Family Law AdvisorŪ

How a Texas Divorce Case Works

• ORIGINAL PETITION
• TEMPORARY ORDERS
• DISCOVERY
• INCOME TAXES
• ATTORNEY'S FEES
• SPOUSAL SUPPORT
• NAME CHANGE

ORIGINAL PETITION

In Texas, the Court cannot grant a divorce without disposing of property issues. Additionally, if children were born to or adopted during the marriage, orders concerning their conservatorship and support will be determined at the same time.

The divorce process starts with the filing of a document entitled "Original Petition for Divorce." This may be 2 pages or 40 pages, depending on your circumstances and the relief you request. As a general rule, you are not required to sign the petition. Accordingly, if you want to review it before it is filed and delivered to your spouse, please let your lawyer know.

This petition is filed with the District Clerk, and your case is assigned to a Court. Each county has one or more courts handling family cases. In Dallas, there are seven Family Law District Courts. The filing of cases is random. Your lawyer cannot select the Court or the Judge.

After processing at the Courthouse, the Original Petition for Divorce must be delivered to your spouse. The most common means of delivery is by having a Sheriff, Constable, or private process server hand your spouse the petition and a Citation. Citation is essentially a cover sheet that tells your spouse a lawsuit has been filed, and there is a limited number of days in which a response must be made. In some instances, you may wish to deliver or mail the papers to your spouse. However, this cannot be done if you have requested a Temporary Restraining Order or a hearing. Additionally, if your spouse does not waive service or file an answer in Court, your delivery does not constitute effective service, and this would have to be accomplished before your case could proceed.

TEMPORARY ORDERS

There may be a need for court orders between the date the divorce is filed and granted. You may need a temporary restraining order (TRO) and temporary injunction to prevent the transfer or disposition of property and/or to prevent harassment. A TRO and a temporary injunction give the same relief which, often times is intended to maintain the "status quo" and preserve property. A TRO is only good for 14 days, and is granted without notice to your spouse or a hearing. A temporary injunction is granted after notice and hearing (or agreement), and remains in effect until your divorce is granted. Realistically, temporary injunctions are routinely granted upon request, and are made mutual as to the parties.

Temporary orders may also be needed to determine which spouse shall remain in the family home, payment of bills, conservatorship and support of the children, attorney's fees, and the filing of inventories, production of documents, and other matters.

If you have obtained a Temporary Restraining Order or requested a hearing for temporary orders, the Court will set a hearing within days of the date of filing. If an agreement is not reached with your spouse concerning temporary matters before the scheduled hearing, it will be necessary for you to appear in Court at that time and give testimony. Your lawyer will give you a form entitled "Financial Information Statement" for use at that hearing, and will explain to you what your court appearance may be like. A special judge called a "Master" will hear evidence and make the appropriate orders.

DISCOVERY

Discovery is the process where one side learns what is relevant to the lawsuit. Some common discovery methods are depositions (oral testimony before a court reporter); interrogatories (written questions); requests for production of documents (such as tax returns, bank account records, deeds, etc.); or requests for admissions. Whether your lawyer utilizes these methods will depend on a number of factors that they will discuss with you. If you are served with discovery requests or a notice to take your deposition, your lawyer will guide you accordingly. Your lawyer learns from you what you know. Your lawyer can request from the other side what they know.

INCOME TAXES

The same provisions for marital liabilities apply to income taxes except the Internal Revenue Service is a much more formidable creditor. It will be a rare case where you are not jointly and individually liable with your spouse for all taxes for any year in which you filed a joint return. This means the IRS can pursue collection actions against either or both spouses. Again, the terms of a decree ordering your spouse to pay all income taxes is not binding against the IRS, and does not prevent the assessment of penalties and interest. Further, the IRS is not restricted by state laws on exempt property. In some instances, they can obtain the sale of your homestead to satisfy payment of income taxes. Additionally, a debt owing to the IRS is ordinarily not discharged in bankruptcy.

ATTORNEY'S FEES

Each party is responsible for their own attorney's fees and costs of litigation. It may be treated as a marital debt and divided like all other property in the divorce. The Court also has the option to require one party to pay all or any part of the attorney's fees and costs for the other party depending on their respective financial resources and the facts of the case. Because fee awards are totally unpredictable, you are still responsible for payment of your fee. Of course, any amounts received pursuant to court order will be credited to your account.

SPOUSAL SUPPORT

Texas Courts have limited authority to order alimony after a divorce is granted. However, while your case is pending, the Court has the authority to award temporary spousal support. The Court will consider the needs of the requesting spouse and the ability of the other spouse to pay. The Court will additionally consider the health and age of the parties, ability to work, responsibility for children, availability of funds, and the length of the marriage. As a general rule, spousal support will be ordered for a limited period of time and in an amount necessary to cover the basic necessities of life. To receive alimony after divorce, you must have been married for a period exceeding 10 years, and you may qualify for up to $2,500 per month for a maximum of three years.

NAME CHANGE

You may request a change of your name as part of your divorce action. Name changes are usually granted even if there are minor children. If you think you would like to change your name, it would best to do so as part of your divorce. As a separate lawsuit, the requirements are much stricter.

-- Law Offices of Raggio & Raggio, P.L.L.C.

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