PHASE 1: Assessment, Planning, and Preparation
Once you've decided that your marriage is no longer viable, you need to do a little homework before plunging into 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:
- Where do they go to school? Will it be possible to keep them in the same schools?
- Will you be able to support them with the income from your job and some child support? (See our child support calculator)
- How will you have to reorganize your schedule to handle all of your children's care each day?
- How will you communicate what is going on in an appropriate way with your children?
- Will the children need to see a counselor, if so, is it covered by insurance?
- Will you be able to earn enough money to live on?
- Where can you afford to live?
- How will you obtain and pay for health insurance for yourself?
- Would you rather have cash in hand today or are you willing to wait for large assets, such as the marital residence, to be sold?
- Will you need temporary child and/or spousal support?
- Will you need interim attorneys fees?
- Do you have bad facts (e.g. infidelity, drug usage, criminal background, mental illness, a history of family violence) that must be dealt with?
- How much time can you devote to responding to your attorney's inquiries, attending hearings, etc?
- How will this impact your job?
- How will you communicate this to family, friends, and co-workers?
- Can you withstand some negative publicity during the process?
Your attorney will help you identify which of these and other issues you need to consider prior to filing for divorce.
(Related: Case Assessment)
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:
- Prepare a monthly budget of recurring expenses and income. Distinguish between items that must be paid for, e.g. rent, car payment, and those that make life easier but can be given up if necessary, e.g. tanning memberships, extra TV channels. Also, include any costs associated with furthering your education or training if you have identified that as something you need to do in order to become financially independent of your spouse.
- Identify sources of funds that you can use to pay basic living expenses for the first few weeks after your divorce is filed, legal fees, and court costs. You may be eligible for temporary spousal and/or child support and interim legal fees from your spouse, but you may not be able to collect those for several weeks after your divorce is filed.
Finally, just before filing for divorce, you need to be prepared for the emotional, financial, and logistical issues that will arise. For example:
- Create a core support network of family and friends that can help you with new duties that you will have to take on as a single parent. Even if you and your spouse share custody of your children on a more or less 50:50 basis, every day that you have your children, you will be a single parent.
- Arrange for before and after school care for your children. If you or your spouse normally took the children to school and picked them up after school, you may find that as a single parent who works, you need third parties to help you care for your children.
- Find a place to live if you think you will need to or want to move out of the marital residence once the divorce is filed. Some couples are able to live together during the pendency of a divorce, but that is not the usual case. Litigation will add stress to an already strained relationship.
- Get a job if you are not already employed and do not have access to sufficient funds to support yourself, meet your expenses, and take care of your children. The most generous child support and spousal support is inadequate to provide for all your financial needs. Also, if you plan to seek spousal support (alimony), the court can consider whether and to what extent you've tried to find suitable employment when it sets the amount of support.
- Meet a counselor to help you deal with the emotional side of divorce.
- Gather documents that will help you assess the value and extent of assets and debt held by you and your spouse:
- Tax returns (1040, 1099, W-2 forms and schedules)
- Pay stubs
- House purchase papers (loan applications, refinance applications, HUD-1 forms)
- Utility bills
- Bank statements
- 401(k) and other retirement statements
- Medical records (you, your spouse, your children)
- Insurance documents (car, house, life)
- Other documents your attorney asks for specific to your case
- Take steps to protect your assets. Put your jewelry and valuables in a safe deposit box. Secure your computer, cell phone, and navigation system in your car. Change your banking, email, social networking (e.g. Facebook, LinkedIn, Twitter, MySpace) passwords.
- Understand what you cannot do after the divorce is filed and take appropriate steps prior to filing. For example, some counties have standing orders regarding the conduct of the parties during a lawsuit, including divorce: Dallas County Standing Order, Denton County Standing Order, Collin County Standing Order.
PHASE 2: Filing for Divorce
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 adultery, 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.
PHASE 3: Serving Your Spouse
After your attorney files the original petition for divorce, the court will send back a copy of the petition 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.
- Constabulary 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.
PHASE 4: Temporary Orders
Although the court's standing orders, if any, (provide a good set of rules for how the parties are to behave during the pendency 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 may need to move out. One parent may need 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.
IMPORTANT NOTE ABOUT NEGOTIATIONS: Most matters submitted to the court are settled without the need for argument before the court. However, of the matters that settle, a large number of them do not settle until all the parties are at the court house for a hearing. The time between when the doors to the court house open and the court calls your case is often the most productive in terms of reaching agreement.
There are many theories about why cases settle an hour after the parties arrive at the court house but could not settle the previous day. It might be as simple as when you come to the court house for a hearing, you finally have both parties and their attorneys in the same place, focused on the same thing, and confronted with a deadline. Whatever the exaplanation is, just keep in mind that most cases settle on the court house steps, as attorneys like to say.
Once temporary orders are in place, you now have a complete set of rules as to how everyone is supposed to behave during the pendency of your divorce case.
PHASE 5: Discovery
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.
Unnecessary 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.
(Related: Information Gathering)
PHASE 6: Negotiation/Mediation
In the negotiation 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 a 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.
PHASE 7: Final Trial
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, emotionally 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 becomes 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.
PHASE 8: Finalization
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 (if you 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 accurately 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 accomplish 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.
PHASE 9: Enforcement
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.
(Related: Child Support Enforcement)
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