Divorce

Divorce

What does a divorce do?

A divorce does five things:

  1. It dissolves your marriage.
  2. It divides your community property (and debt)
  3. It determines child custody, visitation, and child support
  4. It can change names to give back someone’s maiden name
  5. It can sometimes order spousal support or special orders that require the spouses to stop bothering each other.

To file for a divorce in Texas, you must be a Texas Resident for 6 months, and you must have lived within the county you plan to file in for at least 90 days immediately prior to filing of your divorce petition.  Time spent by a Texas resident outside of Texas, while in the military, satisfies the residency requirement in Texas for a divorce. Texas does not recognize legal separations.

It is possible to get a divorce even though the other party does not want the divorce to take place.  Texas is a “no fault divorce state.” “No fault” means that one spouse does not have to prove the other spouse has done anything wrong in order to obtain a divorce. You cannot be held to a marriage because your spouse does not want to sign or refuses to participate in the divorce process.  The court will enter divorce orders even if the other party refuses to sign them.

Texas requires a minimum 60 day waiting period before any divorce can be finalized. The 60 day period begins to run from the time the Original Petition for Divorce is actually filed with the court.  In other words, the shortest time it will take to finalize a divorced in Texas is 61 days.  On occasion, in domestic violence cases, there is an exception to the 60 day rule.  If the parties are in agreement, a divorce proceeding can be finalized immediately following the sixty-day waiting period.  On average, however, the time period is more likely to run 90 to 120 days in an uncontested divorce due to the crowding of court dockets and the time necessary for counsel to draft necessary legal documents and obtain the agreement of both parties regarding the wording of the final documents.  If the parties are not in agreement, the time necessary to finalize the divorce will depend on the conduct of both parties and their attorneys, the court’s schedule, the matters in controversy and the complexity of the contested issues. From start to finish, the divorce process may go through a number of phases which might include temporary orders, exchange of financial information, psychological evaluations (in custody cases), alternative dispute resolution, trial, and appeal. A divorce in which the parties are deeply in opposition to an agreement on some or all of the core issues may take anywhere from several months to several years to complete.

Let’s talk more about the grounds for divorce.  There are “fault” grounds for divorce and “no-fault” grounds for divorce in Texas. The Family Code defines the “no-fault” basis as “insupportability”, and, defines it as meaning a conflict of personalities that destroys the marriage relationship.  Most divorces are filed on the basis of insupportability.  However, adultery, cruelty, abandonment, conviction of a felony, living apart, and other reasons for divorce are recognized in the Family Code.

In order to file a divorce, you will need a Petition for Divorce. If children are involved you may also need a Health Insurance Availability Affidavit and if a party is out of state—a UCCJEA Affidavit, which states the last addresses of the children.

The divorce complaint is typically filed with either the county court or the district court in the county where either you or your spouse meet the residency requirements. The divorce petition is filed by presenting the actual petition along with the requisite filing fees to the clerk who will then file your petition, assign you a court and issue citation to the opposing party.

In the State of Texas, all cases that involve contested custody or visitation matters are referred to mandatory mediation, provided the parties are represented by an attorney and there is no allegation of domestic abuse.

Mediation attempts to change disputes from “win-lose” to “win-win.” Mediation is a non-adversarial process of helping people come to agreement on issues like parenting arrangements, support of children and spouses and division of real and personal property. Mediation occurs when a neutral third-party, who has training in dispute resolution, assists you and your spouse and helps you resolve the issues that are causing conflict and to make cooperative, informed decisions.

If the case cannot be settled, then it will be set for trial. Often, in addition to the pre-temporary orders and mediation, a second mediation will be ordered prior to a final trial. Trial is often expensive, stressful, and risky. A trial can be before the court or before a jury upon request.

Post-Trial / Final Decree. Whether there is a settlement agreement or a trial, at the conclusion of the case a Final Decree of Divorce is drafted. This document spells out who gets what property, where the primary residence of the children will be, how much child support will be paid, and how various child-rearing decisions will be made in the future. The court’s orders in the Final Decree of Divorce can in some circumstances be modified in the future.

Appeal

If there has been a procedural error in the trial, or if the ruling of the court was not equitable or not in the best interests of the children, you may file a motion for new trial, or begin an appeal within a very limited period of time.

The Gregg Law Firm will make sure you get through your divorce with knowledge and sound expert legal advice at an affordable price.  Call us today to get started!