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How a Texas Divorce Case Works
If your questions about Texas divorce and family law, especially in
the Dallas area, are not answered by reading
this article and the other the materials on
the Website, you probably need a professional consultation
with a qualified, experienced divorce and family law attorney.
Many people find that the cost of such a professional
consultation saves them months of potential
hassle and grief ( and many times, considerable expense) as they get the information and expertise that shows them
how their potential divorce or other family law situation may play out in their real-life case.
(Some may think of this as getting advice "under the radar" where detection by
their spouse is unlikely.) Feel free to call us to set up an appointment.
Our lawyers have credentials and experience unsurpassed. In some
instances, we may be able to arrange for a telephone
consultation.
ORIGINAL PETITION
- In Texas, the Court cannot grant a
divorce without disposing of property issues.
Additionally, if children were born to or adopted during
the marriage, orders concerning their conservatorship (custody) and
support will be determined at the same time. In other words, it all
happens at the same time in the same proceeding (for lawyers-- no
bifurcation). Of course, the Court must have jurisdiction to grant a
divorce, which is based on one or both parties domicile and residency in not
only the State of Texas but also in the County where the action is to be
filed.
The divorce process starts with the filing
of a document entitled Original
Petition for Divorce.
This may be 2 pages or 40 pages, depending on your
circumstances and the relief you request. As a general
rule, you are not required to sign the petition unless
you are acting as your own lawyer. Accordingly, if you
want to review it before it is filed and delivered to
your spouse, please let your lawyer know. The Petition is
required by statutes to contain certain information and
must also include certain representations by the party. For instance, if
there is a premarital agreement between the parties, it should be called to
the Court's--and the other side's-- attention in the first pleading.
This petition is filed with the
District Clerk in most counties, and your case is assigned to a Court.
Each county has one or more courts handling family cases.
In Dallas, there are seven Family Law District Courts. In
Ft. Worth, there are also seven. The filing of cases is random.
Your lawyer cannot select the Court or the Judge. In
other counties, the courts that handle divorces also
handle general civil cases and also criminal cases; for
instance, Collin County has eight District Courts that
handle family law cases as well as the other types of
cases; Denton County has six. In some smaller counties, a County Court at Law may also handle
divorce and family law matters.
After processing at the Courthouse,
the Original Petition for Divorce must be delivered to
your spouse. The most common formal means of delivery is by
having a Sheriff, Constable, or private process server
hand your spouse the petition and a Citation. This is called "service." Citation is
essentially a cover sheet that tells your spouse a
lawsuit has been filed, and there is a limited number of
days in which a response must be made. In some instances,
you may wish to personally deliver or mail the papers to your
spouse. However, this cannot be effectively done if you have
requested a Temporary Restraining Order or a hearing, because you can
not show that your spouse has been legally served with notice to be at
the hearing.
Additionally, if your spouse does not waive service or
file an answer in Court, your delivery does not
constitute effective service, and this would have to be
accomplished before your case could proceed.
TEMPORARY ORDERS
- Either party in the divorce lawsuit may feel a need for court
to issue orders
between the date the divorce is filed and when the divorce is granted,
which are called temporary orders that are effective while the divorce
proceeds. Another order, which can be issued by the Court upon request
and without notice to the other party, is called a temporary restraining order (TRO)
and prevents the transfer or
disposition of property and/or to prevent harassment or other specific
actions. (A more specialized type of restraining order is a Temporary
ex Parte Protective Order, which prevents acts of violence but will be
issued only after the court hears sworn testimony about the acts of past
family violence and the prospect of such continuing.) After a hearing, a TRO
can become a temporary injunction, both of which grant the same relief
which, often times is intended to maintain the
"status quo" and preserve property, or "the peace" between the
parties. A TRO is
only good for 14 days, and is granted without notice to
your spouse or a hearing. A temporary injunction is
granted after notice and hearing (or agreement), and
remains in effect until your divorce is granted.
Realistically, temporary injunctions are routinely
granted upon request, and are made mutual as to the
parties. In extreme circumstances, the Court may consider the granting
of a Protective Order, which not only has the powers of a TRO, but also gets
law enforcement involved if there is any question about a violation of the
order.
The Dallas Family Courts have implemented a standing order that is
applicable in ALL divorces and family law cases when they are filed.
The Dallas Family Courts standing order grants uniformly much of the relief previously only
available with a TRO, and was amended in January, 2007. Collin County has also implemented a similar
standing order in family law cases. So has Denton County. Check with your lawyer so that you will know
what YOU are prohibited from doing as soon as YOU file for a divorce.
Temporary
orders can also determine which
spouse shall remain in the family home, mandate the payment of bills,
the conservatorship
(custody)
and support of the children, payment of attorney's fees, the filing of sworn inventories,
production of documents, and other matters such matters as living
arrangements for your children, schedule of parental possession of the
children, spousal support, use and possession of property and other assets; and possible restrictions on contact with the other
parent. The custody, or conservatorship, of the children is NOW called a
"Parenting Plan" likened to terms and conditions used in most other states.
A specimen parenting plan is
here.
New legislation effective in 2007 eases some of the quirky
requirements for parenting plans.
If you have obtained a Temporary
Restraining Order or requested a hearing for temporary
orders, the Court will set a hearing to
occur within days or weeks of the date of the request for the hearing. If an agreement
is not reached with your spouse concerning temporary
matters before the scheduled hearing, it will be
necessary for you to appear in Court at
that time and give testimony. Your lawyer will give you a
form entitled "Financial Information Statement" for use at that hearing, and will
explain to you what your court appearance may be like. In
Dallas and Ft. Worth, a "Associate Judge" will
hear evidence at the temporary hearing and make the appropriate orders.
CHILD RELATED ISSUES
As mentioned, if there are children involved in the
divorce, the Court must deal with the child issues at the same time.
For ease, information about child issues is contained in the following
pages:
- Texas Child Custody Issues
- Texas Standard Possession Order
- Texas Child Support Issues
- Texas Parental Relocation
DISCOVERY
- Discovery is the process where one
side learns from the other side what is relevant to the lawsuit. Some common
formal discovery methods include Requests for Disclosure (general
information about the claims being made and who knows about them) depositions
(oral testimony before a court reporter); interrogatories
(written questions); requests for production of documents
(such as tax returns, bank account records, deeds, vehicle titles, loan
documents, credit card statements, etc.);
or requests for admissions. Whether your lawyer utilizes
these methods will depend on a number of factors that
they will discuss with you. If you are served with
discovery requests or a notice to take your deposition,
your lawyer will guide you accordingly. Your lawyer
learns from you what you know. Your lawyer can request
from the other side that they disclose what they know as part of
discovery requests. It is problematic
trying to resolve a case without knowing the facts that
are necessary to evaluate the case. A major issue in many
cases involves the valuation of property and how to
divide it. Discovery helps in understanding what the
property is (or was or should be). You have to know what
there is to divide before you decide how you would like
to divide it. This often mandates the preparation of a Sworn
Inventory and Appraisement by both parties where each lists all the
property and debts and their opinion of values and of claims, including any
claims of separate property. A case study about tracing separate
property is Tracing
Assets..... Excerpt from The Divorce
Lawyers. Discovery may also be accomplished on a
voluntary, or informal, basis. It is generally cheaper but there are some
caveats of which your lawyer will be aware.
SETTLEMENT OR TRIAL
- Once each side is fairly comfortable
that they have enough information, obtained through
Discovery, probably including a Sworn Inventory and Appraisement, the
parties should try to resolve their case, preferably by
agreement. Direct negotiation
works in many cases. Mediation is a very useful
aid in helping reach a settlement. There are articles
on Mediation accessible from the HomePage.
Issues about Child Custody, Child Support, and Child Possession Schedule (complete with 2007 revisions) are covered in other articles
available from the HomePage.
- A different way of getting to resolution in a divorce
is Collaborative Law. This is a method where the parties and
their lawyers formally agree to resolve their case out of court and on a
voluntary basis. This method works in a surprising number of cases,
and is beloved by those clients who use it. Read the article
Collaborative Law- A Less Painful Way to
Divorce for more information.
- If there are issues that cannot be settled, either
party can request that the Court set the case for Trial. At the trial, the
Court will hear all the proper evidence presented to it and will make a
ruling, sometimes directly from the bench and sometimes after cogitating
about the issues for a period of time. (A glimpse of what a trial or hearing
may look and feel like is detailed in Your Day in
Court.)
- The standard for the Court to divide the community
(marital) property and marital liabilities is that it must make a "just and
right" division. The standard for the custody and other rulings
concerning the children is "best interest." Obviously there
can be a difference of opinion of what is "just and right" or in the "best
interest." Child related issues are covered in depth in other articles.
- The ruling in a trial, however initially announced by
the Judge, must eventually be put into a written Order usually called a
Decree of Divorce. It is the responsibility of the parties to produce the
proposed written order, and after proper procedures have been followed,
present it to the Judge for signature.
- Even if there is a complete agreement of the
parties on all parts
of the divorce action that are all contained in a proposed Agreed Decree of
Divorce (signed by all), at least one of the parties must appear before the Judge and give
sworn testimony. This is called a "prove up." If the Judge determines that the testimony meets the legal requirements
for a divorce,
the Judge will say the magic words "Divorce granted, and all
agreements approved," and will sign the Decree of Divorce. In most
situations, this is the end of the Divorce case.
MARITAL LIABILITIES
- All liabilities of the parties must also
be dealt with in the Decree of Divorce. However,
assigning responsibility for a debt to one party does not
necessarily mean that the other party is released from
responsibility for the debt. See the article How to Handle Liabilities for You, Your
Spouse and Your Children.
The article
includes the Chart that summarizes whose property
is liable for whose debts.
INCOME TAXES
- The same provisions for marital
liabilities apply to income taxes, except the Internal
Revenue Service is a much more formidable creditor. It
will be a rare case where you are not jointly and
individually liable with your spouse for all taxes for
any year in which you filed a joint return. This means
the IRS can pursue collection actions against either or
both spouses. Again, the terms of a decree ordering your
spouse to pay all income taxes is not binding against the
IRS, and does not prevent the assessment of penalties and
interest. Further, the IRS is not restricted by state
laws on exempt property. In some instances, they can
obtain the sale of your homestead to satisfy payment of
income taxes. Additionally, a debt owing to the IRS is
ordinarily not discharged in bankruptcy. Information to avoid tax traps
is
listed here.
ATTORNEY'S FEES
- Each party is responsible for their
own attorney's fees and costs of litigation (after all, they hired their
own attorney). Legal expenses may be
treated as a marital debt and divided like all other
property--and debt-- in the divorce. The Court also has the option to
require one party to pay all or any part of the
attorney's fees and costs for the other party depending
on their respective financial resources and the facts of
the case. Either party may request interim attorneys fees at a temporary
hearing.
SPOUSAL SUPPORT
- Texas Courts have limited authority to
order alimony after a divorce is granted. However, while
your case is pending, the Court has unlimited authority
to award temporary spousal support. The Court will
consider the needs of the requesting spouse and the
ability of the other spouse to pay. The Court will
additionally consider the health and age of the parties,
ability to work, responsibility for children,
availability of funds, and the length of the marriage. As
a general rule, temporary spousal support will be ordered for a
limited period of time and in an amount necessary to
cover the basic necessities of life. To receive alimony after
divorce, generally you must have been married for a
period exceeding 10 years, and in certain situations, you
may be qualified to receive up to $2,500 per month for a
maximum of three years.
NAME CHANGE
- You may request a change of your name
as part of your divorce action. This is commonly done by women who wish
to restore their maiden names. Name changes for a spouse are usually
granted even if there are minor children. If you think
you would like to change your name, it would best to do
so as part of your divorce. As a separate lawsuit, the
requirements are much stricter. A name change for a child is an uphill
battle unless it is agreed. It is unheard of for a husband to be able
to force his soon-to-be-ex to drop the married name
SPECIAL INFORMATION ABOUT DALLAS, COLLIN,
DENTON & TARRANT COUNTY CASES
- The Dallas-Ft. Worth area is one of the
fastest growing areas in the country, and each county has
chosen a different way to deal with the increasing number
of family law cases filed. All will order Mediation if
requested; some order it anyway, depending on the Judge.
Dallas has 7 full time specialty divorce and family law
courts, and also 7 full time associate judges; so in
effect, Dallas has at least 14 family Courts running at the same
time. Tarrant County also has specialty family law courts
(7) and associate judges for each of them. Both Collin
County (8 District Courts) and Denton County (6 District
Courts), where the real phenomenal growth has been, have
general jurisdiction Courts that hear civil and criminal
cases as well as family law cases. Therefore your case may be
handled differently depending on where it is filed, and
the way each individual Court in that county arranges its docket. While
there it is difficult to get a contested case
to trial in less than a year in one (unmentioned) County;
contested cases have been seen in trial in as little as
three months elsewhere. The time from the request for a trial to
the date the trial is set or scheduled is often a function of the time
requested to try the case in court. The longer the trial is expected
to take, the farther off it is likely to be scheduled. But most cases ultimately end up being agreed
without the risk and expense of a full blown trial,
and can be finalized anytime the agreement and the parties are ready.
- Each county may have special local rules in
addition to the Texas Rules of Civil Procedure. The Dallas Family
Court rules are
here, the
Collin County rules are
here, Denton
County's are
here, Rockwall County's are
here and Tarrant County's are
here.
- The Dallas Family Courts have implemented a standing
order that is applicable in ALL divorces and family law cases when they are
filed. The standing order grants relief intended to preserve the
financial and property status quo and protect the children. This standing
order often eliminates the need for a temporary restraining order, and
therefore tends to save the clients money. The Courts in
Collin County,
Denton County, and
Rockwall County have also
implemented a similar standing order.
OTHER
ISSUES
Other articles explain more in detail about
some of the information discussed here, as well as covering other
topics such as child support and child custody. Some of the
Articles include:
These and other Articles listed on
the Family Law Articles page contain more in-depth explanations of the topics
covered.
If your questions are not answered by reading the materials on
the Website, you may be in need of a professional consultation
with a qualified, experienced divorce and family law attorney.
Many people find that the cost of such a professional
consultation saves them months of potential
hassle and grief as it gets them into the ballpark of reality of
how a potential divorce or family law situation may develop into
a case. Feel free to call us to set up an appointment. In some
instances, we may be able to arrange for a telephone
consultation.
©1997-2008 Raggio & Raggio, PLLC
Voice: 214.880.7500
all rights reserved. See Disclaimers on
Home Page
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Any use of this article must
give attribution to the authors, Raggio & Raggio, Dallas, Texas, and any
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11/23/08http://www.raggiolaw.com/txart06.html
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