Divorce is the process by which spouses dissolve their marriage. Most of the time when a husband or wife files for divorce, the suit is based on insupportability of the marriage, also known as “No Fault Divorce.” No Fault Divorce has been a basis for divorce in Texas since the early 1970’s. Prior to the advent of No Fault Divorce, one or both spouses had to allege a fault-based ground to justify the dissolution of the marriage such as cruelty, adultery, or abandonment, among other things. While most parties file for divorced based on insupportability, either spouse may seek divorce based on fault.
Divorce can be one of the most difficult events in a person’s life. The prospects of divorce, working with a lawyer and the actual divorce proceedings seem like daunting tasks with potentially austere financial ramifications. Below are some Frequently Asked Questions (FAQ’s) to help you to better understand the divorce process and how the firm works with prospective clients.
Divorce in Houston, Texas – What You Need to Know and FAQ’s:
Q: What are the requirements to file for divorce in Houston, Texas?
A: Before filing for divorce, at least one of the parties must be a Texas domiciliary (i.e., resident of Texas) for at least six (6) months, and must also be a resident of the county where he/she files for divorce for at least 90 days before filing for divorce.
Q: How do you initiate a divorce?
A: Generally, one spouse hires an attorney and files a petition for divorce. This spouse is referred to as the petitioner. The other spouse (called the respondent) is served by a constable or private process server. The papers attached to the citation of service include the original petition for divorce, and may also include a temporary restraining order and notice of hearing.
Q: How much is my divorce going to cost me?
A: This is a question we get every day. While we understand why it is an important piece of information that clients want, the honest answer is nobody knows. An experienced family law attorney won’t give a fixed price for divorce, but more of a range of expectations. To do otherwise would be like reading tea leaves, crystal ball gazing, or asking the Magic 8 Ball simply because there are too many factors outside the control of the attorney and client. The only person the client can control is himself/herself, and the client, in turn, may direct the attorney as to the goals of representation.
It is one thing to have an uncontested divorce where the parties will agree to children’s issues and property division. In that scenario, the attorney can give a reasonable estimate of cost so long as the parties continue to cooperate with one another in all aspects of the legal process. Attorneys are better able to gauge what the costs will be because we know: what the filing fees are, how long it takes to draft the petition, waivers, final decrees and closing documents. In uncontested situations there is generally one brief appearance before the judge for the court to grant the divorce and approve the final decree.
Litigation is totally different because: (1) there is an attorney on the other side representing the other spouse’s interests and rights; (2) there may be numerous court appearances for temporary orders and other various motions; (3) the court may appoint and amicus attorney or an attorney ad litem to protect the children; (4) depositions may be taken of the parties and collateral sources; (5) discovery is needed to determine important facts relating to property and children’s issues, and many others; (6) mediation is required prior to trial in nearly all counties; (7) trial will move forward in the event the parties cannot settle all issues in an informal settlement agreement, agreement incident to divorce, or settle in mediation. As you can see, there are many variables that are beyond your and your attorney’s control, and this is why it is not possible to provide a cost, but a range. Depending on developments in the case, that range of costs could increase or decrease.
Our firm’s philosophy is to help our client to get a divorce in the most cost-effective way possible while still advocating for the client and protecting his/her interests. Therefore, we do not churn files, file frivolous motions, or issue unnecessary discovery. Additionally, we strive to be preemptive rather than reactive wherever possible.
Q: How can I keep the costs of a divorce down?
- If possible, try to use the “kitchen table” approach to divorce, and agree on all property and child issues, or at least as many issues as possible. It is necessary for both spouses to be: reasonable, good communicators, and able to work together.
- If the “kitchen table” divorce approach doesn’t work, then consider early intervention mediation. The suit for divorce should be on file before going to mediation. Seek a credentialed mediator who mediates family cases, because there are advanced credentials required for family mediators. If you settle in mediation, then an attorney representing either the husband or wife (but never both) can prepare a final decree that sets for the precise terms of the mediated settlement agreement.
- If you are only able to settle some issues in mediation, then submit the partial agreement to the court. The remaining issues must be put before the court in a trial.
- Talk to your spouse about collaborative law divorce rather than litigation, as it is less expensive than protracted litigation. It is also less emotionally draining than litigation.
- Listen to your attorney’s instructions and advice.
- Don’t be afraid to ask your attorney questions if you don’t understand something.
- Complete in a timely manner all the homework assignments your attorney gives you. It’s not busy work, but necessary for the process.
- Try to work with your spouse by behaving in a professional manner to the extent possible. For example, when you must communicate be respectful, brief and stick to the matter at hand – for example, your child’s progress in school. Avoid accusations and emotional outbursts. If e-mail or texting works better, then use those forms of communication. Just be aware that everything you write can be blown up on an exhibit board in the courtroom so make sure it’s not anything you would not want on the five o’clock news.
- Read all documents your attorney provides.
Q: What is an uncontested divorce?
A: Uncontested divorce is what many attorneys refer to as a “kitchen table divorce.” This is the most cost effective method to dissolve the marriage, but it is not right for all people. Sometimes spouses who communicate and get along well agree to the terms of their divorce by allocating property and agreeing on child custody issues. That does not mean that the spouses merely write up an agreement and take it to the court. There are still legal formalities required to dissolve a marriage. One party is represented by an attorney and files an Original Petition for Divorce. One attorney is legally and ethically prohibited from representing both parties. Once the petition is on file for the required period of time, a document called a Waiver of Service is presented to the non-filing spouse for his/her signature, and the document must be signed before a notary public. The waiver eliminates the need for the non-filing spouse to be served with divorce papers by a constable or private process server. After 60 days have elapsed from the filing date, the parties may go to court and prove up their divorce. Even though the parties have made an informal agreement of settlement, the judge must still approve the settlement. Uncontested divorce is not only cost-effective, but it is also less acrimonious and emotional than a litigated divorce. Be aware that if the other spouse refuses to sign a waiver of service or engages an attorney who files motions, sets hearings, and/or initiates discovery, among other things, this is not an uncontested divorce.
Q: What is a contested divorce?
A: Contested divorce is one where the parties cannot work out a settlement agreement concerning child custody and property on their own without the assistance of attorneys, mediators, and/or the court. Contested divorces can range anywhere from parties who routinely have knock-down drag out disagreements before the court (even after final orders), to parties at impasse over a few issues of property and/or the children. Parties may engage in several court hearings, discovery, depositions, and mediation before reaching final trial. Statistics tell us that over 90% of family law cases settle in mediation, so few cases are resolved by jury or bench trial. However, a good attorney always prepared for trial because that over anything else helps both parties and attorneys see the full picture. This is what leads to resolution.
Q: What are temporary orders, and are they a big deal?
A: A temporary hearing is held before a state district court judge or the court’s associate judge. The parties and their attorneys are permitted and even encouraged to enter into agreed temporary orders. This saves attorney’s fees and a trip to the courthouse. However, if the parties are unable to resolve issues, a hearing is held before the court’s presiding or associate judge to hear evidence and then make determinations such as: which spouse will retain exclusive possession of the marital residence while the case is pending; who will pay the mortgage, utilities, monthly bills; how money will be spent; when inventories are due. If children are involved, the court must also determine temporary custody, possession and access, child support, etc. The court may also consider whether it will award temporary spousal maintenance and when the parties should exchange sworn inventories, disclosing all community and separate property. Temporary orders hearings are very much like trial by ambush, and it’s critical to be prepared and have counsel. Sometimes it cannot be helped, but do not wait until two days before the hearing to seek counsel. Ignoring a hearing notice or summons won’t make it go away. Even though the orders are indeed temporary, they do set the tone for the case. Sometimes temporary orders become final orders. Read and follow all orders or injunctions from the court. Read them again, and then ask questions if you don’t understand. Orders and injunctions aren’t like car insurance policies thrown in the drawer and looked at only when it’s time to file a claim. There can be serious consequences for failure to obey a court order including fines and jail time.
Q: Texas divorce courts divide property 50/50, right?
A: Not necessarily! While an equal division may be the starting point for property division between the spouses, it is not always ending point. There are numerous factors the court takes into consideration when dividing community property. Texas law provides family courts with judicial discretion to make a just and right division of the community estate, having due regard for both parties and any children of the marriage. There is also the issue of separate property, which may apply.