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Newsletters & Articles
DIVORCE LAW
The Divorce Process Naked and Exposed
The process of getting a divorce is complex and has many different stages and components. This article attempts to address the process as a whole in the State of Texas but by no means is exhaustive as every divorce has its own set of issues and intricacies. In the event you are getting a divorce, there is no substitute for proper professional legal advice. Reliance on this article or any article without legal assistance is not advisable. With that being said, the divorce process can either proceed rapidly or can drag on for many months or even years, depending on the Court, the Jurisdiction and the degree to which the divorce is contested. In a nutshell, the various parts of obtaining a divorce from the inception to entry of the final decree are as follows:
- Filing of the Original Petition
- Service of Petition on Opposing Party or (Waiver of Process)
- Entry of Temporary Restraining Orders
- Filing of an Answer and/or a Counter Petition
- Temporary Orders & Entry of Injunctions
- Mediation Prior to Entry of Temporary Orders
- Hearing on Temporary Orders
- Discovery (Production, Interrogatories, Depositions)
- Mediation
- Trial
- Entry of Final Divorce Decree
Filing the Original Petition
The filing of the Original Petition is what jump starts a Divorce. The Original Petition for Divorce is essentially one spouse suing the other spouse for divorce. Said another way, one spouse is asking the Court to grant them a legal dissolution of their marriage. It is important to keep in mind that legally a marriage is comparable to a business partnership; it really has a life of its own. It is formed and authorized under the laws of the state and must be dissolved and disbanded under the laws of the state. In the Original Petition, the spouse who is filing the divorce is called the Petitioner. The spouse who must answer is called the Respondent. Just like dissolving a business partnership, the dissolution of the marriage can either be with fault or without fault. Generally, the person (spouse) who is without fault will get the majority of the assets of the marriage. It is up to the Court to divide the assets of a marriage, absent agreement by the parties (which must be approved by the Court). In the absence of an agreement by the parties, the Court can divide the assets of the marriage by a standard called a "just and right distribution." This is a very broad standard and gives the Court great discretion in dividing the assets. This is where fault in the breakup of a marriage or the relative position and/or education of each spouse can become very big considerations. For instance, if there is adultery involved on behalf of one spouse, the Court can penalize the offending spouse through an uneven distribution of assets. Or, if one spouse stayed at home, raised the children, and did not pursue their own education and career while the other spouse did, the Court will likely consider the inequitable earning potential grounds for an uneven distribution of assets.
Service of Petition on Opposing Party or (Waiver of Process)
Once the Original Petition for Divorce has been filed with the Court, the Petition has to be officially given to the other spouse or served on the other spouse, generally through a Constable or a process server. This, of course, can be an uncomfortable situation, especially if there are children of the marriage. There are other options with regard to serving the Petition on the answering spouse. One spouse can sign a "waiver of process." This document essentially allows for one spouse or representative to simply hand the other spouse the Original Petition rather than effectuating service of the Petition by a Constable. Generally, in divorces which are not contested and are somewhat amicable, this is a common practice. However, in a more contested divorce, many attorneys will not advise their client to sign a waiver of process out of fear that they will waive certain rights. Once a waiver of process is signed, it is filed with the Court to evidence that the process of serving the Petition has been waived. If a waiver of process is not signed and filed with the Court, as mentioned above, the Constable will serve the Original Petition on the answering spouse and will obtain his/her signature on a citation, which will then be filed with the Court as evidence of the service.
Components of the Original Petition for Divorce
Before getting into the specifics of what happens after an Original Petition for divorce is filed, it is important to discuss the components of an Original Petition. Essentially, the Original Petition must contain the following parts:
- Identification of the parties;
- Allegations of grounds for divorce;
- Whether or not there are children of the marriage; and,
- Relief requested.
There are, of course, additional provisions which can be added to an Original Petition depending on the circumstances, such as an application for a Temporary Restraining Order ("TRO") which is discussed further below.
Identification of the Parties
Essentially, the Petitioner, the person filing the Original Petition, is responsible for identifying themselves and the Respondent.
Causes of a Divorce
As mentioned above, another area which needs to be addressed in the Original Petition is the cause of the divorce. One of the following causes must be alleged or "plead" in the Original Petition for Divorce. If it is not properly plead, the Original Petition will not be effective and a Court cannot grant a divorce.
Insupportability
The most common cause cited in divorce cases is called Insupportability. Insupportability allows the Court to grant a divorce without regard to fault because the marriage has become insupportable because of discord or conflict of personalities that "destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation." In other words, the spouses just can't get along and the marriage is not salvageable.
Cruelty
The next ground for divorce is something called Cruelty. Cruelty involves cruel treatment toward the complaining spouse of such a nature that the marriage is no longer sustainable.
Adultery
Adultery is also a very common ground for divorce. As the word implies, Adultery involves one spouse having an extra martial relation, usually sexual in nature, with a person outside the marriage. When Adultery is alleged in a divorce, it is usually a sign that the divorce will be highly contested and messy, which generally translates into increased costs regarding attorneys fees and expenses.
Conviction of a Felony
A marriage can also be dissolved because one spouse has been convicted of a felony, has been imprisoned for at least one year in a state or federal penitentiary and has not been pardoned. Believe it or not, these types of fault based divorces are far more common that one might imagine.
Abandonment
The next ground under which a Court may grant a divorce is Abandonment. Abandonment occurs when one spouse leaves the other spouse with the intention of not returning and has remained away for at least one year. With regard to Abandonment, it is important to note that there is a requirement of intent. This element can be difficult to prove in certain circumstances.
Living Apart and Confinement in a Mental Hospital
The last two causes of divorce are Living Apart and Confinement in a Mental Hospital. In order for a divorce to be granted based upon Living Apart, the couple needs to have lived apart without cohabitation for at least three years. Finally, the last fault in divorce is Confinement in a Mental Hospital. In order for a divorce to be granted on this ground, one spouse, at the time the Original Petition is filed, must be confined in a state or private mental hospital for at least three years and it must appear that the hospitalized spouses mental disorder is of such a degree and nature that adjustment is unlikely, or that, if adjustment occurs, a relapse is possible.
Another additional consideration to keep in mind with regard to causes of divorce alleged in an Original Petition is that, often, a Petitioner will plead a number of different causes in a divorce petition in case one of the causes fail. This will allow the Court some leeway in finding an acceptable cause for the divorce and for granting the same. Insupportability of "No Fault" divorces is always sufficient grounds. Many times, a Petitioner will do this based on the recommendation of their attorney as legal strategy.
Children of the Marriage
The third element to an Original Petition is advising the Court as to whether or not there are children which are a product of the marriage. A divorce is handled differently if there are children. In the event that children are involved, the Court's paramount concern is the best interest of the child. These decisions include where the child will live, visitation, health care, and child support. Speaking of child support, the question of the amount to be paid by the obligor (non-possessory parent) comes up quite frequently and is a little confusing. Generally, child support is based on a certain percentage of the net monthly resources of the obligor. Specifically:
- 1 Child 20% of the Obligor's Net Resources
- 2 Children 25% of the Obligor's Net Resources
- 3 Children 30% of the Obligor's Net Resources
- 4 Children 35% of the Obligor's Net Resources
- 5 Children 40% of the Obligor's Net Resources
It is important to note that the above referenced guidelines are based on a single family and are based on the first $6,000 of the obligor's net resources. If, however, the obligor's net recourses exceed $6,000 per month, the Court shall presumptively apply the percentage guidelines to the first $6,000 of the obligor's net resources. Then, the Court may order additional amounts of child support as appropriate, depending on the income of the parties and the proven needs of the child(ren).
If there is a situation where one spouse has other children from a previous relationship, slightly different percentages apply.
Relief Requested
The last, and certainly not exhaustive, component of an Original Petition is asking the Court to grant relief. Relief can include the actual granting of the divorce, support payments, assets disbursements, custody of children, health care, and even attorneys fees, which is common.
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