Filing the Divorce Petition
The formal process for obtaining a judicial decree dissolving the marital relationship between two people begins like many other legal matters. The party seeking a divorce must file a petition with their requests for such issues like conservatorship, possession and access and child support, as well as division of property and spousal maintenance. For an agreed divorce, this could be as simple as telling the court you expect an agreement on those issues.
The divorce petition must also inform the court as to why the court should grant the divorce. Most of the time, all the petitioner needs to do is allege that their relationship has fallen apart with no chance of reconciliation. This is referred to as insupportability and is considered the “No Fault” grounds for divorce in Texas.
The petitioner must also officially notify their spouse about the divorce petition and proceedings. Principles of fairness require that an adverse party in a legal action—including a divorce—have sufficient notice of legal proceedings that may negatively impact their legal rights and interests, so they have an opportunity to defend themselves. This could be done through serving the other with the divorce petition or having the other party sign a Waiver of Service.
If a party is served, they must file a response with the court, addressing the issues brought up by the initial divorce petition within a specified time period.
After a divorce is filed, but before trial, the parties must prepare to make their arguments before the court. Each party should present their best arguments supported by the best evidence they can find. Finding evidence can take time, especially in divorces involving marriages spanning years or even decades.
The parties can informally share information and evidence with each other. However, if the parties cannot cooperatively share relevant evidence with each other, they can go through the process of formal discovery where a party sends requests for discovery to the other party and the other party has a specific amount of time to respond including producing documents. Failure to respond to discovery can have serious implications on a case.
The Parent-Child Relationship
Many divorces involve minor children together. As a result, issues concerning the custody, care, and control of a child must be resolved through the divorce proceeding unless a court order has already been issued regarding the children. There are times that a party may seek an order regarding custody, care and control of a child but not file for a divorce. This frequently happens if the parties are separated and the Office of the Attorney General becomes involved. They can assist the parties in getting orders regarding the children but cannot assist the parties in obtaining a divorce.
Property Division and Spousal Maintenance
In some instances, significant time is dedicated to resolving financial matters in a divorce case, such as the division of community property and the payment of maintenance. Issues concerning the division of property require courts to distinguish between marital assets that are divisible upon divorce—also known as community property—and assets that solely belong to each party—known as separate property.
Courts consider the following when distinguishing community property from separate property:
Applicable provisions of a prenuptial or postnuptial contract
Gifts between the parties
When a party acquired title to property
Whether community or separate property was exchanged to acquire an asset
Whether community assets are commingled with separate assets
The nature of any debts and liabilities
Issues of spousal maintenance must also be resolved. If a party is entitled to maintenance payments, the court must consider the financial resources of both parties when determining the duration and amount of maintenance awarded.
Finalizing the Divorce
Generally, all issues arising in a divorce case must be resolved before the court renders a final judgment dissolving the parties’ marriage. A final decree of divorce marks the official end of the marital relationship and details the orders of the court with regard to children, if there are any, and the division of property and debts along with any other terms the court may have ordered like spousal maintenance and injunctions.
Final divorce orders either result from the judge’s findings after litigating the issues in court, through default judgment, or through an agreement of the parties.
Orders for things like child conservatorship, child support, and spousal maintenance often remain in effect for years after a divorce has been finalized. However, the circumstances that lead a court to make specific findings and directives in such orders can change over time. In cases where a subsequent change in circumstances renders a party’s reasonable compliance with an order impracticable or unjust, the affected party can seek a modification in court.
Consult Coker, Robb & Cannon, Family Lawyers for Comprehensive Solutions to Your Divorce
The divorce process can be a tedious and drawn-out process involving complicated legal issues and financial matters. For quality legal advice and advocacy regarding a divorce in Texas, you should seek the services of an experienced attorney at Coker, Robb & Cannon, Family Lawyers.