community (marital) property and marital liabilities is that it must make a “just and right” division. The standard for the custody and other rulings concerning the children is “best interest.” Obviously there can be a difference of opinion of what is “just and right” or in the “best interest.” Child related issues are covered in more depth in other articles.
The ruling in a trial, however initially announced by the Judge, must eventually be put into a written Order usually called a Decree of Divorce. It is the responsibility of the parties to produce the proposed written order, and after proper procedures have been followed, present it to the Judge for signature.
Even if there is a complete agreement of the parties on all parts of the divorce action that are all contained in a proposed Agreed Decree of Divorce ( and signed by all), at least one of the parties must appear before the Judge and give sworn testimony. This is called a “prove up.” If the Judge determines that the testimony meets the legal requirements for a divorce, the Judge will say the magic words “Divorce granted, and all agreements approved,” and will sign the Decree of Divorce. In most situations, this is the end of the Divorce case, and the minimum time to hear these magic words is sixty one days after the divorce was filed. In reality, it will usually take longer–sometimes much longer.
When there is little or no marital property, no children, no issues of spousal maintenance, amicable spouses can usually obtain a quick divorce by having an attorney draft a divorce agreement and having a judge approve it. That would be called a simple uncontested divorce described above.
Many divorces, however, are quite different and can be more complex. Some Texas couples have had a union of many years with considerable marital property, both personal property and real estate, children, perhaps a family businesses, large or concealed debts, trust funds, real estate in other states, joint and separate accounts, investments, insurance, pensions, and other assets. In these complex situations, the parties are wise to utilize the services of experienced attorneys to help guide them to methods and trade offs that can be used to divide their property on their own–voluntarily. If they can’t agree, they may require court involvement to divide the estate.
All liabilities of the parties must also be dealt with in the Decree of Divorce. However, assigning responsibility for a debt to one party does not necessarily mean that the other party is released from responsibility for the debt.
Similar Provisions as For Marital Liabilities Will Apply to Income Taxes, Except the Internal Revenue Service Is a Much More Formidable Creditor. It Will Be a Rare Case Where You Are Not Jointly and Individually Liable with Your Spouse for All Taxes for Any Year in Which You Filed a Joint Return. This Means the Irs Can Pursue Collection Actions Against Either or Both Spouses. Again, the Terms of A Decree Ordering Your Spouse to Pay All Income Taxes Is Not Binding Against the Irs, and Does Not Prevent the Assessment of Penalties and Interest. Further, the Irs Is Not Restricted by State Laws on Exempt Property. in Some Instances, They Can Obtain the Sale of Your Homestead to Satisfy Payment of Income Taxes. Additionally, a Debt Owing to The Irs Is Ordinarily Not Discharged in Bankruptcy.
Each party is responsible for their own attorney’s fees and costs of litigation (after all, they hired their own attorney). Legal expenses may be treated as a marital debt and divided like all other property–and debt– in the divorce. The Court also has the option to require one party to pay all or any part of the attorney’s fees and costs for the other party depending on their respective financial resources and the facts of the case. Either party may request that the court award interim attorneys fees at a temporary hearing so that the case can be developed.
Texas Courts have limited authority to order alimony, or spousal maintenance, after a divorce is granted. However, while your case is pending, the Court has unlimited authority to award temporary spousal support. The Court will consider the needs of the requesting spouse and the ability of the other spouse to pay. The Court will additionally consider the health and age of the parties, ability to work, responsibility for children, availability of funds, and the length of the marriage. As a general rule, temporary spousal support will be ordered for a limited period of time and in an amount necessary to cover the basic necessities of life. To receive alimony after divorce, generally you must have been married for a period exceeding 10 years, and in certain situations where you can prove a need, you may be qualified to receive up to $5,000 per month for a maximum of ten years.
You may request a change of your name as part of your divorce action. This is commonly done by women who wish to restore their maiden names, or the names of their children from a previous marriage. Name changes for a spouse are usually granted even if there are minor children. If you think you would like to change your name, it would best to do so as part of your divorce. As a separate lawsuit, the requirements are much stricter. A name change for a child is an uphill battle unless it is agreed. It is unheard of for a husband to be able to force his soon-to-be-ex to drop the married name.
Special Information About Dallas, Collin, Denton & Tarrant County Cases
The Dallas-Ft. Worth area is one of the fastest growing areas in the country, and each county has chosen a different way to deal with the increasing number of family law cases filed. All will order Mediation if requested; some order it anyway, depending on the Judge. Dallas has 7 full time specialty divorce and family law courts, and also 7 full time associate judges; so in effect, Dallas has at least 14 family Courts running at the same time. Tarrant County also has specialty family law courts (7) and associate judges for each of them. Both Collin County (9 District Courts) and Denton County (6 District Courts), where the real phenomenal growth has been, have general jurisdiction Courts that hear civil and criminal cases as well as family law cases. Therefore your case may be handled differently depending on where it is filed, and the way each individual Court in that county arranges its docket. While it is difficult to get a contested case to trial in less than a year in one (unmentioned) County; contested cases have been seen in trial in as little as three months elsewhere. The time from the request for a trial to the date the trial is set or scheduled is often a function of the time requested to try the case in court. The longer the trial is expected to take, the farther off it is likely to be scheduled. But most cases ultimately end up being agreed without the risk and expense of a full blown trial, and can be finalized anytime the agreement and the parties are ready–that is, any time after the 61 day minimum waiting period has passed.
Each county may have special local rules in addition to the Texas Rules of Civil Procedure. The Dallas Family Court rules are here, the Collin County rules are here, Denton County’s are here, Rockwall County’s are here and Tarrant County’s are here.
The Dallas Family Courts have implemented a standing order that is applicable in ALL divorces and family law cases when they are filed. The standing order grants relief intended to preserve the financial and property status quo and protect the children. This standing order often eliminates the need for a temporary restraining order, and therefore tends to save the clients money. The Courts in Collin County, Denton County, and Rockwall County have also implemented a similar standing order.