What are the steps of obtaining a divorce in Texas?

May 25, 2011

Every divorce is different, but every divorce in Texas must follow a basic process:

1)      Filing of a petition.  This is the document that starts the legal process of divorce.  The party who files the petition is called the “Petitioner.”  The other party is called the “Respondent.”  It doesn’t matter who files first.  Your property and parental rights remain the same, whether you’re the Petitioner or Respondent.  The petition must be on file for 60 days before the divorce can be final.

2)      Service of process on the Respondent.  The other party has to know that the petition has been filed, and the court has to know that they received a copy.  There are three ways to accomplish this:

  • Formal service of process.  A constable or private process server finds the Respondent, hands him a copy of the petition, then reports back to the court that he has done so.
  • Waiver of service.  The Petitioner or attorney delivers a copy of the petition to the Respondent, in person or by mail.  The Respondent signs a document called a “Waiver of Service of Process” in front of a notary, and returns the form to the Petitioner.  The Petitioner’s attorney files the document with the court.
  • Filing of an answer.  If the Respondent hires an attorney, the attorney will usually just file an answer with the court, indicating that they have received the petition and are “making an appearance” in the case.

3)      Issuance of standing order.  Most counties in north Texas have what are called “standing orders” that apply to all family law cases.  This order is attached to the petition and applies to both parties as soon as the case is filed.  Basically, the order requires everyone to act like grownups.  It prohibits hiding property, interfering with the children, verbal and physical abuse, and other bad behavior that people going through divorce tend to engage in.

4)      Temporary Orders.  Many divorce cases require what are called “temporary orders,” which are orders that apply while the divorce is pending.   Many attorneys include a request for temporary orders in the petition.  Usually, the courts are able to hold a hearing on temporary orders within a short time (two to three weeks) after the petition is filed.  These hearings are usually short (in Collin County, temporary orders hearings are limited to twenty minutes for each side), and cover issues such as where the children will live, who will stay in the home, and child support.

5)      Information-gathering.  The next step is to gather information.  This can be done informally, by both parties providing all the information requested by the other side, or formally, through a legal process called “discovery.”  Each party sends the other party lists of questions (called “interrogatories”) and requests to produce documents.  The attorneys may request a “deposition,” which is an opportunity to question the other party in person, under oath and with a court reporter present.  If children are involved and there is a dispute over possession or conservatorship, then the parties may have to pay for a “social study.”  An expert, usually a social worker or psychologist, will visit both homes, interview the adults and children, and provide a report to the attorneys and the judge.  If a family business is involved, the parties may have to hire a business evaluator to determine the value of the entity.  Tax, real estate, or financial professionals may need to be consulted to help determine the appropriate division of the property.  The information-gathering stage can last a long time, and is usually the cause of delay in completing a divorce.

6)      Resolution of Issues.  After all the necessary information is gathered, the parties will begin to decide how they want to handle the division of property and post-divorce parenting.  Usually, the parties agree on many issues, but still have some problems they can’t resolve.  There are several ways such differences are resolved in divorce cases:

  • Informal settlement discussions.  The attorneys or the parties may write letters, exchange e-mails, talk on the phone, or meet in person to resolve the issues.  This is how the vast majority of divorce settlements are reached. 
  • Mediation.  The parties and their attorneys sit down with a neutral third party who helps them identify the points of agreement and disagreement and come to a resolution.  The mediator does not make decisions; the parties retain control of the process and any agreement.   Ideally, a mediation results in a “mediated settlement agreement” which resolves all issues in the divorce.
  • Judicial hearing.  If the parties and their attorneys are not able to reach an agreement on one or more issues, then either party may request a hearing or trial in front of the judge (or in some cases, a jury).  This is a formal process where evidence is presented, witnesses testify under oath, and the judge or jury makes a decision which is binding on both parties.

7)      Preparation of a Final Decree.  Most divorce cases end when the parties have finally agreed on all issues, or when the judge has ruled on the issues they could not resolve.  These agreements are written up in a document called a “decree.”  It contains many provisions that are required by statute, as well as any unique terms the parties have agreed to.  Final decrees can be very long, as they detail the parties’ rights and duties regarding the children, and the disposition of all property.

8)      Prove up.  If the Decree is agreed to without a trial, then one party still needs to appear in front of the judge to “prove up” the divorce.  A prove-up is essentially a very short trial, with one witness who confirms that the Decree contains the agreement of the parties.  The court grants the divorce, signs the decree (which then becomes the order of the court), and the divorce is final.

9)      Post-divorce matters.  After the decree is signed, there are usually some other matters to be handled.  If there is child support ordered, an account is set up with the Child Support Division of the Office of the Attorney General (OAG).  If a retirement account, such as a 401K, was divided, the parties must obtain a “Qualified Domestic Relations Order” (QDRO) to send to the plan administrator.  If there was a transfer of real estate, the deed must be filed with the county clerk.

There are many other twists and turns a divorce can take.  Sometimes restraining orders are necessary to prevent destruction of property or family violence.  Sometimes the parties may have more than one hearing to determine issues involving the children or property. In a Collaborative Divorce, the information-gathering and issue-resolution steps look very different.  But these are the basic legal steps required to get divorced in Texas.

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