Divorce

What are the steps for a divorce in Texas?

1. Original Petition for Divorce is filed.  The party who files first is known as the Petitioner.  The other party is the Respondent.  The 60 day waiting-period known as the "cooling off" period begins.

2. The Respondent is served with the pleadings and has about 20 days to file an Answer or a default judgment can be taken.

3. The Answer is filed by the Respondent.  In a contested divorce, oftentimes a counter-petition is also filed by the Respondent.

4. A hearing on Temporary Orders is held before a judge, if necessary (while the parties wait for the 60 day waiting-period to expire).

5. Discovery takes place.  Discovery is the process that allows one party to request information from the other party, or outside sources.  It can begin at any time once a lawsuit is started, but it usually takes place in the middle of a lawsuit prior to mediation and final hearing.  Discovery allows one party to send subpoenas requesting documents, records, and information needed to prepare or to resolve the lawsuit.

6. Mediation or an informal settlement conference (required by many courts in Texas).

7. Final Hearing.  If the parties are unable to reach an agreement, then a final hearing is had where usually a judge makes a decision on the division of the property, debts, custody, and visitation.  In any lawsuit, either party may request a jury trial, but this usually only occurs in highly contested cases.

*Note:  This is a general outline only.  Each divorce is different.  Consult an attorney with any questions.

How does a divorce start in Texas? 

In Texas, a divorce lawsuit starts off the same way whether it is contested or agreed.  One party (the Petitioner) files a petition for divorce and sends the other party notice of the lawsuit.  If the divorce is contested, then typically the other party is served with the paperwork by a sheriff, constable or private process server.  The non-filing party, known as the Respondent, then has approximately 20 days to file a response.  In an agreed divorce, instead of having the Respondent served with paperwork, since the parties are trying to reach an agreement and save costs, the Respondent typically signs a waiver of service.  The waiver of service is then filed with the clerk, so there is proof that the other side knows about the lawsuit.  In Texas, there is a 60-day waiting period, known as "the cooling-off period" that begins when the petition for divorce is filed.  A judge cannot grant a divorce in Texas, outside certain exceptions, until at least 60 days have passed.  

What is a waiver of service?

A waiver of service is a pleading that the non-filing party (Respondent), signs in a civil lawsuit acknowledging that they know about the lawsuit, and waiving service of process by a third-person, usually a sheriff, constable, or private process server.  It is then filed with the clerk, so that the court and all the parties to the suit are aware that they have received notice. Typically, a waiver of service does not waive a party's rights and only acknowledges that they are aware of the lawsuit, but many waivers have additional language.  You should consult with an attorney before signing any document. 

What if we have an agreement on our divorce?  What is the difference between a contested and uncontested divorce?

A contested divorce is a divorce where the parties cannot reach an agreement on one or all of the issues.  In a contested divorce, usually both sides hire attorneys, and there is a petition and a counter-petition filed by each party.  A contested divorce usually results in a final contested hearing before a judge or in some cases, a jury, but many contested divorces get resolved at mediation without the need for a final hearing.  An uncontested divorce, also known as an agreed divorce, is where the parties decide to reach an agreement on the terms of their property division, custody, and visitation.  An uncontested divorce typically gets resolved when the parties reach an agreement on all of the issues in the divorce and draft and sign an agreed final decree of divorce.  In an uncontested divorce, this can come about via mediation with the help of a mediator, or even an informal agreement between the parties.  In this scenario, oftentimes only one party hires an attorney who drafts the agreed final decree of divorce in accordance with the agreement the parties have reached.  Except for unique exceptions, in Texas, an attorney cannot represent both a husband and wife in a divorce.

Can one attorney represent both me and my spouse in our divorce?

Except for unique exceptions, one attorney cannot represent both the husband and wife during a divorce.  Typically, in an agreed or uncontested divorce, one party hires an attorney who drafts the agreed final decree of divorce based off of the agreement the husband and wife have reached.  The other party is free to hire their own attorney to review the decree and offer legal advice, and many people do just that.  The rule preventing one attorney from representing both spouses is made to protect both parties.  For example, in the event that the parties could not reach an agreement, and the divorce became contested, the attorney hired by husband could continue to represent husband.  The attorney would not have provided legal advice to wife, who is now a contested party, and would not have been privy to facts that could hurt wife's case.  This would leave wife free to hire her own attorney who could advise her and represent her at a contested hearing.  It prevents conflict of interests, and increased fees and expenses down the road. 

How do I know if I should file for custody?

Deciding to file a for custody is a hugely personal decision that should not be taken lightly.  Oftentimes it is a decision that is made over time, after many difficult experiences with the other parent.  There are many factors that come into play, what is in the best interest of my child, my family, and myself?  Am I prepared for a custody battle that may involve court time?  For older children, is this what my child wants, and if it is what my child wants, is this really the best choice for them?  Are there alternatives, or other solutions aside from engaging in a custody dispute?  One thing to seriously consider is timing.  If you bring a change of custody case in the middle of the school year, as opposed to during a long break or the summer, you may be creating an unneeded hurdle.  A judge may be more hesitant to change up the child's life right in the middle of the school year.  Still, if there are circumstances that call for an emergency or an immediate change, it may be something worth doing.  When it comes to a custody decision, it is a very personal, fact-intensive, fact-specific, decision.  It is best to consult with an attorney you feel comfortable with to weigh all of your options, and be a sounding-board for your concerns.  An attorney can best advise you of your options, alternatives, and likelihood of success.

What is discovery?

Discovery is the process that allows one party to request information from the other party, or outside sources.  In lawsuits in Texas, discovery is governed by the rules of Texas Civil Procedure.  Discovery allows both parties to send requests that the other side produce documents and things, for example; emails, text messages, voicemails, photos, bank records, receipts, tax returns, W-2s, paystubs, etc.  Requests must be limited to items that are important to the lawsuit, or that could lead to discovering or figuring out other important information (called relevant evidence).  Discovery also allows the party to get a list of the witnesses the other side will call at trial, take the deposition of the other party, and send subpoenas to outside sources, like banks, schools, and doctors, requesting records.  In addition, it allows a party to send specific questions to the other party, as well as request the other party to admit or deny certain facts.  With the exception of certain privileges and objections, parties are compelled to answer proper discovery requests, and usually after 30 days of receiving those requests.  Discovery can prepare you for the information the other party has that helps your case, but it can also produce information that may hurt your case. It can be very helpful in preparing for a final hearing or mediation, but it is also an expense that must be considered when creating a case strategy.  Discovery is typically done in contentious cases, or where more information is needed regarding an issue and there is no other way to obtain it.