Divorce in Texas is a process - sometimes a marathon
but still a process.
By
Earl N Jackson
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 may very well be different from the one
described below.
TABLE OF CONTENTS - DIVORCE PROCESS
Original Petition for Divorce
Temporary Orders
Discovery
Mediation
Trial
Post Trial
Appeal
SEPARATION
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 "Partition and Exchange Agreement." Your
actions at the separation stage can "POINT" the case to it's final outcome.
Take the following two examples.
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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.
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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.
ORIGINAL
PETITION FOR DIVORCE
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
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.
DISCOVERY
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.
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"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.
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
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.
TRIAL
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.
POST TRIAL
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.
APPEAL
If a ruling in your divorce is not a fair one, or new
evidence has come to light, you may file a motion for a new trial, or begin
an appeal.
JACKSON : WOOD
Dallas Divorce Lawyers
214-369-7100
E-Mail Dallas Divorce Lawyer
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