A Brief Description of the Divorce Process in the State of Texas
This web page outlines seven basic steps in the divorce process in Texas. Each and every divorce is different, however, because each and every marriage is different. For example, not every divorce is going to need a temporary orders hearing. (Here is why everyone does not need to spend the time and money to get Temporary Orders drafted by your attorney and signed by a judge: You can be divorced in Texas in as little as 60 days. If we expect the divorce to be finalized in a relatively short time, that reduces the need to spend the time and money to get a judge to listen to some evidence at a temporary orders hearing and to sign some temporary orders that will only be effective for a couple of months until the final divorce decree is signed by the judge.)
Not every divorce case is going to need an extensive discovery phase since sometimes both spouses already have a real good idea of what all the marital assets and debts are.
You should seek the advice of an experienced attorney if you are thinking about filing for divorce. Please feel free to contact Ken Crain at 512-869-0131 to schedule a divorce consultation. I will gladly speak to you on the phone for a few minutes about your situation for no charge. If you prefer to come in to my office, I offer divorce consultations in my office for $250 for up to one hour of face to face discussion in my office.
Residency requirements. Before filing a petition for divorce, one spouse must be a Texas resident for at least six months and be a resident of the county in which he/she is filing the divorce petition for at least 90 days.
Step one of the divorce process in Texas. Filing the Petition for Divorce - The first step in any divorce is to draft the Original Petition for Divorce and file it with the District Clerk of the county in which you or your spouse resides. The divorce petition will contain certain basic information regarding marital property, children of the marriage, the grounds for divorce, and the general requests that a party is making in the case.
Sometimes the parties have reached total agreement on all relevant issues before the divorce petition is even filed. At the other extreme, sometimes the parties have not even seriously begun to discuss the important issues of dividing up their property and what to do about child custody, child support, child visitation, etc. If you are certain that you want a divorce, there is no need to wait until you have reached complete agreement with your spouse before filing a divorce petition. (Texas requires a "cooling off" period of at least sixty days between the date a divorce petition is filed and the earliest date that a judge can legally grant you a divorce. Most people use some or all of the required "cooling off" period to complete the negotiations in a divorce case and to get both spouses' signatures on an Agreed Final Decree of Divorce.)
Step two. Service of Citation - (Delivering the divorce petition to your spouse). Simple fairness and common sense (as well as the law) demands that your spouse be informed that you are seeking a divorce before a divorce can be granted by a judge. Delivering the divorce petition to your spouse can be accomplished by hiring a constable or a private process server for a fee that starts at around $75. In amicable situations, instead of paying a process server to provide a copy of the divorce petition to your spouse, you or your attorney can provide a copy of the divorce petition to the spouse (in person or by mail or even as an attachment to an email) and then you can have your spouse execute a Waiver of Service or an Original Answer. The method of serving your spouse will be determined by you and your attorney at your initial consultation depending on your individual circumstances. (If you receive a divorce petition from a process server or directly from your spouse, you should contact an experienced divorce attorney immediately so that he/she can discuss your situation and review the divorce petition to decide how best to deal with it. If you receive a divorce petition from a process server, the paperwork will tell you how long you have to file a formal response with the court or else face potentially negative consequences.)
You will save a lot of money by avoiding the need to get your spouse served by a process server. Although most process servers only charge around $75 for their services, your attorney will usually spend an extra 2-3 hours of his/her time dealing with your case if your spouse needs to be served by a process server. Because most attorneys charge $300 or more per hour, having to use a process server will add a lot of expense to your case.
Step three. Temporary Orders Hearing - In some circumstances, there is a need for the court to enter Temporary Orders that will be binding on the parties while the divorce is pending. You and your spouse can both sign a set of Agreed Temporary Orders (and get the judge to sign them) if you and your spouse are getting along and agree on all of the issues. The most common situation that requires a Temporary Orders Hearing is when there are children involved and temporary child custody, child support, visitation, and living arrangements need to be determined and reduced to writing as soon as possible. Temporary Orders can also set some "ground rules" which can ultimately assist in controlling assets, limiting debt, and even assist in preventing harmful or negative conduct by the parties during the divorce.
Step four. Discovery - Discovery is the process where the parties can obtain information relevant to the divorce from the other party. Discovery is especially useful if your spouse holds financial knowledge or possesses financial records that you do not have because he/she primarily dealt with the family finances during the marriage. Discovery can be informal (one side asks the other side to provide copies of certain information and the other side complies).
Formal Discovery can be much more involved by requiring one party to provide detailed information under oath. Common discovery methods are written questions (interrogatories), preparation of inventories, production and inspection of documents, and depositions of one or both spouses and/or other witnesses. The discovery process helps your lawyer learn more about your case, allowing for full disclosure of particular facts, such as income and liabilities of the parties, value of certain marital assets and retirement accounts, and facts relevant to establish child custody and child support. There are a variety of ways to conduct discovery and your attorney should select the best method for your unique situation. Not every case requires the full use of the formal discovery process. You and your attorney will decide on the need for formal or informal discovery, depending upon your situation and how cooperative your spouse is.
Step five. Mediation & Settlement Negotiation - After the attorneys and parties have had the opportunity to obtain the information necessary to make an informed decision about the strengths and weaknesses of the case and the issues in dispute, negotiations for the final resolution of the divorce may begin. Many courts require that all parties participate in the mediation process prior to a contested final hearing or trial. Mediation is a process where a third party mediator facilitates a possible settlement of all (or some) of the issues involved in your case.
Typically each party will be responsible for paying for half of the cost of the mediator. (A mediator usually charges $300 per hour.) Mediation of a family law case will typically last for at least 3 to 4 hours. If your situation is more complicated, the mediation may last for an entire day. You should be prepared to pay the mediator by personal check immediately at the end of the mediation session.
On occasion the parties, through their attorneys, can negotiate the case to a complete final agreement without the necessity of hiring a mediator and doing a formal mediation. For example, one of the attorneys may draft a proposed final decree of divorce and get his/her client to approve it. They then forward their proposed divorce decree to the other side to see if they agree to it in order to narrow the disputed issues. The proposed decree may go back and forth a couple of times to reach a complete settlement.
(I have had many settlement meetings in family law cases where both spouses and their attorneys simply sat down around a conference table or a dining room table with all their paperwork and successfully worked out a settlement. We all turned off our cell phones and spent the time needed to discuss and negotiate and settle all issues.) The negotiation and/or mediation process allows clients to determine the ultimate resolution of their case. That way you avoid the unknown outcome that is always present any time a judge or jury is asked to make decisions in a case (after the parties have failed to reach total agreement on their own).
Another way to cut mediation costs is to take advantage of Settlement Week that is held every September and February in Williamson County. If you have a Williamson County divorce that needs some mediation, this is a cheap way to do that because local attorneys volunteer their time to serve as mediators during Settlement Week which is held twice a year. This way you will only have to pay for your own attorney's time and you will save the cost of paying for a mediator.
Step six. Final Hearing or Trial - Most family law cases are settled by the parties before a final hearing or trial is needed. If an agreement cannot be reached between the parties, then the case will be ultimately decided by a judge or jury. The overwhelming majority of disputes in family law cases are decided by the judge of the court that the case was filed in (which is randomly determined by the district clerk when the original divorce petition is filed). It is extremely rare for an attorney to advise the client that spending the time and money to have a jury (rather than the judge) decide the disputed issues will be in the best interest of the client. Most final hearings last an hour or two in front of a judge. All family law judges will pressure you and your attorney to get the hearing to last the shortest possible length of time in order to save time for the court.
Step seven. Prove up & closing documents - After a resolution is reached, either through an agreed settlement or by court ruling, a Final Decree of Divorce must be prepared that incorporates the terms of the resolution into final legal form. Judges generally do not personally draft the Orders or Divorce Decrees that they sign—it is up to one of the attorneys involved to prepare documents for the judge’s signature. Once the divorce decree language is agreed upon by all parties and attorneys involved and all parties and the attorneys have signed the proposed final decree, one party and his/her attorney then attends court to "prove up" the decree to finalize the divorce. In many cases there are closing documents that must be prepared along with the final decree of divorce, such as deeds to transfer real estate to one spouse or the other, powers of attorney to transfer motor vehicles from one spouse to another, and Qualified Domestic Relations Orders (QDROs) to divide retirement plan benefits between the parties.
Contact the Law Office of Ken Crain for help with your divorce.
My goal as your attorney will be to finalize your divorce as quickly as possible and to get the best results possible for you. I recognize that the cost of a divorce is frequently a major concern, and I will explain the costs to you and will do my best to minimize your legal expenses while obtaining the best results we can get for you in your specific situation.
I believe in being creative to resolve disputes and move cases to faster conclusions so that everyone can get on with their lives. If you are struggling with a divorce or other difficult legal problem in Williamson County or elsewhere in Central Texas, I can help protect your interests and your future. Call 512-869-0131 to speak to Ken Crain on the phone about your problem and/or schedule an office appointment.