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PROCEDURES IN A DIVORCE CASE

March 27, 2018

The initial decision to dissolve your marriage creates new legal and emotional choices that need to be faced.   The following information is given to aid in becoming more familiar with the legal proceedings and terminology involved with divorce.   This information is intended to instruct and inform you of the divorce procedures that are commonly used in the area of divorce.  This is a brief information package and does not fully cover all the situations that could arise in your divorce. You are encouraged to discuss with the attorney any part of this information that you do not understand or any part of your divorce that concerns you.    

                       

With that in mind, the following is an explanation of some of the basic terms and procedures that are common to most divorce cases.

 

            A divorce suit is potentially four lawsuits in one.  One suit is for the dissolution of the marriage, another is to divide the property of the marriage, the third is the suit affecting the parent-child relationship, and the fourth is any interspousal or third-party tort or contract actions.

 

Residence Requirement:     To file a valid divorce petition, you must be a resident of the county in which you file for divorce for at least 90 days and of the State of Texas for at least six months.

 

            Residence requirements are met if either the petitioner or the respondent has been a domiciliary of Texas for the six months, and a resident of the county of suit for the ninety days, preceding the filing of the petition.

 

Pleading:        The divorce document filed with the Court to initiate a suit or divorce which shall contain allegations of the grounds relied upon for the suit.  

 

Notification:   Your spouse must be legally notified that the divorce has been filed.  They must be served with the papers by an authorized process server unless they sign a Waiver of Citation before a notary public.  The Waiver states that they waive the official delivery of the papers to them.

 

Grounds:       The Court may grant a divorce on any of three no-fault grounds: insupportability; living apart for three years, and respondent’s confinement in a mental hospital for three years.

 

            Even if fault has not been pleaded as a ground for divorce, factual or evidentiary matters that embrace issues that would support cruelty, adultery, or other fault-related issues may be introduced to support a request for a disproportionate division of property.

 

Temporary Hearing: In some divorce cases, it is necessary to have temporary hearing.  At this hearing, the Court enters temporary orders, which will continue until the final hearing.  Matters that are usually considered at the temporary hearing are:

           

            a)         Who will have temporary custody of the child(ren);

 

b)         What amount of child support will be paid and when during the pendency of the divorce;

 

c)         What visitation times the non-custodial parent will have during the pendency of the divorce;

 

d)         Whether temporary spousal support should be paid and how much;

 

e)         Whether or not restraining orders will be entered or continued during the pendency of the divorce; and

 

f)          Who should have the use and possession (not ownership, yet) of property such as cars, house etc…

 

Final Hearing:            A final hearing cannot take place until 60 days after the date that the Original Petition For Divorce was filed with the District Clerk.  At this final hearing, your case will be either (a) uncontested or (b)  contested.

 

a)         Uncontested (Agreed Divorce):          If  you and your spouse can agree on all of the issues in your case, you can appear with your attorney before the judge and announce the settlement.  The Court hears uncontested cases Tuesday through Friday beginning at 9:00 a.m.  We do not need to make a definite appointment with the Court for an uncontested case.  The Agreed Decree of Divorce can be prepared by the attorney before or after the hearing.  The judge must sign the decree, and it will then be filed with the District Clerk.  It is helpful to everyone involved if you and your spouse can come to an agreement on the issues.  We will work with you on this.

   

b)         Contested Divorce:     If you and your spouse are not able to agree on the issues, then the Court has to decide the matters.  In a contested case, you testify in court under oath.  Your lawyer will ask you questions, and the other lawyer will ask you questions.  The more issues there are to be settled, the longer the hearing will take.  Also, it can take a while to get a hearing scheduled on the Court’s “contested docket” since the Court must set aside more time to hear the contested cases.

 

The Court may not grant a divorce before the sixtieth (60th) day after the date the suit was filed.

 

The divorce hearing itself is a stressful time that may raise the tension and animosity between spouses.  You must be careful to control your feelings before the actual hearing.  The courtroom is not a place to seek vindication or punishment for the actual or perceived wrongs of your spouse.  Remember, the Court’s objective is to see that an equitable division of assets occurs and the children are protected.

           

If the case is contested, it can take longer to get a hearing before the Court.  After a contested hearing, the lawyers prepare the Final Decree of Divorce and send it to the Court for the judge’s signature.

 

Whether contested or uncontested, your divorce becomes final 30 days after the date that the final decree is signed by the judge.

 

Remarriage:   Generally, neither party to a divorce may marry a third party before the thirty-first day after the date the divorce is decreed.   The former spouses may remarry each other at any time.

 

Change of Name:      In a divorce decree, the Court shall change the name of a party specifically requesting the change to a name previously used by the party unless the court states in the decree a reason for denying the name change.  The Court may not deny the name change solely to keep last names of family members the same.  A change of name does not release a person from liability incurred by the person under a previous name or defeat a right the person held under a previous name.

           

Maintenance:             In most cases, maintenance may be ordered only if the parties have been married more than ten years; the party asking for mainenenace lacks sufficient property, including property to be distributed to that party under the Family Code, to provide for his or her minimum reasonable needs; and the party either (1) is unable to support himself or herself through appropriate employment because of physical or mental disability; (2) is he custodian of a child who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse seeks maintenance not be employed outside the home; or (3) clearly lacks earning ability in the labor market adequate to provide support for his or her minimum reasonable needs.

 

Property Division:

 

            Separate Property:   A spouse’s separate property consists of:

 

            a)         the property owned or claimed by the spouse before marriage;

 

            b)         the property acquired by the spouse during marriage by gift or inheritance; and

                       

c)         the recovery for personal injuries sustained by the spouse during the marriage, except any recovery for loss of earning capacity during the marriage.

 

Community Property:          Consists of the property, other than separate property, acquired by either spouse during the marriage.

 

Real Property:           Real estate (house), or raw land, lake lots,  or other land.

 

Personal Property:   Everything other than real property.  Examples of personal property are:  cash, cars, household furnishings, clothes, etc.

 

Award of Separate Property:          In a divorce case, separate property (either real or personal) should be awarded to the party who can prove it is his/her separate property.

 

Award of Community Property:      If you and your spouse cannot come to an agreement on the division of the community property, the Court will decide how the community property will be divided.  The law requires the Court to divide the property “in a manner that the Court deems just and right.” having due regard for the rights of each party and any children of the marriage.  This does not always mean that the property will be divided in equal shares.

 

Child Support:

 

            Obligor:          The person paying child support.

 

            Obligee:         The person receiving child support payments.

 

            The Texas Family Code sets out the guidelines and factors to be considered for the support of a child.  Factors to be considered include:

 

            1)         the needs of the child;

 

            2)         the ability of the parent to contribute to the support of the child;

 

            3)         any financial resources available for the support of the child; and

 

            4)         the amount of possession of and access to a child.

 

            The Child support Guidelines are as follows:

 

            The Family Code guidelines for the support of a child are specifically designed to apply to situations in which the obligor’s monthly net resources are $6,000 or less.

 

            1 – child                      20% of obligor’s net resources

            2 – children                 25% of obligor’s net resources

            3 – children                 30% of obligor’s net resources

            4 – children                 35% of obligor’s net resources

            5 – children                 40% of obligor’s net resources

            6+ children                  Not less than the amount for 5 children        

           

            The above schedule applies when the obligor’s monthly net resources are $6,000 or less.  In situations in which the obligor’s net resources exceed $6,000 per month, the Court may order additional amounts of child support, depending on the needs of the child at the time.

 

Visitation Guidelines:

 

            Managing Conservator:       The parent who has custody of the child(ren).

 

            Possessory Conservatory:  The non-custodial parent.

 

            The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.

 

It is always best for the parents to agree on a visitation schedule, taking into account the special needs of each child; however, failing mutual agreement the Texas Family Code sets out a Standard Possession Order, a copy of which is attached for your information.  The Standard Possession Order is designed to apply to children three years or older.  For a child less than three years old, the Court may either render a Standard Possession Order or an order appropriate under the circumstances.  The Texas Family Code sets out the factors involved in determining the terms of possession of a child.  These factors are:

 

            a)         the age, circumstances, needs, and best interest of the child;

 

b)         the circumstances of the managing conservator and of the parent named as possessory conservator; and

              

            c)         any other relevant factor.

 

 

A child who is twelve years of age or older may, by writing filed with the court, choose the managing conservator, subject to the Court’s approval.

 

PROCEDURES IN A DIVORCE CASE

 

The initial decision to dissolve your marriage creates new legal and emotional choices that need to be faced.   The following information is given to aid in becoming more familiar with the legal proceedings and terminology involved with divorce.   This information is intended to instruct and inform you of the divorce procedures that are commonly used in the area of divorce.  This is a brief information package and does not fully cover all the situations that could arise in your divorce. You are encouraged to discuss with the attorney any part of this information that you do not understand or any part of your divorce that concerns you.    

                       

With that in mind, the following is an explanation of some of the basic terms and procedures that are common to most divorce cases.

 

            A divorce suit is potentially four lawsuits in one.  One suit is for the dissolution of the marriage, another is to divide the property of the marriage, the third is the suit affecting the parent-child relationship, and the fourth is any interspousal or third-party tort or contract actions.

 

Residence Requirement:     To file a valid divorce petition, you must be a resident of the county in which you file for divorce for at least 90 days and of the State of Texas for at least six months.

 

            Residence requirements are met if either the petitioner or the respondent has been a domiciliary of Texas for the six months, and a resident of the county of suit for the ninety days, preceding the filing of the petition.

 

Pleading:        The divorce document filed with the Court to initiate a suit or divorce which shall contain allegations of the grounds relied upon for the suit.  

 

Notification:   Your spouse must be legally notified that the divorce has been filed.  They must be served with the papers by an authorized process server unless they sign a Waiver of Citation before a notary public.  The Waiver states that they waive the official delivery of the papers to them.

 

Grounds:       The Court may grant a divorce on any of three no-fault grounds: insupportability; living apart for three years, and respondent’s confinement in a mental hospital for three years.

 

            Even if fault has not been pleaded as a ground for divorce, factual or evidentiary matters that embrace issues that would support cruelty, adultery, or other fault-related issues may be introduced to support a request for a disproportionate division of property.

 

Temporary Hearing: In some divorce cases, it is necessary to have temporary hearing.  At this hearing, the Court enters temporary orders, which will continue until the final hearing.  Matters that are usually considered at the temporary hearing are:

           

            a)         Who will have temporary custody of the child(ren);

 

b)         What amount of child support will be paid and when during the pendency of the divorce;

 

c)         What visitation times the non-custodial parent will have during the pendency of the divorce;

 

d)         Whether temporary spousal support should be paid and how much;

 

e)         Whether or not restraining orders will be entered or continued during the pendency of the divorce; and

 

f)          Who should have the use and possession (not ownership, yet) of property such as cars, house etc…

 

Final Hearing:            A final hearing cannot take place until 60 days after the date that the Original Petition For Divorce was filed with the District Clerk.  At this final hearing, your case will be either (a) uncontested or (b)  contested.

 

a)         Uncontested (Agreed Divorce):          If  you and your spouse can agree on all of the issues in your case, you can appear with your attorney before the judge and announce the settlement.  The Court hears uncontested cases Tuesday through Friday beginning at 9:00 a.m.  We do not need to make a definite appointment with the Court for an uncontested case.  The Agreed Decree of Divorce can be prepared by the attorney before or after the hearing.  The judge must sign the decree, and it will then be filed with the District Clerk.  It is helpful to everyone involved if you and your spouse can come to an agreement on the issues.  We will work with you on this.

   

b)         Contested Divorce:     If you and your spouse are not able to agree on the issues, then the Court has to decide the matters.  In a contested case, you testify in court under oath.  Your lawyer will ask you questions, and the other lawyer will ask you questions.  The more issues there are to be settled, the longer the hearing will take.  Also, it can take a while to get a hearing scheduled on the Court’s “contested docket” since the Court must set aside more time to hear the contested cases.

 

The Court may not grant a divorce before the sixtieth (60th) day after the date the suit was filed.

 

The divorce hearing itself is a stressful time that may raise the tension and animosity between spouses.  You must be careful to control your feelings before the actual hearing.  The courtroom is not a place to seek vindication or punishment for the actual or perceived wrongs of your spouse.  Remember, the Court’s objective is to see that an equitable division of assets occurs and the children are protected.

           

If the case is contested, it can take longer to get a hearing before the Court.  After a contested hearing, the lawyers prepare the Final Decree of Divorce and send it to the Court for the judge’s signature.

 

Whether contested or uncontested, your divorce becomes final 30 days after the date that the final decree is signed by the judge.

 

Remarriage:   Generally, neither party to a divorce may marry a third party before the thirty-first day after the date the divorce is decreed.   The former spouses may remarry each other at any time.

 

Change of Name:      In a divorce decree, the Court shall change the name of a party specifically requesting the change to a name previously used by the party unless the court states in the decree a reason for denying the name change.  The Court may not deny the name change solely to keep last names of family members the same.  A change of name does not release a person from liability incurred by the person under a previous name or defeat a right the person held under a previous name.

           

Maintenance:             In most cases, maintenance may be ordered only if the parties have been married more than ten years; the party asking for mainenenace lacks sufficient property, including property to be distributed to that party under the Family Code, to provide for his or her minimum reasonable needs; and the party either (1) is unable to support himself or herself through appropriate employment because of physical or mental disability; (2) is he custodian of a child who requires substantial care and personal supervision because a physical or mental disability makes it necessary, taking into consideration the needs of the child, that the spouse seeks maintenance not be employed outside the home; or (3) clearly lacks earning ability in the labor market adequate to provide support for his or her minimum reasonable needs.

 

Property Division:

 

            Separate Property:   A spouse’s separate property consists of:

 

            a)         the property owned or claimed by the spouse before marriage;

 

            b)         the property acquired by the spouse during marriage by gift or inheritance; and

                       

c)         the recovery for personal injuries sustained by the spouse during the marriage, except any recovery for loss of earning capacity during the marriage.

 

Community Property:          Consists of the property, other than separate property, acquired by either spouse during the marriage.

 

Real Property:           Real estate (house), or raw land, lake lots,  or other land.

 

Personal Property:   Everything other than real property.  Examples of personal property are:  cash, cars, household furnishings, clothes, etc.

 

Award of Separate Property:          In a divorce case, separate property (either real or personal) should be awarded to the party who can prove it is his/her separate property.

 

Award of Community Property:      If you and your spouse cannot come to an agreement on the division of the community property, the Court will decide how the community property will be divided.  The law requires the Court to divide the property “in a manner that the Court deems just and right.” having due regard for the rights of each party and any children of the marriage.  This does not always mean that the property will be divided in equal shares.

 

Child Support:

 

            Obligor:          The person paying child support.

 

            Obligee:         The person receiving child support payments.

 

            The Texas Family Code sets out the guidelines and factors to be considered for the support of a child.  Factors to be considered include:

 

            1)         the needs of the child;

 

            2)         the ability of the parent to contribute to the support of the child;

 

            3)         any financial resources available for the support of the child; and

 

            4)         the amount of possession of and access to a child.

 

            The Child support Guidelines are as follows:

 

            The Family Code guidelines for the support of a child are specifically designed to apply to situations in which the obligor’s monthly net resources are $6,000 or less.

 

            1 – child                      20% of obligor’s net resources

            2 – children                 25% of obligor’s net resources

            3 – children                 30% of obligor’s net resources

            4 – children                 35% of obligor’s net resources

            5 – children                 40% of obligor’s net resources

            6+ children                  Not less than the amount for 5 children        

           

            The above schedule applies when the obligor’s monthly net resources are $6,000 or less.  In situations in which the obligor’s net resources exceed $6,000 per month, the Court may order additional amounts of child support, depending on the needs of the child at the time.

 

Visitation Guidelines:

 

            Managing Conservator:       The parent who has custody of the child(ren).

 

            Possessory Conservatory:  The non-custodial parent.

 

            The best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.

 

It is always best for the parents to agree on a visitation schedule, taking into account the special needs of each child; however, failing mutual agreement the Texas Family Code sets out a Standard Possession Order, a copy of which is attached for your information.  The Standard Possession Order is designed to apply to children three years or older.  For a child less than three years old, the Court may either render a Standard Possession Order or an order appropriate under the circumstances.  The Texas Family Code sets out the factors involved in determining the terms of possession of a child.  These factors are:

 

            a)         the age, circumstances, needs, and best interest of the child;

 

b)         the circumstances of the managing conservator and of the parent named as possessory conservator; and

              

            c)         any other relevant factor.

 

 

A child who is twelve years of age or older may, by writing filed with the court, choose the managing conservator, subject to the Court’s approval.

 

 

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