Before you proceed with a divorce, you should be absolutely certain your marriage is beyond saving. If you are uncertain, you should encourage your spouse to join you in marriage counseling with a qualified counselor acceptable to you both.
During the divorce process, you may feel as if your life is coming apart at the seams. You may experience emotional turbulence that will make it difficult for you to focus and make sound decisions for you and your family. An attorney, with years of legal experience and a clear mind, can guide you through the legal process and represent your best interests as you and your spouse part ways.
Just as no two people are alike, neither are divorces. Every divorce is different. Nancy E. Lusk has the legal experience to handle divorces of all shapes and sizes — whether you have a large estate or small, have children or none.
While a divorce proceeding may be confusing and strange to you, there are six typical phases which the average divorce may go through.
INITIATING THE DIVORCE
A divorce is initiated by the filing of a divorce petition by one of the spouses (the “petitioner”), the service of the petition on the other spouse (the “respondent”), and the filing of a written response (and usually a counter-petition) by the respondent. The manner in which a divorce is initiated can set the time for the rest of the divorce case; therefore, how it is initiated must be carefully considered.
1. Petition for Divorce
The first legal step taken by the petitioner’s attorney is the drafting of an Original Petition for Divorce. It includes the basic information required by the Texas Family Code, states the grounds for a divorce, and requests:
- a divorce,
- a division of community property and a recognition of the petitioner’s separate property, and
- orders concerning the children, etc.
These are standard provisions. If an emergency exists, the petition may contain a request for a Temporary Restraining Order, and it may request the court to make temporary orders.
2. Service of Petition
The respondent must receive a copy of the petition. This may be done in one of two ways. The petition may be formally served on the respondent by a Sheriff, Constable or Private Process Server. Or, the petition may be informally given or mailed to the respondent or his/her attorney. While informal service may be less antagonistic, it has its drawbacks. A respondent is required to file a formal “response” within a time certain, but only if formally served. Nancy E. Lusk will discuss these options with you before the filing of the petition.
3. Response & Counterpetition
If formally served, the respondent must file a written response to the petition within a stated time from the date of service, usually the Monday after 20 days. This response is usually called an “answer” in which the respondent denies all of the allegations in the original petition. This is a standard form which serves to prevent the petitioner from taking a default judgment against the respondent. The respondent may file a counter-petition for divorce against the petitioner. It is usually delivered to the petitioner’s attorney, without formal service on the petitioner.
Between the time of the filing of the petition and the granting of the divorce, the parties usually enter into temporary orders, either by agreement or by court order, to govern the parties, their property, debts and children while the case is pending. It provides temporary relief as the parties work toward a settlement or await a ruling from the court after trial.
NOTE: In Fort Bend County, absent an agreement, mediation will be required prior to a hearing for Temporary Orders if there are child-related issues.
1. Temporary Restraining Order (TRO)
If emergencies exist requiring immediate action to protect a spouse, a child, or any property, a Temporary Restraining Order (TRO) can be signed by the judge and served on the respondent along with the petition. It immediately restrains the respondent from the acts described in the order. If you are served with a TRO, you should be certain to obey all of its terms, failure to do so is punishable by contempt of court. The TRO expires 14 days after it is issued; therefore, a hearing on temporary orders must be held within the 14-day period, so that temporary orders of a more indefinite duration can be entered.
2. Temporary Orders
A temporary order may be entered by agreement of the parties or by the court after a temporary hearing. If by agreement, the parties save the expense of a pre-trial hearing. A temporary order may be entered whether or not a TRO has been issued. Temporary orders normally stay in effect until the final decree is signed by all parties, executed by the judge, and entered with the court.
The temporary order may provide for an injunction against the parties hiding, wasting or destroying property, prohibiting them from incurring any unusual debts, and contain orders for temporary custody and support of the children. The court may also order one spouse to pay temporary alimony to the other spouse. You should be prepared to provide Nancy E. Lusk with details of your monthly living expenses as well as payments on debts. This information is essential for determining the amount of temporary support to be paid or received. The temporary order usually requires the parties to produce documents and/or to file a formal inventory.
DISCOVERY OF EVIDENCE
The facts regarding the property, debts, the parties and the children form the foundation of any divorce case. Therefore, information gathering is one of the most important and time consuming aspects of the divorce.
1. Information Sheets
You will be given detailed information sheets to be completed. While tedious and time-consuming, it is extremely important for you to complete these with as much detail as possible.
2. Gathering Documents
You may be requested to gather and bring to the Law Office of Nancy E. Lusk many different documents, such as real estate deeds, bank statements, insurance policies, etc. If you do not have these in your possession, try to get them from other sources (except your spouse). If you cannot, notify Nancy E. Lusk as soon as possible.
In most cases, the parties are required to prepare and file an “Inventory and Appraisement,” which is a listing of all community and separate real and personal property as well as liabilities of the parties. You will be asked to state the value of the property and the exact amount of any liability. You are required to sign the Inventory, under oath.
This is a very important part of your case. You must be truthful in your Inventory. If your case is not settled and a trial becomes necessary, the judge uses the information contained in the Inventory to assist in dividing the property. If you swear to one thing in your Inventory and later, at the trial, attempt to take a different position, your testimony will be suspect.
4. Formal Discovery
Under Texas law, parties to any suit, including divorce, are allowed to discover a great deal of information from the other party by means of formal discovery devices. These include oral deposition of a party or witness, Interrogatories (written questions which are answered in writing and under oath), requests for production of documents, requests for disclosure, and requests for admissions. One or more of these may be used in your case. Nancy E. Lusk will advise you with respect to these matters.
Most forms of formal discovery require strict compliance deadlines, usually 30 days from the day they are served on you (if pro se) or your attorney. There are harsh sanctions for failure to comply, including payment of fines and/or attorneys’ fees. Further, failure to supplement your answers 30 days prior to trial may result in undesirable consequences. For example, failure to list a witness in answer to an Interrogatory will mean that person is excluded from testifying at the time of trial.
After all discovery is concluded, the parties will enter into settlement negotiations. Rest assured that no settlement offer will be made or accepted by Nancy E. Lusk until you have fully understood and approved the proposal. Usually, several offers and counteroffers are made back and forth between the parties before a settlement is hammered out.
Most cases are settled out of court. Sometimes, this happens just prior to trial (e.g., “on the courthouse steps”) or in the middle of trial. Although settlements may appear to be possible, Nancy E. Lusk cannot ignore trial preparations if settlement negotiations are not successful and the trial date is approaching.
One reason parties settle is to avoid the expense of trial. Also, neither party nor their attorneys can predict in advance exactly how a particular judge on a particular day is going to rule in any given case.
Settlement may be achieved by way of a process known as mediation. The parties may agree to seek mediation or they may be ordered to mediation by the court. (Ultimately, mediation is required prior to trial.) A neutral third party, usually an experienced lawyer or a retired judge, is selected to serve as the mediator. The fees for the mediator are shared by the parties, unless agreed or ordered otherwise. Both spouses and their attorneys appear before the mediator in an effort to settle the case.
The mediator is not an arbitrator. That is, he/she has no power to “force” a settlement or otherwise adjudicate the dispute. He/She does attempt to compromise the legal differences between the parties and encourage a resolution. Usually, a portion of the time spent with the mediator is devoted to the parties “venting” their grievances against the other. Following that phase, the mediator will ask each side to express his or her suggestion for settlement. From there, the mediator discusses, in private with each side, possible compromises to the differences.
If successful, this process eventually results in a settlement. Most cases are mediated in one day’s time. Statements made in mediation are confidential and are subject to the “settlement rule.” This allows the parties to freely exchange their views without fear that they will be admissible at the time of trial.
Finally, there often comes a time when settlement negotiations reach an impasse, and the attorneys must turn their energies to preparing for trial.
TRIAL (IF NO SETTLEMENT)
If settlement negotiations fail, the case must go to trial. Do not be unduly fearful of trial. Trials in real life are not what they are on TV or in the movies. Rarely is there anybody present in the entire courtroom except the two parties, their attorneys and staff, the judge, a clerk and the court reporter. The atmosphere is usually very formal and subdued. No one gets up in a witness’s face and mercilessly grills the witness on cross-examination until they break down. No judge would allow such conduct in real life. Nancy E. Lusk and her staff will prepare you extensively for any and all roles you will have at trial.
Sometimes, only the parties testify, while in other trials a large number of expert and fact witnesses will be called to testify. The vast majority of divorce cases are tried before the judge, not a jury. For one reason, jury trials are much more expensive and time-consuming. In some cases, however, jury trials are appropriate. Nancy E. Lusk will discuss these two options with you.
At the conclusion of trial, the judge will enter his/her rulings and orders, usually right there in the courtroom or, sometimes, days later by way of a letter to the attorneys.
After a settlement has been reached or the trial court has submitted its ruling, there is still a great deal of work to be completed.
1. Drafting Documents
The drafting of the divorce decree and other documents begins soon after the case has been settled or tried. Any agreed or litigated judgment for divorce is only as good as it is enforceable, and its enforceability depends in large part on how carefully it is drafted. Many lawyers have done well for their clients at trial or in settlement, only to end up losing much of what they had gained because of the other attorney “out drafting” them with respect to the decree and/or agreement. Therefore, a great deal of time and care must go into the tedious drafting of your unique decree and the documents related to your divorce.
Rest assured, you will review and approve, in advance, any and all documents before they are sent to the other party for signing, and filed and entered with the court.
a. Divorce Decree (Agreement Incident to Divorce)
If your divorce case is settled, it may result in two documents – a lengthy Agreement Incident to Divorce, which is signed by the parties (this is a contract between the parties), and a short Agreed Final Decree of Divorce, which incorporates and approves the parties’ agreement and is signed by the judge (this is a judgment by the court). Or, your settled divorce may result in only one document entitled Agreed Final Decree of Divorce, which is signed by the parties and the judge and serves, simultaneously, as both a contract between the parties and a judgment of the court. The consensual decree is enforceable not only as a private contract between the parties, but also is a decree which is enforceable as any other judgment entered by a court.
If your divorce is litigated, then only one judgment – a Final Decree of Divorce – will be signed by the judge. It is enforceable as any other civil judgment, but it is not enforceable as a contract between the parties.
b. Other Documents
Besides the decree and the agreement discussed above, many other documents often need to be drafted to implement the terms of the divorce decree or agreement, such as real estate documents, Qualified Domestic Relations Orders (QDRO) for specific retirement accounts, etc.
Neither party can appeal a settled divorce, but either party can appeal the ruling of a court following a litigated divorce. Although appeals are extremely difficult to win and can be very costly, they are available. Nancy E. Lusk will discuss the option of an appeal with you should the need arise.
Under Texas law, there is no such thing as a “legal separation.” Even though temporary orders may be entered by the court, they are not to be construed as a legal separation.
In Texas, the law prohibits a divorce decree from being entered until at least 60 days have elapsed from the date the divorce petition is filed. This “cooling off” period is, of course, just a minimum period of time. Most cases take much longer to complete. Because no two cases are alike, no one can determine, with certainty, how long it will take your particular case to be finalized. While we work diligently to complete your case as soon as possible, the length of time depends on how quickly the parties are able to come to an agreement. If the parties are not able to reach an agreement, as discussed above, discovery phase will need to be completed and the case set for trial.
Not until the divorce is final. Adultery is grounds for the granting of a divorce based upon fault. Your legal status as a married person does not change until a divorce is granted.
If you have been served with a Temporary Restraining Order, you will be prohibited from closing accounts. If you have not, you are free to close the accounts. You should consider the possible consequences. Closing an account without notice to your spouse may cause unnecessary embarrassment. It may also increase hostility and mistrust.
If your spouse is likely to spend or hide money in an account or run up large balances on a credit card, it may be a wise decision. If you close bank accounts, you should not spend the funds. The best plan is to deposit all the funds from the closed account into a new account, solely in your name, so that you can fully account for the transactions later.
Not so fast, according to Texas law, you have to wait a minimum of 30 days from the date your divorce is finalized, to remarry.