Divorce Process in Texas
The Divorce Process in Texas
- Divorce Petition: The divorce process is initiated by one spouse filing a Petition for Divorce with
the District Court of the county he/she resides in.
- Petitioner: spouse who files the Original Petition for Divorce, which establishes the divorce matter.
- Respondent: the spouse that did not file the Petition, who must be served with the Petition by a process server, unless he/she opted to sign the Waiver of Service.
- Waiver of Service: a document drafted by the Petitioner's attorney, which states that the Respondent has received the Petition, is aware of the divorce filing, and specifies the Respondent's obligations and rights.
- Answer: After the Respondent has been served with the Petition, he/she must file a formal Answer in response to the Petition, no later than the first Monday after the expiration of 20 days from the date of service. If the divorce is by agreement, and a Waiver of Service was signed, no Answer should be necessary.
- Failure to Respond: if the Respondent fails to file the Answer in response to the Petition, he/she risks losing the divorce lawsuit by default, and thus will have no input in the terms of the divorce (i.e. property division, child support, child custody, etc.).
- Counter-Petition: the Respondent may also file a counter-petition seeking court action on any issues that the Respondent could have sought if the Respondent had filed the divorce proceeding instead of the Petitioner.
If the divorce is by agreement, and the Respondent trusts that his/her spouse will not file a default judgment, it is not necessary to file a formal Answer, but may be recommended.
After the Petition(s) and Answer(s) have been filed, the parties may begin discussing and/or negotiating the terms of the divorce. •
- Negotiation Process: typically occurs between a) only the attorneys representing the parties, one party's attorney & the opposing spouse, or between the spouses alone. In many amicable divorces, the spouses opt to discuss the details amongst themselves, and once an agreement is reached, they inform their attorney's of the conditions- this method significantly reduces the cost of the divorce.
- Time Frame: Texas law requires a "cooling off period" of 60 days, and therefore the actual divorce decree cannot be filed anytime any time prior to 60 days after the date the Petition was filed. However, in most cases, it takes longer than 60 days to reach an agreement on the terms of the divorce, particularly when children are involved. Other factors that may delay the process are family owned businesses, complicated or extensive assets, tension or bitterness between parties (which can result in an unwillingness to compromise or agree).
- Temporary Orders: orders determined by the court that set the guidelines for issues such as temporary custody, visitation and child support, temporary and exclusive use and possession of property, and temporary spousal maintenance. These temporary orders remain in affect until the final judgment is reached (the divorce decree is finalized) or they are replaced by new temporary orders.
- Mediation: In the event that the parties and their attorneys cannot reach an agreement on specific
terms of the divorce, a common approach to resolution is hiring a mediator.
- Cost: mediators typically charge for either half-day mediation (4 hrs) or full-day mediation (8 hrs), with the cost ranging anywhere from $300-$1,500 per party, for an attorney mediator. You would also pay your attorney per hour for attending mediation.
- Process: typically, the attorneys and the parties involved will agree on a mediator, date and location for mediation. The parties may choose to mediate in one room, or separate rooms, with the mediator going back-and-forth between parties.
Grounds for Divorce
Neither party is required to prove grounds for granting the divorce beyond "insupportability", which means the marriage relationship has been severely damaged by discord and conflict, and there is no reasonable expectation of reconciliation. However, a party may seek to establish other grounds, such as fault in the breakup of the marriage or spousal abuse, particularly as those grounds may affect child custody arrangements and/or the division of the marital property.
Rules of Procedure and Venue
The rules of procedure and rules of evidence that are generally applicable to all lawsuits in Texas are also applicable to divorce lawsuits. The Texas Family Code states that either party may file the divorce suit in the county in which they reside, so long as one party has lived in that specific county for at least 90 days. If both parties live in Texas, the court in which the divorce suit is first filed acquires exclusive jurisdiction over other Texas courts.
A divorce lawsuit is ended by entry of a judgment, which is a final order signed by a judge, and is referred to as a divorce decree. The divorce decree dissolves the marriage and generally is a final resolution of the division of the property of the marriage between the spouses and spousal maintenance, if any. The issues involving the children, however, are not finally resolved by the entry of the divorce decree. Child custody, visitation, child support, and related issues may be modified by the court after entry of the divorce decree.
Attorneys Fees Awarded to Either Party by the Court
The Texas Family Code does not expressly provide for an award of attorneys fees by the court against one of the parties in a divorce suit that does not involve custody of or visitation with children of the marriage. However, Texas courts have determined that a court, in making a "just and right" division of the community property in the divorce, may award reasonable attorneys fees to a party. If the divorce suit involves custody or visitation, the court may render judgment for reasonable attorneys fees. Thus, whether attorneys fees are awarded to either party in a divorce is up to the discretion of the court.