Divorce and other related family law matters involve a variety of complex and after interrelated legal, financial, and emotional issues, which can be extremely stressful and potentially damaging to all parties involved.  It can be extremely risky to attempt to deal with this matters without competent legal representation.  Many cases that clients believe will be "uncontested" later present areas of conflict that are unforeseen that can evolve into full blown disputes.  Attempting to deal with family law matters without an attorney on your side can be extremely costly, both financially and personally.

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What are the residency requirements for obtaining a divorce in Texas?

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In order to obtain a divorce in Texas, one of the spouses must have been a resident of Texas for a continuous six-month period, and a resident of the county of filing for a continuous 90-day period, immediately prior to the date of filing of the divorce Petition.

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What are the allowable grounds for divorce in Texas?

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In some states, the courts will grant a divorce only upon proof that someone did something wrong, or was at "fault" in causing the marriage to fail.  Texas is, however, a "no fault" state; that is, the court will grant the divorce on the ground of "insupportability," which means that the marriage has become "insupportable" because of a "discord or conflict of personalities that destroys the legitimate ends of the marriage relationship, and there is no reasonable expectation of reconciliation."  In other words, the court will grant the divorce if it is shown simply that the marriage doesn't work, without a need to blame someone.  The vast majority of divorces in Texas are granted on "no fault" grounds.

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However, Texas still retains the traditional "fault" grounds for divorce, such as adultery, cruelty, and abandonment.  In some cases, if one or more of these grounds for divorce is asserted and proven, the court may consider the grounds in deciding property and child custody/visitation issues.  These issues need to be discussed with your attorney in deciding how to proceed.

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How long does it take to get a divorce?

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Under Texas law, there is a minimum 60-day waiting period, beginning on the day the divorce petition is filed with the court, before a judge can sign a final decree of divorce.  In contested cases, however, the litigation process can take significantly longer than that--often a year or longer, depending on the issues in dispute.

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What are the steps in getting a divorce?

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Most frequently, one spouse (the "Petitioner") retains a lawyer to file for divorce against the other spouse (the "Respondent").  The attorney prepares an "Original Petition for Divorce" and files the petition, along with the filing fee, in the court having jurisdiction (usually District Court) in the County where one or both of the spouses reside.  The Respondent is then served with the divorce papers by a private process server, Sheriff, or other authorized person.  The Respondent then may file an Answer within a specified period of time and/or hire an attorney to represent his or her interests.

 

At times, the Original Petition for Divorce is served with a Temporary Restraining Order (TRO).  This order is an immediate order from the Judge to prohibit the other spouse from certain activities.  Typically this may include hiding, secreting or liquidating assets, or committing or threatening to commit family violence.  In a divorce with a TRO, a temporary hearing is usually set within a week or two of the filing of the divorce, and at that hearing temporary issues such as immediate child support, custody, visitation, and use of property will be heard.  Temporary Orders are then drafted and entered with the Court, and remain in effect until the divorce is finalized.

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What is the difference between an "agreed" divorce and a contested one?

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The biggest difference is cost.  Obviously, if the spouses can agree on everything from the start, the legal fees and costs can be minimized.  When the parties agree on property division, spousal maintenance (alimony), child custody, visitation, child support, and all other issues, then everything is written up in the final decree, which is signed by the judge.  However, even when everyone is in agreement, it is prudent to retain an attorney to ensure that the decree is written to reflect the true intent of the parties, and to avoid future (costly) disagreements.

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In contrast, a contested divorce can become very expensive for both parties.  The lawyers will typically send out discovery requests (e.g. interrogatories, requests for production and inspection, requests for admission) to the other party, and the
responding parties may object to some of the requests.  Additionally, lawyers frequently conduct oral depositions of opposing parties and witnesses, which are similar to court proceedings in that the deposed party must answer questions under oath before a court reporter or, sometimes, on video.  In cases where child custody is contested, the court will sometimes appoint a guardian ad litem, amicus attorney, or attorney ad litem, at the parties' expense, to protect the child(ren)'s rights and best interests.  These are just a few examples of legal mechanisms and procedures occurring during a contested divorce.

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In most cases, parties to a contested divorce later reach agreement and decide to end the litigation.  The parties may also attempt mediation, which is a process where a neutral professional mediator (usually an attorney) attempts to facilitate a settlement between the parties.  If no agreement is reached, however, the matter ultimately goes to trial before a judge (or sometimes a jury), where each side presents evidence and argues their position.  Once the trial court reaches a decision and renders final judgement (and final decree), either party can then appeal the judgment through the appellate process, which can sometimes take years.

 

What is the difference between community property and separate property?

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Generally, a spouse's separate property is property that was either (i) owned by the spouse before marriage, (ii) acquired by gift or inheritance, or (iii) certain kinds of recoveries for personal injuries.

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Community property is all property other than separate property.  All property owned by either spouse at the time of marriage is presumed to be community property. The party that is asserting the claim of separate property has the burden of proof on that issue.

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The distinction between community property and separate property can become muddled and complicated by a variety of factors.  For example, when proceeds from the sale of separate property are used to purchase a community asset, the separate estate will have a claim against the community estate, provided that the spouse who owned the separate asset can "trace" the funds to the community asset.  There are a variety of factors that must be considered in determining what would be a "just and right" division of the community estate.

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The Pederson Law Office will strive to help you resolve all issues without the need for costly litigation, possibly through use of alternative dispute resolution processes such as mediation.  However, at the same time, we will aggressively protect your rights, and zealously represent your interests whenever matters must ultimately be decided in court.  To schedule a consultation, call or email the Pederson Law Office, or complete our online contact form, and Mr. Pederson will contact you within 24 hours.