Maybe you knew it was coming; maybe you didn’t. Then it happened so fast; the knock at the door; a brief introduction and explanation from a process server; and finally the exchange of a bundle of papers from her hand to yours.
You’ve been served with a petition for divorce and a temporary restraining order.
“Crying is all right in its own way while it lasts. But you have to stop sooner or later, and then you still have to decide what to do."-C. S. Lewis
This is your survival guide for the first 48 hours after you’ve been served with divorce papers.
In most Texas divorces, you are served with two documents:
· A Petition for Divorce
· A Temporary Restraining Order
Let’s take the mystery out of these two divorce legal documents so you can really decide what to do.
The Typical Petition for Divorce in Texas:
First, let’s be clear. During these first moments of your divorce, you do not need to panic or overreact to what’s in the petition for divorce. A petition is nothing more than a request by your spouse that the court enter certain orders at final trial. Some of these requests will be granted, others will not – so stay calm and read on…
Just the facts
Much of the petition covers the required basic information required by the court such as:
· The proper names of the parties as well as their driver’s license and social security numbers for identification;
· The names, and ages of your children;
· The dates of both your marriage and separation;
· A statement that the court has jurisdiction of your divorce; and that venue is proper in the county where the divorce is filed;
Divorce jurisdiction and venue
Let’s stop here and talk about jurisdiction and venue. If you live out of state and are responding to a petition for divorce filed in Texas, you should consult a divorce attorney to know your rights. The Texas divorce court may not have jurisdiction over you and the case could be dismissed.
If you live in a county in Texas different from where the divorce is pending, talk to a divorce attorney to know if you should seek to transfer venue of the divorce to another county.
Grounds for Divorce in Texas
A Texas divorce petition must also allege a ground or basis for the divorce. Texas is a no-fault divorce state and most divorce petitions will simply state that the marriage has become “insupportable." In other words, the divorce is occurring because your spouse wants a divorce!
If your spouse is particularly mad at you he may allege you have been cruel or maybe that you have committed adultery. Such bad acts can serve as a basis for a disproportionate division of your property, but most times these inflammatory allegations have no effect. Nevertheless, you’ll want to visit with an experienced Texas divorce attorney about the particulars of your divorce.
Divorce and division of property
How many people come into my office and announce to me that Texas is a “50-50" state? Hundreds! Is this true? Not really. Your typical divorce petition will say something like, “the community estate of the parties should be divided in a manner that is deemed fair and equitable." Nowhere is the word “equal" used. You can expect, in most case, the division of your community property to be divided anywhere between a 50-50 split and a 60-40 split, depending on the circumstances.
Some really scary divorce petitions will request a disproportionate division, one favoring your dear spouse. The petition will go on to list various reasons for the unequal split. Call your favorite divorce lawyer to fully understand whether you have exposure.
Children and requests for conservatorship and support
Next, the typical divorce petition will identify your children and request the court to enter orders for their conservatorship and support. Normally, the petition will allege that you and your spouse should be named joint managing conservators and that your spouse should be named the “primary" parent. To repeat, just because it’s in the petition for divorce doesn’t make it true. Get with an experienced divorce attorney to make the best decisions for your children.
Many times, parents will agree to a true sharing of parenting time with an alternating week parenting plan or even one that follows at 2-2-5-5 format. So, don’t be deterred by the standard language you read in your divorce petition.
Do pay special attention if the divorce petition contains a request that your spouse be named a sole managing conservator or alleges that you have abused or neglected a child. Usually, these allegations will be supported with an affidavit describing something that you have done to require your access to your children be restricted.
If your divorce petition contains an affidavit in support of sole managing conservatorship or for extraordinary relief, don’t go it alone. Seek help immediately from a divorce attorney if you wish to preserve your relationship with your children through your divorce.
Divorce Temporary Orders
Does your divorce decree contain a request for issuance of a temporary restraining order and temporary orders after a hearing? Again, this is not cause for alarm, but you should pay attention and plan to sit down with a divorce attorney.
Why temporary orders? A divorce in Texas cannot be finalized for at least 60 days after the date of filing and, if there are points of disagreement between you and your spouse, the process can drag on for months, even a year! Temporary orders establish a “holding pattern" while your divorce is being finalized.
Here are some things you can expect to be covered at a hearing on divorce temporary orders:
Exclusive possession of the family home, automobiles and other marital property;
If you are going to court for a temporary orders hearing, you’d better be prepared! If your divorce case drags on for months, you’ll be living under those temporary orders a long time.
This would be a good time to retain an experienced divorce attorney.
Attorneys’ Fees in Divorce
Most Texas divorce petitions conclude with one final insult. The ubiquitous request that you be ordered to pay all attorneys’ fees incurred by your spouse… how rude! This usually doesn’t happen but it is part of every divorce lawyer’s repertoire.
Unless there is a clear income disparity between you and your spouse, you each will pay your own attorneys’ fees. Where there is a disparity in income, courts will sometimes “equalize" attorneys’ fees at the temporary orders hearing. If you are in control of the family finances, don’t expect to come to court with an attorney while your spouse does without.
You owe it to yourself to talk to a respected divorce attorney, one who can give your reliable advice and guide you on this journey. For over 25 years, Board Certified divorce attorney Greg Housewirth has been the steady hand at the wheel for thousands of divorce clients. Negotiating when he can and fighting when he should, Mr. Housewirth gives you the tools you need to emerge from divorce whole and ready for the next chapter of your life.
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