The
following outline briefly describes the divorce process. It is
only a general outline representing the common events of most
cases. It is provided here in order to help you better
understand the chronological sequence of a divorce case. Your
case may or will be different from the one described below.
Texas does not recognize
the legal concept of separation. You are "Married"
until a court enters a final decree. Note you can, however,
enter into a "Separation Agreement" or "Partition
and Exchange Agreement." Your actions at the separation
stage can "POINT" the case to it's final outcome. Take
the following two examples.
Spouse "A"
moves out. Leaving Spouse "B" as the primary
caregiver of the kids. Later Spouse "A" decides he
or she wants the kids. Courts are very cautious and hesitant
to change the circumstances of the children. The Court is
not likely to change the status quo. If you choose to leave
the family residence, stay active in your children's life.
Keep in mind, that often the possession and access you and
your spouse adopt during the separation, is the possession
that the Court orders in the divorce decree.
Spouse "A"
moves out and immediately starts moving the money
around-activities that appear to be an attempt to hide or
secrete money. Absent some compelling reason, the Court will
tend to look with disfavor on this activity. On the other
hand, if there is good reason to close bank accounts and
credit cards, then do not hesitate to do so. Do not be
afraid to take control of the finances.
The divorce process starts
by filing a document entitled "Original Petition For
Divorce." A petition, called a complaint in other
jurisdictions, is nothing more than a "letter"
to the court asking the court to grant a divorce and any other
relief requested. It will identify the parties and the
children. Furthermore, it will apprise the court of those
reasons why divorce is sought, i.e., "discord and
conflict that destroys the legitimate ends of the marital
relationship, adultery, abandonment, etc. . . ." The
person who files for divorce is called the
"Petitioner." The person who answers the divorce
petition is called the "Respondent." The original
Petition is served upon the Respondent. Concurrently with the
filling of the Original Petition, a party may ask for
"Temporary Orders", "Temporary Restraining
Orders", "A Protective Order", and/or a
"Writ of Habeas Corpus".
Temporary Orders are orders
issued by the court to place immediate controls upon the
relationship of the parties, the parties' financial affairs, and
child custody during the pendency of the divorce. Temporary
Orders are legally binding. Violation of the orders can subject
a party to contempt proceedings. A finding of contempt may
result in a fine and/or jail.
Temporary Orders can
specify who will live in the marital residence, who will be able
to write checks on what bank accounts, and who will have primary
custody of the children. In a divorce, you are entitled to have
temporary orders issued without your spouse being present. They
are valid for 14 days. After that you must legally give your
spouse notice that there will be a trial on temporary orders.
Temporary orders can be issued voluntarily, by order of the
court after hearing, or not at all. Depending upon the type of
divorce.
If you and your spouse
cannot agree on possession and access to your minor children,
you will have to move for Temporary Orders. You have a right to
be a parent to your children. If your spouse is currently
refusing to let you see or contact your children, seek legal
counsel. Do not attempt to force possession! Even if it seems
like the fair thing to do. You can endanger yourself and your
children, as well as jeopardize your right to custody in the
future. If your spouse fails to abide by the Temporary Orders,
he or she is in contempt, and can be ordered to appear in Court.
If he or she doesn't appear, a bench warrant can be issued, and
he or she will be taken into custody. At the contempt hearing,
he or she can be sentenced to jail, or have their assets taken
to satisfy the Court's order.
The term
"Discovery" is a broad general description for a
number of legal devices designed to gather information. There
are five basic devices which comes under the umbrella of
"Discovery." These devices are Disclosures,
Interrogatories, Requests for Production, Admissions, and
Depositions. This is not an exclusive list of available tools
for the discovery of information. It is only the basic and most
common set.
"Disclosures"
are based upon Rule 194 of the Texas Rules of Civil
Procedure. Upon request, a party must give to the other side
those items which are set out in Rule 194 within thirty days
of the request.
"Interrogatories"
are written questions directed to the other party. Each side
is allowed one set calling for 25 answers. Notice that the
rule refers to answers and not questions. This is to prevent
the other side from issuing 25 questions with multiple
subparts which might be 40 or 50 answers.
"Admissions of
Fact" are written declarations of fact directed to the
other party asking them to admit or deny an undisputed fact.
They are designed to authenticate documents and to dispense
with the necessity of proving uncontested or indisputable
facts. A common admission might be, "Please admit or
deny that the child's pediatrician is "Doctor
Blue," for example.
"Request for
Production" is a device used to obtain documents.
Upon request, the other party must provide to you any
records that you have requested for inspection and
photocopying.
"Depositions"
are processes by which sworn testimony is taken from the
other party, or witness. It is a discovery device where your
lawyer will have the opportunity to question the other side
before a court reporter. The testimony taken is admissible
for all purposes in Texas.
A lawyer should issue basic
discovery on behalf of every client, except for the most
agreeable of agreed divorces. The amount and type of discovery
called for in a case is directly dependent upon the type of
case.
Mediation is process where
both parties meet in a neutral setting to discuss their
differences, and attempt to resolve the case. The process is
controlled by a mediator, usually a lawyer. He or she
facilitates the discussions. The mediator's task is to help the
parties settle the case. In Texas it is a required process, and
will be ordered by the Court.
Usually, by the time all of
the events above have taken place, both sides will have enough
information, to be able to resolve the contested issues of the
divorce without further Court process.
If the case can't be
settled, then it will be set for trial. This is the process
where both parties present the evidence to the Court for
determination. The Court will hear the evidence, examine the
pleadings of both parties, and make it's decision. A trial can
be for the court or before a jury upon request.
At conclusion of the trial,
the parties will draft a "Final Decree of Divorce."
this will reflect the Court's determination. This document will
spell out who gets what property, where the primary residence of
the children will be, how the parties are to conduct their
relationship as the children grow, and will set child support.
The document will attempt to resolve all issues between the
parties. In addition, there may be a number of closing documents
involved, such as deeds, and automotive titles. Furthermore, a
qualified domestic relations order may be necessary if community
property is contained in a 401(k), for example.
If children were involved
in the divorce, the Court's jurisdiction over the matter
continues. It is called a "Court of Continuing
Jurisdiction." The Court's powers remain in place to
enforce it's decree until your children are eighteen years of
age, or otherwise emancipated. You may go back and ask the Court
to modify it's decree, to change child custody, or child
support. For a variety of reasons.
