Divorce

Divorce DecreeIn many ways, a Texas divorce case is a lot like other civil lawsuits, only the parties are spouses. The start of the case occurs with one party files an original petition. The opposing party is served with the divorce petition, or signs a waiver of citation (waiver) acknowledging receipt of the petition, and makes a general appearance in the lawsuit by filing an answer or the waiver. The same rules of civil procedure and evidence apply, and certain claims may be heard and decided by either a jury or a judge. That is, if the case does not settle prior to trial. I say that because you can take some comfort in knowing that most Texas family law/divorce cases settle prior to trial. Litigation is very expensive. While some cases simply must have their day in Court, most individuals find the prospect of a trial financially daunting.

Soon after the original petition is filed, a court hearing may be held to determine whether a temporary restraining order (TRO) should be continued, if one was issued by the Court at the request of a party when the original divorce petition was filed. Additional temporary orders may be issued by the Court at that hearing to assign the payment of the parties’ monthly expenses (mortgage, utilities, car payments, credit cards, etc.), for the temporary use or possession of certain property (a house or car, for example), to set the amount of child support to be paid, the child visitation schedule, and the amount of spousal support, if any. Temporary orders may also be issued to enjoin the parties from taking or engaging in certain actions ( family violence, threatening phone calls, alcohol use, or disposing of property or assets, for example) while the divorce case is pending.

Once those initial steps are taken, the parties will engage in an exchange of information about their assets, liabilities and child-related issues. This may be done informally, by giving or volunteering the information to the other party without waiting for a request; or, formally, by way of written interrogatories (questions), requests for production of documents, requests for admission, and other discovery tools (such as oral depositions) available to the parties and their attorneys under the Texas Rules of Civil Procedure.

It is a good idea for the parties to each prepare and exchange a sworn inventory (a list of all assets and liabilities, including all community and separate property) and a credit report from each of the big three credit reporting agencies Equifax, Experian and TransUnion. Your county of jurisdiction may have other information that the parties are required to exchange by local rule or custom.

Once a party believes he or she has enough information to make an informed settlement decision, he or she may prepare a settlement offer to send to the other party for consideration. The other party may accept or decline the offer. And, as is often the case, the other party may respond with a counter-proposal for settlement.

Most Texas jurisdictions require some form of alternative dispute resolution (such as mediation or arbitration) before the parties are permitted to proceed to trial. In the event your informal settlement efforts are not successful, you most likely will be required to engage the services of a third party neutral to mediate or arbitrate your case. The mediator/arbitrator is often an experienced family lawyer, with specialized training or experience in settlement negotiations. This person will work with both sides with the goal to reach an agreement by the end of the session. A compromise reached at the end of a mediation session usually means each party had to give up or concede certain points or property to resolve the case. Keep in mind, however, a successful mediation is one way you can control the outcome of your divorce case, and it is almost always cheaper than the cost of a trial.

If your case is settled by agreement, a document called an Agreed Final Decree of Divorce is prepared, circulated and signed by the parties and their attorneys. Then, one party and that party’s attorney will go to Court to “prove-up” the agreement, usually on the Court’s uncontested docket. Sometimes both parties want to attend the “prove-up” hearing, and while that is certainly permitted, it is not mandatory. When the Court accepts the Agreed Final Decree of Divorce, the Judge will sign that document and pronounce the parties divorced. In this situation, a trial will not be necessary.

When all attempts at settlement have failed, your case will proceed to trial. Some jurisdictions allow the parties to choose the trial date, by agreement. Others assign a trial date through the use of an automated computer system, with notice of the trial date being mailed to the parties’ attorneys. Regardless, keep in mind that your trial date will depend on the Court’s docket and availability to hear your case. As mentioned above, in Texas, certain issues may be decided by a jury, but others can be decided by a judge only. Both parties attend and may testify at the trial. The parties may call other witnesses and experts to testify and provide evidence in Court. A judgment will be made announced at the end of the trial. From that judgment, a written document called a Final Decree of Divorce, will be prepared and signed by the Judge.

While, by statute, the parties may get a divorce at any time after the end of the 60 day statutory waiting period, which starts on the date the original petition is filed, it is not unusual for an average divorce case, even an uncontested one, to take 8 to 12 months from start to finish. A case headed for a jury trial may take even longer. Other factors may increase this time estimate — think in terms of Hurricane Ike, serious illness of a party or the judge, or judicial elections/court transitions). Keep in mind that the duration of your case many times will depend on your willingness to compromise or agree to the demands made by the other party. In other words, the more willing and open you are to compromise, the quicker your case is likely to settle.

Discussion points of interest, such as the ones below, require personalized factual review, consultation and explanation:’

  • Texas mandates a “just and right” division, not a 50/50 division, of the community property.
  • There are 6 fault-based grounds for divorce in Texas; and, a no-fault based ground.
  • There is a presumption that all assets and liabilities accrued from the date of marriage through the date of divorce are community assets and liabilities. There are exceptions (for example, gifts, inheritance, etc.), but you will need to meet your burden of proof in order to prevail. The accrual of community assets or debt does not stop as of the date a petition for divorce is filed.
  • While a jury may decide whether a particular property item is community or separate property, only a judge can divide the parties’ community estate.