The Texas Divorce Process Explained

The Texas divorce process is incredibly challenging and can create a very difficult time for your family both emotionally and financially. It is important to know and understand the legal steps that follow and how the Texas Divorce process works.

ORIGINAL PETITION

Filing an Original Petition for Divorce is the first step in the Texas legal divorce process.  The petition is your request for a hearing to allow a judge to grant you a divorce. This must be filed by one of the spouses, whether or not both spouses agree to the divorce. The spouse who files the Petition is called the “Petitioner,” and the other spouse is called the “Respondent.” The Original Petition for Divorce contains all of the basic information about the parties and their family situation, such as the date of marriage, date of separation, and the names and ages of any minor children. It may incorporate a Marital Settlement Agreement dealing the division and distribution of property, or it may ask the court to divide assets and debts of the couple. The Petition also states the grounds for the divorce, the most common being “insupportability,” which the legal term for “no-fault”. The manner in which a divorce is initiated can set the tone for the rest of the case; therefore, how it is initiated must be carefully considered.

SERVICE OR WAIVER

A Divorce Petition is a legal document filed in a court and it must be served on the other party. There are two primary ways to serve the Petition. The traditional form of service is where a process server, usually a private individual hired by the Petitioner, personally delivers a copy of the Petition to the Respondent, and then files a “Return of Service” with the Court to prove that the Respondent was served.

The other form of service takes place when the Respondent signs a document called a “Waiver of Citation,” acknowledging receipt of the Petition, and waiving the requirement of being formally served. The waiver form states that the “defendant” or “respondent” in a divorce case was given the petition and other paperwork associated with the case by the plaintiff, or petitioner.  The waiver advises that the defendant voluntarily enters his/her appearance in the case and submits to the court’s jurisdiction.

ANSWER AND COUNTER-PETITION

Once the Respondent has been formally served, the respondent must file a written response also called an answer to the petition and/or counter-petition within a stated time from the date of service, usually 20 days. The response is usually called an answer which contains a “general denial” in which the respondent “denies all of the allegations set forth in the original petition”.  If the Respondent does not file an answer within the time allotted under the TX Rules of Procedure, the Court could potentially conduct hearings and decide issues without further notice to the Respondent.

The Respondent also may file a Counter-Petition for Divorce, which is essentially a counter lawsuit identical to an Original Petition in its form, but contains the Respondent’s (now called the Counter-Petitioner) own grounds for divorce and contains specific legal requests.

TEMPORARY ORDERS & TEMPORARY RESTRAINING ORDERS (TROs)

The divorce process can take several months to complete. Petitioners can request temporary orders in their Original Petition for Divorce. The purpose of temporary orders is to address some of the urgent questions that come up as soon as a divorce is initiated.

In some instances, the party that files for divorce is concerned that the Respondent will start making threats, hiding assets, or hiding children. For such concerns, a party can apply for a Temporary Restraining Order (TRO) at the time he or she files the Original Petition for Divorce. A TRO orders the Respondent to not engage in certain harmful conduct before the Court has the opportunity to conduct a Temporary Orders Hearing. A Temporary Restraining Order goes into effect as soon as the Respondent is formally served.

DISCOVERY

Discovery process (generally called “Discovery”) is sometimes used by each side as an information gathering tool to obtain relevant evidence to help the parties reach agreement on the issues or prepare for trial. While Discovery is not required, it is very useful in both contested and uncontested divorce cases. Common types of discovery are:

1.   Requests for Production – Formally request documents such as bank, financial statements and medical records.
2.   Interrogatories—Questions are posed to the other party which requires an answer in writing to relevant issues.
3.   Request for Disclosures—Formally request that the other party disclose the factual basis of their legal claims and list witnesses they plan to call.
4.   Depositions—An oral examination of a party or witness to record and evaluate his or her testimony prior to trial.
5.      Subpoenas—Legally binding requests for information from third parties such as banks and hospitals.

MEDIATION OR INFORMAL SETTLEMENT NEGOTIATIONS

Mediation or Informal Settlement Negotiations offers both parties a form of alternative resolution. Negotiations are typically only between parties and their attorneys. Mediation is the most common form of dispute resolution, and most judges require that the parties attend mediation in good faith before they are allowed to go to trial. A trained mediator facilitates negotiations between the parties to resolve all issues related to the divorce. The mediator helps both sides achieve a solution that works for everybody. Mediators do not have the authority to make decisions for the parties. Mediation usually takes one-half to a full day, and the goal is to obtain a Mediated Settlement Agreement that resolves all divorce issues. The terms of the agreement are then converted into a legal document called a Final Decree of Divorce, which is the document that the Judge signs that grants the divorce and makes the parties’ agreement the final Order of the Court.

AGREED DIVORCE OR FINAL TRIAL

The process of a divorce ends with a document called a Final Decree of Divorce, which is an order granting the divorce that details the terms that provide for the following: division of all community assets and deb; resolve child custody; and provide for the amount and frequency of child support. If parties reach an agreement without going to trial, one of the attorneys will draft an Agreed Final Decree of Divorce for both parties and all parties and their attorneys will sign. The Decree is then presented to the Judge for his or her signature on a day when the court hears uncontested (agreed) matters. If parties cannot reach an agreement, the case must be presented to a Judge (or jury) for final trial “on the merits” often just called a Final Hearing. The divorce is considered final, as soon as the judge signs and dates the final Decree of Divorce.