STEP BY STEP: THE DIVORCE PROCESS IN TEXAS
Anxiety is normal when you’re going through the divorce process. Knowing what to expect throughout the divorce process in Texas can help reduce the anxiety you’re feeling. No two divorces are ever the same, but many of them will have similar elements. Not every divorce will have all of the items explained below, but this guide was written to include an abundance of circumstances that arise frequently in Texas divorces. Some might have even more than what’s described and some might only have a few. Divorces are intensely personal and driven by both the facts and the personalities of the parties. If you need additional information or assistance, please reach out to our legal team to schedule a consultation with family law attorney Jeff Anderson.
Starting a Divorce Begins with Filing a Petition for Divorce
Every divorce starts with the filing of an Original Petition for Divorce. From the day that’s filed, the divorce cannot be completed for at least sixty days – a state cooling off period. The person who files the Original Petition is called the Petitioner. The other party is called the Respondent.
Process Server or Constable Serves the Divorce Papers to Your Spouse
After the Petition is filed, it goes to a process clerk in the District Clerk’s office, who prepares it to be served. The respondent is served with process, which includes a copy of the Original Petition, Standing Orders, which are becoming more common across Texas, and a citation, which notifies the Respondent that they have been sued and lets them know they have twenty days, plus the Monday thereafter, to respond. Getting served with process usually means that a constable or private process server hands the documents to the Respondent personally. If the respondent does not file a response timely, a default judgment can be taken against him or her.
The Respondent does not always have to be served divorce papers. The respondent, if he or she knows the case has been filed, may file an answer with the Court or may sign a Waiver of Citation instead of being served.
Many times temporary orders are necessary to set the ground rules for the case. Temporary orders work to freeze the spending and transference of assets and determine temporary rules by which both parties must abide.
- Who will get to live in the house and who has to move out?
- Who gets the use of which vehicles?
- What, if any, spousal support or child support is paid?
- Who has custody and what does visitation look like?
The list can go on.
Not everyone will go to a temporary hearing. Some people might not need temporary orders at all. The only time a Judge is needed is when the parties can’t agree on an issue. So, if temporary orders are needed, the spouses can agree on the terms of those orders if they wish. Otherwise, you get to have a hearing.
Discovery is the process of coming to a deeper understanding of the case, the facts, and the evidence. Discovery is information gathering. It is finding out what the other side wants, why they want it and what evidence they have to support it. Discovery is also gathering evidence from the other side and even from third parties which support your positions. Here are the most common forms:
Inventory and Appraisement
The minimum degree of discovery which should be done in any divorce is an inventory and appraisement (also referred to as an I&A or simply an inventory). This is a list of all of the assets and all of the debts and what the value of everything is.
For a simple estate, it might take minutes to complete. The more complex the estate, the more in depth the inventory and appraisement becomes. Both sides complete their own I&A independently and when it’s done, their signatures are each notarized, signifying that parties’ claim that their respective I&A is true and accurate. It is important for both sides to complete their inventories for several reasons, though protection is the most important.
Let’s say you and your former spouse did inventories and appraisements during your divorce. Then, six months later, your ex claims you didn’t tell him or her about a bank account with $50,000.00 in it. They want to go back and divide that account or get all of the money. If you have done a complete I&A, then you get to point to where that account is listed in your inventory and the issue should be moot.
Inventories also protect you in the opposite direction. Let’s say we have the same circumstance as before – that you each did an inventory and appraisement. This time, you find out that your former spouse didn’t tell you about an account with $50,000.00 in it. When you look at his or her inventory, it’s not listed. Now, even though the Decree purports to divide everything, that extra money is still up for partition.
These are written questions, which must be answered within thirty days of being received. Each side is allowed to ask 25 interrogatories.
Requests for Disclosure
Until about 20 years ago, each party was allowed to ask 2 sets of interrogatories, 25 questions in each set. The law changed to provide for Requests for Disclosure, which were some of the most common interrogatories sent to each side. It asks for a list of people with knowledge of relevant facts, who the expert witnesses are, the causes of action, and more. As with most discovery, once the disclosures are served on a party, they have thirty days to answer.
Requests for Admissions
Admissions are just what they suggest. Admit or deny that you gave your spouse a sexually transmitted disease. Admit or deny that your spouse should have primary joint managing conservatorship of the children. There is no limit to the number of admissions that can be sent and they must be answered within thirty days.
Request for Production
This is a request that the other side produce documents or other tangible or electronic items. In a family law case in Texas, it doesn’t have very many limits because so much can be relevant. Telephone records, credit reports, bank and credit card statements, investments, recordings, and even physician records might be subject to production.
A deposition will usually take place in the office of one of the attorneys. A court reporter is present and takes down every word, just like in Court. The deponent is asked questions by the attorneys and must answer them without consulting with their attorney. The testimony is given under oath and the witness may be video taped.
Depositions are not limited to the parties. Any witness may be deposed. Under most circumstances, the deposition of a single witness is limited to six hours and a total of fifty hours of depositions may be taken in a case, unless the Court orders something different.
Mediation is a form of alternative dispute resolution. It is included in the discussion of the divorce process because it is ordered in almost every case. Once discovery is done, the information gathering phase is complete and the information both sides need to go to trial is collected. But before you can go to trial, most judges will require mediation for one very simple reason – most mediations result in a settlement, which means fewer cases for the Courts to try and squeeze into their already packed dockets.
Most mediations last a day, but some may take several days. It depends on the issues and the people involved. Both parties and their attorneys are present, but usually in separate rooms. The mediator goes back and forth between the rooms to try to bring them together and settle as many issues as possible. For a deeper discussion on mediation, please see the mediation practice area.
Taking a Divorce Case to Trial
If all efforts at settling have failed (assuming they’ve been attempted), then your divorce case will go to court. Texas is one of only two states which allow a jury to decide some issues, like custody, domicile restrictions, and characterization of property. Jury trials are rare. There are somewhere between 100 and 150 jury trials each year for family law issues in the state of Texas. The rest of the trials are before the bench (the Judge decides all of the issues). They begin with an opening statement and end with a closing statement, with the middle being filled with evidence, exhibits, objections and rulings. Once it’s over, the Judge will give you a rendition and your case has been decided.
Divorces can be complex. We know they are stressful. One of the best ways to reduce that stress is to hire an attorney you have confidence in. It’s hard enough to go through the process without…. worrying about whether your lawyer knows what he’s doing. Contact experienced Texas family law attorney, Jeff Anderson. We have offices conveniently located in Dallas, Frisco, San Antonio and Fort Worth Texas to better serve you.