Once you've decided that your marriage is not longer viable, you need to do a little homework before punging in to the legal divorce process. There are three pre-litigation phases: Assessment, Planning, and Preparation.
During the Assessment phase, you need to answer questions such as these:
Your attorney will help you identify which of these and other issues you need to consider prior to filing for divorce.
Once you've assessed your living, working, and litigation situation, you need to make some concrete plans. They do not have to be complex or perfect, but you do need to have a plan for dealing with each of the issues identified when you assess your total situation. For example:
Finally, just before filing for divorce, you need to be prepared for the emotional, financial, and logistical issues that will arise. For example:
When you are ready to file for divorce, your attorney will draft a document entitled "Original Petition for Divorce." This document tells the court that you want a divorce. It identifies the parties to the lawsuit (you and your spouse) and any children under the age of 18 born or adopted into the marriage. At a minimum it tells the court that you expect to reach an agreement on how to cooperate in raising your children and that you expect to reach an agreement on the settlement of your community property.
The original petition for divorce can also as the court to make temporary orders (described below), award you more than 50% of the community estate, and, restore your maiden name.
What the original petition for divorce does not do is lay out all the facts in your case, beyond a few conclusory statements about adultry, abuse, etc., if they apply.
If your spouse poses an immediate threat to the health and safety or you or your children, your attorney can also ask for a temporary restraining order which, if granted by the court, will remove your spouse form the house for up to 14 days. Within 14 days, the court must hold a hearing to see whether the restraining order should be continued or lifted.
After your attorney files the original petition for divorce, the court will send back a copy of the petitition with a stamp on it indicating that it has been accepted and assigned to a court. The next step is to let your spouse know, in a formal way, that you have sued for divorce. This formal notification is called "service of process."
There are four frequently used ways to serve your spouse, from least costly to most costly:
Waiver. If you don't think that your spouse will become violent or destructive when notified of the pending divorce, your attorney can draft a document called a Waiver of Service. A waiver of service says that your spouse acknowledges that they have received a copy of the original petition for divorce, and that they do not wish for a process server to serve them personally. By signing a waiver of service, your spouse is NOT AGREEING to any of your terms but is simply acknowledging that the divorce process has begun. If your spouse signs the waiver of service document, there is no need for formal service of process. The notarized signature is good enough for the lawsuit to proceed.
Constabular Service. If your spouse refuses to sign a waiver or you don't believe it's safe to present one to your spouse, your attorney can arrange for a county constable to serve your spouse. Constables work for an elected official and serving process is an important part of their duties. Although the cost is less than using a private process server, constables are very busy and may not serve your spouse very quickly. And if you are trying to serve your spouse in a remote county, service can take months.
Private Process Server. Rather than use a constable, your attorney can employ a private process server. Private process servers can work very quickly and are trained to do their job peacefully yet assertively. A private process server can work days, nights, weekends, and travel long distances to serve your spouse. The only downside is that service through a private process server can cost hundreds of dollars, but frequently it is your best option.
Alternative Service. If a constable or a private process server has attempted to serve your spouse but your spouse has avoided service (it is a crime to knowingly avoid service of process), your attorney can arrange for service by publication or other "alternative" means. This will involve letting a constable or private process server make several attempts, cost of publishing the petition, and cost of drafting and presenting a motion and order to the court requesting that the alternative service be approved by the court.
Once your spouse has been served, the lawsuit has two sides (yours and your spouse's) and the court can proceed with your divorce.
Although the court's standing orders, if any, (discussed above) provide a good set of rules for how the parties are to behave during the pendancy of the lawsuit, sometimes other orders are necessary. For example, if you have children, someone needs to live in the house with them and the other parent probably needs to move out. One parent needs to pay child support and medical support.
Whether or not you have children, you may also need provisions providing for temporary spousal support, temporary use and possession of a business or motor vehicle, or protection of certain assets.
If any of those apply, your attorney will ask the court to make temporary orders. The request for temporary orders is usually done as part of the original petition for divorce, but it does not have to be.
When your attorney asks the court for temporary orders, the court will give you a date to appear and make arguments as to what those temporary orders should be. Between the day your spouse is served and the date assigned by the court for a temporary orders hearing, your attorney and your spouse's attorney (or your spouse, if he or she does not hire an attorney) will try to negotiate temporary orders in order to avoid a hearing, which is time-consuming and costly.
Once temporary orders are in place, you now have a complete set of rules as to how everyone is supposed to behave during the pendancy of your divorce case.
Most of the time, it's in the best interest of the parties to settle their case without the need for a trial. However, how can you formulate or evaluate a settlement offer unless you have as many of the facts in front of you as possible?
The discovery process is designed to gather facts and help the parties narrow their points of conflict. You will probably be served, through your attorney, with discovery requests and your attorney will serve some on your spouse. Although a large number of the specific discovery requests appear to be innocent, fact-seeking questions or requests, it is very important that you respond to discovery according to the deadlines set out in the Texas Rules of Civil Procedure, and that you respond very carefully.
Unncessary disclosure of irrelevant facts can cause a tremendous amount of grief in the future. For example, say you don't have any children and the only issues in dispute are how to deal with your house and cars. The other attorney may send you discovery requests asking about drug use. If you've used illegal drugs in the past, you might be tempted to answer questions about them in order to conform with the requirement for honesty in your responses. However, your attorney will know that past drug use is, for the most part, irrelevant to property issues and will fight to prevent you from having to disclose details of that nature.
Once the discovery phase is complete, you should know as much as is knowable about the assets and liabilities of the estate and your spouse's schedules, behaviors, and goals. With this knowledge, you are prepared to make or evaluate offers to settle your case.
In the negotiaion phase, with your prior approval, your attorney will prepare and send settlement proposals to your spouse's attorney. Your spouse may take several days to evaluate them and formulate a counter proposal. This process may go on for many weeks, but throughout the process, you and your spouse should be coming closer to settlement with each iteration.
Sometimes both parties try hard to settle their case and just can't do it. Before resorting to a final trial before the court (or a jury), your attorney will probably suggest that you try mediation. In fact, your temporary orders will probably require you to attempt mediation before a final trial.
In mediation, you and your attorney sit in one room and your spouse and his or her attorney sit in another room. The mediator, selected by both of you or by the court, will shuttle between rooms carrying offers, making suggestions, and providing case assessment advice. The goal is to reach a Mediated Settlement Agreement (MSA). You do not have to sign an MSA if you or your attorney do not believe it results in a fair settlement. However, if you do sign it, it is binding and cannot later be revoked.
If you and your spouse are not able to settle every issue before you, you will eventually have to go to trial. Trials are expensive, emmotionally taxing ordeals, which is why settlement is so attractive. Some attorneys will not go to trial (you should not hire such attorneys). The rest are willing and able to represent you at trial, but you also have to ask whether you are in a condition to endure a trial.
During the trial, both sides will call witnesses--you will be one of the witnesses called. Both attorneys will ask you questions and you will have an absolute duty to tell exactly the truth. If trial in your case become necessary, your attorney will prepare you for it. It's natural to be nervous on trial day, but if you remember the pointers your attorney gave you, you will be fine.
At the conclusion of the trial, the judge may give you a ruling on all issues before the court. Often, the court spends some time to fashion orders that are in the best interest of the children and a property division that is just and right, the two governing legal standards.
Whether you were able to reach a negotiated or mediated settlement agreement or the court ruled in your matter, the next phase begins by one of the attorneys drafting a Final Decree of Divorce. The final decree of divorce will be a long document that very specifically lays out all the parenting rules (ifyou have children) and property division agreement (if you had community property). One attorney will draft the decree and the other, with their client's approval, will approve the decree. Once both sides are satisfied that the document acurately and unambiguously reflects the final agreement or order of the court, you and your attorney will present it to the court in a short process called "prove up."
At a prove up hearing, your attorney will ask you a series of simple questions and the judge will finally sign the final decree of divorce and grant your divorce. If child support was agreed to or ordered, your attorney will also present a Wage Withholding Order to the court.
Sometimes there is still a little more work to do. If cars need to be transferred between parties, real property deeds need to be signed, or retirement accounts need to be split, the attorneys will have to draw up documents to accopmlish that and have one or both parties sign them, depending on the nature of the document.
There are reports that your attorney must file with the district clerk memorializing the divorce as well as with state government offices in Austin.
Hopefully, by the time your divorce is finalized and all the required documents signed and filed, you will be able to get on with your new life. Sometimes, however, one party or the other fails to do what they agreed to do or what the court ordered them to do. In those cases, the other party must contact their attorney and file a Motion to Enforce.
For example, if your former spouse was supposed to remit cash to you by a certain date and fails to do so, you may have to seek an enforcement action against him or her. Enforcement is not nearly as complicated or time-consuming as the original divorce process, but it still entails legal fees, court costs, and time away from your normal activities. You may have to balance the cost of enforcement against the benefits of the likely outcome. For example, if your former spouse did not pay you because he or she does not have the money and has no access to money in any way, you can cause him or her pain, but you probably won't get your money.
On the other hand, our attorneys have a great success rate in enforcing decrees and collecting from former spouses.
Either way, you will no longer be married, your life will be disentangled from your former spouse, and you will be a happier person with a brighter future