What Is The Process Of A Divorce In The State Of Texas?
In Texas, a divorce starts with a petition. The petition is filed with the District clerk and then the district court clerk issues a citation, which is served on the other party. That party has 20 days and until the next Monday at 10:00 AM to file an answer. In Texas, you must have a petition on file for at least 60 days before you can finalize a divorce case. Once the petition is filed, usually there’s an early request for temporary orders, so the court will schedule a hearing for those temporary orders. In that hearing, the court will determine the custody of children while the suit is pending, temporary child support and spousal support, possession and use of assets during the case, and any other orders that are necessary to maintain and protect the marital estate during the litigation.
Once you’ve gotten through that stage of the case, you go through the same process you would in any other civil court case. The parties will exchange discovery requests which consists of Requests for Disclosure, Requests for Production, Requests for Admission, Interrogatories, and Depositions. In many family law cases the court will also require the parties to exchange inventories and financial information. Each form of discovery is designed to elicit information related to the claims and defenses of the parties and it is essential that you take time to make sure the information you provide is accurate. This is often the most expensive stage of the litigation.
Once discovery is complete, one or both of litigants may file a Motion for Summary Judgment. This is not common in family law litigation, but it is permissible and in an appropriate circumstance, may be warranted.
Most courts in Texas require the parties to a divorce or child custody case to participate in mediation. The parties present the case to a mediator who acts as an impartial third party to help the parties to the lawsuit settle the case without a trial. If mediation fails to settle the case the parties continue to prepare for trial and often file pretrial motions asking the court to rule on matters which are likely to arise in trial. The trial may proceed before the Judge or the parties may elect to present the case to a Jury in appropriate situations.
Depending on the outcome of the case at trial one or both parties may ask the court for a new trial. A Motion for New Trial must be filed within 30 days from the date of the judgment. At the new trial, the court can consider new evidence, or the court may consider or reconsider the decision of the judge or jury to ensure the judgment is consistent with the evidence and applicable law.
Finally, the parties may elect to appeal an undesirable judgment. Within 30 days of a judgment, or longer if a Motion for New Trial has been presented, a party must file a Notice of Appeal and ask the court reporter to prepare the transcript of the trial with all pleadings and exhibits. The parties are given an opportunity to present briefs to the Court of Appeals and the Court of Appeals may or may not set the matter for argument. The Court will render a decision once it has had an opportunity to consider the record and arguments of the parties. One or both parties may appeal the decision of the Court of Appeals to the Texas Supreme Court for a final determination. The Texas Supreme Court may or may not accept the appeal for consideration.
Which Party Generally Has To Pay Spousal Support Or Alimony In A Divorce Case?
In Texas, limited spousal support is available. The party seeking support must show the court that he or she has been married for 10 or more years and is unable to earn sufficient income to provide for that party’s minimum reasonable needs because of an incapacitating mental or physical limitation. Courts may also award spousal support if the spouse requesting the support, is the custodian of a child of the marriage, which child requires substantial care due to a physical or mental disability and that spouse is unable to earn sufficient income to meet his or her minimum reasonable needs because of the need to provide substantial care for that child. Texas courts presume that support is not warranted unless the spouse seeking spousal support has exercised due diligence in earning sufficient income to meet the reasonable minimum needs or has exercised due diligence in developing the necessary skills to provide for those reasonable minimum needs.
Spousal support orders are limited as to time depending on the circumstances of the case and the years of the marriage. For marriages lasting more than 20 years a spouse may receive spousal support for up to 7 years, and for marriages of more than 30 years, a spouse may receive support for up to 10 years.
In determining the amount, and duration of a support order, the court considers the following factors:
- each spouse’s ability to provide for that spouse’s minimum reasonable needs independently, considering that spouse’s financial resources on dissolution of the marriage;
- the education and employment skills of the spouses, the time necessary to acquire sufficient education or training to enable the spouse seeking maintenance to earn sufficient income, and the availability and feasibility of that education or training;
- the duration of the marriage;
- the age, employment history, earning ability, and physical and emotional condition of the spouse seeking maintenance;
- the effect on each spouse’s ability to provide for that spouse’s minimum reasonable needs while providing periodic child support payments or maintenance, if applicable;
- acts by either spouse resulting in excessive or abnormal expenditures or destruction, concealment, or fraudulent disposition of community property, joint tenancy, or other property held in common;
- the contribution by one spouse to the education, training, or increased earning power of the other spouse;
- the property brought to the marriage by either spouse;
- the contribution of a spouse as homemaker;
- marital misconduct, including adultery and cruel treatment, by either spouse during the marriage; and
- any history or pattern of family violence, as defined by the Texas Family Code.
What Factors Does The Court Consider In Determining Custody Of The Children?
In every case involving children, the primary consideration for the court is the best interests of the child or children before the court. Thereafter the court begins and ends its consideration with the following broad considerations or aspirations in mind: (1) the Court seeks to assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;(2) that the parent[s] provide a safe, stable, and nonviolent environment for the child; and (3) the court desires to encourage or incentivize parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.
In no case may the court render an order that conditions the right of a conservator to possession of or access to a child on the payment of child support.
In practical terms, the court looks at the stability of the parents, their living situation, who can afford to take care of the day to day needs of the children, and who has the time and opportunity to do so.
In some cases, children, ages 12 and over, can express their desires as related to which parent the court awards primary custody. While children may express themselves to the court and the court may consider the wishes of the child, the court is nonetheless obliged to make its own determination based upon the factors listed above.
When Can A Child Legally Decide Who He Or She Will Live With?
The court may interview a child or children in chambers. If the child is over the age of 12 and a party to the litigation requests such an interview the court must interview the child in chambers. The court may, at the request of one of the participants to the litigation, interview a child under the age of 12 if, in the court’s discretion, such an interview would be helpful. While children may express themselves to the court and the court may consider the wishes of the child, the court is nonetheless obliged to make its own determination based upon the best interests of the child[ren].
When and Why Can There Be A Request To Modify A Final Divorce Decree?
There are only certain parts of a divorce decree that you can modify. A decree becomes final after 30 days. You cannot modify a property division after the order has become final, however, matters primarily related to child custody and child support may be modified on proper motion to the court. Most commonly, modifications of Texas orders or decrees relate to the Conservatorship, Possession and Support of Children.
Regarding conservatorship or possession of the child, the court may modify an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child if modification would be in the best interest of the child and the circumstances of the child, or conservator, or other party affected by the order have materially and substantially changed since the entry of the order the party is seeking to modify.
The Court may also modify orders related to the child if the child is at least 12 years of age and has expressed to the court in chambers the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child.
Finally, the court may modify an order or decree related to the care and custody of a child if the conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months. (This does not apply when the relinquishment is due to military deployment, military mobilization or temporary military duty.)
The court may also modify an order or decree related to the care, custody and support of a child within one year of the signing of that order or decree to modify the designation of the person having the right to determine the primary residence of a child if it can be shown that the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development; that the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child; or that the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished (or given up) the primary care and possession of the child for at least six months and the modification is in the best interest of the child.
Regarding modification of support orders for the child, the court may modify an order that provides for the support of a child, including an order for health care coverage or an order for dental care coverage, if the circumstances of the child or a person affected by the order have materially and substantially changed since the entry of the prior order or it has been three years since the order was rendered or last modified and the monthly amount of the child support award under the order differs by either 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines.
If a party wishes to modify an order and the order was agreed to and the child support differs from the support which would have been ordered pursuant to the Texas Guild lines, then the court may modify the order only if the circumstances of the child or a person affected by the order have materially and substantially changed since the order was entered.
Some orders for child support, issued by a Title IV-D court can be modified at any time without a showing of material and substantial change in the circumstances, to provide for medical support or dental support of the child if the order does not provide health care coverage as required by the Texas Family Code.
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