| HOW
A TEXAS DIVORCE CASE WORKS
If your questions are not answered by reading this
article and the other 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 they get the information and expertise
that shows them how their potential divorce or family
law situation may play out as their real life case.
Feel free to call us to set up an appointment. 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 and support will be
determined at the same time. In other words, it all
happens at the same time in the same proceeding.
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.
This petition is filed with the District Clerk, 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 five. 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 six District Courts that handle family
law cases as well as the other types of cases. 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 means of delivery is by having a Sheriff, Constable,
or private process server hand your spouse the petition
and a Citation. 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 deliver
or mail the papers to your spouse. However, this cannot
be done if you have requested a Temporary Restraining
Order or a 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
There may be a need
for court orders between the date the divorce is
filed and granted. You may need a temporary restraining
order (TRO) and temporary injunction to prevent the
transfer or disposition of property and/or to prevent
harassment. A TRO and a temporary injunction give
the same relief which, often times is intended to
maintain the "status quo" and
preserve property. 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.
Temporary orders may also be needed to determine which
spouse shall remain in the family home, the payment
of bills, conservatorship and support of the children,
attorney's fees, and the filing of inventories, production
of documents, and other matters such matters as living
arrangements for your children, schedule of parental
contact with the children, spousal support, use and
possession of property and other assets; and possible
restrictions on contact with the other parent.
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 of the date of filing. 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 special judge called a "Master" or "Associate
Judge" will hear evidence and make the appropriate
orders.
DISCOVERY
Discovery is the process where one side learns what
is relevant to the lawsuit. Some common formal discovery
methods include Requests for Disclosure (general information
about the claims being made) depositions (oral testimony
before a court reporter); interrogatories (written
questions); requests for production of documents (such
as tax returns, bank account records, deeds, 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 what they know. It is problematic
trying to resolve a case without knowing the facts
that are necessary to finish 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. 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.
Mediation is a very useful aid in helping reach a settlement.
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. The ruling, however
initially announced by the Judge, will 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. In most situations, this is the end
of the Divorce case.
Even if there is a
complete agreement of the parties on all parts of
the divorce action that are all contained in a proposed
Decree of Divorce, at least one of the parties must
appear before the Judge and give sworn testimony
that the Judge determines meets the legal requirements
for the Judge to be able to say the magic words "Divorce
granted, and all agreements approved."
MARITAL LIABILITIES
All liabilities of the parties should 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.
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. Useful
tax traps to avoid are listed here.
ATTORNEY'S FEES
Each party is responsible for their own attorney's
fees and costs of litigation. It may be treated as
a marital debt and divided like all other property
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.
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, 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. Name changes 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.
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 specialty, full time divorce and family
law courts, and also 7 full time associate judges;
so in effect, Dallas has at least 14 Courts running
at the same time. Tarrant County also has specialty
family law courts (6) and associate judges for each
of them. Both Collin County (8 District Courts- two
new ones opening in the last year) 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.
Hence, you case may be handled differently depending
on where it is filed, and the way each individual Court
arranges its docket. While there is virtually no chance
of getting 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.
OTHER ISSUES
Other articles talk 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:
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