Divorce

Divorce Procedure

How Does it Work?

A divorce case starts with the petition.  The petition is a document you file with the district clerk in the county in which you live.  It will have the title “Original Petition for Divorce”.  This document tells the court who you are and what you want.  It also puts the other side on notice as to what you want.  The petition is what gets served on the other side.

The petition must be served on the other side for the case to begin.  This is done by a process server.  The party nor the attorney can serve the petition.  Service is most often done by handing the petition to the other side.  In an agreed divorce, the party can sign a “waiver”.  This is a document where the other party swears that they received the petition.

After receiving the petition, the party receiving the petition is the respondent.  The parties are the petitioner and the respondent.  The respondent must file an answer within about 20 days.  If the respondent fails to do this, the petitioner can get a default judgment.  A default judgment is where the petitioner goes before the court and asks for what they want without any input from the other side.  Even if a party signs a waiver so they do not have to be served, they still must file an answer.

A divorce case ends with the divorce decree.  The decree is a judgment declaring the parties divorced and spells out who gets what.  Parties can come to an agreement.  Their agreement will be put in the decree.  Each party signs off.  Then at least one party goes to court to “prove up” the decree.  This is the moment when you become divorced.  The court approves the decree and you walk out of the courthouse a single person with your decree in hand.

If the parties cannot come to an agreement, they have to go to trial.  A divorce trial can be heard by the judge or a jury.  Most people take their case to the judge.  But, if you have had lots of hearings before trial and you get the feeling the judge has kind of made up his or her mind, best to have a jury trial.

This is a simple explanation of how a legal divorce proceeding in Texas works.  What happens from the petition to the final decree is what causes the heartache.  It does not have to be complicated.  But, splitting up a marriage is beyond emotional.  While the divorce is happening, you are having to protect your legal interests WHILE you are mourning the death of the relationship.  That is hard for anybody. So, if you can, it is best to get the divorce case over with, then mourn the loss.  Divorces get messy and expensive when the parties use the legal proceedings to lash out at the other side.

Property

In Texas, the property and money a married couple has at the time of divorce will be put into categories called community property and separate property.

All property the parties own at the time of the divorce is presumed to be community property.  Community property is the stuff and money the couple acquired during the marriage.

Separate property is things you had before the marriage, or you got by gift or through a will.  So, if you owned a house before you got married, but you lived in it during the marriage, the house will still be your house when it is all over.  If your spouse wants to try to take it away from you, you will just prove to the court when you got the house.  What is important is the timing.

Community property will be split 50-50.  To get more than half, you will have to prove fault in the breakup of the marriage.  Some fault claims are cruel treatment, adultery and domestic violence.