Divorces are scary to think about and can be a very difficult process. Although your attorney will ease this burden for you by handling your case, it is great to understand the entire process.
First step is filing the Petition for Divorce in a Court that has the authority to hear your case and grant your divorce. In Texas, for a Court to have jurisdiction and be the proper venue over your divorce, you will need to have been a resident of the County for the preceding 90 days and of the state the preceding 6 months prior to filing suit. You will also need to name both parties correctly in the petition. Your name would be ‘Petitioner” and your spouse’s name would be “Respondent”. Further Texas has a No Fault divorce which mean divorces may be granted without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation. Filing for divorce based on ‘insupportability’ is used in almost all divorces as an all-encompassing category.However, other grounds do exist including: adultery, abandonment, conviction of a felony or imprisonment for over one year, cruel and inhuman treatment. Further, after filing the petition, there is a 2 month “cooling off” period before a Court will grant your divorce to facilitate reconciliation. There is an exception to this rule for those on active military duty or domestic violence.
After filing the petition, the next step is to give legal notice to your spouse, the Respondent. A process server will give your spouse a file-stamped copy of the petition and file a Return of Service with the Court to prove that your spouse has been officially served and received notice. Without this proof of service, a Court cannot verify that your spouse has been served with the petition. However, if your spouse has run away or cannot be found, you can get a thorough background search. Also, a Court will grant alternative service in particular cases. After service has been completed, Respondent has the Monday following 20 days from the date of service to respond. Otherwise, if there is no response and Respondent was properly served, then the Court will grant you a divorce by default without needing Respondent’s signature. The divorce will only be finalized after the 60 day waiting period.
However, if you and your spouse agree to the divorce, then you both can waive service. This is an uncontested divorce which is where you and your spouse agree to get a divorce, your spouse will sign the waiver and decree. You would not pay for a process server and your spouse would not need to be served or need to respond to service. Uncontested divorces do not costmuch whereas contested divorces can become very expensive with litigation costs. In either a contested or uncontested divorce, the three big issues must be negotiated: child custody, child and spousal support, and community property vs. separate property division. For child custody, you and your spouse must decide if you will share custody equally or who will be the primary custodian and who has visitation rights. Additionally, the non-primary custodian pays monthly child support to the primary custodian. Further, Texas allows for spousal maintenance in limited circumstances when the receiving spouse is not able to earn sufficient income. Third, any property acquired prior to marriage and by gift or inheritance is separate property. Any property acquired during marriage is Community property. You and your spouse can also agree to how property is split. Last, if you and your spouse cannot come to an agreement on the divorce, child custody and visitation, child support and/or spousal maintenance, and property division, the next step would be to proceed to trial.