Introduction-What Happens in a Divorce?
Going through a divorce can cause a whirlwind of different emotions, but one common thread for almost divorces is confusion. What is the process for getting a divorce? How long will it take? What is my role in this process, and what is my lawyer’s role?
This series will help explain, step by step, the progression of a typical divorce.
Steps in a “Typical” Divorce:
- File a Petition
- Serve the Petition
- File an Answer
- Have a Temporary Orders Hearing
- Conduct Discovery
- Attend Mediation
- Have a Final Trial
- Enter the Decree
A general disclaimer for this series: every divorce is different and will, inevitably, take its own course. This series is not a replacement for your lawyer, whom you should always turn to first with specific questions. This series is intended to be a general road map to help ease some of the anxiety about what comes next.
Step 1- File a Petition
A Petition is a formal, written request presented to the Court. It is a very simple document, usually only a few pages long, that tells the Court a few basic things, like your name, your spouse’s name, whether you have children, and, broadly, what you are asking the Court to do. The Court has the power to grant your divorce, to divide up the marital property, to order when each spouse has physical custody of the children, and to order how much, if any, child support each party must pay.
Because the Court has these powers, it is important lay out what you want to the Court to do in the Petition. However, the Petition need only include general requests. For example, the Petition will ask that the Court divide the martial community property in a just and right division; it is not necessary, or appropriate, to list every piece of property that you are requesting the Court divide.
After the clerk processes the Petition, the divorce case has officially been initiated. You will receive a case number and court assignment for your case. Your case will stay in the same court for the duration of your case.
Step 2-Serve the Petition
Once the Petition is on file with the Court, the next step is to serve the Petition on your spouse. Service in this instance is the formal delivery of the legal notice. Every party to a divorce has to be formally notified that the lawsuit is pending; this requirement ensures that a divorce does not occur without one of the parties even knowing.
Typically, to have the Court recognize service as proper, the Petition and accompanying documents must be hand delivered to the other party by a process server licensed with the state. This sounds very dramatic, but it is usually a very calm exchange. Process servers are professional, and they can even arrange a time and place to serve someone beforehand.
In lieu of formal service by a process server, the party who needs to be served can also sign a waiver of service. The waiver of service states that he or she gives up the requirement that he or she be personally served by a process server and acknowledges receipt of the documents.
Step 3-File an Answer
Once the Petition has been served, the next step is for the party who was served with the Petition to file an Answer. The Answer is the formal response to the Petition. It is an even simpler document that the Petition, and it will often be only one or two pages long. It is simpler because it is only responding to the Petition. It does not contain the same requests of the Court as the Petition.
An Answer is required to participate in the divorce proceeding. If an Answer is not filed with the Court within a certain time period, which is spelled out in the paperwork served in Step 2, then party who filed the Petition will be allowed to obtain a Default Judgment. The Default Judgment grants the divorce, as well as divides up property and makes orders dealing with the children, without any input from the answering party.
In addition to an Answer, the answering party can also file a Counter-Petition. A Counter-Petition is the document that the answering party files with the Court making his or her own requests for the Court to divide property and to make orders related to the children.
Step 4-Have a Temporary Orders Hearing
Now that the legal proceedings have begun, it’s time to move on to step number four: have a temporary orders hearing. Divorces take some time, and in the time after the Petition has been filed, but before the matter is finalized, the Court will set forth rules for the parties to follow. These rules can span from where each party lives, to when and where the children spend their time, and who is responsible for paying what bills.
The Court’s rules are laid out in a formal document called Temporary Orders. If the parties cannot agree on Temporary Orders, then the Court will hold a hearing. The temporary orders hearing is usually the first time the parties will be in front of the Judge. The hearing typically includes testimony by both parties, and can include testimony by other people. Since this hearing only deals with time before the divorce is finalized, it is usually pretty short.
After the temporary orders hearing, the Judge will issue his or her ruling, which will be drafted into a formal Temporary Order by the lawyers. This Temporary Order will be the rules that the parties must follow during this interim period.
Step 5-Conduct Discovery
Discovery is the process of finding or learning something that was previously unknown. In a divorce case, each party has the right to serve discovery requests on the other party.
Unlike on television, nothing will be a surprise at a final trial in a divorce case. That means that anything that will come up at trial has to be disclosed during the discovery process first. If it is not disclosed during the discovery process, then it cannot be used during a trial.
There are different types of discovery that might be employed during your case. These can include providing documents and answering certain questions under oath. Once a party sends discovery requests, the other party has 30 days to respond.
The discovery responses also assist in the next step, attending mediation.
Step 6-Attend Mediation
The next step is to try to resolve the case prior to trial. The most common way to do that is to attend mediation. Mediation is a non-binding method of dispute resolution where a neutral third party tries to help the parties reach a mutually agreed upon solution.
At mediation, a party and his or her lawyer will be in one room, the other party and lawyer will be in another room, and the neutral third party, the mediator, will go between the rooms to try to help the parties reach an agreement.
The discovery obtained in Step 5 is a big help in mediation. It will help the parties and the mediator to know what a reasonable agreement would be under the circumstances.
If an agreement is reached at mediation, then the parties will sign a Mediated Settlement Agreement, which will be the basis of the Final Decree that will be signed by the Judge. If no agreement is reached at mediation, then the parties will proceed to a final trial.
Step 7-Have a Final Trial
If no agreement has been made, whether through mediation or through an informal process, then step 7 is to have a final trial. This is the culmination of all of the prior steps, asking the Court to make final decisions on the issues requested in the Petition based upon the information provided in discovery and live testimony by the parties and other witnesses.
When a party reaches this stage, there is a choice to make: whether to ask for a jury trial or a trial in front of the Judge. Texas is one of a few states that allows jury trials for some family law matters. There are certain reasons to request a jury trial in some family law matters, but most family law trials are bench trials, or trials in front of the Judge only.
At the end of the trial, the Judge or the jury will make the final decisions and will set forth rulings. These rulings will be the basis for the Final Decree, which is the formal divorce order signed by the Judge.
Step 8-Enter the Decree
The final step is the enter the Decree. Whether the underlying basis for the Decree is a mediated settlement agreement, an informal agreement between the parties, or the Judge or jury’s final rulings, all Decrees end up looking very similar.
The Final Decree of Divorce is the Court’s final judgement. It will pronounce that the parties are divorced, and it will order how property is divided, when and where the kids will be with each party, and what, if any, child support payments a party is to pay.
Every divorce is a little different, and none will follow the exact path laid out in the previous posts. However, hopefully this very basic guide will help to explain the steps in the divorce process and ease any.
For more specific guidelines, please be sure to ask your attorney. Your attorney will fully explain each stage and the specifics of your case with you.