Filing a Petition for Divorce (General Overview of a Texas Divorce)
To initiate the divorce process in Texas, you must file a Petition for Divorce and serve your spouse with the petition in accordance with the Texas Rules of Civil Procedure.
To file for divorce in Texas, you must have been a resident of Texas for at least 6 months immediately preceding the filing of your petition for divorce.
Additionally, you must be a resident of the County in which you are filing for at least 90 days (3 months) immediately preceding the filing of your petition.
Reasons for Divorce
As Texas is a no-fault state, neither party to a divorce proceeding must prove fault to be granted a divorce.
If you want a divorce without proving fault, you can file under the ground of “insupportability,” which will satisfy the requirements under the Texas Family Code.
Date of Separation
The date of separation is the date on which you and your spouse definitively decided to part ways and get divorced. This could be the date in which one spouse moved out of the family home. It could also be the day that the other party indicated that they wanted a divorce. Also, it could be the date in which one spouse properly served the other spouse with a petition for divorce.
The date of separation is an important issue because it represents the date in which the martial estate ended. Any money and property acquired after this date generally does not get characterized as community property.
Filing for Divorce
The spouse who files a Petition for Divorce is called the “Petitioner.” The responding spouse is called the “Respondent.” After the Petition is filed, the Respondent must be formally served with process by a sheriff, constable, or private process server. However, process fees and formal service can be waived if your spouse agrees to sign a Waiver of Service.
After the responding spouse is served with process, they have until 10:00 AM on the Monday following the expiration of 20 days to file a response to the Petition, known as an Answer. If your spouse does not respond within that time frame, they risk defaulting and losing their ability to contest any of the divorce terms.
In the state of Texas, spouses filing for divorce must wait a minimum of 60 days before finalizing a divorce. There are few exceptions to this waiting period, except for evidence of family violence. After the 60 day waiting period expires, you can move forward to the final “Prove Up” stage, if you and your spouse agree on the terms of the divorce, or they defaulted and never responded to your petition.
The process for a “prove up” varies from county to county in Texas, but generally, you need to appear in Court at a scheduled hearing. At this hearing, you will present the judge with your Final Divorce Decree and other relevant paperwork, such as a Wage Withholding Order for Child Support. It’s recommended to bring at least two copies of each document, so that the Judge can give you signed copies of the paperwork for your personal records. You may also choose to have the court reporter record the prove-up hearing. You will recite specific facts from the case for the Judge and if they are satisfied with your prove up, the Judge will sign all orders and finalize your divorce. At this stage, you are officially divorced.
The discovery phase is the time period in which you gather all evidence relevant to your divorce. Specific issues such as division of property, calculation of child support, determination of child custody and visitation rights cannot be adequately supported and argued if you do not gather complete and accurate information regarding each issue. In general, evidence will fall into 2 categories — property division or child custody.
Property Division Evidence
As a significant part of the divorce often entails division of property, proper evidence collection is crucial to your case.
Before you can properly divide your property, you will need to gather information related to you and your spouse’s gross and net income, monthly expenses, debts (mortgages, car payments, credit cards, student loans), checking accounts, savings accounts, investments, retirement accounts, etc.
Child Custody Evidence
It is crucially important that you gather any and all relevant evidence that could impact child custody and visitation rights. Texas courts render decisions on child custody and support based on the “best interest of the child” standard, which includes a litany of relevant factors.
In general, if there is no showing of family violence, sexual abuse, or drug use, Texas courts tend to promote child custody arrangements that allow the child to spend time with both parents. Additionally, Texas courts generally do not take away possession and access rights simply because an Obligor parent falls behind on child support.
If you believe that allowing your child to spend time with your former spouse is not in the best interest of the child, you must gather any and all relevant evidence to support that position. This typically includes gathering witnesses who can attest to your ex-spouse’s behavior, police reports, photographs, medical reports, video recordings, audio recordings, social media postings, and text messages.
Again, it cannot be stressed enough that you must gather this evidence in order to successfully argue your position.
Once you have gather all the relevant information and evidence for your case, the next phase is negotiation.
In most cases, there are going to be some issues that you and your soon to be ex-spouse fundamentally cannot agree upon. It could be the value of your home, whether or not you should sell the house or a car, and/or the value of certain investment accounts at the date of separation.
Additionally, you may disagree with your spouse regarding certain times on the visitation schedule, or you could disagree as to whether your spouse should have supervised visitation with your children based on prior incidents.
Regardless of your points of contention, it is important to enter into negotiations in good faith and with an open mind, so that you can resolve the divorce process without needing to spend a significant amount of money to contest every single disagreement with your spouse in open court.
Also, many family law courts in larger Texas counties require negotiation and mediation before a contested hearing. While McLennan County at this time does not require negotiation before a contested hearing, it has been my experience that negotiations are worth attempting and that most cases have a couple strong points of contention that are worth focusing your efforts on. And, if you cannot reach an acceptable resolution in negotiations, these points are worth fighting for in a contested hearing.
Furthermore, the outcome of your negotiations depends on the strength, amount, and persuasiveness of the evidence that you gathered during the discovery phase. You stand a much better position of asserting your position or defending your rights if you have a significant amount of evidence that logically and completely backs your position.
Ultimately, the goal of the negotiation phase is to come to an equitable resolution based on Texas law and the unique circumstances of your case.
If negotiations fail between both parties, you will need to go to court and participate in a contested hearing to have a judge resolve the issues that could not be ironed out in the negotiation phase.