What To Expect with a Texas Divorce

Few incidents are as personally devastating as being the unsuspecting recipient of an Original Petition for Divorce. Often we meet people who had no idea that their spouse wanted a divorce so the shock is especially severe. However, when the initial jolt is over, one must focus on the future. The experienced and seasoned family law attorneys at Garg & Associates, PC are here to guide you through this difficult time.

Preparation for the Process

The divorce process is begun by one spouse filing an Original Petition for Divorce. The filing party has a choice to either serve the other spouse (or respondent in legal terms) with the Petition by a constable or private process server. If the parties are still on reasonably good terms, it is more advisable to ask the respondent to sign a waiver of citation which eliminates the need for personal service. This decreases the ill will inherent in most situations of this type but also lessens the embarrassment of having the constable come to one’s job or home.

Once service is made or a waiver obtained, the respondent has a certain number of days to file a written response with the court and send a copy to the opposing party. Depending on the level of trust existing between the parties, they may decide to at least temporarily forego discovery and try to resolve their differences at mediation. Most courts in Montgomery County and others elsewhere require mediation before a hearing on temporary orders. Mediation is a non-binding form of alternate dispute resolution. The parties often agree upon a person to serve as mediator but failing that, the court will appoint one.

The mediator’s task is to facilitate a resolution by shuttling back and forth between the parties, carrying proposals and counter-proposals between the parties and their attorneys. A very high percentage of cases are resolved at mediation which is the primary reason that the courts require it. Some cases settle at a final level and the parties can then enter an Agreed Final Decree of Divorce. Many settle on a temporary orders basis, i.e., issues such as child support, temporary spousal, temporary exclusive use of the home, etc.

What Everyone Should Know

Prior to beginning the negotiation process, a party should have as much knowledge of the nature and extent of the community estate as possible. A sworn inventory from each party is the best way to ensure that all assets and liabilities are identified. This not only identifies what the community estate is comprised of but also the separate property belonging to each party, if any. Community property is that which is acquired during marriage. Separate property is that which was owned by a spouse prior to marriage or that acquired by gift, devise or descent even if acquired during marriage. Each spouse owns their separate property and neither has the right to claim it, except that the gain or increase in value of separate property is considered community.

Being prepared mentally for the demise of long term marriage is not easy but acceptance of the reality that the opposite spouse has abandoned the relationship is the beginning of the healing process. Competent legal assistance assures one that they will be treated fairly.

What if the Case Doesn’t Settle – The Pitfalls of Trial

Mediators often say that the principal advantage of mediation is that the parties maintain control over the outcome of the case. Once the case is in the hands of a judge or jury, that control is lost and more importantly, the parties are bound by the outcome. Each person must do their own cost/benefit analysis to weigh the magnitude of the potential risk against the possibility of receiving a better deal from the trier of fact. Ordinarily, one can expect roughly at 50-50 division of property but these percentages may be skewed in favor of one party if fault in the break-up can be established.

While Texas is a “no-fault” state which means simply that a party seeking a divorce need not plead or proves that the other spouse was at fault to obtain a divorce, fault impacts the division of the community estate. Grounds such as abandonment, adultery, cruelty and others can be grounds for an unequal division of the community estate. Generally, the extent to which fault contributes to this unequal division is commensurate with the nature and extent of the bad conduct. A spouse who abandons his family, leaves them without resources, engages in family violence or other such conduct can expect his share of the community estate reduced, perhaps significantly. Adultery as grounds may not be an important issue to the court unless it adversely impacts the children. The court’s paramount concern is always the best interest of the children.

Litigation is an expensive, time consuming process and naturally no particular outcome can be reliability predicted. Trial is not the time for your attorney to find out that his client “forgot” something that may sway the case. It is important that the party be extremely candid with counsel so that no such surprises occur.

Please call us today at 281-210-0010 or complete our contact form and let us assist you with your legal need.