The Divorce Process
CONTESTED vs. UNCONTESTED DIVORCE
If you and your soon-to-be-ex can come to terms amicably, an uncontested divorce may be a good option. It is still advisable to hire an attorney to make sure that you fully understand the repercussions of the terms of your agreement. Contested divorces are appropriate when spouses disagree about custody, child support, and the division of assets and debts.
Collaborative divorce is a fairly new approach wherein both parties are represented by one attorney. While collaborative divorce may be appropriate in some cases, if tensions arise, each party will need to retain a new attorney. A failed collaborative approach can end up costing more time and money.
FILING A PETITION
The party who files the divorce petition is the petitioner. The other spouse is the respondent. Once the petition is on file, a copy of the petition must be served upon the respondent. A process server will serve the petition upon the respondent unless the respondent waives citation.
Once the petition is on file with the court, the judge will issue temporary orders. These orders are designed to prevent separating parties from regrettable actions that could harm children and finances. These temporary orders will outline interim child custody and visitation issues.
Discovery refers to the exchange of information between both parties. Each spouse will have the opportunity to request certain information that is relevant to children, finances, family owned businesses, and the like. Discovery may include interrogatories, requests for admission, requests for disclosure, requests for production of documents, and depositions. Discovery can get complicated and you will want an attorney there to object to unreasonable or irrelevant requests, protect your privileged information, and to obtain the information you need to prove your case.
Once the discovery process puts all of the relevant information on the table, most judges will require parties to go through mediation. Mediation is a settlement negotiation that is facilitated by a neutral third party. Mediators are skilled diplomats who have the gift of helping parties come to terms. A mediator is not a judge and cannot force you to come to an agreement. A mediation will typically last either half a day or a full day.
CHILDREN: CUSTODY, PARENTING PLAN & CHILD SUPPORT
If there are children involved, custody is the most important issue involved with a divorce. The goal is to come up with an arrangement that serves the child's or children's best interests. There are two components of "custody": conservatorship and possession & access.
Conservatorship refers to the ability to make choices pertaining to the health, education, discipline and spiritual direction of the child. Unless there is a good reason why it is not in the child's best interest, both parents will be appointed as joint managing conservators. In the situation where one parent is unfit to be a managing conservator, the other parent will be appointed sole managing conservator.
Possession & access refers to physical possession or custody of the child or children. A parenting plan is used to specify when each parent has "custody". Texas has a few standard possession orders, but parents can come up with a plan that is tailored to their children's specific needs.
Typically, the parent with whom the child or children spends the most time with will be awarded child support, paid by the other parent. The amount of the monthly child support payment is determined based on income and the number of children.
Under Texas law, a couple's assets are subject to a just and right division. "Just and right" does not necessarily mean a 50/50 split. During discovery, couples will exchange information about all assets owned by either spouse. Using Texas community property law, it will be determined what is community property and what is separate party. Knowing that a judge or jury could decide that an 80/20 or 90/10 split might be "just and right" in light of the circumstances, most parties are able to come up with a mutually agreeable settlement.
Depending on the complexity of the assets involved, it may be appropriate to hire forensic accountants, business valuation experts, and real estate appraisers.
In the event that parties are unable to negotiate a settlement, a judge or jury can hear evidence and decide how to divide assets and determine custody issues.
Whether the details of a divorce are decided by the parties, a jury, or a judge, the divorce is not final until the judge enters the divorce decree. The divorce decree will order child support payments, appoint a managing conservator (or two), specify when each parent has possession or visitation rights, and assign all assets and debts to either party.
Modification and enforcement of orders
After the divorce is finalized, circumstances will undoubtedly change. Periodically, it may be appropriate to ask the court to modify child support orders, or tailor the parenting plan to better serve the interests of the children. Should a parent fail to meet their obligations, it may be appropriate to bring a suite to enforce the terms of the divorce decree, or any subsequent modifications.