A Guide to the Texas Divorce Process

Before You Read

 

The information below is a very basic summary of the divorce process that may be useful for familiarizing yourself with some of the terminology and major procedural milestones in a typical divorce. This information is not legal advice and does not create an attorney client relationship with the Law Office of Jay D. Smith. This information should not be used as an alternative to representation.

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Uncontested Divorce vs. Contested Divorce

The phrase “uncontested divorce” is often misunderstood to mean a divorce without any disputed issues. “Uncontested divorce” actually refers to any case that is resolved without a final trial, even if there were hotly contested issues along the way. Most cases are ultimately “uncontested”, but still require some level of negotiating before resolution. Others may involve contested hearings on interim issues before the parties finally overcome their differences and settle. This is mainly because there are certain issues that must be included in any agreement before a judge can legally grant a divorce. These include terms for the conservatorship, possession and support of the children and terms for the division of the marital estate. For a case to be finalized without any disputes from beginning to end, the parties must fundamentally agree on every potentially contentious issue involving their children and finances.   

What is a Divorce Petition?

The Original Petition for Divorce is the document that initiates the divorce process. The party who files for the Petition is called the “Petitioner” and the other party is called the “Respondent.” Most petitions are limited to fairly general information about the parties and their children, if any, and generally state the relief requested from the Court (such as a “make a just and right division of the marital estate” or “make orders for the support of the children”).

Grounds for Divorce

Grounds for divorce (i.e., the legal basis for requesting the divorce) fall into two categories: fault and no-fault.

 

Fault

Alleging fault in the divorce means that one party is saying the other is at fault for the break-up of the marriage. Fault is usually included when a party is trying to gain a greater share of the marital property or secure a larger amount of support. The fault-based grounds for divorce in Texas are:

  • Cruelty
  • Adultery
  • Felony Conviction
  • Abandonment

Each of these grounds has a specific legal definition that is often different from how the terms are generally used in everyday conversation. For instance, it’s not uncommon for a spouse to think they’ve been “abandoned” when the other moves out. But fault-based abandonment involves an extended absence combined with a variety of other factors which are usually not applicable to the average case, even when a spouse moves out abruptly.

There are sometimes reasons for deciding against alleging fault even when the criteria have been met. A qualified divorce attorney can help you determine if there is a legal basis to allege fault and whether it is advisable to include fault in your Petition.

 

No-Fault

No-fault means that the divorce will be granted without proof that one of the spouses is responsible for the break-up of the marriage. Most divorce petitions are based allege no-fault. There are three no-fault grounds for divorce:

  • Insupportability
  • Living Apart
  • Confinement in a Mental Hospital

Insupportability is by far the most ground for divorce. “Insupportability” is very similar to the more familiar term from other jurisdictions called “irreconcilable differences” and is defined in Texas like this: The marriage between the parties has become “insupportable” due to discord and conflict between their personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.

Like insupportability, the other two no-fault grounds for divorce have very specific legal meanings and an attorney can help you evaluate which grounds apply to your specific case.

60- Day Waiting Period

With limited exceptions, a Court cannot grant a divorce during the 60-day period immediately following the date the Petition for divorce is filed. The 60-day “clock” begins running when the Petition is filed, but nothing happens automatically when the 60 days have passed. Most cases are not ready to be finalized by day 61, but the Court can grant the divorce at any point after the waiting period expires if all the other necessary conditions for finalizing have been met.

Personal Service or Waiver of Service

The Respondent is legally entitled to proper notice of the Petition. The most common methods of service in a divorce are Personal Service and a Waiver of Service.

Personal Service: The Petitioner’s attorney hires a process server to hand deliver a filed copy of the Petition to the Respondent.

Waiver of Service: The Petitioner’s attorney provides a filed copy of the Petition to the Respondent (typically through mail or email) along with a proposed Waiver of Service. The Respondent has the option of signing the Waiver of Service waiving his or her right to be personally served. (Note: Not all waivers are the same. Some waivers list additional rights a party should never sign away. Your spouse’s attorney does not (and cannot) represent your interests and may ask you to sign documents that are detrimental to your rights. Consult with a Williamson County divorce attorney before signing any documents you receive from the opposing party or their lawyer).

 

Respondent’s Original Answer and Counterpetition

Once the Respondent has been served with a Petition for Divorce (either through personal service or a waiver of service) they have a deadline to file a response. There are two, standard responsive pleadings to a Petition for divorce, the Respondent’s Original Answer and an Original Counterpetition for Divorce.

Respondent’s Original Answer: this document should always be filed by the deadline. It serves as a general denial of the Petitioner’s allegations and entitles the Respondent to notice of future proceedings. When filed by an attorney, it serves as notice that the party has counsel and that communication should be directed to their attorney.

 Counterpetition for Divorce: Typically, the Respondent files their own Petition for Divorce called a “Counterpetition”. They are then referred to as the “Counterpetitioner”. Other than its title, the form of a Counterpetition is essentially the same as a Petition. A Counterpetition is required if the Respondent intends to request “affirmative relief” from the Court. That is, if the Respondent also wants to ask for a division of property, support, etc., they need to file a Counterpetition.

(Note: There are rules regarding special pleadings that are not addressed here but are very important. There may unique provisions that need to be included in an Original Answer or there may be documents that must be filed prior to an Answer or Counterpetition to avoid waiver of important rights. This is just one of many important considerations you should discuss with an attorney).

 Temporary Orders 

In some divorce cases there are pressing, temporary issues that need to be resolved before the case can progress further. These often include:

  • Temporary use of the marital residence while the case is pending
  • Interim child possession schedule for separated spouses
  • Substance abuse testing and monitoring
  • Mental health evaluations
  • Payment of temporary support, household expenses, and interim attorney’s fees
  • Allocation of parental rights and duties
  • School enrollment when parents reside in separate districts

There are two ways these temporary issues are resolved: Agreed Temporary Orders or a Contested Temporary Orders Hearing

Agreed Temporary Orders

With the help of their attorneys, parties are often able to negotiate agreements for these interim issues. These agreements are typically memorialized in Agreed Temporary Orders, which are court orders that will remain in effect until they are modified by the Court or the case is finalized. When the parties agree on temporary orders, a contested hearing is not necessary.

Contested Temporary Orders Hearing

If the parties cannot agree on temporary orders, either party can request a Temporary Orders. A Temporary Orders hearing is a contested trial where the Judge hears evidence from each party and issues interim orders resolving the disputed issues. The format is essentially the same as a final trial – the only difference is that the ruling only affects immediate, interim issues; final determinations like the division of property are not addressed in temporary orders.

Note: This is often one of the most critical stages of the entire divorce process, particularly in counties where the same judge will preside over the case from beginning to end. It is ordinarily the judge’s first opportunity to meet the parties and hear evidence about their children and finances. While temporary orders are, by definition, temporary, a bad first impression or lack of preparedness could easily impact the final outcome of the case. Some parties make the mistake of waiting until the last minute to hire an attorney, which negatively impacts the lawyer’s ability to effectively represent their interests in Court. Having an attorney from the very beginning of the process puts clients in the best position to effectively present their case.

Temporary Orders are not required if there are no interim disputes. Some parties choose to maintain the status quo while the case is pending by remaining in the same home, continuing to pool their resources and share expenses.

Discovery 

Discovery is a general term for the process of exchanging information about the parties’ claims and defenses in a divorce. The law is designed to make sure each party has full access to the information they need to negotiate a settlement or present their case at trial. The amount and type of discovery tools used varies from case to case and depends on factors like the nature of the issues in controversy, the level of information already available to each party, the length of marriage, etc. Some of the more common methods of discovery are:

  • Requests to produce documents, such as bank and credit card statements, business records, tax returns, phone records, and email correspondence.
  • Requests for the disclosure of the legal and factual bases of claims and the identity of potential witnesses
  • Requests for records from third parties like law enforcement, CPS, and mental health professionals
  • Oral depositions of parties and witnesses

Most cases require some level of discovery before the parties can begin finalizing the case. Even in uncontested cases there is certain information that an attorney must have in order to effectively negotiate a settlement. For instance, it’s almost always necessary for the parties to exchange sworn inventories and appraisements of their property and debts to ensure all of the assets and debts are divided in the final decree.

Mediation

 

There are several methods for resolving disputes out of court (generally known as “Alternative Dispute Resolution”), but mediation is the most common in divorce cases. Many counties require that the parties attempt to settle in mediation before permitting them to conduct a final trial. Mediation is a formal process where a trained, neutral mediator facilitates settlement negotiations. In most mediations, the parties are in separate rooms with their respective attorneys and the mediator facilitates the negotiations. If the parties reach an agreement, they sign a binding Mediated Settlement Agreement (MSA). Once signed, mediated settlement agreements are not revocable.

Final Trial or Divorce Prove-Up

If the parties fail to reach an agreement on some or all the issues in their case, they will have to appear in court for a final trial. There are two types of final trials: bench trials and jury trials.

Bench trial: A bench trial is a trial where the judge hears all the evidence and makes a ruling on all issues in the case. Most divorce trials are bench trials.

Jury Trial: In a jury trial, the lawyers selected a panel of jurors to hear the evidence and the jury then issues a verdict on some or all the issues. Family cases are unique because there are some issues only a judge can decide. This means jury trials in family law are frequently a hybrid of a traditional jury trial and a bench trial, meaning the judge decides some issues and the jury decides the others. Jury trials usually require far more time and preparation, which means legal fees are usually much higher when a party requests a jury trial. For these reasons, jury trials in divorce cases are rare.

 Divorce “Prove-Up”

If the parties settle their case, it is still necessary for at least one of them to appear in Court and “prove-up” the divorce. Most courts conduct an “uncontested docket” at the very beginning of the day for agreed cases. There is a list of “prove-up” questions that the attorney asks the client to show that all the requirements for finalizing the divorce have been met. The Judge then grants the divorce which is when the divorce is official.

 

Final Decree of Divorce and Closing Documents

 

Once the case has been resolved through mediation or trial, the final step is the entry of the Final Decree of Divorce and other closing documents.

Final Decree of Divorce

The Final Decree of Divorce (“Decree”) is the document that specifically sets out the details of the divorce. It contains the terms for conservatorship (parenting rights and duties), the possession and access schedule, and terms for child support and medical support. It also includes a detailed, itemized division of assets and debts.

Closing Documents

This is a general term for a wide variety of documents that “give effect” to the parties’ divorce. For instance, in some divorces the parties need to sign deeds to transfer real estate or powers of attorney to transfer vehicles. When the parties are dividing retirement accounts, they often need a very technical order that tells the plan administrator how to divide the account. In child support cases it is customary for the court to issue a wage-withholding order so that support funds are withheld from the paying parent’s (obligor) paycheck. The attorneys usually agree on who will draft which documents when the case is settled, or the judge will assign those responsibilities at the conclusion of a trial.

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