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Texas Divorce Process
Preparing the Divorce Papers
In an uncontested divorce, one spouse, who is the petitioner, completes an Original Petition for Divorce with the court, and has the papers personally served on the other spouse, who is the respondent. The petition contains information regarding marital property, children of the marriage, and the grounds for divorce. A contested action begins in a similar wa
Filing the Paperwork with the Court
The petitioner files the Petition for Divorce with the District Clerk of the county in which one or both of the spouses reside.
Serving the Documents
Delivering the petition to the respondent can be accomplished by law enforcement, a private process server, or having the other spouse execute a Wavier of Service.
The petitioner can also obtain a Waiver of Citation form from the clerk. The petitioner mails this form, along with the petition, to the other spouse, who signs the waiver to show the court that he or she waives the right to be served the petition.
Disclosing Financial Information
The parties must provide information about their finances.
Uncontested vs. Contested Divorce
In an uncontested divorce, both spouses agree about all the terms of the divorce, such as division of property, child custody and support payments.
At the time of filing, in a contested action, the petitioner can request that the court issue a standard Temporary Restraining Order that preserves the assets of the marriage, and requires that the spouses behave properly.
If a Temporary Restraining Order was issued, the court schedules a hearing within 14 days of issuance. At that time, the court may make the Temporary Restraining Order into a temporary injunction against both parties.
If no Temporary Restraining Order is issued, the Respondent has 20 days plus the next following Monday to file a document called an Answer. Normally, the court considers temporary orders, which usually involve temporary custody, visitation, and support of the children, and temporary use of property and servicing of debt and sometimes temporary spousal support and the payment of interim attorney's fees as well and which remain in effect while the divorce is pending.
If the spouses think they do not have all the information they need from each other, they then engage in discovery, which is the process by which they exchange information and documents.
The spouses discuss settlement of the case, either directly or with the help of attorneys or mediators. If they can work out an agreement on everything, one of the spouses or attorneys prepares an Agreed Decree of Divorce, which describes the terms of the agreement.
If the spouses are not able to agree on all of the issues in the case, a trial date will likely be set.
Before trial, spouses are required to attempt mediation. Mediation is an informal process allowing the divorcing couple to work with a neutral third party (the mediator) to negotiate and settle all terms of their conflict.
If mediation fails, the case goes to trial. At the conclusion of the trial, one of the attorneys will prepare a Final Decree of Divorce to present to the judge for signature. This will contain all of the court's rulings and will resolve all issues pertaining to the divorce, and is binding on the parties going forward.
Finalizing the Divorce
After the filing and after the signed waiver or a document provided by the sheriff or private process server has been returned, the clerk sets a date for a hearing that cannot take place until a 60-day “cooling off” period has passed.
Couples use this 60-day waiting period to finalize the settlement agreement and prepare the final divorce decree. This document details all of the settlement arrangements, such as custody agreement, support payments and division of property. A copy of the final decree form can be obtained from the county clerk's office.
At the hearing, the judge reviews the paperwork and may questions to make sure both spouses agree on all aspects of the divorce. At the end of the hearing, the judge signs the final decree.
The clerk files the decree and the petitioner mails or gives one certified copy of the decree to his or her form former spouse and keeps one copy for himself or herself.
Texas divides marital property as community property. This means any property owned by either spouse during the marriage is community property between the spouses. The court also divides marital debt at this time and ownership is recognized the same way. However, property that is owned by either spouse before the marriage is considered separate property. In a case involving children, the Texas divorce court often divides the property unequally. An equal division of the community property is not required by the Texas divorce laws, were as some other community property states adhere more to the 50-50 split rule.
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