A Guide to the Texas Divorce Process
Steps in the Texas Divorce Process
Learn more about each of the steps in the Texas divorce process.
Original Petition For Divorce
An “Original Petition for Divorce” is the document that initiates divorce proceedings. 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. The Petition also states the grounds for the divorce, the most common being “insupportability,” which the legal term for “no-fault.” Since the Petition is essentially requesting the Court to grant the divorce, it contains a brief list of what the Petitioner is asking the court to do, such as divide the property, and make orders for the conservatorship and support of the children. The Petition is what is called a “notice pleading,” meaning it is designed simply to notify the Court and Respondent of the Petitioner’s basic requests, and identify the primary issues involved. The Petition is not designed to include any of the evidence that supports the Petitioner’s legal requests.
Service or Waiver
Since a Petition for Divorce is a lawsuit, 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. Waivers are very common when the parties are on amicable terms, and the Petitioner wants to save the Respondent the potential embarrassment associated with being formally served. The Petitioner’s attorney usually drafts the waiver, then mails copies of the Petition and Waiver to the Respondent for his or her signature. Once a signed, notarized copy of the waiver is filed with the Court, service is complete.
Answer & Counter-Petition
Once the Respondent has been served with the Original Petition for Divorce, he or she must file an Original Answer, and may file a Counter-Petition for Divorce. The Answer contains a “general denial,” which is a provision stating that the Respondent denies the allegations set forth in the Petition, and demands proof of any legal claims. This is a standard form used regardless of whether or not the Respondent actually disagrees with the information contained in the Petition. Its primary function in the divorce context is to notify the Court of the Respondent’s appearance in the case, and invoke the requirement that the Petitioner properly notify the Respondent of any future proceedings associated with the divorce. If the Respondent does not file an Answer within the time allotted under the Rules of Procedure, the Court could potentially conduct hearings and decide issues without further notice to the Respondent.
The Respondent also may (and probably should) file a Counter-Petition for Divorce, which is essentially identical to an Original Petition in its form, but contains the Respondent’s (now called the Counter-Petitioner) own grounds for divorce and specific legal requests. It is important to note that in an effort to keep trials fair, Texas law requires litigants to generally identify their legal claims and defenses in their initial pleadings (i.e. Petition or Counter-Petition), so that both parties are aware of all disputed issues, and can adequately prepare for trial. Failure to include certain legal claims or defenses in a pleading could result in being prohibited from raising issue or defense at trial.
Temporary Orders & Temporary Restraining Orders (TROs)
Since most divorces take at least several months to complete, some Petitioners include a request for Temporary Orders in their Original Petition. A Temporary Orders hearing is usually held between two and four weeks from the date the request is filed. The purpose of Temporary Orders is to address some of the urgent questions that come up as soon as a divorce is initiated. The most common questions are:
- Which party will remain in the home on a temporary basis
- How the household bills will be divided
- Who will financially support the children
- How the parties will share custody of the children while the divorce is pending
The parties are often able to reach an agreement on the temporary matters and enter into Agreed Temporary Orders without the need for an actual hearing. If not, a Judge will make the necessary orders after hearing evidence about the parties’ financial needs and specific family situation. Temporary Orders remain in effect until the divorce is granted, or the Judge makes further orders.
In some cases, the party who files for divorce is concerned that when the Respondent is served with the Petition, he or she will start making threats, hiding assets, or concealing the children. In some cases, even a hearing within two weeks or so from the date of filing is not soon enough to prevent this from occurring. In these cases, a party can apply for a Temporary Restraining Order (TRO) at the time he or she files the Original Petition for Divorce. A TRO contains a laundry list of do’s and don’ts, ordering the Respondent not to 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 it is served on the Respondent. (Note: a TRO must be formally served on the Respondent by a process server, and cannot be served using a Waiver of Citation).
The discovery process (generally called “Discovery”) is an information gathering tool utilized to identify all of the legal disputes and evidence necessary for the parties to reach an agreement on the issues or prepare to present their case to a judge. Discovery isn’t required, but it is very useful in both contested and uncontested divorce cases, especially when only one of the parties kept certain records during the marriage, or when relevant information is kept by a third party. Common types of discovery are:
- Requests for Production
- Requests for copies of relevant documents and recordings, such as bank statements and medical records
- Specific questions posed to the other party that must be answered in writing about relevant issues
- For example, description of a party’s daily routine or details surrounding a suspected affair
- Requests for Disclosure
- Requests that the other party disclose the factual basis of his or her legal claims & any witnesses he or she plans to call
- An oral examination of a party or witness to record and evaluate his or her testimony prior to trial
- Legally binding requests for information from third parties such as banks and, medical professionals
Mediation or Informal Settlement Negotiations
Almost all divorces settle out of court, whether it’s through a form of alternative dispute resolution such as mediation, or informal negotiations between the parties and their attorneys. This process begins after the discovery process is over, and the parties feel they have all the information they need to make informed decisions about issues.
Mediation is the most common form of dispute resolution, and most judges require that the parties to attend mediation in good faith before they are allowed to go to trial. A trained mediator facilitates negotiations between the parties, helps them come up with creative solutions to competing points of view, and helps the parties anticipate what a judge might do if their case were to go to court. Mediators do not have the authority to make decisions for the parties. Mediation usually takes a half to a full day, and results in a Mediated Settlement Agreement that resolves all issues related to the divorce. 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 granting the divorce and making the agreement the final order of the Court.
Agreed Divorce or Final Trial
The divorce process ends with a document called a Final Decree of Divorce, which is an exhaustive court order granting the divorce and detailing all of the terms in the proper legal format. As previously mentioned, most parties reach an agreement without going to trial. If this is the case, one of the attorneys will draft an Agreed Final Decree of Divorce for both parties and attorneys to sign. The Decree is then presented to the Judge for his or her signature on a day when the court hears uncontested (agreed) matters. Only one party and his or her respective attorney must attend this hearing, and it doesn’t matter whether it’s the Petitioner or Respondent. The attorney will ask the client to answer a few basic questions in front of the Judge (such as names, dates, and general information about the agreement) and the Judge will pronounce that the parties are divorced and sign the Decree.
If the parties cannot reach an agreement, the case must be presented to a Judge in a trial called a Final Hearing. Most divorce cases are submitted to a judge for a decision rather than to a jury. Naturally, almost all contested cases revolve around the parties’ money, children, or both. The Judge hears testimony from both parties, together with the testimony of any witnesses the parties may call to support their respective positions. At the conclusion of the hearing, the Judge makes a decision regarding all disputed issues, and grants the divorce. The Judge will then order one of the attorneys to draft a Final Decree of Divorce based on the ruling, to be submitted for the Judge’s signature.