Basics of Divorce:
Posted on November 18, 2020
by Margie Connolly
Margaret McCullough Connolly, Sugar Land Attorney and Counselor at Law
Divorce is not pleasant, but sometimes necessary. Following is some basic information that persons considering divorce should review as they consider the process.
A divorce is a legal proceeding to terminate a marriage. It involves filing a Petition (lawsuit) to begin the legal proceeding. The person who files the lawsuit is called Petitioner. The other party is called the Respondent. Once a Petition is filed, the Respondent is legally entitled to be served with a citation and file-stamped copy of the Petition, as notice that a lawsuit has been filed, and what the lawsuit is about. This service can be done by a constable, process server, or the Respondent can sign a waiver of service and file it with the court as an acknowledgment that he or she is aware of the lawsuit.
Once a divorce proceeding has been filed, Texas requires a waiting period of 60 days before a final divorce decree can be granted. The parties can negotiate, or mediate, a settlement during this time, but the decree cannot be entered before the 61st day after filing. If the parties are unable to agree on all issues, a trial may be scheduled before a family court judge, or a jury.
The purpose of the divorce proceeding is to terminate the marriage and divide the Community Property and liabilities in a “just and right” manner. Community Property is any property or asset acquired during the marriage, but excludes Separate Property (property acquired before the marriage, or by inheritance, gift, or personal injury settlement.) Spousal maintenance (alimony) may be granted in certain cases, but this is not the norm.
If there are children of the marriage (under 18 years of age), the divorce proceeding is most often combined with a SAPCR (Suit Affecting Parent-Child Relationship.) In this part of the lawsuit, issues of conservatorship, possession, and access, and child support are decided, and a Parenting Plan is put into place until the child reaches age 18, or graduates from high school, whichever is later. Medical and dental support for all children is required as part of the parenting plan, and most parties are required to take a court-approved parenting class, either on-line or in person. All of these issues may be negotiated, mediated, or sent to trial before the court or a jury.
Because important issues involving the welfare of the children, equitable division of assets, including real property and retirement benefits, are in play, it is important to have a clear picture of your assets and liabilities. Gathering as much information as possible before actually filing for divorce, can streamline and simplify your case. It is important to keep your attorney fully apprised of your financial situation, and any changes that have recently occurred. If you are not able to access all financial information, your attorney can assist in this process by formally requesting information from the other party through a process called Discovery, which is overseen by the court.
Once all issues have been settled, a divorce decree is drafted by your attorney and taken to the court for signature and entry by the judge. At this point, your divorce is final, although there may be other documents required to permit the transfer of home ownership, motor vehicles, and/ or retirement benefits. Matters of property division are typically final and non-modifiable. Issues involving custody and child support are subject to modification in case of changed circumstances, and are reviewable for potential modification every three years.