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The divorce process begins with the filing of a petition with the District
Court. Under Texas law, a party may file for divorce if one of the spouses has
been a domiciliary of Texas for the preceding six-month period and a resident of
the county where the divorce will be filed for the preceding 90 days. Like most
states, Texas law allows for no-fault divorce. Therefore, the divorce petition
will normally state that the parties have irreconcilable differences that render
the marriage insupportable.
The attorney will prepare the divorce
petition to meet the particular needs of the client. In an uncontested divorce,
the divorce petition may be a simple document, and the responding party may
waive the service of citation by signing a waiver form. Normally, the parties
will eventually enter into an agreement on most issues. However, since some (or
all) issues may be undecided at the time of filing, the divorce petition will
often include numerous requests to be presented to the Court in the event the
parties are unable to reach an agreement. The divorce petition may also request
a temporary restraining order to prevent misconduct (such as harassing calls or
hiding assets). If family violence has occurred, the petitioner’s attorney may
also file an application for protective order to prevent further violence. The
divorce petition will often request a hearing for the Judge to render temporary
orders that will clarify each person’s rights and responsibilities while the
divorce is pending.
If a temporary restraining order or
protective order is filed, the temporary orders hearing will normally be held
within two weeks of the filing date, provided that the paperwork has been served
on the responding party. At the temporary orders hearing, the Judge will decide
who will be allowed to remain in the marital home, who will have the primary
possession of and visitation with the children, and who will be temporarily
responsible for the payment of community debts. In addition, the court can order
temporary child or spousal support payments at that time.
From the date the petition is filed, the parties must wait at least 60 days
before the divorce can be finalized. This is a statutory "cooling off" period,
during which the parties are encouraged to reconsider their decision to
separate. If either party believes the marriage can be saved, he or she can ask
the Court to order marriage counseling during this period. Quite often, the
parties use this time to gather the documents needed to process the divorce and
begin negotiation of any contested issues. The attorneys may send "discovery"
requests to the opposing party to gather additional documents, and may subpoena
records and documents from non-parties. The parties and their lawyers may also
attend mediation if they are unable to reach agreement on any issue. While sixty
days is the minimum time needed to complete the divorce, if any issues are
contested, the divorce will normally not be resolved within that period. The
actual time needed to finalize the case will depend on the complexity of the
case, the evidence to be gathered, and the contentiousness of the parties.
If the parties have reached agreement on all issues and are able to sign an
agreed divorce decree, the final hearing can normally be held at any time after
the statutory waiting period. The final hearing of an agreed divorce takes only
a few minutes and requires the presence of only one of the parties (although
both are welcome to attend).
If the parties are unable to resolve all issues, the case will be scheduled
for trial. Either party may request a jury to decide issues related to
conservatorship and custody of children and on issues involving the
characterization and value of property. Issues involving visitation, child
support, and division of community property will be decided by the Judge. After
the trial, one of the attorneys will prepare a divorce decree based on the
Court’s ruling and will send it to the other attorney for review. The Court may
be called upon to conduct a short hearing to resolve any conflicts between the
lawyers concerning language and provisions to include in the decree.
Either before or after the divorce decree has been approved by the Court, the
attorneys will prepare the ancillary documents needed to complete the divorce.
This may include such things as documents needed to transfer ownership of real
estate, automobiles, stock, and retirement benefits. The preparation of a
last
will and testament is not considered a closing document of the divorce case.
However, the client is advised that he or she should prepare a new will and
should review all insurance and retirement documents when the divorce is
completed.
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