Step 1. The divorce case is initiated when someone files a pleading with the District Clerk’s Office requesting a divorce (and likely, some other relief, as well as the divorce). This person has the legal designation of “Petitioner,” because he or she is petitioning the court for a divorce. The petition must be filed in a county where at least one of the parties has resided for the last ninety (90) days, and that party must have also lived in Texas for the immediately preceding six (6) months;
Step 2. The other party (the “Respondent”) must be brought into the case. This can be done by having a constable, or other approved party, serve papers to this party; or, by having the Respondent sign a Waiver of Service (note: there are specific requirements for what must be contained within this waiver in order for it to be valid);
Step 3. If the Respondent does not file a valid waiver with the court, then he or she should file at least an Original Answer to the petition, so that he or she does not lose the case by default. There are certain specific requirements for this Answer to have, in order to be valid. The Respondent should, also, consider filing a countersuit for divorce, to make sure that the case goes forward unless both parties wish to stop it;
Step 4. There may (or may not) be a need for the court to enter some “Temporary Orders,” to govern the case while it is pending. Such Temporary Orders might have: provisions for child support; schedules of each parent’s right to have possession of the child or children; an award of the exclusive use of property while the divorce is pending; and a listing of the rights and duties that each parent has for the child or children. Temporary Orders can, also, deal with other topics, such as the sale of a house, or award of Temporary Spousal Support.
Step 5 The parties should exchange information with one another concerning their children’s healthcare providers, medical records, and school records; also, the property (both assets and liabilities) should be listed by each party independently, and then exchanged with one another, so that each one can compare the lists made by the other party. This exchange of information can be done informally, if there is trust between the parties, or formally, via discovery requests which are signed, notarized, and sworn to, when there is not such trust present.
If the case goes to trial, then the court will require that the listing and appraisal of property be in the form of a Sworn Inventory & Appraisement, which, as its name implies, is to be sworn to by each party who prepares that document.
Step 6. The parties can discuss reaching an agreement on the issues of the case. If such an agreement is reached, then it can be incorporated into a Final Decree of Divorce. Just like with the other documents discussed in this piece, there are specific requirements for that Decree to have in order to be valid and enforceable.
Step 7. If a full and final agreement has been made by the parties, then the Final Decree of Divorce can be presented by one or both spouses to the court. At least one of them will need to testify to certain specific things to indicate that the court has jurisdiction; that the grounds for the divorce are present; information about any children born during the marriage, and the provisions of the decree that address those children; justification for the award of property; and qualifications for a name change, if the wife is seeking one. And, of course there can be other provisions in the decree which would need to be testified about. Each court has its own specific days and times when it will hear such testimony.
Step 8. If no full and final agreement on all issues is reached, then the case will need to be set for trial. Most courts require that some form of Alternative Dispute Resolution be used by the parties prior to trial. If the case is tried, then the formal rules of civil procedure and evidence must be followed. And, the court is prohibited from advising a party how to try the case, so that will need to be figured-out prior to trial.
This piece hits just some of the highlights of a Texas divorce case. Your case might need to proceed differently than as discussed here. But, I hope that this provides you with an overview of what the process is all about.
And, to know how to get ready for a Texas divorce case, check-out “8 Steps to Take to Prepare for Divorce.”
As always, you are invited to let us know about any topic that you would like for us to blog on.