THINGS TO KNOW BEFORE FILING FOR DIVORCE
There are so many questions you might have before you file a divorce or child custody suit. Before you meet with an attorney, this might give you a head start on the discussion.
Every case starts with the filing of a Petition. It can be a petition for divorce, a petition to modify custody, or a petition for enforcement of a prior order. After the Petition, almost anything can happen, but here are some common things to expect.
Temporary hearings happen before the final trial. In a divorce, a temporary orders hearing is often held if the parties aren’t able to agree on the ground rules for the case. These hearings lead to decisions about who will live in the house, what support will be paid, custody, visitation, use of property or vehicles or any number of other details which give our lives structure. Modification suits may also have temporary orders hearings to decide temporary changes in custody, visitation or support. If there are other remedies during the case needed by one side or the other, that person may file other motions for temporary orders, motions for injunctions or motions to compel performance of the other party.
Discovery, put simply, is fact gathering. Trial by ambush doesn’t happen in a well managed case. The other side must tell you what they want, why they want it and what evidence they have which supports their position. They might also have information you need to help support your case. They have to give you that, too (if they’ve got it). Requests for Disclosure, Request for Production, Interrogatories, Request for Admissions, and depositions are terms you might come across in the prosecution of your case.
Once the fact gathering is finished each side has, in theory, all of the information they need to go to trial. But before the Judge lets you try the case, there is a good chance you will be Ordered to go to Mediation. The only time you will need a Judge to make decisions in your case is if you and the other side can’t agree. If an agreement is reached through mediation or good old fashioned settlement negotiation, then those issues no longer need to be presented to the Court.
If mediation fails or partly fails (you settle some, but not all of your issues), then a trial will be held in front of the judge. In Texas either party may also ask for a jury to make the decision on some issues, like custody.
Most people want to know how long the process takes. On average, a divorce or modification suit takes from eight months to a year, if it goes all the way through a trial. That doesn’t mean yours will take that long. It could be over faster if the you and the other party are able to come to some agreements more quickly or if your Judge has a light docket (something that almost never happens). It may also take longer, depending on the facts and complexities of the case. There is no way to accurately predict, with accuracy, just how long it will really take.
A divorce may not be filed until one of the parties has been a domiciliary of Texas for at least six months and a resident of the county where the divorce is filed for at least ninety days. It doesn’t have to be you; it can be your spouse who has lived there for the required period of time.
Once filed, a divorce may not be granted by the Court for at least sixty days. This is a statutory cooling off period. The state of Texas encourages marriage and the thought behind this law is to allow the spouses to think about it before they go through with the divorce. It’s only a minimum time period. The Court is not going to dismiss your suit on the sixty-first day and, in fact, if a divorce is contested, it will likely take longer. Just because the divorce can’t be granted for two months does not mean things aren’t happening. If it’s a contested matter, hearings, discovery, or a variety of other things might be going on. If it’s an uncontested divorce, then work on the Final Decree of Divorce and the Inventory and Appraisement might be done so that the divorce is ready to complete once the sixty days has lapsed.
Gathering documents before the divorce starts can help save money and make it easier if discovery is done in your case. Statements from banks, credit cards, telephone, retirement, brokerage, debts, and even utilities may be gathered and organized.
Things are not necessarily divided 50/50 in Texas. When you get to trial, mediation or settlement of the community estate, the property and debts will be divided in a just and right, or fair, manner. Any number of things can go into the decision-making process of what makes up a just and right division. The length of the marriage, the earning capacity of the parties, their likely earning capacity in the future, their relative health, age and duties in the home, and fault in the break-up of the marriage. Texas is a no-fault divorce state, which means nobody need be at fault to get a divorce. But there might also be fault, like adultery or cruelty, which may be considered in the division of the estate.
Child custody, visitation and child support are modifiable in the years after a Divorce or Order on Suit Affecting the Parent-Child Relationship (SAPCR) are finished. If you are considering a suit to modify any or all of the child oriented issues, you should know what your burden of proof is.
For custody and visitation, you will ultimately have to show two things: (1) that there has been a material and substantial change in circumstances since the last Order was signed and (2) that the requested modification will be in the children’s best interest.
What counts as a material and substantial change is generally up to the Court. The mere passage of time is not, in and of itself, a material change, but if your children are 4 years older, have started school, are more verbal, have become teenagers with their own desires, or have generally grown, changed and developed, it should not be too hard to show that the material and substantial change. Changes in employment, health, ability or desire, taken alone or together might constitute a material and substantial change. Your attorney will help you identify what has changed and advise you on whether those changes are likely to be considered material and substantial.
The best interest of the child standard is the guiding principle of child related family law. Before you start your suit, you should be able to answer the most important question you will likely be asked: why is what you’re asking for in your children’s best interest?
This is just a start. You probably have lots more questions to ask. That’s normal. Family law cases are intensely fact specific, so be prepared to go into as much detail as you’re comfortable giving when you meet your lawyer. It will help him or her understand your unique facts, guide you through this process, and develop a strategy to get you to where you’re trying to go.