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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 will be
different from the one described below.
TABLE OF CONTENTS - DIVORCE PROCESS
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 "Separation
Agreement" or "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.
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"Texas
does not have a "legal separation" as other states do.
Earl Jackson's "record" were parties who separated in
1961 and divorced in 2002. The client had been
married to his "second wife" for over 30 years.
All property accumulated or earned during the marriage
is community property and subject to divsion by the
court in what the court deems to be, in its descretion,
fair and equitable. In the "61 case" the court awarded
to each spouse that property which was held by each of
them in their own name. So it worked out okay.
In another case of long separation, the court ordered
50/50 each. Means the court "tagged" a
spouse's community property on a 50% basis.
Actually, the guy who was being sued for divorce in that
case with substantial assets was ultimately a
"jerk" and "pissed" off the court. The judge blinked her
eyes, smiled and said "have a nice day" as she awarded
50% of the man's retirement to his long separated
spouse. If you have been separted for some time
without hope of reconcilliation - get a divorce. We get
this call all the time.
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". Almost all divorced are granted
on "irreconcilable differences." Most petitions will
contain "boiler plate" language asking for attorney's fees,
and why a spouse deserves more than 50% of the community
estate. Don't worry about the language. Contact
an attorney who specializes in divorce work.
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. If
you are involved in a divorce action, expect to receive
"discovery." Save time and money, help your lawyer answer
the discovery on a timely basis.
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. It is exceedingly rare
for a case to go all the way to trial.
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.
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