If your questions about Texas divorce and family law, especially
in the Dallas area, are not answered by reading this article and the
other the materials on the Website, you probably need a professional
consultation with a qualified, experienced divorce and family law
attorney. Many people find that the cost of such a professional
consultation saves them months of potential
hassle and grief ( and many times, considerable expense) as they get
the information and expertise that shows them how their potential
divorce or other family law situation may play out in their real-life
case. (Some may think of this as getting advice "under the radar"
where detection by their spouse is unlikely.) Feel free to call
us to set up an appointment. Our lawyers have credentials and experience
unsurpassed. In some instances, we may be able to arrange for
a telephone consultation.
ORIGINAL PETITION
- In Texas, the Court cannot grant a divorce
without disposing of property issues. Additionally, if children
were born to or adopted during the marriage, orders concerning
their conservatorship (custody) and support will be determined
at the same time. In other words, it all happens at the same time
in the same proceeding (for lawyers-- no bifurcation). Of
course, the Court must have jurisdiction to grant a divorce, which
is based on one or both parties domicile and residency in not
only the State of Texas but also in the County where the action
is to be filed.
The divorce process starts with the filing
of a document entitled Original Petition for
Divorce. This may be 2 pages or 40 pages,
depending on your circumstances and the relief you request.
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 and delivered to your spouse,
please let your lawyer know. The Petition is required by statutes
to contain certain information and must also include certain
representations by the party. For instance, if there is a premarital
agreement between the parties, it should be called to the Court's--and
the other side's-- attention in the first pleading.
This petition is filed with the District Clerk,
and your case is assigned to a Court. Each county has one or
more courts handling family cases. In Dallas, there are seven
Family Law District Courts. In Ft. Worth, there are also seven.
The filing of cases is random. Your lawyer cannot select the
Court or the Judge. In other counties, the courts that handle
divorces also handle general civil cases and also criminal cases;
for instance, Collin County has eight District Courts
that handle family law cases as well as the other types of cases;
Denton County has six. In some smaller counties, a County Court
at Law may also handle divorce and family law matters.
After processing at the Courthouse, the Original
Petition for Divorce must be delivered to your spouse. The most
common formal means of delivery is by having a Sheriff, Constable,
or private process server hand your spouse the petition and
a Citation. This is called "service." Citation is
essentially a cover sheet that tells your spouse a lawsuit has
been filed, and there is a limited number of days in which a
response must be made. In some instances, you may wish to personally
deliver or mail the papers to your spouse. However, this cannot
be safely done if you have requested a Temporary Restraining
Order or a hearing, because you can not show that your spouse
has been legally served with notice to be at the hearing. Additionally,
if your spouse does not waive service or file an answer in Court,
your delivery does not constitute effective service, and this
would have to be accomplished before your case could proceed.
TEMPORARY ORDERS
- One or the other parties to the divorce lawsuit
may feel a need for court orders between the date the divorce
is filed and when the divorce is granted, which are called temporary
orders that are effective while the divorce proceeds. Another
order, which can be issued by the Court upon request and without
notice to the other party, is called a temporary restraining order
(TRO) and prevents the transfer or disposition of property
and/or to prevent harassment. After a hearing, a TRO can become
a temporary injunction, both of which grant the same relief which,
often times is intended to maintain the "status quo"
and preserve property, or "the peace" between the parties.
A TRO is only good for 14 days, and is granted without notice
to your spouse or a hearing. A temporary injunction is granted
after notice and hearing (or agreement), and remains in effect
until your divorce is granted. Realistically, temporary injunctions
are routinely granted upon request, and are made mutual as to
the parties. In extreme circumstances, the Court may consider
the granting of a Protective Order, which not only has the powers
of a TRO, but also gets law enforcement involved if there is any
question about a violation of the order.
The Dallas Family Courts have implemented a standing order
that is applicable in ALL divorces and family law cases when
they are filed. The Dallas Family Courts standing
order grants uniformly much of the relief previously only
available with a TRO, and was amended in January, 2007.
Collin County has also implemented a similar standing order
in family law cases. So has Denton County. Check
with your lawyer so that you will know what YOU are prohibited
from doing as soon as YOU file for a divorce.
Temporary orders can also
determine which spouse shall remain in the family home, mandate
the payment of bills, the conservatorship (custody) and support
of the children, attorney's fees, the filing of inventories,
production of documents, and other matters such matters as
living arrangements for your children, schedule of parental
possession of the children, spousal support, use and possession
of property and other assets; and possible restrictions
on contact with the other parent. The custody, or conservatorship,
of the children is NOW called a "Parenting Plan" likened
to terms and conditions used in most other states. A specimen
parenting plan is here.
New legislation effective September 1st will ease some of the
quirky requirements for parenting plans.
If you have obtained a Temporary Restraining
Order or requested a hearing for temporary orders, the Court
will set a hearing to occur within days or
weeks of the date of the request for the hearing. If an agreement
is not reached with your spouse concerning temporary matters
before the scheduled hearing, it will be necessary for you to
appear in Court at that time and give testimony.
Your lawyer will give you a form entitled "Financial
Information Statement" for use at that hearing,
and will explain to you what your court appearance may be like.
In Dallas and Ft. Worth, a "Associate Judge"
will hear evidence at the temporary hearing and make the
appropriate orders.
CHILD RELATED ISSUES
As mentioned, if there are children involved
in the divorce, the Court must deal with the child issues at
the same time. For ease, information
about child issues is contained in the following pages:
- Texas
Child Custody Issues
- Texas
Standard Possession Order
- Texas
Child Support Issues
- Texas
Parental Relocation
DISCOVERY
- Discovery is the process where one side learns
from the other side what is relevant to the lawsuit. Some common
formal discovery methods include Requests for Disclosure
(general information about the claims being made and who knows
about them) depositions (oral testimony before a court
reporter); interrogatories (written questions); requests
for production of documents (such as tax returns, bank
account records, deeds, vehicle titles, loan documents, credit
card statements, etc.); or requests for admissions. Whether your
lawyer utilizes these methods will depend on a number of factors
that they will discuss with you. If you are served with discovery
requests or a notice to take your deposition, your lawyer will
guide you accordingly. Your lawyer learns from you
what you know. Your lawyer can request from the other side that
they disclose what they know as part of discovery requests. It
is problematic trying to resolve a case without knowing the facts
that are necessary to evaluate the case. A major issue in many
cases involves the valuation of property and how to divide it.
Discovery helps in understanding what the property is (or was
or should be). You have to know what there is to divide before
you decide how you would like to divide it. This often mandates
the preparation of a Sworn Inventory and Appraisement by
both parties where each lists all the property and debts and their
opinion of values and of claims, including any claims of separate
property. Discovery may also be accomplished on a voluntary,
or informal, basis. It is generally cheaper but there are some
caveats of which your lawyer will be aware.
SETTLEMENT OR TRIAL
- Once each side is fairly comfortable that they
have enough information, obtained through Discovery, probably
including a Sworn Inventory and Appraisement, the parties should
try to resolve their case, preferably by agreement. Mediation
is a very useful aid in helping reach a settlement. There
are articles on Mediation accessible from the HomePage.
Issues about Child
Custody, Child
Support, and Child
Possession Schedule (complete with 2005 revisions)
are covered in other articles available from the HomePage.
- A different way
of getting to resolution in a divorce is Collaborative
Law. This is a method where the parties and their lawyers
formally agree to resolve their case out of court and on a voluntary
basis. This method works in a surprising number of cases,
and is beloved by those clients who use it. Read the article
Collaborative
Law- A Less Painful Way to Divorce for more information.
- If there are issues that cannot be settled,
either party can request that the Court set the case for Trial.
At the trial, the Court will hear all the proper evidence presented
to it and will make a ruling, sometimes directly from the bench
and sometimes after cogitating about the issues for a period of
time. (A glimpse of what a trial or hearing may look and feel
like is detailed in Your
Day in Court.)
- The standard for the Court to divide the community
(marital) property and marital liabilities is that it must make
a "just and right" division. The standard for
the custody and other rulings concerning the children is "best
interest." Obviously there can be a difference of opinion
of what is "just and right" or in the "best interest."
Child related issues are covered in depth in other articles.
- The ruling in a trial, however initially announced
by the Judge, will eventually be put into a written Order usually
called a Decree of Divorce. It is the responsibility of the parties
to produce the proposed written order, and after proper procedures
have been followed, present it to the Judge for signature.
- Even if there is a complete agreement
of the parties on all parts of the divorce action that are
all contained in a proposed Agreed Decree of Divorce (signed by
all), at least one of the parties must appear before the Judge
and give sworn testimony. This is called a "prove up."
If the Judge determines that the testimony meets the legal
requirements for a divorce, the Judge will say the magic words
"Divorce granted, and all agreements approved," and
will sign the Decree of Divorce. In most situations, this is the
end of the Divorce case.
MARITAL LIABILITIES
- All liabilities of the parties should be dealt
with in the Decree of Divorce. However, assigning responsibility
for a debt to one party does not necessarily mean that the other
party is released from responsibility for the debt. See the
article How
to Handle Liabilities for You, Your Spouse and Your Children.
The
article includes the Chart
that summarizes whose property is liable for whose debts.
INCOME TAXES
- The same provisions for marital liabilities
apply to income taxes, except the Internal Revenue Service is
a much more formidable creditor. It will be a rare case where
you are not jointly and individually liable with your spouse for
all taxes for any year in which you filed a joint return. This
means the IRS can pursue collection actions against either or
both spouses. Again, the terms of a decree ordering your spouse
to pay all income taxes is not binding against the IRS, and does
not prevent the assessment of penalties and interest. Further,
the IRS is not restricted by state laws on exempt property. In
some instances, they can obtain the sale of your homestead to
satisfy payment of income taxes. Additionally, a debt owing to
the IRS is ordinarily not discharged in bankruptcy. Information
to avoid tax traps is listed here.
ATTORNEY'S
FEES
- Each party is responsible for their own attorney's
fees and costs of litigation. It may be treated as a marital debt
and divided like all other property--and debt-- in the divorce.
The Court also has the option to require one party to pay all
or any part of the attorney's fees and costs for the other party
depending on their respective financial resources and the facts
of the case. Either party may request interim attorneys fees at
a temporary hearing.
SPOUSAL SUPPORT
- Texas Courts have limited authority to order
alimony after a divorce is granted. However, while your case is
pending, the Court has unlimited authority to award temporary
spousal support. The Court will consider the needs of the requesting
spouse and the ability of the other spouse to pay. The Court will
additionally consider the health and age of the parties, ability
to work, responsibility for children, availability of funds, and
the length of the marriage. As a general rule, temporary spousal
support will be ordered for a limited period of time and in an
amount necessary to cover the basic necessities of life. To
receive alimony after divorce, generally you must
have been married for a period exceeding 10 years, and in certain
situations, you may be qualified to receive up to $2,500 per month
for a maximum of three years.
NAME CHANGE
- You may request a change of your name as part
of your divorce action. This is commonly done by women who wish
to restore their maiden names. Name changes for a spouse
are usually granted even if there are minor children. If you think
you would like to change your name, it would best to do so as
part of your divorce. As a separate lawsuit, the requirements
are much stricter. A name change for a child is an uphill battle
unless it is agreed. It is unheard of for a husband to be
able to force his soon-to-be-ex to drop the married name
SPECIAL INFORMATION ABOUT DALLAS, COLLIN,
DENTON & TARRANT COUNTY CASES
- The Dallas-Ft. Worth area is one of the fastest
growing areas in the country, and each county has chosen a different
way to deal with the increasing number of family law cases filed.
All will order Mediation if requested; some order it anyway, depending
on the Judge. Dallas has 7 full time specialty divorce
and family law courts, and also 7 full time associate judges;
so in effect, Dallas has at least 14 family Courts running at
the same time. Tarrant County also has specialty family
law courts (7) and associate judges for each of them. Both Collin
County (8 District Courts) and Denton County (6 District
Courts), where the real phenomenal growth has been, have general
jurisdiction Courts that hear civil and criminal cases as
well as family law cases. Therefore your case may be handled differently
depending on where it is filed, and the way each individual Court
in that county arranges its docket. While there is virtually no
chance of getting a contested case to trial in less than a year
in one (unmentioned) County; contested cases have been seen in
trial in as little as three months elsewhere. The time from
the request for a trial to the date the trial is set or scheduled
is often a function of the time requested to try the case in court.
The longer the trial is expected to take, the farther off it is
likely to be scheduled. But most cases ultimately end up
being agreed without the risk and expense of a full blown trial,
and can be finalized anytime the agreement and the parties are
ready.
- Each county may have special local rules
in addition to the Texas Rules of Civil Procedure. The Dallas
Family Court rules are here,
the Collin County rules are here,
Denton County's are
here, and Tarrant County's are
here.
- The Dallas Family Courts have implemented a
standing order that is applicable in ALL divorces and family
law cases when they are filed. The standing
order grants relief intended to preserve the financial and
property status quo and protect the children. This standing order
often eliminates the need for a temporary restraining order, and
therefore tends to save the clients money. The Collin County
and Denton County courts have also implemented a similar
standing order.
OTHER
ISSUES
Other articles explain more in detail about some
of the information discussed here, as well as covering other topics
such as child support and child custody. Some of the Articles include:
These and other Articles
listed on the Family
Law Articles page contain more in-depth explanations of the
topics covered.
If your questions are not answered by reading the materials on the
Website, you may be in need of a professional consultation with
a qualified, experienced divorce and family law attorney. Many people
find that the cost of such a professional consultation
saves them months of potential hassle and grief as it gets them
into the ballpark of reality of how a potential divorce or family
law situation may develop into a case. Feel free to call us to set
up an appointment. In some instances, we may be able to arrange
for a telephone consultation.
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