Ten Things You Should Know About Divorce
1) DIVORCE OPTIONS What is the process for getting a divorce?
All divorces start with the filing of a Petition for Divorce.They all end in a Decree of Divorce. People have many options from which to chose to get from the Petition to the Decree. for a general description of the contested, adversarial, law model. (By model or process, I mean the group of rules and procedures followed to achieve the end result of divorce.)
Uncontested Divorce- Some people are able to sit down at the kitchen table, so to speak, and work out on their own all issues of property and debt division and children issues. This is the fastest and least costly method to do a divorce. It doesn't work for everyone though. Sometimes the emotional issues or the property issues are too complex to workout one on one. Also, many times one person has been controlled throughout the marriage and they do not want it to also happen in the divorce proceeding. This option is low cost and highly client-driven.
Collaborative Law - In Tarrant County we offer collaborative law. Collaborative Law is for people who, for whatever reason, can't work out the details of the divorce on their own and need additional help. They also recognize the inefficiency,harm, and surrender of control that follows with the adversarial/law model. This model is more expensive than an uncontested divorce,but it is highly client driven and focused.
Any settlement of a case is by nature a negotiation and is full of trade-offs. Collaborative law provides a process whereby both parties can work toward the optimum solution for each of them in a safe environment. By safe, I mean not only physically, but safe that one will not be intimidated, talked over, belittled, or ignored in the discussion.
The primary contact the client has through the process is the attorney. If needed, the parties agree to use only neutral experts. If the case is unable to settle or either party desires to leave the process, absent emergency, no court action can be taken for 30 days. Also, both parties must hire new counsel to take them to the courthouse. This necessarily invests in all parties and their attorney a commitment to the process.
If this process interests you, be sure to mention it to your attorney. Don't be surprised if they are unfamiliar with the process or dissuade you from the process. Not all attorneys grasp the revolutionary ideas behind this model, the idea that a divorce is about the clients, their needs and interests, the idea that clients can take information and make their own informed decisions about their life rather than be dictated standard solutions by their attorney or a judge. Click here to read Star-Telegram article about Collaborative law.
Contested or litigated case. The far end of the spectrum is the contested, or litigated case which is usually started with one spouse filing for divorce, possibly on fault grounds. The other spouse is served with a temporary restraining order which has pages of stuff that the judge is ordering the spouse not to do. Spouses who are served this usually become defensive and act in a manner that they feel protects their interests which they perceive are being attacked.
A court hearing is held in approximately seven to fourteen days at which hearing the court, if the parties cannot agree, will make temporary orders such as who lives where, who pays what bills, who sees the children when.
The case then proceeds on with information gathering and at some point the parties and their attorneys will go to mediation. If the case is not resolved in mediation a judge will make a decision on final trial. This could take three to fifteen months.
Each case is different. Discuss your fact situation with your attorney.
2) What are the grounds for a dissolution of marriage?
A divorce may be granted on one or more "fault" or"no-fault" grounds expressly set out in the Texas Family Code. Most divorces are founded on the no-fault ground of "insupportability"(i.e. incompatibility), which can be granted to either spouse if that spouse feels that the marriage has become insupportable because of discord or conflict in personalities which makes any reasonable expectation of reconciliation impossible.
"Fault" grounds for divorce include adultery or cruel treatment. In that a court may consider "fault" in the breakup of a marriage as a factor in deciding how to divide the property and debts, a party may also choose to plead a"fault" ground for divorce.
3) What are the residency requirements in order to obtain a divorce?
At least one spouse must have been "domiciled" in Texas for six months, and a "resident' of the county where the suit is filed for sixty days, before the petition may be filed. It need not be the person filing who meets the residency requirements.
4) After the divorce case is filed, how long does it take to get the marital status terminated?
The case cannot be finalized until after 60 days have passed from the date that the petition was filed at the District Clerk's office.
5) What is community property?
The short answer is all property acquired during marriage other than by gift or inheritance. However, due to legal concepts such as mutation and reimbursement, this answer can be much more complicated. Ask your attorney how this relates to your particular case.