What to Ask your Attorney Before Divorce

One of the most common questions clients have is “How does the process work?” Remember, these folks aren’t lawyers and words like TRO, SPO and SAPCR are alien terms. One should ask his lawyer to chronologically explain the process. The first questions should seek an understanding of the steps in the procedure.

Beginning with the consult, the attorney should explain the preparation of the Original Petition and its contents. This is the document that invokes the court’s jurisdiction and requests that the marriage be dissolved. Residency requirements are that one has resided in Texas for six months and in the county for ninety days. Since this is a no-fault state, it is not necessary to allege grounds other than insupportability. If there has been bad conduct by one spouse such as adultery, cruelty, or family violence, allegations of such bad conduct may be appropriately included in the Original Petition. This kind of conduct is relevant to the division of the community estate if it is a cause of the break-up of the marriage.

If there are children, a request for primary custody should be included. The means that the party is asking the court to make an order that they have the exclusive right to establish where the child lives. If the wife wishes to change back to her maiden name, this should also be addressed.

In order to establish such things as child support, temporary spousal support, exclusive use and possession of the home and cars, temporary order are necessary. Generally, we file a Temporary Restraining Order or “TRO” at the same time as the Original Petition. The purpose of this to maintain the status quo and protect the community estate from being looted by a party seeking revenge. The TRO generally binds both parties and limits spending to attorney’s fees and usual living expenses. The purposes are to maintain the status quo until the court has heard evidence. A TRO may also be prohibitory if it orders the parties not to do certain things such as remove the child from the jurisdiction until a hearing.

When the Original Petition and TRO are filed with the court, the clerk will prepare an official notice of the suit called a citation. This citation is attached to copies of the Original Petition and TRO. One can either serve the other with these documents by a constable or have them execute a waiver of citation and accept a file-stamped copy. This eliminates the need for service by a constable.

The opposing party has a certain time in which a written answer must be filed with the court. Failure to do so can result in a default judgment being entered against the party. If this occurs, the judge has the discretion but not the obligation to set it aside. Assuming no default is taken and the party files an Answer, the division of assets and liabilities is usually worked out between the parties or through an alternate dispute resolution procedure such as mediation. If this is not possible, a trial may be necessary and the judge or jury will make that decision.

The Final Decree of Divorce is the legal document that dissolves the marriage and contains the rules regarding custody, visitation, division of assets and liabilities. Once this is signed by the judge, the marriage is legally terminated and the provisions of the Decree are enforceable either and a contempt or breach of contract. If everything is agreed, the Final Decree may be heard by the Court sixty days after filing.

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