DIVORCE, DIVORCE, DIVORCE – it’s a very emotional time in anyone’s life
Hearing or seeing the word “divorce” can conjure up many emotions and reactions ranging from complete horror, to ‘I knew this was coming but didn’t want to face it,’ to ‘ok I’ll finally be free’. When our Dallas divorce lawyers speak with clients, they express all these reactions.
Additionally, clients have experienced shock or surprise when they learn from our divorce lawyers that divorce (or the dissolution of the marriage) is an actual lawsuit, filed in the public records down at the county courthouse, where one party is doing the suing and the other party is being sued.
Divorce is a serious decision, and a public civil action.
If you’re thinking about divorce, there are a few things to consider initially:
- Dallas divorce law recognizes that as long as one party is domiciled in Texas every marriage (between a man and a woman) entered into is presumed valid even if the persons were married elsewhere.
- Dallas divorce law requires that a party wishing to divorce and planning to file for divorce must be a resident of the state of Texas for six months and a resident of the county in which the lawsuit is filed for the preceding 90 days.
- Texas also requires that, at the same time divorce proceedings are occurring, all property issues and all children related issues are addressed and resolved.
- Texas presumes that every child born during the marriage is the biological offspring of that marriage, even if both parties acknowledge the child is not biological child of one of the parties. In this case it is important to have a finding the child is not the biological child of non-paternity parent.
The First Steps in the Dallas Divorce Process
From a legal perspective, the first step to take when a divorce is wanted by one of the parties is to file the necessary paperwork with the district court in the county where that party resides. This initial filing is called a “petition” as the party is petitioning the court to dissolve the marriage and grant a divorce.
The petition provides to the court the basic information about the parties, the children, date of marriage and confirms the residency requirement. In Collin, Dallas, Denton and Rockwall Counties, “standing orders” are a required part of the divorce petition, which go into effect immediately and apply to every divorce lawsuit. These standing orders are rules that address issues regarding children, pets, property and conduct of the parties.
How Fast Can I Get Divorced in Dallas? How Fast Can I Remarry?
In Texas, starting on the date the divorce petition is filed, there is a 60-day waiting period mandated by the court so the divorce will not be finalized in less than 60 days. There is a 31-day waiting period from the date the Judge signs the divorce decree before a party can marry someone else. In some cases, this 31-day waiting period can be waived by the Judge.
What is “No Fault” Divorce?
Texas is a no-fault divorce state. Simply speaking, the court is not concerned with who is at fault, so generally the petition will state that the ground, or reason, for the divorce is “insupportability.” To the court, this means that the marriage has become insupportable because of discord or conflict and this discord or conflict destroys the legitimate ends of the marriage so there is no reasonable expectation of reconciliation.
What after the Petition is filed – What if you’re the One who’s being sued for Divorce?
Once the divorce petition is filed, the other spouse must be made aware that a lawsuit for divorce has commenced. The court must have proof that the spouse has received the divorce petition.
This process is formally called providing “service” on the respondent. It can be accomplished in different ways:
- A sheriff, a constable or a private process server can “serve” the divorce petition to the party and then file proof of the service with the court; or
- In amicable situations, the divorce petition can be handed or mailed to the other person. If this is done, then the receiving party will sign a waiver (waiving the need for the above referenced formal service) which then must be filed with the court before the divorce can be finalized; and
In either of the above, when a spouse is served with the divorce papers, he or she has approximately 20 days to file an answer with the court which will serve as proof that the divorce petition was received. However, there is no need to file an answer if that spouse will sign the waiver as mentioned above.
The first court hearing
In some cases it may be necessary to have a hearing at the court early in the divorce process so that the court can issue orders concerning children and property by which the parties must abide. An early hearing may be unnecessary if the divorce is filed in a county that has “standing orders” (as referenced earlier) which are part of the divorce petition and these standing orders address the issues of the case. If there is a hearing set by the court, then the divorce petition and the notice of hearing must be served on the other party as described above.
At this initial hearing, there are different types of orders that may be issued by the court depending on whether there are children, a residential property or if harassment or family violence is occurring.
Most orders will be temporary until the divorce is finalized.
The Simple Divorce – a Cooperative, Uncontested Dissolution of the Marriage
While no divorce can truly be called a simple divorce, legally it may be considered a simple divorce if both parties are in agreement to get a divorce and there is no dispute concerning property and children and both parties are willing to sign the necessary papers.
In a simple divorce, a divorce decree can be prepared while the 60-day waiting period elapses. Once the divorce decree is drafted based on the agreed terms and both husband and wife sign the divorce decree, the facts and the paperwork are presented to the Judge and the divorce is granted.
The Contested Divorce Proceeding – the unfortunate “Nasty Divorce”
When terms cannot be agreed upon -- or there is marital property, other assets, liabilities and/or children issues -- the process remains the same as a simple divorce but, as might be expected, there is the need for more discussion and decision making thus extending the time it takes for the entire divorce process to be finalized.
In contested proceedings, it is impossible to predict how long it takes for a divorce to be finalized. The time frame is dependent on the complexity of the issues, how contentious the parties are, and if there is an attorney representing the other side. Fighting spouses cause “nasty divorces,” which costs everyone a lot in both time and money.
Dividing the Assets and Debts; Determining Property Values
It is necessary to identify the property, liabilities and other assets (such as employment and retirement benefits) of the parties, both those acquired during the marriage and those owned by either party prior to the marriage in order to distinguish between community and separate property and then negotiate equitable divisions.
Valuing the Property
One way to assess the value is by asking the parties to provide the information to each other in an informal way that is a simple, speedy and cost efficient way to obtain the details of the property, liabilities and assets. It does have some drawbacks in that information may be absent either intentionally or accidentally.
Another way is formal documentary discovery. Discovery is the legal method which one party uses to “discover” information about the other party through various methods of documentary inquiry. This is most commonly done with questions (known as “interrogatories” or “disclosure”) and a request for production of documents. This is time-consuming but it is a thorough way to get the information necessary to negotiate equitable divisions.
Another way is through the use of retained financial experts. Financial experts are brought to Court to testify about the value and characterization of property based upon specialized knowledge that the expert possesses. If you have a closely held business, even with significant revenue and income, this is a possible avenue to value a family run business.
The Advantages of a Settlement Proposal over a Trial
When all the facts have been reviewed a settlement proposal may be made to the other party. It may take time to negotiate but it is better to try to reach an agreement than to have a trial, tell your side through your testimony in court and then have the Judge decide the outcome. Prior to setting a date for trial, however, most Judges require the parties to attend a mediation conference. In mediation, an impartial party, usually an attorney with special mediation qualifications will help the husband and wife reach an agreement and draft a settlement agreement which the parties sign and is then binding.
Of course if the case cannot be settled, then it will go to trial.
Temporary Orders Control until the Divorce Decree is Finalized
As stated before, the time between the filing of the divorce petition and the time the Judge grants the divorce cannot be less than 60 days. In most cases, it is longer than that by a few weeks. In many cases; it is much longer than 60 days as the divorce process can take months or years if the issues are complicated.
In the interim, between the filing of the divorce petition and entering the divorce decree, there can be a temporary agreement or temporary orders will be issued. If the parties can agree to reasonable arrangements concerning the use and payment of the house, care of the children, bill payments and personal conduct than the need to go to court to ask the Judge for temporary orders concerning these issues does not exist.
In the event that agreement is not reached, early in the case a hearing is set with the court and the parties will get rules from the Judge. The ruling is turned into a legal document called Temporary Orders. These orders remain in effect until the divorce is finalized.
If from the beginning of the divorce process, the party filing for divorce feels that there is a risk that the other party may tamper with the community funds or is acting in a threatening or harassing manner, a request for a Temporary Restraining Order (TRO) is issued and filed with the court at the time the divorce petition is filed. A hearing is set at the same time. The divorce petition, the TRO and the Notice of Hearing must be formally served to the other party to ensure to the court that the party knows about the proceedings.
If family violence exists, there may be a need for a Protective Order. While the process is similar, filing timeframes and evidence for a Protective Order are more complex. Discussion with a family law attorney is needed in this situation and if the circumstances warrant it, police should be involved.
What about the Children?
Child related issues during a divorce add complexity the proceedings. Since divorce restructures the family unit, parent-child issues such as custody (in Texas it is called conservatorship), visitation schedules, child support payments, and maintenance of health insurance for the children will be determined with the best interest of the child as the primary consideration.
Please don’t hesitate to call or email our divorce lawyers for a paid initial legal consultation if you are considering a divorce, or have been served with divorce papers. The Law Office of Michael Granada is ready to help you!