While the facts and issues are different in every divorce, the process of getting a divorce in Texas is similar in most every case.
This article provides an overview of the divorce process from filing a Petition for Divorce through to a Final Decree of Divorce.
This article does not address those things that you should do prior to filing for divorce. For more information on those topics, please read Preparing for Divorce, Getting Organized for Your Divorce, and Things To Do Before Your Divorce.
Original Petition for Divorce
Every Texas divorce begins the same way – with the filing of an Original Petition for Divorce.
The original petition sets out the petitioning spouse’s basis for divorce as well as claims regarding property division, child custody, child support, and spousal maintenance to the extent those issues are present in the case.
The original petition will also set forth any claims for a temporary restraining order and temporary orders in the case.
After being served with the Original Petition for Divorce, or waiving service, the other spouse will have an opportunity to file an answer in response to the Original Petition for Divorce.
In addition to filing an answer, the responding spouse may file a Counter-Petition for Divorce.
A Counter-Petition for Divorce allows the responding spouse to set forth his or her own claims regarding the basis for the divorce as well as any claims regarding property division, child support, child custody, or spousal maintenance.
Temporary Restraining Order
In appropriate cases, the Original Petition will request a Temporary Restraining Order.
A TRO is an ex parte order (meaning it is issues without a hearing or input from the other party) providing temporary relief until a hearing can be held.
TRO’s are issued to preserve the status quo and prevent irreparable harm prior to the court issuing temporary orders at a temporary orders hearing.
TRO’s are limited by law to 14 days unless extended by the court or agreement of the parties. This means that a hearing on temporary orders must be held within that time frame or the TRO expires by law.
Temporary orders are preliminary injunctions a court issues with the intent of preserving the status quo until the court signs a Final Decree of Divorce.
Most divorce cases will require temporary orders.
Temporary orders will be issued by the court after a hearing unless the parties come to an agreement prior to the hearing date.
Temporary orders address many of the issues present in the divorce such as possession of property, possession and access to any children, decision-making regarding the children, temporary support, etc.
These temporary orders will govern the spouse’s relationship and set forth each of their rights and responsibilities until there is a Final Decree of Divorce or the court modifies the temporary orders.
A temporary orders hearing is like a mini-trial in that each party may present evidence and witness testimony on these issues and the judge will issue his or decision based on that evidence.
However, these hearings are often held early on in the case and the parties may not have access to all relevant information.
Informal Settlement Discussions
After the temporary orders hearing (and sometimes prior to a temporary orders hearing) the parties will engage in informal settlement discussions.
These discussions can take the form of letters and phone calls between counsel for the parties.
The parties may also meet with their attorneys for an informal settlement conference.
An informal settlement conference allows the parties and their attorneys to have a back and forth discussion for the purpose of attempting to resolve the issues in their case without need for a trial.
Inventory & Appraisement
In most cases the court will order the parties to exchange an Inventory & Appraisement. In many cases, the parties may agree to do so without a court order.
The I&A is a short form of discovery where each spouse provides a sworn written statement of every asset, debt, or other liability that the spouse is aware of.
The I&A also requires the spouse to state his or her position on if the asset is community property or separate property.
Exchanging I&A’s early on in the case allows the parties to engage in more informed settlement discussions while reducing the fear of the other spouse “hiding” assets.
If the parties cannot come to a settlement agreement informally, then at some point they will participate in mediation.
In many cases the parties may agree to early mediation (prior to discovery) in an attempt to limit the costs and expenses they may incur through discovery.
In other cases, the court will order the parties to participation in mediation prior to setting the case for a trial.
Mediation involves each spouse and their attorney sitting down with a third party in an attempt to reach a settlement. That neutral third party is the mediator.
The mediator is usually another attorney or former judge. The mediator will use his or her experience to provide individual and confidential feedback to each spouse on how the mediator see’s that spouse’s case.
The mediator’s role is to facilitate discussions, identify areas of agreement to attempt to bring the parties to a settlement.
If the parties do come to an agreement, then the mediator will draft a Mediated Settlement Agreement. Both parties will sign the MSA and that MSA will be enforced by the court.
Discovery allows both spouses to gather facts to support their claims and case for divorce.
Discovery includes Requests for Production and Inspection, Interrogatories, Requests for Admission, and Depositions.
Your attorney will conduct discovery into each and every issue important to your case. This includes financial records and other documents that support arguments related to property division.
It also includes records and witnesses relevant to support your claims regarding child custody and child support. Electronic evidence from social media accounts and email is also commonly acquired through discovery.
If experts are needed in your case, then your attorney will also conduct discovery into the expert’s background, opinions, and the facts underlying that expert’s analysis.
If you and your spouse have not come to a settlement agreement after participating in informal settlement discussions and mediation, then your case will proceed to trial.
Trial is the legal process whereby a judge will decide the results of your divorce on any contested issue.
Juries may be used in divorce cases, but those juries only make findings of fact. Juries do not make decisions on how property will be divided or what is in the best interest of your children regarding child custody or child support.
Those decisions are exclusively made by the judge after the judge has weighed the evidence and determined the facts, or if a jury is requested, after the jury has heard the evidence and determined the facts of the case.
Once the judge issues his or her decision, the case is over unless you decide to appeal the judge’s decision on any issue.