You should consult an attorney regarding your divorce proceeding if the divorce is contested, you have a child custody dispute, or there are complex property divisions. If you need to protect your interests regarding your property or your children while separated from your spouse, you must file for divorce and obtain temporary orders. In Texas, if one spouse wants to be divorced, the divorce will be granted. Texas is a no fault divorce state, meaning fault does not have to be proven to obtain a divorce.
Common Law Marriage:
Common law marriage is when there has been no marriage license issued, but the law considers you married. Texas will find that you are “common law” married if you have lived together in the State of Texas, had a proven intent to be married and held yourselves out to others as husband and wife. There is no minimum time that you have to live together. Examples of holding yourselves out as husband and wife include introducing each other as husband and wife, the wife using the husband's last name as her last name, filing taxes together as husband and wife, and/or including the other person as a dependent on health insurance as a spouse. Living together and having children together does not automatically mean you are common law married under Texas Law. The facts and circumstance of each case must be considered to determine whether a common law marriage exists. If you have been separated over two years, then you do not need a divorce. Once you have been separated two years, the law presumes you were not common law married. If you have property to divide, you may want to get divorced so the divorce court can divide the property.
Texas has a minimum 60 day waiting period before a divorce can be finalized. The 60 days' start running at the time the Original Petition for Divorce is filed with the court. However, most divorces take longer than 100 days. The time frame for divorce may take anywhere from a three to six months if it is agreed, and up to several years in a highly contested matter. The more agreements reached between you and your spouse as to the terms of the divorce, the sooner your divorce will be final.
Collaborative law is a process where the husband and wife agree to get divorced without going to Court. The purpose of collaborative law is to minimize the damage often caused by a divorce and to assist the parties in making a productive transition. Collaborative law is more fully described above in the section regarding Alternative Dispute Resolution (ADR) Options.
Texas is a “community property” state. In other words, all property owned by married persons on the dissolution of a marriage, whether by death or divorce, is presumed to be the proper-ty of both the husband and the wife. Likewise, any debts incurred during marriage are presumed to be community debt. This means that the debts are presumed to be owed by both the husband and the wife. Like community property, community debt must also be divided in a divorce. However, since the creditor is not a party to the divorce action, the creditor may still pursue either spouse for collection of the debt, as they are not bound by the terms of the divorce decree and the divorce court's allocation of responsibility for joint debts. If the divorce court orders a spouse to pay a community debt and he or she does not, the other spouse may file an enforcement action against the nonpaying spouse.
Generally speaking, separate property is property acquired before a marriage and property acquired during marriage through gift or inheritance, or with funds that qualify as separate property. Also, married per-sons may agree in a properly drafted written agreement to “partition” community property, in which case, that property becomes each spouse's separate property.
Division of Property:
Community property and community debts are supposed to be divided in a manner the court “deems just and right, having due regard for the rights of each party and any children of the marriage.” This does not mean that community property or debt must necessarily be equally divided. The judge dividing community property and debt may consider many factors, such as the size of your and your spouse's separate estates, and any fault causing the divorce.
What is a Temporary Restraining Order? Commonly referred to as a TRO, a temporary restraining order is a routine order at the beginning of a divorce that prohibits the other spouse from doing anything to transfer or destroy the property of the marriage or to cause harassment to the other spouse or the child. It is in effect for 14 days and normally becomes a temporary mutual injunction at the temporary orders hearing. The temporary orders hearing must be held within 14 days of the date the TRO is obtained.
A temporary hearing may be requested to ask the judge to make certain temporary orders while your divorce is pending. Temporary Orders set the “ground rules” for the parties' conduct during the divorce with regard to such matters as the preservation of property, the protection of both parties, who will live in the marital home, and issues pertaining to the children such as child support and visitation. The temporary orders usually remain in effect until the divorce is final.
Discovery is a common method of investigation used to gather documents and information. Discovery may be sent as requests to the other side in writing, or may be done in person by depositions. Time deadlines apply in regard to the latest date discovery can be started as well as the number of days allowed to respond. Normally discovery is expected to be complete before a final court hearing or mediation begins.
A new trend in Texas family law is Court ordered mediation. Mediation is a common method used to reach an agreement outside of court. A neutral person, called a mediator, meets with the parties to help facilitate an agreement. Mediation is more fully described above in the section regarding Alternative Dispute Resolution (ADR) Options.
A trial is the final court hearing. All issues that are in disagreement are presented to the judge or a jury who will make a final decision. The issues are presented through testimony of the parties, witnesses and evidence presented to the court.
In a case involving children, most courts require parents to attend a specific class before a final order is entered by the Court. The purpose of the class is to assist the parties in being able to focus on the children's best interest rather than their own. Your attorney, the court, or the district clerk's office can provide you with information as to whether your judge requires this class, and how you can register and attend. You are not normally required to attend this class at the same time as your spouse. There is typically a small fee to attend the class.
A prove up is the process of finishing your divorce in front of the Judge at an uncontested court hearing. At the prove-up, one or both of the par-ties tell the final terms of the divorce to the judge. The judge then has the discretion to approve the terms, grant the divorce and/or make any other orders the judge believes are appropriate. Your divorce is considered final on the specific day the Judge signs the Final Decree of Divorce. Since one of the parties may appeal a divorce within 30 days after the date it was final, you must wait a minimum of 30 days after your divorce decree is signed by the Judge before you may get married again to someone else.