FAMILY LAW
DIVORCE PROCEDURE

The Original Petition for Divorce is filed with the court and personally served on the Respondent (the Respondent can waive service in writing if the parties are working together toward settlement from the beginning - this saves on cost and on conflict).

At the time of filing, the Petitioner can request that a standard Temporary Restraining Order (or an extraordinary order if circumstances warrant) be issued, which basically freezes the status quo of the parties and requires that no assets start to disappear before they can be divided by the court, requires that the parties act civilly toward each other and do not threaten or harass each other, steal each other's cars or mail, cut off each other's utilities, credit cards or insurance, or hide the children from each other.

If there was no Temporary Restraining Order issued, the Respondent has twenty days plus the following Monday to file an Answer. If a Temporary Restraining Order was issued, the court must set a hearing within 14 days of issuance (in Travis County, these are always held on Fridays). At that time, the court will make the Temporary Restraining Order into a temporary injunction against both parties and will usually consider temporary orders, which are the set of rules the parties will live under while the divorce is pending. Temporary orders usually involve temporary custody, visitation and support of the children, and temporary use of property and servicing of debt. It can include temporary spousal support and the payment of interim attorney's fees as well.
The parties then engage in discovery, which is the process by which parties exchange information and documents that are relevant to the case. Common types of discovery are interrogatories (written questions), requests for admissions (true/false type statements), requests for production of documents, and depositions (oral interrogations under oath).

After the discovery is completed the parties and their attorneys (if they are represented) will discuss settlement of the case. If the case is resolved by agreement, one of the attorneys will prepare an Agreed Decree of Divorce, which will contain all of the terms of the agreement. This is signed by the spouses and their attorneys, and then eventually by the judge.

If the parties are not able to agree on all of the issues in the case, a trial date will likely be set.

Prior to trial, the parties will be required to attempt mediation. Mediation is an informal process allowing parties to work with a neutral third party (the "mediator") to attempt to negotiate and settle all terms of their conflict. All communications (with very limited exception) made during the mediation process are protected by rules confidentiality and cannot be used at trial. Parties can propose and agree to creative settlements that could not otherwise be ordered by a court during litigation.

If the parties fail to reach an agreement in mediation, the case goes to trial. At the conclusion of the trial, one of the attorneys will prepare a Final Decree of Divorce to present to the judge for signature. This will contain all of the courts rulings and (hopefully) will have resolved all issues pertaining to the divorce.
After the divorce case is filed, how long does it take to finalize?

There is a 60 waiting period in Texas from the date of filing of the petition with the court. That means that a divorce cannot be final for at least 60 days after filing - it does not mean that the divorce is automatically final on the 61st day. If the parties are in agreement as to all the terms of their divorce, the final decree of divorce can be prepared and signed by the parties during the 60 day period and can be entered by the court on the 61st day. The divorce is final as soon as the judge pronounces it so in open court and signs the decree of divorce. If the parties are not in agreement, the average time it takes to finalize a divorce is about 6 months to one year or longer, depending on the complexity of the issues and the degree of dispute.

What are the grounds for a divorce?

Texas law allows for "no-fault" divorces. However, if one party is at "fault" for the breakup of the marriage, the court may take that into consideration in determining what is an "equitable" division of the property. For that reason, the other spouse may want to plead fault grounds in their petition. The statutory grounds for divorce are: Adultery, Cruel treatment (that renders further living together insupportable), Abandonment (for at least one year with the intent to abandon), Long-term incarceration (more than one year), Confinement to a mental hospital for at least 3 years, Living apart for at least 3 years, or Insupportability (which is the no-fault ground), defined as discord or conflict of personalities that destroys the legitimate ends of the marriage and prevents any reasonable expectation of reconciliation.

Can I get temporary spousal support while our case is pending?

Temporary spousal support is often awarded at a temporary orders hearing on a temporary basis, where one spouse is unemployed or earning significantly less than the other spouse. There are no guidelines to set temporary spousal support, so the party seeking support should be prepared to show what his/her needs are and what resources are available to the other spouse to meet those needs.

What about permanent alimony?

In order to qualify for spousal maintenance in Texas, the requesting party must meet one of four requirements:

The paying spouse was convicted of family violence within 2 years of the date of the filing of divorce;

The marriage was 10 years or longer and the requesting spouse lacks sufficient property to provide for minimal needs (including property awarded in the divorce) and is unable to support him/herself through appropriate employment because of an incapacitating physical or mental disability;
The marriage was 10 years or longer and the requesting spouse lacks sufficient property to provide for minimal needs (including property awarded in the divorce) and is the custodian of a child who requires substantial care and personal supervision, making it necessary for that spouse to remain at home with that child; or

The marriage was 10 years or longer and the requesting spouse lacks sufficient property to provide for minimal needs (including property awarded in the divorce) and the requesting spouse lacks earning ability in the labor market adequate to provide support of minimal needs.

If the party qualifies for maintenance under (1) (3) or (4), the maximum term of maintenance is 3 years and the amount ordered cannot exceed 20% of the gross income of the paying spouse. If the party qualifies for maintenance under (2), the term can be indefinite.

Can I get medical insurance benefits through my spouse's employer after the divorce?

Under Federal Law you might be entitled to keep your medical insurance benefits under your former spouse's group plan. The Consolidated Omnibus Budget Reconciliation Act of 1985 created what are commonly known as "C.O.B.R.A." benefits, which are avail able to the former spouses of people who work for employers who have 20 or more employees.

In general this law provides that employers must offer "continuation coverage" for the first three years after the termination of the marriage. The law further provides that the employer can charge the former spouse for this coverage, but the charge canno t be more than 2% greater than what is charged to employees.

After the three years have ended, the law states that the employer must offer a former spouse the right to purchase "conversion coverage", but there are no limits on how much the employer can charge for this coverage.

The C.O.B.R.A law further provides that the former spouse does not have to pass a physical examination in order to obtain the continuation or conversion benefits. This is significant if you have any pre-existing conditions that might not be covered by another medical insurance carrier.

In order to obtain your C.O.B.R.A. benefits you have to file your application with your spouse's employer by no later than sixty (60) days after the termination of your marriage. If you do not file your application by that date you will not be able to get these important benefits.

If you wish to have your C.O.B.R.A. benefits you must contact your former spouse's employer directly and request the appropriate forms. This is not a service that is customarily performed by our office. You must contact your former spouse's employer directly if you want to obtain these benefits.