OVERVIEW This article explains the general divorce process in Texas. While it is geared towards Texas, the same basic process happens in all states.
The typical case generally goes through the following six phases that are explained in depth below: 1 - Initiating the divorce
2 - Establishing temporary orders
3 - Discovering evidence (formally and informally) 4 - Settlement negotiations (formal and informal) and/or Mediation (a formal process)
5 - Trial (if settlement fails)
6 - Post trial / post settlement (more elaborate orders are made in the form of a decree)
INITIATING THE DIVORCE A divorce is initiated by the filing of a divorce petition by one of the spouses (the “petitioner”), the service of the petition on the other spouse (the “respondent”) and the filing of a written response (and usually a counter-petition) by the respondent.
In Texas, both "fault" and "no-fault" bases for divorce can be sought. Only the relief spelled out in the petition can be awarded through trial, however. Because the manner in which a divorce is initiated can set the tone for the rest of the divorce case, careful thought must be put into the client's objectives. Alleging simple no-fault bases typically results in smoother negotiations and enhances the potential for settlement early on. Fault basis might provide certain advantages in other cases, however, but generally such cases will be hard-fought, expensive, and drag on for quite awhile.
Note: under Texas law, a cooling off period of 60 days is required before the courts can legally grant a divorce. This period begins on filing. Even though this is the minimum waiting time required, most cases take more time, depending on the issues and the court-load. Divorce Petitions Drafting Effective Petitions
The first legal step to initiate divorce is drafting and filing a Petition for Divorce. This document lays out the basic information required by the Texas Family Code. In this petition, the grounds and request for a divorce must be stated, as well as the basis for jurisdiction, along with requests for the division of community property, the recognition of separate property, orders related to the parties' children, etc.
These are typical provisions, but if an emergency exists, the petition may also contain requests to make temporary orders, such as temporary restraining orders, move-out orders, etc.
Currently, many counties in Texas have established standing orders that must be served with the petition. These standing orders become active upon filing the petition and typically address numerous issues that were previously commonly requested through temporary orders, as elaborated upon below.
A petition can be amended as many times as necessary up until seven days prior to trial, unless the court imposes an alternative deadline. The first filing is called an "original petition."
Most original petitions are neutral in tone and avoid inflammatory allegation, like adultery. As mentioned above, this helps establish a less adversarial tone at the outset, which ultimately helps foster a less costly and less destructive process. Additionally, however, as Texas is a "notice pleading" state, and the petitions can be amended, keeping the original petition neutral helps reveal legal positions only when necessary, which can provide leverage in settlement negotiations while keeping the general process calmer.
Filing the Petition After the petition is drafted, it must be filed with the court. Today, this is mostly done electronically through online websites. After it is filed, the court will charge a set filing fee and a filing clerk will assign your case a cause number and assign it to a specific court district. Most courts have online systems that allow you to search the case information and access documents. Some documents may not be available, however, due to sensitive information contained in the filing or the nature of the particular case. Serving the Petition The United States Constitution mandates procedural "due process of law" when being sued. At a minimum this requires notice to the other party and a meaningful opportunity for the other party to respond to a suit. Each state has unique requirements to satisfy these constitutional requirements, but in all states the respondent must receive a copy of the petition. In Texas there are two available methods. The petition may be formally served on the respondent by a sheriff, constable or private process server (a person over 18 and not involved in the case), or the petition may be informally given or mailed to the respondent or his/her attorney. The other party then must agree to waive service. Formal service is required if a temporary restraining order is requested, among other situations.
There are pros and cons to each type of service. If the parties are both level-headed and mutually desire a divorce, however, informal service often helps to establish a better tone, as, for instance, it also can be very embarrassing to be served at a place of business or in front of friends. There are drawbacks to this method, however, as a respondent is only required to file a formal answer within a certain time if formally served. You and your attorney should discuss your particular situation prior to filing the petition.
Proper service allows the court to establish jurisdiction over the parties. After jurisdiction is established, the parties must follow the court rules or they may be subject to contempt findings. Original Answer / Counter-Petition
If formally served, the respondent must file a written answer to the petition within a set time from the date of service; the law requires 20 days unless an extension is provided. In the “answer” it is standard for the respondent to “deny all of the allegations in the original petition.” This is a standard form which prevents the petitioner from taking a default judgment against the respondent. Defaults are difficult to overturn in Texas for parties who were provided proper service. The respondent will also typically file a counter-petition for divorce against the petitioner, which will ensure the divorce can still proceed if the original filer changes his or her mind and dismisses the case.
The answer is usually delivered to the petitioner's attorney, with formal service on the petitioner. Since Covid, the courts have begun allowing formal service to be rendered electronically via email after the court has first established jurisdiction over the parties.
TEMPORARY ORDERS
After the petition is filed and prior to the divorce being granted, temporary parties are typically established for the parties. These are either made by the agreement of the parties or via court order after a temporary orders hearing. Typically, the parties will attempt to enter into agreements to avoid hearings, but when one party is being intractable, sometimes hearings can't be avoided. Temporary orders can be established for a wide variety of reasons, such as controlling the behavior of the parties, or related to their property, debts and children. While temporary orders may be subject to change via further agreement or order, typically temporary orders regarding children visitation and conservatorship (Texas's word for custody) establish the status quo for the children, which judges are apt to follow later if other significant issues don't develop.
For temporary orders involving spousal or child support, clients should be prepared to provide monthly income statements, as well as information about living expenses, and other expenses and debts. The temporary order also usually requires the parties to produce documents and/or to file a formal inventories and appraisals.
Standing Orders
As mentioned above, many counties in Texas have established standing orders that apply on after being filed (the in the petitioner's case) and served on the other party (in the respondent's case.) These orders prohibit a wide range of behavior, such as behavior between the parties and in front of the children, absconding with the children, transferring property or money in accounts, etc. Violating these orders can subject the breaching party to criminal contempt charges.
Temporary Restraining Orders (TRO)
In counties that don’t have standing orders, a Temporary Restraining Order (TRO) can also be contained in the petition and served on the respondent along with the petition after being approved by a judge. This typically happens in emergency situations that require urgent and immediate action to protect a spouse, a child, or property. These immediately restrain the receiving side from the acts described in the order. These types of TROs expire 14 days after they are issued, so a temporary-orders hearings must be held with the 14-day period to last for a more indefinite duration.
Emergencies Emergencies can arise anytime during the course of the proceedings that require immediate action, but typically tend to happen shortly before or after the divorce is filed. For example, one spouse may be destroying property, running up unusual debts, hiding or threatening to run off with the children, abusing or threatening the other spouse or the children, etc. In these cases, a Temporary Restraining Order can be sought anytime to remedy these situations.
DISCOVERY OF EVIDENCE Family courts are often described as "courts of equity." As issues are seldom black and white, especially related to child visitation and custody (conservatorship), the courts try to achieve a just result. In Texas, even the division of community property must be made in a manner that is "just and right." This may not be 50/50, depending on the facts.
In short, the applicable laws and the facts regarding the parties, children of the marriage, the property, income, debts, etc. are paramount for any divorce case. To decide based on the law, the facts of each case must first be established. Accordingly, information gathering, known as "discovery," is one of the most important, time-consuming, and expensive aspects of divorces.
To save time and money in this process, clients must do much of the heavy lifting gathering the facts and documents that they can. The more clients are involved in the process, the less time and effort the attorney must spend before being ready to proceed to settlement or trial. For these reasons, clients should be personally involved as much as possible in gathering information.
Gathering Information and Documents Many different documents must be collected during the divorce process, such as real estate deeds, bank statements, insurance policies, etc. Clients who you do not have possession of these items should try to get them from other friendly sources. If this is not possible discovery requests on the other party may need to be issued, which is described in detail below. This is often necessary when the parties are not willing to work together well. Inventory and Appraisal In most cases, the parties are required to prepare and file an “Inventory and Appraisal”, which is typically a worksheet in which all real and personal property as well as liabilities of the parties are itemized and categorized as community and separate property. The value of any property and the exact amount of any liability must be listed. Parties must also sign a certification of inventory under oath. This is an essential part of any case for either settlement or trial. If a case is not settled and a trial becomes necessary, the judge will rely on the information in the Inventory when dividing any property and debts. If clients swear to one thing in the Inventory and later, at the trial, attempt to take a different position, their credibility will be called into question, which often adversely affects the outcome for that party. Accordingly, each party should complete the inventory in as comprehensive and truthful a manner as possible. Appraisers If there are material disputes between the parties regarding the valuation of property, it often becomes necessary to hire appraisers to establish the market value of any disputed property, such as real estate, retirement benefits, businesses, or other assets. Formal Discovery Under Texas law, as in other states, parties to any suit, including divorce, are allowed to collect a considerable amount of information from the other party via formal discovery procedures. These include oral depositions of a party or witnesses, interrogatories (written questions which must be answered in writing and under oath), requests for production of documents, requests for inspection of property, requests for disclosure, requests for admissions, etc. Clients should be prepared to not only work with the attorney to determine what information or documents should be sought from the other side, but also to respond to any formal requests from the other party.
Not only must parties comply with requests as they are given, but they also have an ongoing duty to supplement any items that might apply to original requests as they are received. Failure to do so 30 days prior to trial may result in the inability to use such information at trial, among other consequences.
SETTLEMENT After the discovery phase is reasonably over, the parties should begin settlement negotiations. These can either be informal sessions or they can take place via a court mandate to participate in mediation. The courts typically order cases to be mediated.
Although attorneys will advise clients on what is reasonable under the law and facts of a particular case, it is ultimately the client's right to approve or reject any settlement offer. No settlement offer should be made or accepted by a client's attorney until a client fully understands and approves a given proposal. As common to most negotiations, many offers and counteroffers are typically made back and forth between the parties before a a final settlement is accepted. It's often the earmark of a successful negotiation that both parties feel somewhat dissatisfied. Well over 95% of all cases are settled out of court, although this often happens just prior to trial (i.e.,“on the courthouse steps.”) Sometimes, though, settlement can happen during trial. Typically, when cases drag on to the eve of trial, they are only settled because the attorney has taken significant steps to be prepared for trial. Because of this, attorney cannot ignore trial preparations if settlement negotiations and mediation prove unsuccessful and the trial date is approaching.
One reason parties settle is to avoid the expense of trial. It is also so the parties can feel some type of control over their own case, as it's impossible to predict in advance how a particular judge on a particular day will rule in any given case.
The key to any settlement is being willing compromise. This requires a reasonable attitude of “give and take.” Otherwise, prepare for the negotiations to break down. As mentioned above, the earmark of any good settlement is that both parties will be a bit dissatisfied.
Neither party ever gets everything they want.
Keys to Enhancing the Chance to Settle: To be effective in settlement negotiates, it is important to first seek to understand things from your spouse's point of view. One person's trash may another person's treasure. If you understand what is important to your spouse, you may get leverage for other things that you find important that he or she does not. Parties who first seek to understand typically gain a much better shot at maximizing a favorable outcome for themselves.
No matter what particular issue may be important to a party, it is vitally important to realize during negotiations that, if they break down, the issues will be decided largely based on the applicable laws and facts of each case. Even though nobody can exactly predict what a judge or jury will do, their decisions must at least be framed by the laws. Therefore, any settlement negotiations should take place "under the shadow of the law." Any settlement offers that are unreasonably out of line with what a court can do are rarely successful.
Mediation
Settlement may be achieved by a formal process called "mediation." The parties can either agree to mediation or the court may order them to undergo mediation.
Mediators are neutral third party, usually they are experienced lawyers or retired judges. The mediation costs are typically shared by the parties. Both spouses and their attorneys must appear before the mediator. Mediators do not have the authority to force a settlement but will attempt to encourage each party to resolve their disputes through compromise. Mediators will attempt to engage with each party in turn by going back and forth between the parties. All communications with the mediator are confidential and are subject to the "settlement rule," so the mediator may not reveal the specifics of what either party has stated. This allows the parties to speak freely without fear that their statements will be entered into evidence during trial.
Note: In Texas, the “settlement rule” only keeps out of evidence of settlement negotiations between attorneys; this rule does not apply to private settlement discussions between spouses. Therefore, anything that you say to your spouse can be admissible into evidence if the case goes to trial. Texas is also a "one-party consent state." That means anything one party puts in writing or says over the phone can be recorded and admitted as evidence. So be extremely cautious with all communications you have with your spouse, even during the marriage if divorce is a probability, as the confidential communication privileges between spouses found in Texas Rules of Evidence 504 does not apply to proceedings between spouses, such as divorce proceedings. (See Texas Rule of Evidence 504(a)(4)(B).
Ultimately, if settlement negotiations prove unproductive, the parties and their attorneys must turn their energies towards preparing for trial.
TRIAL If settlement negotiations do not work, the case must be resolved through trial. Although most people are nervous about trials, the worst part of trial is typically the advanced preparations for it. Exhibits must be prepared. Supporting witnesses must be prepped and the questions for adverse witnesses must be carefully prepared. Trial statements must be written. Trials are typically fairly low-key if still very formal. Typically, only the parties, their attorneys, the judge, a clerk, and the court reporter are present. The judge is tasked with maintaining decorum throughout the process and typically will not allow an attorney to badger or degrade any witness.
Although Texas is strangely one of the only states that allow jury trials in family court, the vast majority of divorce cases are in front of judges, not a juries. Sometimes, though, a jury may be the right choice. Clients should discuss that option with their attorneys when appropriate. At the end of trial, the judge will announce the ultimate findings and orders. This typically takes place in the courtroom, but sometimes, if the issues are overly complex, they may take some matters under submission and send their order to the parties, to their attorney if available, via a written court order. POST TRIAL / POST SETTLEMENT After the parties have successfully reached a settlement or the trial court has entered its orders, the divorce process is unfortunately, not yet complete. Post-Trial Motions If orders have been made via trial, often one or both parties will file post-trial motions with the court, asking the court to reconsider its rulings, etc. There are set deadlines for filing such motions, such as 30 days after the divorce decree is rendered, etc. These can be time-consuming and expensive but must be answered if the other parties file them. If a particular ruling is adverse to a party and there is a good-faith basis to dispute it given the applicable laws, it may well be worth it to file such a motion. These motions are often precursors to appeal and can extend the deadlines to appeal. Drafting Documents Even after a case is settled or tried, a final divorce decree and other documents may still require a lot of work, as whether agreed or litigated, a judgment is only as good as it is enforceable. Enforceability requires clarity and comprehensiveness. Accordingly, a great deal of time and care should go into drafting a decree and related documents unique to your divorce. Clients must understand and sign off on the terms.
Note: clarity in drafting the orders does not mean new material terms should be added; a good attorney will not only not add new material terms but will make sure the other attorney does not sneak such things in either. Divorce Decrees and Agreements Incident to Divorce In the case of settled divorces, it is often advisable to draft two documents: namely, an Agreed Final Decree of Divorce and an Agreement Incident to Divorce. The final decree is public record so should be short and should not include anything a party would like to remain private. The Agreement Incident Divorce is a lengthy document and includes all essential items, many of which can be of a more sensitive nature. The Agreement Incident to Divorce is also a binding contract between the parties once signed, which can be enforceable as a contract. It is also incorporated into the final decree by reference, however, so once the parties and the judge signs off on the final decree, the provisions of the Agreement Incident to Divorce also become enforceable as a judgment.
If a divorce is resolved through trial, only a final decree of divorce will be signed by the judge. It is therefore enforceable as any other civil judgment but is not enforceable as a contract between the parties. This is not to say that there is anything lost in this, as enforceability as a decree comes with much more teeth than pure breaches of contract actions. Other Documents Besides the above, many other documents are typically required to implement the terms of any divorce decree or agreement, such as real estate transfers, qualified domestic relations orders to divide retirement benefits, vehicle title transfer documents, etc.
Appeal
Settled divorces cannot be appealed, but either party can appeal the finding or ruling of a court following a litigated trial. A careful analysis of the rulings should be made prior to any decision to appeal as they can be costly and time consuming. That is not to say there are not times when appeals are appropriate. If interested in appealing, you should discuss this possibility with an attorney in depth.
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