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Divorce Process in Texas

Posted by attorney Robert Fafatas

Many people are overwhelmed, confused and intimidated by the divorce process. In addition to the emotional, financial, and practical issues involved in a divorce, the legal process itself can be complicated and frustrating for some.

All divorces in Montgomery County, Texas begin with the filing of a Petition for Divorce. This is the legal paperwork that is physically given to the clerk, along with the filing fee and other required fees, that officially begins the divorce case. Once this is done, the other spouse will need to be served with the papers, or can sign a waiver of service that will also need to be filed.

Montgomery County has standing orders that go into effect the moment a divorce is filed. These orders cover the finances, property, children, pets, and other important matters of both spouses, regardless of who filed the divorce. In some cases, the automatic orders will not be enough, and a party will need to seek temporary orders. Temporary orders are signed by the judge that, in addition to the automatic orders, govern the parties until the divorce is final. These typically include issues such as who get to live in the home, temporary child support or spousal support payments, and similar issues.

Once the divorce is on file, the court will issue an order giving both sides deadlines to complete certain activities. Among these are discovery and filing an inventory and appraisement. This is an important part of the process as it gives each side the opportunity to discover the true nature and extent of the property, debts, and finances involved. This is particularly helpful in cases where one spouse has been shut out of the family finances and has little knowledge about them. Discovery is also used in situations of adultery, abuse and other matters that can be important as to the fault of the marriage and when one party is seeking an unusual division of property or child custody, for example.

If the parties are in agreement as to how the property should be divided, the allocation of the debts, child support and custody, taxes, and other important matters, an Agreed Decree of Divorce can be prepared and submitted to the judge for signing. This is what is typically called an uncontested divorce, meaning the issues are not contested by either spouse. These, while still emotionally and financially taxing, are the simplest and least costly types of divorces.

If the parties cannot agree on the issues, or cannot agree on one or two of the important issues, the court will order the parties to attend a mediation. Mediation is a non-binding process in which a third-party mediator attempts to work with the spouses to arrive at a resolution and agreement on the outstanding issues. If it is successful, an Agreed Decree of Divorce is prepared reflecting the agreement. This is then submitted to the court as in the case of an uncontested divorce above.

If the mediation is unsuccessful, the parties will still be able to negotiate the terms up to the date of trial. If there is still no agreement, the parties will present their cases to the judge (or a jury in some cases) and all of the relevant issues will be decided by the judge or jury. These, while unavoidable in some cases, are the most expensive and time consuming divorces.

Divorces can be complicated further with issues relating to what property is separate property, and what is community property and related issues concerning a just and right division of that property. Those issues are beyond the scope of this article but are mentioned as they will be addressed during the discovery period of a divorce. The more complicated the issues, the more discovery that is needed, and thus, the more expensive and time consuming the divorce can be.

Unfortunately, many people feel they have an accurate understanding of the law and the process when it comes to divorce. This can often create problems once a divorce is initiated. Because of the issues involved and the long-term consequences of a divorce, it is critical to consult with and retain an experienced Montgomery County divorce attorney if you have been served divorce papers or are contemplating or anticipating a divorce.

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