Divorce-The Process

Petition

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     A divorce case begins with the petition. Like any other civil lawsuit, a divorce petition spells out what it is that you want out of the case. Do you want half of the assets, or do you want the court to know that you want more than half? Are you asking for spousal maintenance? Do you need for a spouse to move out of the home while the case is pending? Did you contribute to paying off your spouse's debts? Did you contribute to building their business? The petition tells the court what you want and puts the other side on notice as to what you want. 

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Temporary Orders

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     One of the aspects of a Texas divorce proceeding that makes it different from other civil cases is that you can ask for a hearing for temporary orders. In a temporary order hearing, you can ask for things such as:

-access to bank accounts;

-ask that one spouse be excluded from the marital home;

-ask for a restraining order;

-ask for a protective order;

-ask for temporary spousal maintenance;

-determine which spouse is responsible for which bills while the case is pending.

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     Temporary order hearings are held before an associate judge. Associate judges' courts are separate courtrooms from the district courts. The associate judges are chose by the judge of that particular district court. 

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          Temporary Orders-Who Gets to Live in the House?

     One of the top issues to be resolved while a divorce case is pending is who gets to stay in the house while the case is pending? So of course the question is who has to leave? I have seen divorce cases in Dallas County where the spouses remain in the home while the case is pending, but this is obviously not the best situation. Whether someone leaves will really depend on a couple of factors: has one spouse assaulted the other and is there enough money to support two households while the case is pending? If there is not enough money, then the two spouses will have to deal with each other while the case is pending. This might help get the case over with quicker. Although this also leaves open the possibility that one spouse will make a mistake and do or say something they will regret. Don't be that spouse.

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          Temporary Orders-Temporary Spousal Support

     A Dallas County court will grant Temporary Spousal Support if one spouse cannot support themselves AND the spouse being asked to pay is ABLE to pay out the support. A court will only grant temporary spousal support based on need. That is to say, keep the lights on. The spouse seeking to receive the temporary spousal support will get it only as long as needed. Most Dallas courts will tell the receiving spouse to look for work while the case is pending. Any time a court grants any type of spousal maintenance (you may know this as alimony), the court will tell the receiving spouse to actively seek a way to make money. Temporary spousal maintenance granted while a case is pending is just that, temporary. So, under a temporary order situation, the court will have the receiving spouse check in to show their efforts to find work. 

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Mediation

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     Most divorce cases settle in some way. The parties can come to terms and agree on how to divide their things and part ways. Another way to settle a divorce case is to go to mediation. Mediation is a process in which the parties negotiate a settlement using a professional mediator. All courts in Dallas County require the parties to go to mediation before allowing them to conduct a trial. A mediator takes the offers and responses to those offers back and forth to the parties. During this process, the parties sit in separate rooms. After Covid, most mediation sessions are done on Zoom. I myself prefer Zoom. By conducting the mediation via online, we can be in our own surroundings. This just makes things more comfortable. 

     If the parties come to an agreement, the mediator types up what is called a "mediated settlement agreement." This settlement cannot be undone. The divorce decree will still need to be drafted, but the final terms must match those in the mediated settlement agreement. The agreement is also known as an MSA.

     If the mediation is not successful, the mediator files a letter with the court, alerting the court that a mediation was conducted in the form that the court requires and did not end in settlement. 

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Trial

     If you are unable to come to an agreement with your soon to be ex spouse, you will have to go to trial. A trial is conducted either with just the judge or with a jury. Most divorce trials in Dallas County are tried before the judge of the court.

     Divorce trials are pretty much what you see on TV and in movies. Divorce trials tend to be a little less formal than civil litigation. The judges have quite a wide amount of discretion. In other words once final, a judge's decision in a divorce case is difficult to undo.

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Divorce Decree

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     The entire process ends with a document called the divorce decree, or final decree of divorce. This is the judgment. The divorce decree spells out how all the property is to be divided and who must pay the final debts and who must pay spousal maintenance, if any. Your divorce decree is a final record of the court.

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Grounds for Divorce in Texas

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In Texas, there are seven grounds, or legal reasons, to grant a divorce:

• No fault-parties are divorced based on "insupportability" of the marital relationship. This just means that the spouses are not getting along so badly that the purpose of being married is no longer supported by the relationship.

• No fault-the spouses have lived apart for at least 3 years. 

• No fault-A spouse has been committed in a mental hospital for at least 3 years. Note that the court will protect the committed spouse's interests by appointing a representative.

• Fault-Cruelty. 

• Fault-Adultery.

• Fault-Conviction of a felony and the spouse has been imprisoned for at least one year.

• Fault-Abandonment. That is, a spouse left the other spouse with the intent to abandon the spouse and remained away for at least one year.

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How Most Spouses Pursue their Divorce

​Most people file for divorce based on insupportability. This means you and your spouse are not getting along, and to the point that being married has become pointless and miserable. Unless you have some fairly hard proof of fault grounds, it is best to state in your petition that the marriage is no longer supportable. 

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The reason you would file for divorce based on fault is to set up an argument that you should be awarded more than half of the assets from the marriage. This is fairly rare. The fault reasons that might apply to most people would be adultery or cruelty. With cruelty, that would mostly involve some kind of assault. If your spouse has assaulted you, the court will award you more assets. You can also receive damages that came out of your injuries. There is of course mental cruelty. Some might say being married is its own mental cruelty. So, to have the court grant you a divorce and more than half of the assets based on cruelty, you would have to pretty much prove mental abuse. That is to say, intentional abuse dished out over time. A therapist who is willing to testify would be most helpful in this situation.

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