a) Standing orders (IMPORTANT): Depending on where your lawsuit is filed, there may be standing orders for that county. These are actual court orders, signed by the presiding judges that are in effect immediately--for both parties--upon the filing of a lawsuit. It is very important that you read and understand the standing orders of your county. The courts will make you accountable for any violations of the standing orders, whether you were informed or not.
b) Petition: The petition is the first pleading that is filed in a lawsuit. This is filed by the party who is starting the lawsuit. This document should be officially served on the other party and it will state the names of the parties, the type of lawsuit, and the various requests the suing party is asking for.
Waivers of Service
A "Waiver of Service" is a document that the person who is being sued can sign before a notary, and it can then be filed with the court and will count as proof the person has been served. If you are being sued, be very careful about signing anything the suing party gives you. Some variations of waivers of service may contain statements that say you are giving permission to the court to go forth with trial without any notice to you. If you sign this and a trial takes place without you and orders are issued by a court that you think are unfair, it can be very difficult (if not impossible) to correct the situation. Always consult an attorney before signing a waiver of service.
Original Answers and Countersuits
If you have been sued, as the responding party you must file an "Original Answer" within 20 days of being served with a lawsuit. It is always advised that you consult an attorney when you have been sued. If you are unable to see an attorney within 20 days from the date you were served, you should draft a letter listing the cause number (the identification number found on the court document) of the suit that was filed, your name, address and phone number, and indicate that your document is your Original Answer. You should also state that you deny all that the suing party is requesting, and you demand that the suing party show proof for all they request. It is best to consult an attorney to make sure your rights are protected. If you are sued, you certainly will want to file an Original Answer immediately, but you may wish to file a countersuit as well. A countersuit can be used to reduce the amount of the original suit, or it may be a different claim.
Divorces will take a minimum of 61 days, because the State of Texas has a minimum 60-day "cooling off" period. If the divorce is contested, it will likely take 4 to 7 months, on average. Once you file for divorce, you may need relief or a court order to provide you with assistance while the divorce is pending. In an Original Petition or Countersuit, either party or both may request that the court make temporary orders and setting a hearing is the way you will get the order unless an agreement can be made between parties. Courts may make orders for the following types of temporary relief: a) Custody: parties will likely be named Joint Managing Conservators, and rights and duties will designated to each party, including the right to determine the children's primary residence. b) Child support: child support will be ordered in most cases for the party who is maintaining the children's primary residence.
During a lawsuit, each party has a right to "discover" the other party's evidence so that a fair trial can take place. If one of the parties intends to put on evidence that you are a violent person, you have the right to discover what evidence they intend to use. Examples of requests are:
o All assets
o All liabilities
o All financial and income information
o All relevant factual allegations that will be made by the opposing party
o All potential witnesses
o All potential documentary exhibits and other evidence to support their case.
Your attorney is best able to represent you when the documents are provided in a complete and organized fashion. A complete document file can be instrumental to negotiating and resolving divorce or custody case issues without litigation. Even more significantly, however, if settlement is not possible, your documents may be absolutely necessary to support your case at trial.
Once again, organization may help to reduce your legal fees.
Collaborative Law is a newer concept when it comes to divorce. The idea behind collaborative law is that parties negotiate all aspects of the divorce, along with their lawyers. Hearings are not a part of Collaborative Law (although a final prove up hearing is required). This is a great idea for couples who want to make their own decisions without subjecting themselves to the uncertainties of a judge or jury. The divorce decree becomes a project of both parties and their attorneys. The only downside to a collaborative divorce is that a "collaborative divorce agreement" must be entered in to. Parties have to agree that if the divorce is not settled after negotiating extensively, parties must hire new attorneys if they wish to proceed with the traditional court process, including hearings and trial. This can be very costly in the event that settlement does not occur. All fees paid to the collaborative attorneys are lost, and new retainers will be required.
If you are unable to settle your case with your spouse, it will go to trial. At trial you each tell your story to the judge or jury. It is told through your testimony, the testimony of other witnesses, and documents called exhibits. At trial, the person who filed the suit (called the Petitioner) presents their case first. Any witnesses they call are subject to cross-examination by the opposing party. When the Petitioner rests their case, the Respondent presents their own case with witnesses and evidence, each subject to cross examination by the opposing party.
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