The May Firm

There are four basic steps to a divorce proceeding:

FILING A DIVORCE PETITION

Any divorce, even one on friendly terms, must begin with the filing of an “original petition for divorce” in a state district court.

Some counties, such as Dallas and Tarrant counties, have specialized courts that deal only with family law matters like divorce. Other counties send divorces through the same general district courts used for all types of civil and criminal matters.

In order to file for divorce in Texas, one of the spouses must have been a resident of the state for the six months prior to filing the petition and a resident of the county where the suit is filed for 90 days.

Most petitions include a request for a two-week temporary restraining order (TRO). This freezes things as they are and prevents one spouse from taking any action that harms the other.

The TRO prevents spouses from hiding money or spending money in abnormal ways. It also prevents the interference of the use of the marital residence. The restraining order cannot order that the party be excluded from the home without special circumstances, and it prevents the changing of locks or any other type of exclusionary action.

Before the TRO expires, a judge will schedule a temporary orders hearing to determine if the TRO needs to be made permanent while the divorce goes forward. The judge will also make provisions for temporary spousal support, temporary custody and possession arrangements, temporary child support, temporary use of property and payment of debts, and payment of interim attorney’s fees.

DISCOVERY PROCESS

The next step in the divorce process is discovery. This procedure allows both sides to determine the size of the community estate and to learn the position the other party will take on certain issues. Discovery can be written or oral.

Written Discovery

Request for Disclosure: These are standard questions that are asked in every civil suit. Parties are required to identify persons with information relevant to the case, identify expert witnesses, detail the legal contentions and specify any economic damages.

Interrogatories: One of the most useful pretrial discovery methods, interrogatories are a set of written questions sent to the opposing party that require responses about relevant issues, such as the location of bank accounts, balances in those accounts and signatory privileges on the accounts. Although almost anything relevant to the case can be asked, the total number of questions is limited to 25.

Request for Production of Documents: This discovery tool allows a party to request copies of documents relevant to the issues in the case. Just about any document can be requested. The most frequently requested items are records reflecting bank accounts, 401(k) plans, stock options, income, gifts to people other than the spouse, safe deposit boxes, telephone records and insurance plans.

Request for Admission: These are statements that the opposing party must either admit or deny. If they refuse, they must state a reason why the statements can neither be admitted nor denied. The person answering these requests will be stuck with the answers, and failure to answer them will result in all of the requests being deemed admitted.

Sworn Inventory and Appraisement: This type of discovery is unique to divorce cases. It requires the answering party to list every asset he or she knows about. It also requires the party to characterize the assets as either separate property or community property and to place a value on it. This document is signed under oath, so a party who deliberately hides assets and keeps them off of the inventory will be subject to punitive remedies from the court.

Oral Discovery

Oral discovery is in the form of depositions. These are pretrial witness examinations taken under oath in front of a court reporter. Any witness with information that will affect the case can be deposed. Under Texas law, the deposition testimony can be presented to the court as if the witness were testifying in person before the court.

The deposition is an incredibly useful tool because it locks the witness into the testimony he or she will give. The witness cannot come back later and change his or her story regarding a certain event. If they do this, then the deposition can be used to challenge their truthfulness as a witness.

TRIAL OR SETTLEMENT

Not all divorce cases go to trial. First, after pretrial discovery is over, the spouses will probably be order to go into mediation. Mediation is a procedure where the parties and their attorneys meet with a neutral third-party (usually an experienced family lawyer) to try and negotiate a settlement. The vast majority of all family law cases are settled prior to trial.

If settlement is not possible, the case will go to a judge or jury. Either party has the right to request a jury trial.

Texas is the only state that continues to allow jury trials to determine child custody. A jury trial may also be held on other issues like character and value of marital property. If a jury is not requested or allowed, then the judge decides the contested issues.

DIVORCE DECREE

After a decision is reached, whether by settlement or trial, a divorce decree is entered. This is usually a lengthy document that formalizes and finalizes all of the provisions of the divorce – including issues of property division and child custody. The decree must be drafted very carefully, because, once entered, this agreement will become the rules by which you must live.