While these proceedings may be confusing and strange to you, there are six typical phases which average divorce cases may go through:
Although each divorce case takes on its own unique personality, these basic steps occur in one form or another in most divorce cases.
NOTE: The law prohibits a divorce decree from being entered until at least 60 days have elapsed from the date the divorce petition was filed. This “cooling off” period is, of course, just a minimum period of time. Most cases take much longer to complete.
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 possibly a counter-petition) by the respondent. This divorce petition may be 2 pages or 40 pages in length, depending on your circumstances and the relief you are requesting.
As a general rule, you are not required to sign the petition unless you are acting as your own lawyer. Accordingly, if you want to review it before it is filed with the court and served on your spouse, please let your attorney know. The Petition is required by statutes to contain certain information and must also include certain representations by the party. The manner in which a divorce is initiated can set the tone for the rest of the divorce case; therefore, how it is initiated must be carefully considered.
Sometimes emergencies may exist requiring immediate action. 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 (discussed in detail below) can be issued.
The first legal step taken by the petitioner’s attorney is the drafting of a Petition for Divorce. It sets out the basic information required by the Texas Family Code, such as the grounds for and the request for a divorce; request for a division of the community property and a recognition of the petitioner’s separate property; and a request for orders concerning the children, etc. (discussed in detail below). It may also request the court to make temporary orders (discussed below).
A petition can be amended whenever necessary, provided it is not later than seven days prior to that trial or some other deadline imposed by the court. Often the original petition is very mild, without containing any inflammatory allegation, like adultery. There are several reasons for this. First, it helps to start the process on a less combative basis, which may help to keep the costs of the litigation from escalating. Second, your attorney may not want to reveal all of your legal positions at the beginning, unless doing so might promote settlement or otherwise benefit you.
The petition will be filed with the court clerk (for which a filing fee is charged), and the clerk will assign your case a cause number. The clerk keeps a file and docket sheet on your case.
The respondent must receive a copy of the petition. This may be done in one of two ways. The petition may be formally served on the respondent by a Sheriff, Constable or private process server. This procedure is known as “service.” This service must include the petition and a citation. The citation informs the respondent that a lawsuit has been filed against him or her and they have a certain amount of time to respond (a.k.a., provide an answer). In the alternative, the petition may be informally given or mailed to the respondent or his attorney.
Formal service is required if a Temporary Restraining Order is requested and it may be preferred in many situations; however, it also can be embarrassing for the respondent to be served at his or her place of business and such service may start the case off on a bad footing. While informal service may be less antagonistic, it has its drawbacks. A respondent is required to file a formal “response” (discussed below) within a certain time, but only if formally served. Your attorney will discuss these options with you before the filing of the petition.
If formally served, the respondent must file a written response to the petition within a stated time from the date of service, usually 20 days. This response is usually called an “answer” in which the respondent “denies all of the allegations in the original petition.” This is a standard form which serves to prevent the petitioner from taking a default judgment against the respondent. The respondent may file a counter-petition for divorce against the petitioner. It is usually delivered to the petitioner’s attorney, without formal service on the petitioner.
Between the time of the filing of the petition and the granting of the divorce, the parties usually enter into temporary orders, either by agreement or by court order, to govern the parties, their property, debts, and children pending the final hearing.
If emergencies exist requiring immediate action to protect a spouse, a child, or any property, a Temporary Restraining Order (TRO) can be signed by the judge and served on the respondent along with the petition. It immediately restrains the respondent from the acts described in the order. If you are served with a TRO, you should be certain to obey all of its terms, failure to do so is punishable by contempt of court. The TRO expires 14 days after it is issued; therefore, a hearing on temporary orders must be held within the 14-day period, so that temporary orders of a more indefinite duration can be entered.
A temporary order may be entered by agreement of the parties or by the court after a temporary hearing. If by agreement, the parties save the expense of a pre-trial hearing. A temporary order may be entered whether or not a TRO has been issued. Temporary orders normally stay in effect until the final decree is granted.
These orders can help determine which spouse shall remain in the family home (known as the marital residence), require the payment of bills and by whom, establish the conservatorship (custody) and support of the child(ren), as well as other matters such as living arrangements for your child(ren), schedule of parental possession of the children, spousal support, use and possession of property and other assets, and even possible restrictions of contact with the other parent. The custody, or conservatorship, of the children, is called a “Parenting Plan.”
The temporary order may provide for an injunction against the parties hiding, wasting or destroying property, prohibiting them from incurring any unusual debts, and contain orders for temporary custody and support of children. The court may also order one spouse to pay temporary alimony to the other spouse. You should be prepared to provide your attorney with details of your monthly living expenses as well as payments on debts. This information is essential for determining the amount of temporary support to be paid or received. The temporary order usually requires the parties to produce documents and/or to file a formal inventory (discussed below).
The facts regarding the property, debts, the parties, and the children form the foundation of any divorce case. Therefore, information gathering is one of the most important and time-consuming aspects of the divorce. You have more knowledge of or access to the necessary information and documents than does your attorney.
The more you can gather, the less time must be spent on this aspect of your case by the attorney. The more you are involved in this process, the more you learn about the facts necessary to make appropriate decisions regarding your own case. For all of these reasons, you need to be as personally involved as possible in gathering information.
You will be given detailed information sheets to be completed. While tedious and time-consuming, it is extremely important for you to complete these with as much detail as possible.
You may be requested to gather and bring to your attorney many different documents, such as real estate deeds, bank statements, insurance policies, etc. If you do not have these in your possession, try to get them from other sources (except your spouse). If you cannot, notify your attorney as soon as possible.
In most cases, the parties are required to prepare and file an “Inventory and Appraisement,” which is a listing of all community and separate real property as well as liabilities of the parties. Your attorney will assist you with the form of the inventory. You will be asked to state the value of the property and the exact amount of any liability. You are required to sign the inventory under oath.
This is a very important part of your case. You must be complete and truthful in your inventory. If your case is not settled and a trial becomes necessary, the judge uses the information contained in the inventory to assist in dividing the property. If you swear to one thing in your inventory and later, at the trial, attempt to take a different position, your testimony will be suspect.
Often it is necessary to hire appraisers to help establish the value of a property, including real estate, retirement benefits, businesses, or other assets. Your attorney will advise you if this is necessary in your case.
Under Texas law, parties to any suit, including divorce, are allowed to discover a great deal of information from the other party by means of formal discovery devices. These include oral deposition of a party or witness, interrogatories (written questions which are answered under oath), requests for production of documents and requests for admissions. One or more of these may be used in your case. Your attorney will advise you with respect to these matters.
CAUTION: Most forms of formal discovery require strict compliance deadlines, usually 30 days from the day they are served on your attorney. There are harsh sanctions for failure to comply, including payment of fines and/or attorney’s fees. Further failure to supplement your answers 30 days prior to trial may result in undesirable consequences. For example, failure to list a witness in answer to an interrogatory will mean that person is excluded from testifying at the time of trial.
After all discovery is concluded, the parties will enter into settlement negotiations. Rest assured that no settlement offer will be made or accepted by your attorney until you have fully understood and approved the proposal. Usually, several offers and counter-offers are made back and forth between the parties before a settlement is hammered out.
Over 90% of all cases are probably settled out of court, although this often happens just prior to trial (e.g., “on the courthouse steps”), or sometimes in the middle of trial. Although settlements may appear to be possible, your attorney cannot ignore trial preparations if settlement negotiations are not successful and the trial date is approaching.
One reason parties settle is to avoid the expense of a trial. Also, neither party nor their attorneys can predict in advance exactly how a particular judge on a particular day is going to rule in any given case.
The key to any settlement is to compromise. While no settlement can be forced on you or your spouse, both you and your spouse need to understand that compromise and a reasonable attitude of “give and take” is necessary if there is going to be any reasonable chance of a meaningful settlement. Neither party ever gets all that they want.
Important: To effectively negotiate a settlement, you must try to look at these settlement negotiations from your spouse’s point of view; a good negotiator always attempts to put himself in the shoes of the opponent and try to determine what issues are most important to the opponent, where the opponent will draw the line on what issues, etc.
As can be expected, attorneys generally advise clients with regard to a settlement based on a number of factors, but the major factor is the determination by the attorney of what a court would probably do if the case went to trial. Any settlement offers which are unreasonably out of line with what a court would probably do are rarely accepted except under the most extreme and unusual circumstances.
A settlement may be achieved by a process known as mediation. The parties may agree to seek mediation or they may be ordered to mediation by the court. A neutral third party, usually an experienced lawyer or a retired judge, is selected to serve as the mediator. The fees for the mediator are usually shared by the parties. Both spouses and their attorneys appear before the mediator in an effort to settle the case.
The mediator is not an arbitrator. That is, he or she has no power to “force” a settlement or otherwise adjudicate the dispute. He or she does attempt to compromise the legal differences between the parties and encourage a resolution. Usually, a portion of the time spent with the mediator is devoted to the parties ‘venting” their grievances against the other. Following that phase, the mediator will ask each side to express his or her suggestion for settlement. From there the mediator discusses, in private with each side, possible compromises to the differences.
If successful, this process eventually results in a settlement. Most cases are mediated in one day’s time. Normally, it does not occur over days or weeks. Statements made in mediation are confidential and are subject to the “settlement rule,” discussed below. This allows the parties to freely exchange their views without fear that what they say will be admissible at the time of trial. Your attorney will advise you as to the suitability of mediation for your particular case.
Finally, there often comes a time when settlement negotiations reach the point of negative return. This is when the attorney must finally turn his or her energy to preparing for trial.
CAUTION: In Texas, a rule referred to as the “settlement rule” generally keeps out of evidence any settlement negotiations going on between attorneys; however, this only applies to formal settlement negotiations between or conducted by the attorneys. This rule does not apply to private settlement discussions between the individual spouses; therefore, anything that you say to your spouse can (and most likely will) be admissible into evidence if the case goes to trial. This can be devastating.
For example, in one case, a husband told his wife in a phone conversation that he really did not want the children. He was only asking for custody of the children in order to get more in the property settlement. If she would just not ask for so much property and child support, then he would gladly let her have custody of the children. As you can expect, all of this conversation was brought out in court and it was quite harmful to husband’s case.
If settlement negotiations fail, then the case must go to trial. Do not be unduly fearful of a trial. Trials in real life are not what they are on TV or in the movies. Rarely is there anybody present in the entire courtroom except the two parties and their attorneys, the staff, the judge, a clerk and the court reporter. The atmosphere is unusually very formal and subdued. No one gets up in a witness’s face and mercilessly grills the witness on cross-examination until they break down. No judge would allow such conduct in real life. Your attorney and the staff will prepare you extensively for any and all roles you will have at trial.
Sometimes only the parties involved testify, while in other trials a large number of expert and fact witnesses will be called to testify. The vast majority of divorce cases are tried before the judge, not a jury. For one reason, jury trials are much more expensive and time-consuming than a trial before the court. In some cases, however, jury trials are appropriate. Your attorney will discuss these two options with you.
At the conclusion of the trial, the judge will enter his or her rulings and orders. This usually happens right in the courtroom after the trial. However, on occasion, the orders can be sent days later by way of a letter to the attorneys.
After a settlement has been reached or the trial court has entered its orders, there is a great deal of work to be completed.
If the case has been tried, very often one or both parties may file various post-trial motions with the court, asking the court to reconsider its rulings, etc. There are certain deadlines for the filing of these motions (e.g., 30 days after the divorce decree is signed). You and your attorney can decide whether or not you need to file any post-trial motions, but you cannot control what your spouse and his/her attorney does. In any event, these post-trial matters can sometimes be quite time-consuming.
Whether your case is settled or tried, there is a great deal of work to be done with respect to the drafting of the divorce decree and other documents. Any agreed or litigated judgment for divorce is only as good as it is enforceable, and its enforceability depends in large part on how carefully it is drafted.
Many lawyers have done well for their clients at trial or in a settlement, only to end up losing much of what they had gained because of the of attorney “out drafting” them with respect to the decree and/or agreement (Lawyers sometimes refer to this as getting “pencil whipped.”).
Therefore, a great deal of time and care must go into the tedious drafting of your unique decree and the documents related to your divorce. Rest assured that you will approve in advance any and all documents before they are finalized and signed by the parties and the court.
If your divorce case is settled, it may result in two documents – a lengthy Agreement Incident to Divorce, which is signed by the parties (this is a contract between the parties), and a short Agreed Final Decree of Divorce, which incorporates and approves the parties’ agreement and is signed by the judge (this is a judgment by the court). Or, your settled divorce may result in only one document entitled an Agreed Decree of divorce, which is signed by the parties and the judge and serves, simultaneously, as both a contract between the parties and judgment of the court.
The consensual decree is enforceable not only as a private contract between the parties but also as a decree. A decree is enforceable just like any other judgment entered by the court. If your divorce is litigated, then only one document – a Final Decree of Divorce – will be signed by the judge. It is enforceable as any other civil judgment, but it is not enforceable as a contract between the parties.
Besides the decree and the agreement discussed above, many other documents may need to be drafted to implement the terms of the divorce decree or agreement, such as real estate documents, etc. Again, you and your attorney will fully review these documents before they are signed.
Neither party can appeal a settled divorce, but either party can appeal the ruling of a court following a litigated divorce. Although appeals are extremely difficult to win and can be very costly, they are available. Your attorney will discuss the option of an appeal with you should the need arise.
The Wright Firm, L.L.P. provides skilled representation throughout Lewisville, Texas, and includes the cities of Dallas, Plano, Frisco, Arlington, Richardson, Flower Mound, Denton, Carrollton, Corinth, Allen, McKinney, Garland, and Dallas County, Denton County, Collin County, and Tarrant County.
