The Texas Divorce Process

The following outline briefly describes the divorce process. It is only a general outline representing the common events of most cases. It is provided here in order to help you better understand the chronological sequence of a divorce case. Your case may or will be different from the one described below.

TABLE OF CONTENTS - DIVORCE PROCESS

• Separation

• Original Petition for Divorce

• Temporary Orders

• Discovery

• Mediation

• Trial

• Post Trial

• Appeal

SEPARATION

Texas does not recognize the legal concept of separation. You are "Married" until a court enters a final decree. Note you can, however, enter into a "Separation Agreement" or "Partition and Exchange Agreement." Your actions at the separation stage can "POINT" the case to it's final outcome. Take the following two examples.

• Spouse "A" moves out. Leaving Spouse "B" as the primary caregiver of the kids. Later Spouse "A" decides he or she wants the kids. Courts are very cautious and hesitant to change the circumstances of the children. The Court is not likely to change the status quo. If you choose to leave the family residence, stay active in your children's life. Keep in mind, that often the possession and access you and your spouse adopt during the separation, is the possession that the Court orders in the divorce decree. 

• Spouse "A" moves out and immediately starts moving the money around-activities that appear to be an attempt to hide or secrete money. Absent some compelling reason, the Court will tend to look with disfavor on this activity. On the other hand, if there is good reason to close bank accounts and credit cards, then do not hesitate to do so. Do not be afraid to take control of the finances.

ORIGINAL PETITION FOR DIVORCE

The divorce process starts by filing a document entitled "Original Petition For Divorce." A petition, called a complaint in other jurisdictions, is nothing more than a "letter" to the court asking the court to grant a divorce and any other relief requested.  It will identify the parties and the children. Furthermore, it will apprise the court of those reasons why divorce is sought, i.e.,  "discord and conflict that destroys the legitimate ends of  the marital relationship, adultery, abandonment, etc. . . ."  The person who files for divorce is called the "Petitioner." The person who answers the divorce petition is called the "Respondent." The original Petition is served upon the Respondent. Concurrently with the filling of the Original Petition, a party may ask for "Temporary Orders", "Temporary Restraining Orders", "A Protective Order", and/or a "Writ of Habeas Corpus".

TEMPORARY ORDERS

Temporary Orders are orders issued by the court to place immediate controls upon the  relationship of the parties, the parties' financial affairs, and child custody during the pendency of the divorce. Temporary Orders are legally binding. Violation of the orders can subject a party to contempt proceedings. A finding of contempt may result in a fine and/or jail. 

Temporary Orders can specify who will live in the marital residence, who will be able to write checks on what bank accounts, and who will have primary custody of the children. In a divorce, you are entitled to have temporary orders issued without your spouse being present. They are valid for 14 days. After that you must legally give your spouse notice that there will be a trial on temporary orders. Temporary orders can be issued voluntarily, by order of the court after hearing, or not at all. Depending upon the type of divorce.

If you and your spouse cannot agree on possession and access to your minor children, you will have to move for Temporary Orders. You have a right to be a parent to your children. If your spouse is currently refusing to let you see or contact your children, seek legal counsel. Do not attempt to force possession! Even if it seems like the fair thing to do. You can endanger yourself and your children, as well as jeopardize your right to custody in the future. If your spouse fails to abide by the Temporary Orders, he or she is in contempt, and can be ordered to appear in Court. If he or she doesn't appear, a bench warrant can be issued, and he or she will be taken into custody. At the contempt hearing, he or she can be sentenced to jail, or have their assets taken to satisfy the Court's order.

DISCOVERY

The term "Discovery" is a broad general description for a number of legal devices designed to gather information. There are five basic devices which comes under the umbrella of "Discovery." These devices are Disclosures, Interrogatories, Requests for Production, Admissions, and Depositions. This is not an exclusive list of available tools for the discovery of information. It is only the basic and most common set.

• "Disclosures" are based upon Rule 194 of the Texas Rules of Civil Procedure. Upon request, a party must give to the other side those items which are set out in Rule 194 within thirty days of the request. 

• "Interrogatories" are written questions directed to the other party. Each side is allowed one set calling for 25 answers. Notice that the rule refers to answers and not questions. This is to prevent the other side from issuing 25 questions with multiple subparts which might be 40 or 50 answers.

• "Admissions of Fact" are written declarations of fact directed to the other party asking them to admit or deny an undisputed fact. They are designed to authenticate documents and to dispense with the necessity of proving uncontested or indisputable facts. A common admission might be, "Please admit or deny that the child's pediatrician is "Doctor Blue," for example.  

• "Request for Production" is a device used to obtain documents.  Upon request, the other party must provide to you any records that you have requested for inspection and photocopying. 

• "Depositions" are processes by which sworn testimony is taken from the other party, or witness. It is a discovery device where your lawyer will have the opportunity to question the other side before a court reporter. The testimony taken is admissible for all purposes in Texas.

A lawyer should issue basic discovery on behalf of every client, except for the most agreeable of agreed divorces. The amount and type of discovery called for in a case is directly dependent upon the type of case.

MEDIATION

Mediation is process where both parties meet in a neutral setting to discuss their differences, and attempt to resolve the case. The process is controlled by a mediator, usually a lawyer. He or she facilitates the discussions. The mediator's task is to help the parties settle the case. In Texas it is a required process, and will be ordered by the Court.

Usually, by the time all of the events above have taken place, both sides will have enough information, to be able to resolve the contested issues of the divorce without further Court process.

TRIAL

If the case can't be settled, then it will be set for trial. This is the process where both parties present the evidence to the Court for determination. The Court will hear the evidence, examine the pleadings of both parties, and make it's decision. A trial can be for the court or before a jury upon request.

POST TRIAL

At conclusion of the trial, the parties will draft a "Final Decree of Divorce." this will reflect the Court's determination. This document will spell out who gets what property, where the primary residence of the children will be, how the parties are to conduct their relationship as the children grow, and will set child support. The document will attempt to resolve all issues between the parties. In addition, there may be a number of closing documents involved, such as deeds, and automotive titles. Furthermore, a qualified domestic relations order may be necessary if community property is contained in a 401(k), for example.

If children were involved in the divorce, the Court's jurisdiction over the matter continues. It is called a "Court of Continuing Jurisdiction." The Court's powers remain in place to enforce it's decree until your children are eighteen years of age, or otherwise emancipated. You may go back and ask the Court to modify it's decree, to change child custody, or child support. For a variety of reasons.

APPEAL

If a ruling in your divorce is not a fair one, or new evidence has come to light, you may file a motion for a new trial, or begin an appeal.