Need a divorce? Going through a divorce in Texas can be extremely stressful - especially if the circumstances between you and your spouse are less than favorable. In the majority of cases, trial can be avoided through alternative dispute resolutions such as mediation, collaborative law, or by informal settlement resulting in an uncontested divorce. However, for some couples, avoiding trial may not be possible. In this blog, we’ve outline important steps throughout the divorce process to help you prepare for your divorce trial.
Filing for Divorce:
The first step depends on whether you are the person filing for divorce (the Petitioner) or the person filed upon (the Respondent). If you are the petitioner, you need to file an Original Petition for Divorce with the district clerk of the county where you reside, followed by a service of citation to the Respondent (usually delivered by a third-party process server).
- Texas is a no-fault divorce state (for now anyway), meaning that the dissolution of a marriage does not require a showing of wrongdoing by either party. Spouses can file for divorce on the ground that the marriage has become "insupportable".
- A "fault" divorce usually means one party is at fault in the break-up of the marriage. In Texas, this means you have to prove adultery, cruelty, abandonment, that your spouse has been convicted of a felony or that your spouse is in a mental institution. Texas may also grant a divorce in favor of either spouse if the parties have lived apart without cohabitation for at least three years.
- Your case will be assigned a cause number and a court number if your county has more than one presiding Judges.
Answering the Citation:
The law requires that a court obtain jurisdiction over a person before it may issue any order affecting his/her person or property, therefore, the purpose of the service of citation is to bring the non-filling spouse under the jurisdiction of the court and to notify that a suit has been filed against them. Once this is complete, the Respondent has to file a written answer on or before the Monday following the expiration of 20 days after service is perfected in order to avoid default judgment against them.
At the onset of the case, court will decide any issues in the interim of the divorce that spouses can’t agree on or if temporary orders are necessary to preserve the parties’ estate or to address terms of conservatorship. Temporary orders are generally made to decide on the temporary possession of the home and car, health insurance, child custody and support, spousal support, and attorney's fees.
Scheduling Order or Docket Control Order
During the pendency of the case, the Court on its own motion may set the case for a trial setting no less than 45 days after the case is filed or may order the parties to set the case for final trial. Setting the case for a final trial gives the parties something to look forward to at the end and also setting deadlines for the case consistent with the Texas Rules of Civil Procedures.
In a contested divorce, the discovery process is the exchange of information and documents. You need to disclose anything you intend to bring to the divorce case that will help in negotiations or will help bolster your case during the divorce. You can also move to require your spouse to disclose documents and information as well. Typical discovery requests include request for disclosure, request for production of documents, and written interrogatories. Depositions may or may not be taken depending on the issues at stake. This is a costly approach because preparation for deposition is akin to preparing for trial.
The pre-trial conference:
The Court may set your case for a pre-trial conference. Typically, a pre-trial conference is scheduled 10 days prior to trial. The purpose of a pre-trial conference is to narrow the issues that the Judge need to consider during trial and to exchange trial documents, such as exhibit list, witness list, and the actual exhibits. It is very crucial to come to pretrial hearing well-prepared and ready for trial.
Most courts require that the parties attend mediation before trial. Majority of cases are resolved through the use of mediation. Mediation is utilized to reach a divorce settlement agreement between spouses on all matters pertaining to the divorce. It is not unusual for divorce litigator to choose an agreed upon mediator who they believe can help resolve the matter, based on the facts of the case and the personalities of the parties. Choosing the right mediator is key to resolving your case. Mediation is an open forum for each party to express their concerns to a neutral third-party mediator who is typically a fellow practicing family law attorney. If parties settle their case in mediation, then the settlement agreement is binding and non-revocable so it’s important to make sure any decisions, especially ones involving children, are really ones you can live with.
If mediation fails, then the case will go to trial before a judge - in which the judge will make a ruling to resolve all issues pertaining to the divorce. Some issues can be tried before a jury. After the case is heard, the Judge will issue a rendition, which will then be reduced to a final decree of divorce. This is the court’s order dissolving your marriage and is binding on all parties going forward.
The entire process can be lengthy and exhausting. Texas has a 60-day cool-down period between filing for divorce and finalizing. A contested divorce, though, can take six months or longer - more than a year is not unknown, especially if there are complex property matters or children involved.
The most important thing you can do to prepare is make sure you have all of the documents that will help you make a case for the divorce settlement you want such as income information, expense information and financial records. And, of course, call a good, experienced attorney. If you need a divorce lawyer in Houston, Sugar Land or Galveston, Texas, then contact Hendershot, Cannon, Martin and Hisey, P.C. for a consultation.