The first step toward the dissolution of the marriage is to file a divorce petition with the court. This is the legal document that tells the court of your intention to seek a divorce. At this point, it is possible one party or the other will request certain restraining orders and ask that a temporary hearing be set to resolve issues while the divorce is pending.
A restraining order in Texas divorce law is a standard, normal part of the process. The purpose is to make sure that both parties "do the right thing" regarding dealing with each other, children, mail, bank accounts, credit cards, personal property, etc.
A restraining order should not be confused with a protective order that addresses family violence and is enforceable by the police.
The next step is to notify the other party that you have filed for divorce. This is usually done through formal service of process by a constable or process server.
If a temporary hearing is requested, it is typically held within two to four weeks of the filing. At the temporary hearing, a judge will address such issues as possession of the children, child support, use of property, and payment of debts during the course of the divorce proceedings.
The time between the temporary hearing and the final hearing is the "discovery" phase. Discovery is the process through which each side learns information from the other.
For example, during discovery, each side may learn the other's position concerning division of property, the existence and value of the marital estate, or custody/possession of the children or income, for the purpose of establishing child support. Discovery includes written discovery, such as interrogatories or requests for production, oral depositions, and the Inventory and Appraisement, which contains each parties' position on the character and value of the marital estate.
Once discovery is completed, the case will be set for final trial. Typically, trials are held in front of a judge, who decides the contested issues. However, in Texas, a trial before a jury is allowed in certain circumstances involving child custody and characterization and valuation of property.
Most judges prefer that the parties attend mediation in an attempt to settle their issues without the necessity of a trial. Mediation is a process in which a neutral third party, usually a very experienced family lawyer or former judge, facilitates negotiations between the parties to bring a resolution to the contested issues. Mediation is a very successful process, and most cases settle without the necessity of having a trial.
The overall divorce process averages approximately a year in length, although it could be as short as 60 days or as long as three or more years!
Mike McCurley is a name partner in the Dallas family-law firm McCurley, Orsinger, McCurley, Nelson & Downing. He has been a divorce lawyer for more than 25 years and is a past-president of the American Academy of Matrimonial Lawyers. He can be reached at (214) 273-2400.
Certified Divorce Financial Analyst
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