Overview of the Agreed Divorce Process
Many clients ask me about the divorce process. Below is a general overview. Please note that this is a general overview only, and the facts of a particular situation may vary this process. You should always consult with an attorney before relying on any publicly posted information.
Overview of the (Agreed) Divorce Process
The divorce process begins by one person filing an Original Petition for Divorce with the court, either in person, by mail, by fax, or by e-filing, and paying the filing fee. The filing fee in the Dallas/Ft. Worth area is usually about $250.00 – $300.00. In cases where you cannot afford the filing fee, you can request that it be waived by filing an Application of Indigency.
The person filing the petition is called the Petitioner, and the person who will respond to the petition is called the Respondent. The Petitioner must reside in Texas for at least 6 months, and the petition is usually filed in the county where the Petitioner has resided for the past 90 days, although it can be filed in the Respondent’s county of residence in some circumstances. Note that if either party has moved or resides out of the state of Texas, you may have to deal with some jurisdictional issues, and you should consult with an attorney about this.
The petition is the document that makes the request for a divorce and states the grounds for the divorce. Texas is a “no fault” state, and for uncontested divorces, the “no fault” ground for divorce is sufficient. However, if you plan to have a contested divorce, the petition may state other grounds such as adultery, cruel treatment, abandonment, and conviction of a felony. These other grounds may be important factors in determining issues of custody or property division, and you should consult with an attorney whether or not they should be plead in the petition.
Once filed, the petition must served with a citation on the Respondent. This is usually done by a sheriff or private process server. Service and citation cost money and can embarrass the Respondent, but the cost and embarrassment can be avoided if the Respondent agrees to sign a Waiver of Service, which must be notarized and filed with the court. The Respondent may want to file an Answer as well but does not have to if he or she feels that the waiver is sufficient. The Respondent is also free to consult with an attorney of their own choosing about any of this.
For most divorces, there is a 60 day “cooling off” period after the petition is filed and before the divorce can be finalized. The countdown begins on the date of filing, not on the date of service. In some circumstances, such as when there is domestic violence, the court may waive the sixty day waiting period. This waiting period is not a deadline that the divorce has to be finished by, but rather a minimum amount of time that must pass before you can finalize. A divorce can take much longer than 60 days, and there is no penalty for taking more than 60 days. However, if there is no activity in the case for several months, then the court may automatically dismiss it. If that happens, you can either file a Motion to Reinstate, or just file a new petition.
In an uncontested divorce, parties can use the waiting period time to work on the details of their agreement. Once the details are hammered out, they are set out in a Final Decree of Divorce. (A wife does not have to file a separate document to change her name and can change her name back to her maiden name in the Final Decree.) Each party signs the Final Decree, but only the petitioner has to take it the judge and present it at a short hearing, called a “prove up”. The Respondent may also attend, but it is not necessary. And if there is some reason that the Petitioner cannot attend the hearing, the Respondent may be able to present the Final Decree instead, but you should check with the court clerk to be sure it is okay.
Prove up hearings are scheduled differently by each court. Most courts operate on a first-come-first-served basis, but you should call the district clerk for that court and ask them what the proper procedures are to be sure. At the prove up hearing, the Petitioner is sworn in and presents testimony, which consists of a few statements that establish the parties’ residence and facts of the case. The judge will review the Final Decree and any accompanying orders, such as a Wage Withholding Order for child support or a Qualified Domestic Relations Order for retirement benefits, and approve them (or not).
In a contested divorce, however, there are several things that can happen, such as discovery (an investigation into the facts and allegations of the case), hearings (such as temporary orders, enforcements, or trial), settlement efforts (such as mediation), and protective orders. If you are faced with the possibility of a contested hearing, you should seek the advice of an attorney.
After the prove up hearing, assuming the judge has signed off on all of the orders and approved the divorce, then that’s it. You are now divorced. Both parties should get signed copies of the final orders, but in case someone does not, copies (including certified copies) can always be obtained from the clerk’s office. And in general, you must wait 30 days before marrying anyone else, but this can be waived with permission from the court if you need to.
If you would like to learn more about the divorce process and how your particular situation fits into the general outline above, please contact our office.
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