Entry of Temporary Restraining Orders

The next step in the divorce process is a hot button issue and affords both protection and fuels great conflict between the parties - Entry of Temporary Restraining Orders ("TRO"). TRO's are generally requested and ordered to protect property or one spouse from the other spouse prior to the entry of Temporary Orders and Temporary Injunctions, discussed below. Generally, after the filing of an Original Petition, and many times simultaneously with the filing, a Court may grant TROs without notice to the adverse party. Yes, TROs can be ordered without notice to the adverse party. TROs generally prohibit either one spouse or both from the following acts:

Specific TROs

• Intentionally communicating by telephone or in writing with the other party by use of vulgar, profane, obscene, or indecent language or in a course or offensive manner, with intent to annoy or alarm the other;
• Threatening the other party, by telephone or in writing, to take unlawful action against any person, intending by this action to annoy or alarm the other;
• Placing a telephone call, anonymously, at an unreasonable hour, in an offensive and repetitious manner, or without a legitimate purpose of communication with the intent to annoy or alarm the other party;
• Intentionally, Knowingly, or recklessly causing bodily injury to the other party or child of either party;
• Threatening the other spouse/party or a child of either party with imminent bodily harm;
• Intentionally, knowingly, or recklessly destroying, removing, concealing, encumbering, transferring, or otherwise harming or reducing the value of the property of the parties or either party with the intent to obstruct the authority of the Court to order a division of the estate of the parties 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;
• Intentionally falsifying a writing or record relating to the property of either party;
• Intentionally misrepresenting or refusing to disclose to the other party or to the Court, on proper request, the existence, amount, or location of any property of the parties or either party;
• Intentionally or knowingly damaging or destroying the tangible property of the parties or either party; or,
• Intentionally or knowingly tampering with the tangible property of the parties or either party and causing pecuniary loss or substantial inconvenience to the other.

TROs Cannot Include Certain Restrictions

With regard to all the above referenced TROs, it is important to keep in mind that TROs can not order that one spouse be excluded from occupancy of the residence where that spouse is living except under a protective order. A Protective Order is a separate legal instrument designed to protect one spouse from the violent acts of another. TROs can also not prohibit a party from spending funds for reasonable and necessary living expenses or from engaging in acts reasonable and necessary to conduct that party's usual business and occupation and from paying their attorney. Courts do not want to prohibit or hamper a party from earning income or from spending money necessary in order to live. Courts do, however, want to prohibit a party from diminishing the value of property which a marriage owns (community property).

Community Property

Speaking of property a marriage owns, it is called Community Property in the eyes of the Court. Community Property is any and all property which is acquired during the course of the marriage. Property is defined has both tangible and intangible property and can include actual parcels of land, cash, stocks, bonds, 401k accounts, etc. Specifically excluded from community property is property which is acquired by a spouse which was a gift or was from an inheritance; this is called separate property. When considering whether or not property is a community asset or not, it is important to trace its origin. Sometimes if, for example, the Separate Property is money, and it has been co-mingled in a community account, the money might become a community asset unless it can be traced back to its separate property origin. So, it is important, if it is the intention of a spouse to maintain money as separate property not to commingle accounts. Often times, this is the primary reason for a pre-marital agreement and for conflict after divorce proceedings begin.

Filing of an Answer and/or a Counter Petition

After an Original Petition for Divorce has been filed and served as referenced above, either by a Constable or by waiver, the responding party ("Respondent") must file an answer within 30 days. The Answer will, in most cases, be a general denial of all of the allegations stated in the Original Petition. Generally, the Answer is a short and fairly straight forward document unless it is filed with a pleading called a Counter Petition. A Counter Petition is essentially the answering spouse or Respondent filing a counter claim for divorce. The Counter Petition will, like the Original Petition, cite the same elements such as identification of the parties, cause(s) of the divorce, children. and the relief requested. The Counter Petition, again like the Original Petition, must be served on the other party. Once the Counter Petition is filed with the Answer, the Respondent will also be known as the Counter Petitioner. It is important to note that once a Counter Petition is filed, the original Petitioner no longer has the right to unilaterally dismiss the lawsuit for the dissolution of the marriage. Both parties must agree to dismiss the case.

Temporary Orders and Injunctions

After the Original Petition is filed and before a Final Decree for Divorce is signed and entered by the Court, there must be a set of rules under which to operate during the process. These temporary rules are called Temporary Orders and Injunctions. If one were to look at the divorce process in a linear fashion, the Court can maintain control over all aspects of the parties during the divorce starting with TROs, discussed above, Protective Orders, Injunctions, and Temporary Orders.

As illustrated above, once the TRO's have been entered, if at all, there will likely be a hearing on Temporary Orders and Injunctions, unless otherwise agreed upon by the parties. First, with regard to Temporary Injunctions, they are simply a way of controlling the parties and preventing the diminution of the value of the community estate. Typical Temporary Injunctions often mirror the TRO's referenced above. With regard to Temporary Orders, they are also a means by which the Court is able to control the parties during the divorce process. Typical Temporary Orders might include the following:

• Requiring a sworn inventory and appraisement of the real and personal property owned or claimed by the parties and specifying the form, manner, and substance of the inventory and appraisal and list of debt and liabilities;
• Requiring payments to be made for support of either spouse. Generally, spousal support is rare in Texas unless a couple has been married 10 years or longer, shows financial need, and/or is handicapped in some manner;
• Requiring the production of books, papers, documents, and tangible things by a party;
• Ordering payment of reasonable attorney's fees;
• Appointing a receiver for the preservation and protection of the parties;
• Awarding one spouse exclusive occupancy of the residence during the pendency of the case;
• Prohibiting the parties, or either party, from spending funds beyond an amount the Court determines to be reasonable and necessary living expenses;
• Awarding one spouse exclusive control of a party's usual business or occupation;
• Awarding one spouse temporary possessorary rights to the children; and,
• Ordering temporary child support. Temporary child support or any child support in Texas is based upon a percentage of the obligor's net income adjusted by the number of children.

Of course, as with TRO's, this list is certainly not exhaustive and a Court, for the benefit of either party, to protect the assets, to protect the children, or to ensure certain safeguards may make as many orders as it deems appropriate.

Mediation Prior to Entry of Temporary Orders

A recent trend in avoiding the necessity of a long and drawn out hearing on Temporary Orders has been for Courts to order Mediation prior to the hearing for Temporary Orders. Mediation is simply a process where an impartial third party helps two or more parties discuss a dispute and work toward a solution that is acceptable to all parties. Unlike a judge or arbitrator, the mediator does not decide the outcome of the dispute. Mediated agreements tend to succeed because they result from a process that allows parties to create their own solutions. If the mediation process is successful and the parties are able to agree on terms for Temporary Orders, the agreed Temporary Orders can be submitted to the Court for entry. If, however, the parties are unable to agree on the terms for Temporary Orders, the Court will decide the issues after a hearing.

Hearing on Temporary Orders

Often, the first time the parties appear in Court is for the hearing on Temporary Orders. This hearing in effect is basically a mini-trial in front of the presiding judge. The parties are able to testify, put on witnesses and present other evidence needed to establish their position. After hearing all the evidence and listening to argument by both parties, the presiding judge will enter the appropriate Temporary Orders which will be operative until a final decree is entered. Once a final decree is entered, the Temporary Orders will no longer be valid. On an additional note, if the parties simply initiate the divorce and enter Temporary Orders but fail to prosecute the divorce further, the case will eventually be dismissed and the Temporary Orders will no longer be valid. So, it is important, one way or another, to bring resolution to the case once it has been initiated with the Court.

Discovery (Production, Interrogatories, Depositions)

Once either the Temporary Orders have been entered, or even before they have been entered in some cases, the dreaded discovery process begins. The horror stories people often hear with regard to divorce generally occur during the discovery process. "Discovery" is essentially a process whereby each spouse can ask the other spouse questions regarding acts which occurred during the marriage, to produce documents, bank records and other information needed to determine the value of assets or to assess fault in the divorce. The discovery process also includes the ability of each side to take depositions of each party and also of potential witnesses. Many times when fault is at issue in a divorce, this process can be very emotional. Additionally, the discovery process can be very time consuming and, as a corollary, can be very expensive.

Pre-Trial Mediation

After a substantial amount of the discovery process is finished, generally a Court will order mediation. In many counties in the State of Texas, this will often be the second mediation. However, the purpose of this mediation is to settle the remaining disputes between the Parties prior to the case going to trial. If the case settles during the pre-trial mediation, then the parties will simply enter into an Agreed Final Order and file it with the Court, subject, of course, to Court approval and a process called "proving up the Final Decree."

Trial

Assuming the parties are unable to work out their differences through potentially two mediations and the discovery process, the case will go to trial. There are two types of trial: a bench trial and a jury trial. A bench trial is simply a trial which is presented directly to a judge instead of in front of a jury. A jury trial, on the other hand, is a case which is presented to a jury and a jury will decide the majority of the remaining issues. During the trial, much like at the hearing for Temporary Orders discussed above, the parties will put on witnesses and evidence in an effort to persuade either the judge or the jury as to the degree of culpability or lack of culpability. Based on either the judge's or the jury's opinions and determinations after hearing the testimony and the evidence, an order will be entered to which the parties will have to comply.

Entry of Final Order

The ultimate goal of the divorce process is the entry of the Final Divorce Decree. The Final Decree is essentially a document which puts an official end to the marriage partnership and lays out the terms under which the newly emancipated individuals will operate in limited fashion. The Final Decree will decide who gets which assets, who inherits which debts, who the children reside with, the terms of visitation, the amount of child support which will be paid, the amount of spousal support which will be paid (if any), and a host of other issues which could be specific to each marriage. The Final Decree is entered in generally two ways. The most common way is by agreement of the parties, the terms of which are verified in front of a judge; this process takes about 5 to 10 minutes. The other way a Final Decree is entered is the forced method. This is when the case goes to trial and the judge or a jury decides the outcome. This, obviously, is the stonier road to travel.

Closing Remarks

Generally, when two people decide to get married, they do not plan for the marriage to fail. However, sometimes life leads people in different directions and things do not always evolve the way they were originally intended. As a result, the couple ends up going through the divorce process. As discussed above, the divorce process can be complex, emotional, and expensive. The only real way to mitigate the inevitable damage a divorce will cause is to compromise early and often. And, if there are children involved in the marriage, it is important to keep in mind that a smooth transition, without unnecessary conflict, will be extremely beneficial in assisting the children in their transition as well. Whether or not the divorce process proceeds smoothly or is full of discord, the process is not pleasant but can be eased marginally if you are familiar with the process and know what to expect.