Below are answers to some of the most frequently asked questions about divorce. The answers are general in nature, and are designed to help you understand the divorce law and process. The individual circumstances of your case may vary, and may affect the results in your case. For more information about your case, contact us.
1. What is no-fault divorce?
In the old days, the only way to get a divorce was to prove that your spouse had done something that was legal cause for the divorce. In other words, your spouse had to be at fault. Often times, there would have to be an allegation of adultery, abuse, or some other bad action on the part of one spouse for a divorce to be granted. This made it difficult to obtain a divorce and lead to a lot of time and money trying to prove in court that the other spouse was at fault.
A no-fault divorce, which is also known as insupportability, has since been allowed in the State of Texas. This means that you can obtain a divorce without proving that the other spouse was “at fault”. The two spouses can simply decide they no longer want to be married. This is known as a no-fault divorce.
2. What is an uncontested divorce?
An uncontested divorce is on where all issues are agreed upon by the parties. This means an agreement regarding division of property and debts, conservatorship of the children, rights and duties of the children, child support and visitation. If both spouses are agreed to all issues, the divorce is uncontested and can be a quick and relatively inexpensive process.
3. What are the procedures for a divorce?
A divorce action start with the filing of a petition. That petition must then be “served” upon the other spouse by a process server or other allowed methods. Once the other spouse has been served, there will usually be a hearing on temporary order where temporary rulings are made for the duration of the divorce case such as who gets the house and how to handle any children. After the temporary orders usually comes a round of discovery where the parties try to obtain information from each other to assist them in preparing for trial. There is usually a formal mediation or settlement conference to determine if the case can be settled out of court. Lastly, there is the trial of the case where the case is decided by a judge or jury.
4. How much does it cost to get divorced?
There are both fixed costs and variable divorce costs. The fixed costs are filing fees paid to the court, and fees paid to have legal papers served on your spouse. These costs vary, but typically are in the range of $200 to $500. Variable costs include fees for document preparation and legal representation by an attorney. The attorney’s fees can vary immensely, depending upon the complexity of the case, and the degree to which any issues are contested. Extra costs may also come into play if the court orders mediation of disputed issues, or if it becomes necessary to hire a financial analyst or other expert due to complex issues.
5. How long does it take to get a divorce?
The filing party must live in Texas for 6 moths and in the particular county for 90 days prior to filing for divorce. Texas allows parties to divorce after 60 days. However, if there is not an agreement a divorce case can stretch on for a very long period of time while the parties fight or attempt to settle the case.
6. What if I can’t locate my spouse?
If you don’t know the whereabouts of your spouse, you may still get a divorce. You will need to take certain steps to attempt to locate your spouse, and to notify him or her that you have filed for divorce. If you still can’t locate your spouse, there is a procedure called service by publication, in which you obtain the court’s permission to publish a notice of the divorce in a newspaper. Once this is done, you may proceed with the divorce case. For a more detailed explanation, click here.
7. Will I have to go to court?
In Texas, even if all issues are agreed upon by the parties, one spouse will still need to attend a “prove up” hearing in court. The Prove Up process typically takes a short period of time (under an hour depending on the Court’s docket) and will be mostly for the purpose of satisfying the judge that all of the paperwork is in order, that all required notices have been given, and that any residency requirement has been satisfied. If all issues are not agreed there may be numerous hearings and motions requiring your attendance. For a list of prove up questions, click here.
8. What is a Mediation?
Mediation is a confidential process where each parties and their lawyers meet with a neutral third party (usually an attorney) to attempt to resolve all the legal issues out of court. Typically, this involves the mediator going back and forth to each of the spouses/attorneys to go over the strengths and weaknesses of the case and the likely outcome in court. The goal is to help each party recognize areas where they may need to compromise to reach an agreement.
9. What is a common law marriage?
A common law marriage is a marriage where there has been no formal marriage or wedding but the parties agreed to be married, lived together in Texas as spouses, and hold themselves out to others in Texas as husband and wife. All three elements must exist at the same time for there to be a valid informal marriage. If a couple is “common law married” they are treated the same for legal purposes as a couple who was formally married. For a more in depth discussion, read this article.
It is important to understand these issues if you are considering divorce or if your spouse has filed for divorce. Going through a divorce, even if you're the one filing, can seem catastrophic at the moment. Keep your head up and keep seeking quality help and advice. You will get through this!
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