GIVE ME MORE DETAILS!
If you are the type that needs more information about the entire process you are in the right place.
The most important thing is for you and your family to be safe. If you believe you are in danger it is necessary for you to contact someone who can help.
IN THE EVENT YOU OR ANY MEMBER OF YOUR FAMILY IS THE VICTIM OF DOMESTIC VIOLENCE, YOU SHOULD IMMEDIATELY CONTACT:
1 (800) 799-SAFE (1-800-799-7233).
YOU SHOULD ALSO LET YOUR ATTORNEY KNOW IMMEDIATELY IF YOU BELIEVE THAT YOU HAVE BEEN A VICTIM OF DOMESTIC VIOLENCE. DOMESTIC VIOLENCE CAN INCLUDE PHYSICAL, MENTAL, EMOTIONAL AND VERBAL ABUSE.
The Texas Family Code (Section 71.004) defines Family Violence as:
(1) An act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault or sexual assault, but does not include defensive measures to protect oneself;
(2) Abuse by a member of a family or household toward a child of the family or household; or
(3) Dating violence (as defined by Texas Family Code Section 71.0021.)
The Texas Council of Family Violence defines Battering (or Abuse) as:
A pattern of coercive control that one person exercises over another. Battering is a behavior that physically harms, arouses fear, prevents a woman from doing what she wishes or forces her to behave in ways she does not want. Battering includes the use of physical and sexual violence, threats and intimidation, emotional abuse and economic deprivation.
AN OVERVIEW OF YOUR DIVORCE PROCESS
Author: Betsy Figer Lambeth
Divorce is more than a legal proceeding; it is also a very emotional event. Failing to protect your rights during a divorce, as with any legal matter, can have serious, long-term consequences. You have a responsibility to read and understand everything presented to you. Your attorney can help you only if you communicate with her that you do not understand. The only way your attorney is going to know the particular facts regarding your divorce, is if you tell her. You MUST communicate your questions and concerns.
The most common issues resolved in a divorce include division of community property (and debt), determination of parental rights, and child support. This handbook provides a general introduction to the legal aspects of divorce.
THINGS TO KNOW BEFORE WE GET STARTED
Always keep in mind that a divorce is a legal proceeding and that at some point during a divorce proceeding, you will most likely have to appear in court. Although courtrooms are very formal places with their own rules for how people are to conduct themselves, there is no need to be afraid of going to court or addressing the judge. A few simple rules regarding manners should get you through your experience:
1. Always Dress Nicely.
There is no need to purchase new clothes to appear in court. However, everything you wear should be clean and well ironed. Men should wear pants and a shirt with a collar. If you have them available, a suit, jacket or tie always look good. Women should wear a dress, skirt or pants that are not too tight, too short or low cut. Never wear shorts, t-shirts, sandals, sunglasses, a hat or excessive make-up or jewelry to court.
2. Behavior.
All persons are expected to act their very best in the courtroom. When speaking in court, speak clearly, politely, and loud enough to be heard by the Judge and the court reporter. If the court reporter is making a transcript, all responses must be verbal (e.g., not by a nodding or shaking of the head). Never interrupt anyone, especially the Judge.
When addressing the Judge, refer to him or her as "Your Honor." When addressing or referring to anyone else, refer to him or her as "Mr.," "Mrs.," or "Ms." If the Judge asks you a question, always begin or end your answer with "Sir," "Ma'am," or "Your Honor."
Never read anything in court except court documents. Never eat, drink or chew gum in court. Finally, turn off all noise-making items such as cell phones or pagers or be certain to place them on silent mode. The court may confiscate your device if it makes noise during court.
3. Friends and Family.
Although you may want the support of your family or friends, you should not bring children to court. Children are often not permitted in court because they can be distracting to you, the Judge and other parties in the courtroom. But most importantly, Judges firmly believe that a divorce courtroom is no place for children.
MARITAL PROPERTY
Presumption of Community Property. Texas is a "community property" state. In other words, all property owned by married persons on the dissolution of a marriage, whether by death or divorce, is presumed to be the property of both the husband and the wife. Likewise, any debts incurred during marriage are presumed to be community debt. This means that the debts are presumed to be owed by both the husband and the wife. Like community property, community debt must also be divided in a divorce. The presumption of community property may only be overcome by clear and convincing evidence that certain property is separate, rather than community property. This is generally done by tracing and clearly identifying property as separate property at the "inception of title," or the moment when the property was first acquired.
Separate Property. Generally speaking, property acquired before a marriage and property acquired during marriage through gift or inheritance, or with funds that were themselves separate property, is separate property. Also, married persons may agree to "partition" community property, in which case, that property becomes each person's separate property.
Division of Community Property. Community property and community debt are supposed to be divided in a manner that the court "deems just and right, having due regard for the rights of each party and any children of the marriage." This does not mean that community property or debt must necessarily be equally divided and it often will not be. The judge dividing community property and debt may consider many factors, such as the size of your and your spouse's separate estates, and any fault in causing the divorce. Community property cannot always be easily divided. Take for example the situation where two people own a home and want to get divorced. The easiest solution would be for the Judge to order the parties to sell the house and divide the proceeds. However, now add children to the picture. The judge will often order that the spouse with whom the children will live be permitted to remain in the house with the children to permit the children to continue living in their home and upset their lives as little as possible. However, this does not mean that the other spouse loses his or her community interest in the house. The Judge may order that the house be sold and the proceeds divided after the youngest of the children reaches the age of eighteen. Another remedy may be to award full ownership of the house to the spouse with whom the children will reside, but give the other spouse the full interest in some other community property, such as a ranch, vacation home, savings account or a retirement account. As you can see from the example above, many factors go into a judge's decision regarding the division of community property. A common question among divorcing parties is: "How to I get my name off of the mortgage?" The quick answer is that you cannot. The judge can only make decisions regarding the rights of the parties to the case. The judge cannot alter the contractual rights of the mortgage company contained in your loan documents. Sometimes the parties will agree that the party awarded possession of the home will refinance within a certain period of time. More often, the parties cannot afford to refinance, so the party-in-possession will sign certain legal documents agreeing to pay the mortgage and granting the party-not-in-possession a lien on the house in the event of non-payment. The party-not-in-possession simultaneously signs legal documents giving the party-in-possession his/her community property interest in the house.
ISSUES CONCERNING CHILDREN
Child Custody. The court that handles a divorce proceeding also determines who shall have custody of any children from the marriage. The term "custody," in a divorce, often serves as shorthand for "who gets the children." The vast majority of parents are awarded "joint custody" in a divorce, meaning that all rights and duties concerning the children are shared. In every case, however, the court must ultimately decide what custody arrangement is in the children's best interest. The legal term for joint custody is Joint Managing Conservatorship, and this arrangement is presumed to be in the best interests of the children of the marriage. However, even in the joint custody situation, the court must designate one parent who has the authority to determine the location of the children's primary residence. This parent is called the Primary Joint Managing Conservator and also referred to as the "custodial parent," because most Primary Joint Managing Conservators will decide that the children's primary residence is in that parent's home. The other parent is called the "Non-primary Joint Conservator," because that parent has the right to possession of the children at certain times, and is commonly referred to as the "non-custodial parent." Aside from the decision regarding the location of the children's primary residence, most other major parenting decisions are shared between the Primary and the Non-Primary Conservator. The presumption under the law is that Joint Managing Conservatorship is in the best interest of the children. In rare circumstances, one parent may be appointed as the Sole Managing Conservator. In this case, the other parent is referred to as the Possessory Conservator. Generally, this occurs only if: (1) the other parent has been absent from the children's lives; (2) there is a history of physical, psychological, or sexual abuse or neglect by other parent; or (3) there is a history of extreme conflict between the parents over educational, medical, or religious values. However, this does not mean that the other parent loses his or her right to visit with the children. The only rights a Sole Managing Conservator has over a Primary Joint Managing Conservator relate to the sole right to make certain decisions regarding the children's lives, such as educational and health matters. Other legal custody arrangements that can be ordered at divorce include split custody, in which one or more children live with one parent while the remaining children live with the other parent, and divided custody, also referred to as alternating custody. This form of custody allows each parent to have the child for alternating blocks of time, often every year or two years, with equal visitation rights. Such legal arrangements are much less common. Judges are reluctant to order split custody, in particular, because of a firm belief that children should not be separated from their brothers and/or sisters. It is absolutely essential that you NOT discuss custody arrangements with your children, REGARDLESS OF THEIR AGES. The court seriously frowns upon parties discussing these matters with their children. If your children ask, simply tell them these are adult matters and you have requested the help of some professionals in this field that are going to help you and their other parent make decisions concerning them. Do not under any circumstance make disparaging remarks about the other parent or allow them to be made in the presence of the children.
Factors Considered by the Court in Making Child Custody Determination.
The following are the general factors used by the court in determining custody arrangements: the desires of the child; the emotional and physical needs of the child now and in the future; any emotional and physical danger to the child now and in the future; the parenting ability of each person seeking managing conservatorship of the child; the programs available to assist each person seeking managing conservatorship of the child in promoting the best interest of the child; the plans for the child of each person seeking managing conservatorship of the child; the stability of the home of each person seeking managing conservatorship of the child; the acts or omissions of each person seeking managing conservatorship of the child; which parent is better able to foster the relationship between the child and the other parent; and any excuse for the acts or omissions of each person seeking managing conservatorship of the child.
Supervised Visitation. If there has been a history of abuse or neglect, the court may require that any visitation by the abusive or neglectful parent be supervised.
The Right to Decide Where a Child will live. As discussed above, only one parent may have the right to establish the primary residency of the children. This location is often stated in the Final Decree of Divorce. Sometimes, a court will place limits on where the children's residence may be located. For example, courts will often order that the children's residence not be located outside of the county where the children resided prior to the divorce.
Standard Possession Order. Visitation arrangements can have many variations. In fact, parents may agree to almost any arrangements regarding child custody. However, if parents cannot agree, child custody will generally follow a schedule developed by the Texas Legislature that is designed to be fair and workable for both parents in most circumstances. In general, the Standard Possession Order ("SPO") provides that the noncustodial parent is granted visitation of the child beginning at 6:00 p.m. every first, third and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday, as well as every Wednesday evening, from 6:00 p.m. to 8:00 p.m. All holidays, including Thanksgiving, Christmas (winter) and spring break are divided between the parents, giving one parent the right to spend a particular holiday with the child every other year. The SPO also provides for the noncustodial parent to have thirty days with the child during the summer, or forty-five if the child lives more than 100 miles away from that parent. If you are the parent of an infant or child under the age of three, the court will determine an appropriate possession schedule based upon the individual circumstances of your case. Generally with an infant, the courts prefer short, frequent visits between the child and the non-custodial parent. The court may order a graduated parenting possession schedule changing as the child ages. Please ask my office for a copy of a graduated parenting plan if you have a child under the age of 3. You can begin to review the plan and prepare proposed adjustments to fit your individual circumstance.
Establishing Child Support. As noted above, the Primary Joint Managing Conservator, or the custodial parent generally has the right to receive child support on behalf of the child. The amount of support owed by the Possessory Conservator, or non-custodial parent will depend on the income of the non-custodial parent, as well as the number of children for whom the non-custodial parent has a duty to support (both from the marriage at issue as well as any other children). If there is only one child of the marriage and no children outside the marriage, child support will be set at 20% of the non-custodial parent's net income (after FICA, Social Security, and Medicare have been taken out). If there are two children, the child support will be set at 25% of the net income. If there are three children, child support will be set at 30% of the net income, and it will increase at 5% increments thereafter. No parent however, may be required to pay more than 50% of his or her net earnings to fulfill all of his or her child support obligations. These percentages are adjusted slightly when the non-custodial parent has other children from outside the marriage for whom the non-custodial parent must also pay child support. Also, factors such as whether the non-custodial parent is intentionally unemployed, or underemployed (not earning as much as he or she is capable) will be considered by the court. Finally, although child support is discussed in this manual within the scope of a divorce proceeding, a custodial parent, whether named as Primary Joint Managing Conservator, or Sole Managing Conservator need not have ever been married to the non-custodial parent to receive child support.
Employer's Order to Withhold. Many Texas courts require that an Employer's Order to Withhold be signed at the time that a divorce with children is finalized. An Employer's Order to Withhold orders the employer of the non-custodial parent to take the child support owed directly from the non-custodial parent's paycheck. Although it may take a few weeks to get the process started, once it is up and running, the Employer's Order to Withhold often makes the process of paying child support smooth and simple. All child support payments are then sent by the employer to a central processing center where the checks are processed and submitted to the parent to whom the support is owed.
Modifying Child Support. In order to request a change, the parent who is requesting the modification must file a Petition to Modify, in which he or she seeks modification of the Final Decree of Divorce. Unless there is a material and substantial change in circumstances, such as the non-custodial parent getting a really big raise, or the child suddenly requires additional support due to illness, child support may generally only be modified every three years, and then, only if the amount of the child support payment would increase or decrease by 20% or $100.00.
GETTING STARTED
Filing the Petition: The spouse who files for divorce is called the Petitioner. The other spouse is called the Respondent. If you have hired my office prior to being served with a petition for divorce, I will prepare and file the petition. In order to be able to file for divorce in Williamson County, Texas (i) you and/or your spouse must have lived in Texas for at least six months before filing for divorce; and (ii) you and/or your spouse must have lived in Williamson County for at least ninety days.
Although most divorces in Texas are "no-fault," sometimes, but rarely, parties will plead grounds such as cruelty or adultery in order to gain a tactical advantage, especially when one person is seeking an unequal division of the community estate. I will exercise extreme caution when determining whether to plead specific grounds for divorce, however.
I will obtain from you the appropriate information to include in the Original Petition for Divorce (the "Petition"). After I have prepared the petition I will file it, along with three extra copies, and the appropriate filing fee, with the District Clerk's office of Williamson County, Texas. The clerk will date stamp and file the original, and will date stamp the copies to show the date and time the Petition was filed. The original will be assigned a "cause number" that will be listed at the top of the Petition. I will mail you a copy
Notifying Your Spouse: The second step is to legally notify your soon-to-be ex-spouse (the "Respondent") of the Petition for divorce. I must serve the Respondent in one of the following ways: (1) have the Respondent sign a waiver of citation; (2) hire a private process server or a county constable to personally serve the Respondent with a "citation," which is formal notice of the filing of the Petition for divorce prepared by the District Clerk; or (3) if, after a diligent search, you cannot locate the address of the Respondent, you may request that the court order that Respondent be served by publication or posting.
The first and easiest method of legal notice to the Respondent is through a Waiver of Service. A Waiver is only valid if it is signed by the Respondent after the Petition for divorce has been filed with the court and the Respondent has been provided with a file-stamped copy of the Petition. . If you anticipate that the divorce will be amicable, then I attempt this manner of service first. I will mail a copy of the petition, a waiver of service and a letter to your spouse, requesting your spouse review and sign the waiver of service. If your spouse does not return the Waiver of Service within 10 days, I will have them formally served by a process server. Once the waiver has been signed by the Respondent, I will file the waiver with the District Clerk's office.
The second way to provide legal notice to the Respondent is to personally serve the Respondent with the citation. This will generally involve some type of fee. I will need your spouse's current home and work address for this type of service. The District Clerk will then issue a citation and I will forward a copy of your Petition to a process server who will formally serve the Respondent.
The third method of notifying the Respondent of the Petition for divorce is by posting or publication. This method requires a Court order and will only be used if we have tried everything possible and cannot locate the Respondent. Service by posting is done usually when no children or property are involved in a divorce. The District Clerk will be asked to post the citation at the courthouse. After a certain amount of time has passed, the clerk will notify the court that service by posting has been completed. Service by publication is done in the newspaper in the city where the Respondent was last known to have resided. To obtain service by publication, request that the District Clerk issue publication in the particular newspaper authorized by the Court. You will be responsible for any fees charged by the newspaper. Once the publication is complete, I will file proof of the publication with the District Clerk's office.
The Answer: Once the Respondent has been notified of the Petition for Divorce, whether through Waiver of Service, Personal Service of Citation, or publication, the Respondent's deadline to file an answer is the Monday following 20 days after date the Respondent is served. However, in a divorce, an Answer is still considered valid as long as it is filed before the divorce is final. Once the Respondent files an Answer, he or she is entitled to receive notice of all court hearings and to be present in court for any proceedings in the case. If, at the time you hire me, you have already been served with a petition, I will file an answer on your behalf.
Temporary Restraining Order. If your spouse has committed family violence against you or your children or you believe that your spouse may dispose or move assets, you should immediately notify me. If you are concerned about your physical safety or the safety of your children you must tell me. If family violence has occurred there are additional protective measures we can take. If we obtain a temporary restraining order ("TRO") the order will be issued without the ability for your ex-spouse to be present. Because your spouse was not afforded the opportunity to be heard by the Judge, Texas law requires that the TRO be effective for a maximum of 14 days. A hearing will be held within those 14 days, where evidence will be presented. Quite frequently the court's docket is too full and the TRO is extended for an additional 14 days. A hearing will generally be held during that second 14 day period. At the hearing the court will issue Temporary Order on the matters as discussed below.
Temporary Orders. After a Petition for divorce has been filed, the Court, on its own motion, or the motion of either party, after notice and a hearing, may grant temporary orders. Temporary orders set out the "ground rules" for the parties' conduct during the waiting period with regard to such matters as the preservation of property, the protection of both parties, and issues pertaining to the children such as child support and visitation. This is a very important phase of your case. If you and your ex-spouse cannot reach an agreement on these issues you and I will spend time (and money) preparing for the hearing.
At this time you will need to have completed the Proposed Support Decision - Temporary Orders, Proposed Disposition of Issues - Temporary Orders. These forms should have been given to you at the time you hired me. Several of these documents are required by the court to be exchanged with the opposing side and presented to the court prior to the hearing. If the temporary orders hearing is anticipated to take more than three hours, the court will generally require the parties to attempt mediation.
Middle of the Case (the "Waiting Period"). A Court cannot grant a divorce until the Petition for divorce has been pending for at least sixty days. This time period begins to run on the date the Petition is filed with the Court. This "waiting period" serves many purposes. Sometimes it permits the parties to "cool-down" and possibly reconcile. This period is also used to gather information regarding the parties, the children and the assets of the couple.
At this point in your case you will need to have completed the Inventory and Appraisement, Proposed Disposition of Issues, Proposed Property Division- Large Property Items, and Personal Property Items, Proposed Support Decision. It is absolutely essential that you complete these forms timely and completely. The thoroughness with which you complete these documents will directly affect the costs of this divorce for you. The more thoroughly the forms are completed the less time is required of me to prepare the case. We will have plenty of opportunities to revise these documents as the case proceeds. I just need for you to think about what it is you want in the divorce.
Generally, it is hoped that the parties will use this waiting period time span to reach an agreement regarding the specifics of their pending divorce. Reaching an agreement with your soon-to-be ex-spouse during the waiting period can prevent an outside party (usually a judge) from making decisions regarding your life, property and relationship with your children. If the Respondent files an Answer or makes a court appearance, negotiations may be necessary to reach a final settlement. The Courts require or encourage parties to try to reach agreement. A common dispute resolution method is called mediation. Mediation is a non-binding, confidential process that may be done at any time during the divorce proceedings and the cost is paid by the parties. The mediator is a neutral third party either appointed by the court or selected by the parties by agreement. The mediator meets separately with the parties and tries to assist in finding a common ground solution acceptable to both parties. Mediation does not require a resolution or a settlement, but if a settlement is reached, the agreement is then usually considered binding. If a settlement cannot be reached, the issues will then be presented to the judge or a jury (if timely requested and the jury fee paid) at the final hearing. If a final hearing is necessary, I will request the court administrator to schedule a final trial date for your case. Some courts require that a request for final hearing be in writing. The law requires the opposing party be given at least forty-five days' notice prior to a final trial. However, an earlier date may be scheduled if the Court is available and if all parties agree.
Discovery
During this middle phase we may determine that it is necessary the conduct discovery. The discovery phase of the litigation is where we use legal procedures to obtain information from your spouse about the assets and his/her legal position regarding certain issues. I may prepare and send one of the following types of discovery: Request for Disclosures (this requires the your spouse to disclose their witnesses, legal theories, and other general information), Request for Production of Documents (this requires your spouse to produce for our review certain documents, i.e. Income tax returns, pay stubs, employment information, bank records, etc.), Written Interrogatories (this requires your spouse to answer certain questions regarding evidence they intend to use at trial, witnesses, statement, and further explain their position regarding certain issues). There are other processes that may be used if necessary. This phase of the litigation can get very expensive. Before we proceed to this formal discovery phase you and I should have a conversation about the expense. Generally once I send discovery to your spouse, his/her attorney will then send discovery to you. This will require your time, effort and money to respond to the requests.
CONCLUDING DIVORCE PROCEEDINGS
Settlement. I always encourage my clients to attempt to reach a settlement with their spouse. Especially where children are concerned, it is much less traumatic for the children if the parents are able to reach agreements regarding the issues. Otherwise you will have an ignorant (the judge doesn't know you, your children or your circumstances) stranger (she/he doesn't know you or your children) making lifelong decisions for you and your family. The settlement process is generally attempted by exchange of letters between the parties' attorneys. If that is not successful then the court requires the parties to participate in mediation. If that is unsuccessful then the case will be set for final hearing.
Timing Issues: The case may be set for a final hearing any time after the sixty day waiting period ends, but is not generally scheduled for final hearing until after settlement has been explored. A final hearing may consist of a jury trial, if requested, or a bench trial (where the judge acts as the jury). Or, if you and the Respondent are in complete agreement and have reduced your agreement to writing, the final hearing can be as simple as answering a few questions and having the judge enter the agreement into the Court's records. If, however, you are not in agreement, it will be necessary to present the evidence to the judge or jury. You cannot simply ask the judge to sign an order. If it is necessary for a judge or jury to decide your case a final hearing will be set. The court's docket is very busy, so the final hearing will generally be set about 60-90 from the date the final hearing is requested. At the final hearing each side will present evidence supporting their view of the case. The judge or jury then decides the issues.
Final Decree of Divorce. The Final Decree of Divorce, whether reached by agreement, or decided by the judge, or a jury, should dispose of all issues outstanding in the divorce. Generally, this means that the decree will provide for the division of all community property and all community debt, set forth all matters of child custody and provide for the amount and frequency of child support payments. A Final Decree of Divorce may also provide for the name change of either party to a name previously used. This generally means that the wife may use the Final Decree of Divorce to change her last name back to her maiden name or any other name, so long as it was previously used. You may not use a Final Decree of Divorce to change your name to a brand new name. This requires a separate proceeding.
The Day of the Divorce. A simple, uncontested divorce may be concluded when you and I appear before the judge and give evidence and testimony as to the terms of your divorce. This proceeding is sometimes called the "prove-up." However, if your divorce involves contested issues, such as division of property, or child custody issues, the case is considered contested and will require either a trial before the judge, or jury.
Your divorce is considered final as soon as the judge signs and dates the Final Decree of Divorce. Because you and the Respondent have thirty days to appeal the judge's decision, neither you, nor the Respondent may re-marry again until that thirty day period has passed.
REVIEWING THE DIVORCE PROCESS:
The following is a simplified summary of the divorce process.
1. Starting the Divorce
a. Prepare Original Petition for Divorce
b. File Petition with the District Clerk's Office.
c. Give your spouse legal notice of the divorce, by using either:
(1) Service of Citation; or
(2) Waiver of Citation; or
(3) Service by Publication or Posting
2. Responding to the Divorce
a. You or your spouse files an Answer
b. Your spouse may file other court documents or request court hearings
3. Waiting Period
a. Wait the mandatory 60 days after your Petition is filed
b. A Temporary Hearing and/or Temporary orders may occur during this time
c. Negotiation and/or Mediation may occur during this time
d. The court may require parenting classes if children are involved in the divorce
4. Discovery
a. Information gathering
b. Send or respond to discovery requests
5. Settlement
a. Letters of settlement between attorneys
b. Mediation
6. Finalizing Divorce
a. Prepare and review Final Decree of Divorce
b. Schedule divorce for a final hearing, either
(1) on the uncontested court docket
(a) if you and your spouse have reached an agreement, or
(b) if your spouse has not filed an Answer or otherwise made a court appearance in the divorce
(2) on the contested court docket
(a) if you do not have an agreement and your spouse has filed an Answer or made a court appearance.
(b) your spouse and/or attorney will be given written notice of the date, time and location of the trial (contested court hearing) date.
(c) if a trial by judge or jury is necessary the case will be scheduled and evidence will be presented.