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Divorce

This page is intended as a very general overview of the process a typical divorce case will go through. The statements and information provided on this website are for informational purposes only. This site is not intended to provide legal advice to the reader and NO attorney-client relationship shall be deemed to arise from the receipt of this page. An attorney-client relationship only arises after the attorney and client have signed a written attorney-client agreement, after the attorney has evaluated the background facts provided and has accepted the representation of the client's legal action.

The divorce process begins when one spouse or the other files a petition for divorce, usually with the District Clerk. The petition is a document setting out, in pretty general terms, what the filing spouse (called the “Petitioner”) wants the Court to do in the case. Often, the petition will include requests for things that are unlikely to be granted because, if the filing spouse ever wants to be able to ask for something, it has to be set out in his or her petition. For instance, most every petition will include a request for the other side to pay the filing spouse's attorney's fees. While the Court certainly can order one side to pay the other's attorney's fees, it is relatively uncommon that this happens. The important thing to remember if you've been served with a petition that includes a laundry list of burdensome requests is that this is only what the other side is asking for—the fact that it's requested in the petition does NOT mean the Court is going to order it. In the vast majority of cases, the Judge never even looks at a petition (or is even aware that one has been filed) until a hearing is held in the case.

In Collin County (and Dallas and Denton Counties, as well) there are some Court orders that do go into effect as soon as a divorce petition is filed. These are called “Standing Orders” and a copy should be attached to the petition when it is filed. These orders are not specific to an individual case, but rather apply to all divorces, and most other family law suits, filed in the county. Generally, the Standing Orders seek to preserve the status quo between the parties until they have had time to either negotiate about how circumstances should change in light of the divorce filing, or until the Court can hold a hearing. If you have been served a copy of a divorce petition, you should pay attention to what the Standing Orders permit you to do and prohibit you from doing. If you have questions about how the Standing Orders apply in your particular situation you should consult with an experienced family law attorney.

After the petition is filed, one of two things has to happen: either the other spouse has to be served with a copy of the petition, or he or she has to sign what's called a “waiver of service.” Usually, the petition will be served on the other spouse (called the “Respondent”) by a constable or private process server. If the Respondent keeps dodging the constable or process server, the Petitioner can ask the Judge for permission to serve the Respondent in an alternative manner: for instance, by leaving a copy of the petition on the Respondent's door. Once the Respondent is served, the constable or process server will sign an affidavit setting out when and where the service took place and file it with the Court. This starts a clock running on the Respondent's deadline to file a written response to the petition. If you've been served with a petition, it is important that you understand this deadline—talk to a lawyer if you don't. Failure to file a written answer in time can result in a default judgment being taken against you, meaning the Petitioner can go to Court and get everything he or she wants by default.

The alternative to serving the petition is for the Respondent to sign a waiver of service. This is a notarized document that, essentially, says “I have been given a copy of the petition and there is no need for it to be formally served on me.” Often, a Petitioner will suggest a Respondent sign a waiver of service when he or she wants to prevent the case becoming contentious (emotions tend to get ratcheted up when a constable unexpectedly shows up at someone's workplace with legal papers). However, you've got to be very careful if you're asked to sign a waiver of service—they can be used in a tricky way. For instance, the waiver might contain a line that says something to the effect of “I agree that the case may be taken up without further notice to me”—which would give the Petitioner carte blanche to go take a default judgment against you. It is best to seek the advice of an attorney before signing a waiver of service.

When the Petitioner files the divorce suit, he or she may ask the Court to schedule a temporary order hearing. If so, when the Respondent is served with a copy of the petition, he or she will also be served with another document called a “notice of hearing.” This will tell the Respondent when he or she needs to be at the courthouse for the temporary order hearing. This is a hearing, typically held within a month of the divorce petition being filed, at which the Court makes orders about how custody, visitation, child support, use of property, and payment of debts will be handled until a full trial can be held.

In Collin County, temporary order hearings are held under strict time constraints: barring extraordinary circumstances, each side is limited to twenty minutes to present their case. Dallas and Denton counties do not limit hearings to twenty minutes by rule, but it is becoming more common for judges in those counties to restrict each side to twenty minutes. That means a total of twenty minutes for a spouse to testify, the other spouse to be cross-examined, other witnesses to be called and evidence to be offered! Needless to say, it is difficult to put on a comprehensive presentation under that kind of time limit.

Most cases involve something of a flurry of activity at the outset: filing the petition, getting it served on the other party, then going to the temporary order hearing. After the temporary order hearing is held, most cases will enter a period where things slow down. Sometimes the case will settle soon after the temporary order hearing. In others, the parties will use this lull in the process to conduct written discovery of documents from the other side, issue subpoenas for evidence from third parties and, generally, prepare their case for the final trial—which will typically be scheduled for eight months to a year after the case was initially filed.

Another thing that commonly happens in this slow period after a temporary order hearing is mediation. Mediation is an informal settlement conference between the parties with the assistance of a mediator—who will try to help the parties reach a settlement they can each live with. The mediator cannot force anyone to enter into an agreement they don't want to, but most judges will require the parties to try mediation before they allow you to spend a day of their courtroom time on a trial. And, most of the cases that go to mediation end up settling there. If the case does not settle at mediation, the Court will hold a trial. The trial will not be restricted to twenty minutes per side, but most will be held in a single morning or afternoon.

If you have questions about filing for divorce, or are already in the middle of the process and need help, please contact our office to schedule a free consultation.

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