17th Aug 2015
Texas Divorce Process Overview
“It’s like the man I once loved is dead—but his ghost is still haunting me and attacking me..I am grieving his loss and fighting his ghost at the same time. I can’t get any sort of closure” Former client describing how she felt while she was going through a divorce battle..
Divorce is typically a very emotionally wrenching and financially draining experience. The difficulty is compounded when there are children involved. Having experienced firsthand, a highly contested divorce, I understand what it’s like to meet with an attorney at this difficult time and to be involved in a divorce battle. As an attorney who routinely helps clients going through divorce, I also know what it’s like from an attorneys’ viewpoint. This blog aims to provide a high level overview of the typical divorce process as well as some practical tips to help those contemplating or going through a divorce.
What are really the key issues in a divorce?
When you really peel the onion, there are essentially two (2) key questions involved in a divorce [when no children are involved], or three (3) key questions –when children are involved. Specifically:
1) How to end the marital relationship (grounds),
2) What to do about the property (who gets what), and
3) What to do about the children (Custody and visitation), [if children are involved]
In other words, no matter how complex your case may be, it helps to think of your case in terms of these two or three questions and to determine what you want with respect to each key question. You should ask yourself: Do I want to end the relationship; if yes, what properties do I want and why; additionally, if children are involved, what type of custody and or visitation do I want and why.
So how do I get divorced?
Before discussing how to initiate a divorce action, I should start by emphasizing that it is important that you explore all avenues of reconciliation before initiating a divorce. If your relationship can be salvaged, then you should make reasonable efforts to resolve it—especially if children are involved. You may want to seek counselling with a good marriage counsellor or your faith leader.
If indeed your marriage has no hope of reconciliation, then it makes sense to begin to gather and document information relating to your respective and joint assets and liabilities. You should also gather pertinent information relating to your children, such as school records of the children, physical, emotional history of the parties as it relates to the children. You don’t necessarily need to have these ahead of time but it helps your attorney, if you have a head start on gathering these documents.
The divorce action officially starts with the filing of an original petition for divorce. Like every lawsuit, the original petition must be responded to within a given amount of time. This response is called an Answer. The person who files the divorce is described as the ‘Petitioner’ while the other party is the ‘Respondent’. An original petition may include an application for temporary restraining order or temporary injunctions that prohibit the other party from doing certain things such as wasting or hiding assets.
Some jurisdictions have what is called a ‘standing order’ that includes a list of what both parties are prohibited from doing once a divorce action is filed. The standing orders typically includes a requirement for the parties to exchange a document called ‘Inventory and Appraisement’, as well as a Financial Information Form. For instance, Montgomery County has a standing order. Anyone filing an original petition in Montgomery County merely has to include the standing order with the petition for the standing order to take effect and bind the parties from doing the things prohibited by the standing order while the case is going on. A party may also ask for temporary orders regarding the support of the children or maintenance of the community estate or temporary spousal support.
The Respondent may choose not to file an Answer and instead file what is called a “waiver”. A waiver is essentially a notice to the court that the party is giving up his or her right to have the original petition served on him or her by a process server or sheriff. If the Respondent does not file an Answer or a Waiver, a Default judgment may be entered against the Respondent.
Uncontested or Agreed Divorce.
Uncontested Divorce generally describes situations in which the Respondent does not challenge the divorce. Agreed Divorce describes the situation where the parties have reached agreement on all the key issues. In either uncontested or agreed divorce, the Respondent usually files a waiver. In Agreed Divorce, both the Petitioner and Respondent sign the Agreed Final Decree of Divorce. Only one party is required to prove up the divorce.
Contested Divorce describes those cases where the Respondent is challenging the divorce. It does not necessarily mean that the Respondent does not want the divorce—the divorce may be contested because the parties do not have agreement on one or more of the key questions: (the grounds for divorce, how to split their stuff, and custody /visitation of the children). In contested divorce, the fight is typically in layers. There is the layer that describes the issue being fought, and there is often times another layer that I call the emotional layer or the unspoken layer. At AnunobiLaw, we spend a lot of time at trying to understand the different layers of our client’s issues and helping our clients disentangle the real issues from the emotional fights. Fighting over emotional issues or simply based on principles, often lead to very expensive legal fees.
Discovery is a process that allows a party in a lawsuit to discover information from the other party [and sometimes even third parties] that will help the party seeking the information to prosecute their lawsuit or defend themselves. In a divorce setting, discovery generally entails the process of requesting information from the other party concerning the assets, liabilities, school records of the children, physical, emotional history of the parties. It may also include questions that the other party is required to answer under oath.
In contested cases, the parties will typically spend a lot of time and resources in discovery. It is important to emphasize that discovery is a right. The courts do not like it when they think that one party is hiding the ball. We try to help our clients ensure that we produce those documents that we are required to produce and that we request for the documents that we are entitled to. We also work to protect our clients from overly broad or abusive discovery.
Mediation is a form of alternative dispute resolution. Mediation generally involves the parties and their attorneys going in front of a mediator to negotiate and hopefully reach agreement on the outstanding issues—or some of them. Approximately 95% of cases resolve in mediation. One major benefit of mediation is that the parties are usually able to negotiate the specific terms of their divorce decree as opposed to a judge imposing a decree on the parties.
Several courts now require mediation before a Temporary Orders hearing or Final Hearing, unless it can be shown that the safety and welfare of a party or child is at issue. In most cases, we strongly recommend that our clients take advantage of mediation and try to resolve their issues at mediation as it is often less expensive than going to trial. We know which courts require mediation and incorporate that information in our strategy as we are preparing our clients case.
Several courts now require the completion of a parenting class—if children are involved. There are some approved parenting classes that are available online. It is important to check what the court rule is with regards to parenting class and to comply with the specific court’s rule. We generally provide our clients a listing of the approved parenting class for their specific court and guide them through the process.
How to act while the case is on-going?
From my experience, the marital relationship for most people going through a divorce battle ended before the original petition was filed. However, it is important to remember that you are still married until the judge signs the Final Decree of Divorce. I cannot emphasize enough how your conduct both before and after the date of separation through the date the divorce is fair game, and could be subjected to intense scrutiny. Even in cases where the divorce is uncontested, an uncontested divorce could very easy morph into a highly contested case if one party finds out that the other party is in a dating relationship.
Similarly, it is important to watch how you spend money during the pendency of the case. If you are subject to a standing order or temporary injunctions, it is important that you comply with the standing order or temporary injunctions, as you may be subject to sanctions or contempt of court, if you are found to have violated the standing order or temporary injunctions.
In short, it is important to watch your every conduct during the divorce process—it is perhaps best to assume that whatever you do could is subject to cross examination and only engage in those activities you will be able to justify without harming your case.
As difficult as it is, remember to be very cordial in any communication with your spouse. If you are involved in a highly contested case, it may be best to communicate through your attorneys. You do not want to document your anger in an email or text and have it used against you in court.
Finally, remember that documentary and substantiated evidence will generally be given more weight than ‘he say, she say’. It is therefore best to gather as much evidence as you can. For instance, get all relevant legal paperwork, titles, insurance policies, certificate of deposits, pension, profit sharing plans, check stubs, contracts, etc. We usually look through the documents that our clients have gathered and make a determination of which ones are appropriate for that client’s specific case.