| Divorce--Frequently Asked Questions |
What are the residency requirements for obtaining a divorce in Texas?
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.
What are the allowable grounds for divorce in Texas?
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.
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.
How long does it take to get a divorce?
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.
What are the steps in getting a divorce?
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 child support, custody,
visitation, and use of property will be heard. Temporary Orders are then drafted and entered with the Court, and are in
effect until the divorce is finalized.
What is the difference between an "agreed" divorce and a contested one?
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 disagreements.
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 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, at the parties' expense, to protect the child(ren)'s rights. These are just a few examples of
legal mechanisms and procedures occurring during a contested divorce.
In most cases, parties to a contested divorce later reach agreement and ecide to end the litigation. 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 enters final judgement (and final decree),
either party can then appeal the judgment through the appellate process, which can sometimes take years.
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.
What are the allowable grounds for divorce in Texas?
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.
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.
How long does it take to get a divorce?
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.
What are the steps in getting a divorce?
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 child support, custody,
visitation, and use of property will be heard. Temporary Orders are then drafted and entered with the Court, and are in
effect until the divorce is finalized.
What is the difference between an "agreed" divorce and a contested one?
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 disagreements.
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 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, at the parties' expense, to protect the child(ren)'s rights. These are just a few examples of
legal mechanisms and procedures occurring during a contested divorce.
In most cases, parties to a contested divorce later reach agreement and ecide to end the litigation. 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 enters final judgement (and final decree),
either party can then appeal the judgment through the appellate process, which can sometimes take years.
Copyright © 2008 by Marc A. Pederson. All rights reserved. You may reproduce materials available at this site for your own
personal use and for non-commercial distribution. All copies must include this copyright statement.
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice
regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting
Pederson Law Office does not create an attorney-client relationship. Please do not send any confidential or time sensitive
information to us until such time as an attorney-client relationship has been established.
personal use and for non-commercial distribution. All copies must include this copyright statement.
The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice
regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting
Pederson Law Office does not create an attorney-client relationship. Please do not send any confidential or time sensitive
information to us until such time as an attorney-client relationship has been established.
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| Marc A. Pederson Attorney and Counselor at Law |
| The Naylor House 1919 San Pedro Avenue San Antonio, Texas 78212 (210) 735-9911 mail@pedersonlaw.com |
