Board Certified - Family Law,
Texas Board of Legal Specialization
DECISION TO DIVORCE A divorce is a legal proceeding to dissolve the marriage relationship. Remember, common law marriage may exist under Texas law. You should only initiate a divorce when you are sure that is what you want. Counseling may be the tool you need to assist you in making such a decision. Your lawyer should be able to recommend a good therapist.
RESIDENCY REQUIREMENTS TO FILE FOR DIVORCE Texas law requires that you have lived in Texas for at least six months, and been a resident of the county in which you file for at least ninety days before you file for divorce. If you are a military service member, the law contains special provisions which may help you meet the above requirements. If you are concerned about this requirement, please discuss it with your attorney.
INITIATING THE DIVORCE A divorce is initiated by filing a petition. The person who does so is the "petitioner". The petition may be amended as necessary throughout the case. Therefore, the first petition is often very mild, without any inflammatory allegations against your spouse. This usually starts the process on a less combative basis (which may help keep legal fees down), and further, your attorney may not believe it best to reveal all of your legal positions at the onset of the case.
AFTER THE PETITION IS FILED The "respondent" (your spouse if you are the petitioner) must receive a copy of the petition. This can be achieved in one of several ways.
1. Have the respondent formally served with the petition.
2. Give the petition directly
to your spouse yourself.
3. Mail the petition to your
spouse or their attorney.
WAITING PERIOD Texas law requires a minimum of sixty days to elapse from the time a petition is filed until a divorce is final. Only the least complex cases are resolved immediately following the minimum waiting period. Most cases take longer, and if custody of children is involved, your case may take up to, or longer than, a year.
TEMPORARY ORDERS In most cases, in conjunction with filing the petition, your attorney will also file a request for temporary orders. This is done to preserve and protect the parties' property and to determine possession of the children of the marriage while the divorce is pending. Only in the most amicable of cases should this step be bypassed.
Within 14 days of filing the request for temporary orders, a hearing must be held to consider your request. The respondent may also request such a hearing if the petitioner has not done so already.
In most cases, your attorney will obtain a temporary restraining order, which will protect the children and property while waiting for the temporary orders hearing date.
At the temporary orders hearing, you will be required to introduce evidence, and witnesses, if any, to show the court why a restraining order should remain in effect throughout the case. Often the parties can agree on the terms of the temporary orders, and thereby avoid a hearing.
DISCOVERY The facts regarding the children, property and debts are the foundation of a divorce case. Therefore, information gathering is one of the most important and time consuming aspects of the case.
Discovery can be conducted in several ways, but is usually initiated by sending your spouse's attorney questions (interrogatories), and a request for documents.
When the questions to you, if any, are received from your spouse's attorney, you can help keep your legal fees down by assisting as much as possible in the preparation of your answers and gathering the documents which you must produce.
SETTLEMENT After the information gathering process is complete, the parties will begin to try to resolve the case without a trial. This is usually done to avoid the expense of trial. No offer should be made or accepted by you or your attorney without the other's approval.
The key to any settlement is compromise. While no one can be forced to settle, you should understand that "give and take" is essential to meaningful negotiations. It has been said that fair settlement is one in which neither party gets exactly what they want.
One form of settlement is mediation. This is often a cost effective way of resolving the disputes between the parties.
TRIAL If settlement attempts are unsuccessful, then your case will go to trial. Trial may take place either before a judge or a jury.
DOCUMENT
DRAFTING After your settlement or trial, another critically important
job of your attorney begins. What you get out of the marriage is "only as good
as the paper it is written on". Do not expect the process to be over until all
papers are signed by the parties and the Court.
DON'TS
Do not date anyone. Dating can be used against you at trial.
Do not disclose confidential information to others. Do not disclose the advice of your attorney to anyone. Only what is said between the client and attorney can be kept out of court.
Do not incur unusual debts or liabilities.
Do not hide property or destroy documents.
Do not belittle or disparage your spouse in front of the children. That can and will be used against you at trial.
Do not start a business or buy any significant property.
Do not wiretap your spouse's phone. That is a felony crime.
DO'S
Do be aware that any telephone conversation you have with your spouse can be legally recorded and used at trial. Assume all conversations are recorded.
Do consult an attorney about removing your spouse from your charge cards, getting a bank account to deposit and preserve 1/2 of the community cash, and getting your own separate bank account to deposit your wages.
This information is provided as a service and is not a substitute for legal advice. Further, the text is based upon the Texas Family Code as amended in September, 1997. The Texas Family Code and the Courts' interpretation of Texas law can and will change.
Seek the advice of an attorney to ensure you understand the law and its effect on you.
Do not
rely on the above information.
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Copyright © 1999 Victoria Valerga, Attorney at Law
All Rights Reserved
Created: March 20, 1999
Last modified: January 12, 2002