Divorce Lawyer in Spring TX
The major milestones in a divorce case in Texas
- Best case scenario.
Divorce petition, which starts the case and gets a case number and court assigned, begins the process. The petition does not divide property or determine custody of children, or decide any of the divorce issues. It is simply a written request to be divorced, and usually contains the petitioner’s request for who should have custody, how property should be divided, etc. It can also be generic and merely state that it is expected that the parties will agree on those issues. The petition is filed in the District Clerk’s office of the county in which one of the parties has lived for 90 days or more and in Texas for six months or more. The court cannot grant a divorce, even if all parties agree, until at least the 61st day after the original petition was filed. After the 60-day “cooling off” period, if all parties have agreed and signed all necessary documents, including a divorce decree, waiver of service, and other required documents, the court will set a date for the petitioner to appear with his or her attorney, hand the documents to the judge, and give some simple, brief testimony to the judge announcing the agreement. Date of the setting is determined by the particular court which has jurisdiction of the case. For example, in Harris County, the family courts hear most cases on a first-come, first-served basis beginning at about 8:30 a.m. It is not necessary to set the date in advance. In Montgomery County, it is necessary to contact the court and get on the court’s docket, which can usually happen about two weeks after the request is made for a hearing. This “best case scenario,” where everyone has agreed and signed, is the easiest, least expensive way to get a divorce.
- Next best case scenario.
If the respondent, or the person who is the spouse of the filing party, will not sign the divorce decree, it will be necessary to give the respondent official notice that the divorce is pending. This must be done by a person with the authority to do so and cannot be done by the other spouse, the spouse’s attorney, etc. A person cannot get a divorce in Texas unless the respondent has either signed the divorce decree and a waiver (or filed an answer to the divorce suit), or has been served by a person with the authority to serve papers in Texas. Sometimes a person with authority is a private process server and other times it may be a constable or sheriff’s deputy. However, even if the papers are served by a law enforcement official, the act is not of a criminal nature. It is the right of the respondent to have official notice, and service of process if merely giving official notice of a lawsuit to a respondent. The serving person will have a copy of the original petition which started the suit, with an instruction sheet attached from the District Clerk where the suit was filed, and will hand that document, along with the instructions, to the respondent. There are many other alternative methods of service if, for example, the respondent cannot be found or evades service, but the process described here is the simplest and most common. If the 60-day “cooling off” period has passed since the original petition was filed, and the requisite number of days has passed since respondent was served (the Monday following twenty days after service), the judge may take testimony from the petitioner and grant the divorce without the respondent present. The requirements for notification to the respondent, if any, differ from court to court.
- A not-do-good scenario – contested divorce.
What if the respondent files a timely written response? Now you are into what family law attorneys call a “contested” divorce. Depending on the court in which the divorce is pending, the petitioner must either request a trial date or, in some courts, the court will automatically docket the case for trial. Either way, the trial date is usually several months away to allow time for other legal actions which either party may choose to take. If at any time prior to the trial date, the parties agree and sign a divorce decree settling all issues, either party may appear before the court with the documents and present them to the judge with a brief hearing announcing the agreement.
- A really “contested” divorce.
If time passes and the trial date is approaching and all efforts to reach a settlement have failed, it is time to begin to prepare for trial. At least sixty days prior to the trial date, attorneys must exchange information, a process known as the “discovery” phase. Witness lists, inventories of property, interrogatories (or questions) about the issues and a party’s position on the issues, and requests for documents are all part of the “discovery” phase. The Texas Rules of Civil Procedure set certain deadlines for when this information can be exchanged and what must be exchanged. Going into trial without doing discovery is equivalent to going into a major battle without knowing what weapons your enemy will have, the number of soldiers involved, etc. Usually after the discovery phase has been completed, the mediation phase begins. Because of the great number of divorces which occur, most courts in Texas will not allow the parties to appear for trial unless they have first been to mediation. Mediation is the process in which the parties and their attorneys meet with a neutral party trained to help litigants reach a mutually-satisfactory agreement. If the parties reach an agreement and sign the appropriate papers, no contested trial will be necessary. While attending mediation maybe mandatory, reaching an agreement is not, however. If the parties cannot agree, they are entitled to a trial at which a judge decides the contested issues.
- Temporary Orders – a “separation” order issued while the divorce is pending.
What if I need to get child support started, or want my spouse to leave the house, or want certain rules in place about how money can be spent and waiting months for a trial date is too long? Your attorney may request a temporary orders hearing, which is similar to a mini-divorce hearing, except that the rulings made last only until the full trial of the case at a later date. Depending on the court procedures, a temporary orders hearing can usually be had within three-four weeks after the request is made.
These are the major milestones in most divorce litigation in Texas. While there can be a number of other motions, etc., these are the most common.
What does a divorce court actually do?
Divorce courts usually do only two things, although those two things can take many forms and range from quite simple to extremely complicated. The two things are, divide community property and make orders regarding children who have not yet turned 18 (the court’s jurisdiction over a child ends when the child turns 18, except child support, which ends either at age 18 or when the child graduates from high school, whichever comes last).
Community property is property accumulated by the parties during the marriage. Note that those items which were acquired before the marriage, or were given to a party, or which the party inherited are not community property. It is the burden of the person claiming property is not community to prove that it is not.
Regarding children, judges give the parties a label – usually but not always “Joint Managing Conservator;” decide the rights and duties of the parents, such as which parent the children will reside with, who has the right to take the children to the doctor or psychiatrist, etc.; and various other rights and duties; determine child support, which is usually according to a formula prescribed by the Texas Legislature; and decide visitation for the non-custodial parent. In addition to the two things mentioned, the Courts also, as a result of fairly recent litigation, may order post-divorce alimony (known in Texas as “maintenance”) for either party. As Texas is what is known as a community property state, alimony is still rare in Texas and the rules under which a Court may order it are quite restrictive.