The Divorce Process in Texas
The divorce process can be long, grueling, and, quite frankly, no fun. Here at Mian & Masoom, we have several years of experience to assist you through each step of the divorce process, and protect your assets as well as your children’s rights. Below we will discuss the process as simply as we can.
Different Types of Divorces: Uncontested vs. Contested
Although rare, sometimes the spouses agree to the divorce and the division of property. This is called an “uncontested divorce.” If you fall into this category, congratulations! Your process is much simpler. However, if you and your spouse cannot come to an agreement or there are children involved, your process becomes a bit more complicated.
Uncontested divorces will need an original petition to begin the process and then a final divorce decree that will need to be “proved up” in court (see below for more on the “prove up process").
Contested divorces, however, may result in mediation, a temporary restraining order hearing, and a trial.
How Long Will My Divorce Take?
No matter what type of divorce you may have, there is a 60-day waiting period from the time you file to the time you and your spouse are able to finalize the divorce with a signed order from the judge. Hence, no matter what your situation is, there are no “quickie divorces” in Texas. The shortest time your divorce will take is 61 days from filing to finalization.
The only exception to this 60-day rule is a waiver based on family violence.
What Do We Need to File First?
The initial step in a divorce is to file what is called the Original Petition for Divorce or Petition. The party initiating the divorce is known as the Petitioner. The party responding to the divorce is known as the Respondent. The Petition lays out who the parties are, if there are more than $50,000 in property, if the parties meet the Texas residency requirements, and a few other details that tell the court how to categorize the divorce.
What Are Temporary Restraining Orders?
Typically, along with the Petition will be a requested Temporary Restraining Order or TRO. The TRO is put in place to keep the parties’ properties, assets, children, etc. at the status quo while the parties handle the divorce case. In other words, the TRO will usually list the do’s and don’ts of the parties during the divorce process. For instance, parties usually cannot remove children (if it is a divorce with children) from their school without permission from the other parent. The parties will not be able to remove or transfer any current community property, without the consent of the other spouse. The TRO is in place to prevent fraudulent activity and also to protect the children’s psychological and emotional development.
The Petition is Filed…Now What?
Upon service of the Petition, the Respondent will have 21 days to respond. If they choose not to respond, the case may default and the Petitioner can wait 60 days before filing the Final Divorce Decree.
However, if the Respondent receives the Petition and files a response, the case will likely go through a process known as Discovery. During Discovery, the parties will exchange information such as payroll to calculate child support, or determine job stability. Other documents that may be exchanged are criminal history, or documents substantiating one parent’s ability to perform as primary versus the second parent.
The Discovery Process is crucial because it provides the parties and potentially the Judge information to make determinations as to what is considered just and right in property and asset division, as well as for the children’s welfare.
The Final Divorce Decree and The Prove Up
At the end of a divorce, a Final Divorce Decree is prepared which memorializes the settlement terms for the divorce. One of the parties will need to take the signed decree to court and go in front of the judge to what is called a “prove up.”
A Texas “prove up” is a short hearing to present testimony to the Judge on an uncontested issue or an agreement between the parties. The party will be sworn in and testify to a few simple questions in front of the judge either asked by their attorney or the Judge. The judge will then sign the petition to finalize the divorce.
If the parties are not close to an agreement, a Judge will decide the case at trial.
The divorce process can be difficult without the right guidance and resources. Though you may want to handle it yourself, consulting an attorney for guidance is highly recommended to prevent costly mistakes.
Melissa Masoom, one of the founding partners at Mian & Masoom Law Firm, has been handling divorces and family law matters on a pro bono basis since law school. Growing up in New York City and Texas and going to school in Boston, Ms. Masoom has used her life experiences when focusing on the vastly different clients she encounters every day. She understands how complicated and emotional your divorce might be and offers a complimentary divorce consultation.