You’ve decided you’re ready to get divorced.... so what happens next?
While divorce is generally a battle between spouses, the following covers where to file for divorce, serving and answering a divorce petition, divorce records and related privacy issues, child support and custody, divorce mediation, and more. You’ve come to the right place for an overview of the divorce process.
Legal Requirements to Divorce
Before filing for a divorce, at least one of the spouses must be a Texas domiciliary/resident for at least 6 months and a resident of the county where filing for divorce for at least the preceding 90 days.
Completing and Filing Divorce Petitions
Generally, a spouse hires an attorney and the attorney files a petition for dissolution of the marriage, motion for temporary orders, and notice of hearing. This spouse (the Petitioner) serves the other spouse (the Respondent) by a process server or Constable with citation and copies of the petition, temporary orders, and notice of hearing.
Answering a Divorce Petition
Maybe the Petitioner just served you with dissolution papers. You still have the opportunity to tell the court what you want in the divorce. Take care to “answer” within the deadline set by Texas. In responding, you can fill out the court forms yourself, at a legal clinic, or with the help of an experienced divorce attorney.
A divorce will not be granted until after 60 days have passed since the petition was filed. Temporary hearings are held within 1 or 2 weeks after filing the petition to set the groundwork while the divorce suit is pending. At temporary hearings, the court decides issues such as which spouse will retain exclusive possession and use of the residence, how property such as vehicles are to be used, and, when children are involved, where the children will reside during the divorce action during this time.
Sometimes parties will agree to a divorce and independently work out issues of property division. In that case, the petitioning party may have the other party execute a waiver of citation. Because of the waiver, the non-filing spouse will not receive service of process of the divorce petition. Additionally, the non-filing spouse does not file an answer to the original petition. The parties generally wait for 60 days from the date of filing, go to court and prove up their divorce. This is a relatively simple process with little court intervention.
A contested divorce is one in which the partners can not work out a divorce petition independently. For example, a highly publicized "knock down, drag out" divorce would fall info this category. Each divorce party would hire and be represented by their own divorce lawyer. The parties and divorce lawyers would work together to create a petition that both parties can agree on. The earliest a divorce can be granted is 60 days after the petition is filed, but could take much longer depending on how long it takes to reach an agreement. There is no maximum number of days in which a petition bust be finalized. Therefore, it is feasible that a divorce proceeding could last anywhere from 60 days up to several years.
Mediation and Settling a Divorce
Many divorces settle with an agreement both parties can live with. Many states require mediation to help reach a property settlement and a parenting plan everyone can follow. Even without a formal program, you and your spouse can use a “collaborative” divorce process from the beginning or can use an “alternative dispute resolution” specialist to help you settle your divorce.
Child custody can be the single most difficult issue in the divorce process. While property is split at the time of the divorce, custody provisions continue after the divorce is finalized in accordance to the details of the petition. Custody of a child is determined by a legal proceeding called a SAPCR – or “Suit Affecting the Parent-Child Relationship.”
Each parent has the legal obligation to support the child, including providing the child with clothing, food, shelter, medical care and education. This obligation continues until the child turns 18, graduates from high school, or is otherwise emancipated. In some instances where a child is disabled or has special needs, support obligations may continue indefinitely. In recent years, the State of Texas has acquired more efficient and stringent methods for enforcing child support orders. The parent who must pay support could have his/her wages garnished, income tax refunds diverted, lottery winnings intercepted, or even committed to jail for up to 6 months for failure to make child support payments. A parent who is in arrears for back-child support accrues interest at a rate of 6% per year on the unpaid balance.
Division of Community Property
Is it an equal 50-50 split? Not automatically. The community property is divided equally between the spouses. However, the equal division of community property rule is subject to the judge’s right to make a just and right division of the community estate, taking into consideration both parties and any children of the marriage.
If your case goes to trial, you’ll need to present evidence, possibly including testimony from witnesses, so the judge can decide a property settlement for you. It will be easier if you’re represented by an attorney at trial.