Alex Hunt:
Welcome back to the Texas Family Lawyer Podcast, I'm Alex Hunt. I'm the managing and founding attorney at Hunt Law Firm, and today I am happy to be joined by Bri Holcombe, associate attorney at Hunt Law Firm. Welcome.
Bri Holcombe:
Thank you.
Alex Hunt:
All right. Today Bri and I are going to start a two-part series where we talk about the process of divorce in Texas. And in the first part today we're going to talk a little bit about the contested divorce process, all of the pieces that go into what that looks like, and then also go over some key terms along the way. And in part two, which you're going to see in a few months, Bri is going to come back, we're going to talk about the uncontested process, which is where clients come to us, everything is in complete agreement, and we are simply being the scribes and getting it done in court. So today we're going to start with what you need to know about the Texas divorce process, and it all starts with the consultation.
Bri Holcombe:
First way that we start out is by an initial consultation. Essentially what that is it's a meeting with an attorney, one of our attorneys at the Hunt Law Firm where we go over the facts of your case, we learn a little bit about you, your spouse, your children, and the property that you may have.
We also then will educate you on what the law requires, what the Texas law says about conservatorship, which is decision-making ability for your children, possession and access, child support, and even property division. Within that consultation, we'll kind of learn whether this case is contested or is it uncontested. We'll get a feel for maybe if it's contested, if it will be a full-blown, knockout, drag-out fight, or if there just may be a little hiccups that we need to figure out along the road.
In that consultation, we'll also quote you on a retainer, as that's how our firm operates, and once we get started and we receive both a signed legal services agreement and a retainer paid in full, we'll be ready to begin your case and kind of start working through the flow of this contested divorce process.
Alex Hunt:
So from there, the next step would be getting the original petition for divorce drafted and then ultimately filed with the court. And in order to get the information that we need for that original petition, our office gets that through a divorce worksheet. And it contains full spellings of the names, the date of birth, it includes some frequently asked questions that we need to know from clients. It also has things like birth dates, things like that, employers, and we take all of that information plus the information we learned in the consultation to create a document that essentially lays out for the court what you are seeking, the relief that you're seeking for about your kids, and the relief that you're seeking on your property.
So it will lay out with regard to your kids who you believe should get conservatorship or custody, who you believe should have the ability to make certain decisions for your kids, also known as the rights and the duties. It will lay out who do you think should be paying child support. It will lay out who do you believe should be paying for health insurance, and dental insurance, and vision insurance. And one of the most important things is who should have possession and access of these kids, and when. That possession and access is a legalistically complex way of saying, who should have the kids, and when?
The second component of an original petition for divorce is going to the property and it's going to say, in the final disposition, whether you reach an agreement or you go to court, who should receive what property, and who should be responsible for paying what debt. There are additional provisions, like say if you have a house and one party isn't getting the house, it might have provisions in there like, we should sell the house. Those things are usually worked on later in the case, and either agreements are made or the court orders it, but for property and for kid stuff, the original petition for divorce is the thing that starts it all. You go to the court and you say, "I'm going to need a divorce, and this is what I'm looking for."
Bri Holcombe:
Now, it doesn't get into the specifics of who should keep what particular accounts or anything like that, right?
Alex Hunt:
Correct. It's going to lay out specifically that you believe that these things should be split up. You also might have some provisions in there that says, "Hey, I've got some separate property because I got an inheritance, or I owned some money, or I owned a house before we got married," and you need to list out that there is separate property that needs to be confirmed, or that you think that you should be reimbursed because you spent some money that you had before the marriage. Those things should be laid out, but there isn't a very high level of specificity that needs to go into the original petition. That will come a little bit later on.
Bri Holcombe:
And what about grounds for divorce?
Alex Hunt:
Grounds for divorce comes pretty early in the original petition for divorce, the most common is insupportability, which simply says that, you know it's also known as irreconcilable differences in other states. It's just that you think there's no reasonable way that the marriage is going to be able to be reconciled, and it's really, there's no fault here, it's just we need to get divorced, and we're not going to have any grounds saying who is responsible.
There are some at-fault grounds, they include adultery and they include cruelty. Those things are often included in the petition saying you're asking the court to grant the divorce on those grounds, but it's actually pretty rare that courts really issue decrees and final orders based on those grounds, but that is something that you would include in there.
An additional document that you would potentially include, but you might not, is what's called a temporary restraining order, and an order setting a hearing on temporary orders. And temporary restraining order, most people think restraining order they think, "Oh, I can't be within 50 feet of my spouse and my kids" or something like that. It doesn't restrain your ability to go near your spouse or your kids. What it does is restrain certain types of behavior. It's telling the parties that you're not allowed to do things that are, I would say immature. I call them let's be adult fools. And it lays out things like for the kids, don't hide the kids, don't-
Bri Holcombe:
Unenroll them from school.
Alex Hunt:
Don't unenroll them from school, don't do childish and mature things in order to try to gain an advantage in the divorce. More importantly, it's got even more rules about what you can and can't do with property. So you can't start selling a whole bunch of your husband's or your wife's property. You can't start taking them off of the health insurance. You can't start locking them out of accounts. You can't start changing their passwords on accounts. What the court's trying to do with a temporary restraining order is restrain you or stop you from doing things that are going to upset the apple cart. They're going to upset the status quo.
Bri Holcombe:
Retaliate against your spouse for filing for divorce.
Alex Hunt:
Exactly, or to just try to gain an upper hand when you're in this very turbulent time. When you get married, there's an understanding that the husband and the wife or the partners are going to be able to come together and make decisions that are going to benefit both of them. And when the marriage breaks down, it becomes like the wild west, there's no rules anymore.
And so a temporary restraining order simply Installs some rules to try to maintain order and maintain the status quo while things can be worked out on either a temporary or a permanent basis. That temporary restraining order is good for 14 days, and then it expires by operation of law. It can be renewed for 14 more days, but in the interim period, in that 14 to 28 day period, there's an understanding that there's going to be a temporary orders hearing. And when a temporary orders hearing, and we'll get more to that in a bit, is just going to put some temporary rules in place about how is everything going to work while we're in the pendency of the divorce. While we're working this all out for final, how are things going to work for now?
Bri Holcombe:
And what is a standing order?
Alex Hunt:
A standing order is a temporary restraining order that is essentially issued by the court in all of their cases, so it's standing because it's always there. And in some of those courts you might not need to get a specific temporary restraining order for your case. As in a standing order, or what they call standard temporary mutual injunctions, the court is saying, "In every case, in every divorce, we expect you to follow these rules," and it's much the same of what I just talked about for the TRO. From there, the court will assign a court and a cause number once you file those things, and then the next step is that the respondent needs to get served.
Bri Holcombe:
So service has to be effectuated in order for a divorce case to continue. If you file for divorce and you don't do anything with it, you don't serve your spouse, the case cannot continue and the case cannot move. So this is one of the most important pieces of a divorce matter is ensuring that the respondent, which is the other party, the party that did not start the lawsuit, is served.
So one of the most common ways that we serve is by a process server. You may have seen that in movies where someone comes out of the bushes, knocks on the door and says, "You've been served." It takes someone off guard. That's one way that we can serve. We can always coordinate that service if spouses are somewhat amicable to say, "Hey, on this date, meet me at McDonald's, we're going to serve you with the paperwork."
One of the other options though that we have if spouses are more amicable is to do what's called a waiver of service. Essentially this is a document that the respondent signs acknowledging that they received the original petition for divorce. And they don't want that process server to come and knock on the door and say, "You've been served." Depending on our spouses, depending on how amicable we are, we will kind of make a determination on which is best for service. Maybe it's a more amicable route, maybe it's process service by an individual. And oftentimes we have spouses who maybe want to start out on the more amicable side. They think, "Well, if I can just give my spouse the paperwork, maybe that will be okay and we'll start off on a good foot." I'm happy to do that. We oftentimes will send a letter that accompanies that waiver of service saying, "Here's what this is, this is when I expect it to be due back."
It requires notarization, so a respondent does have to go and make some things happen. We can always have them come to our office and notarize that document. And once it's back, then we file that with the court. If our respondent is kind of dodging and they maybe don't want to sign, but they keep saying they are, at that point I may pull the plug and say, "We're just going to go ahead and have them served so that this case can continue." Once the service piece is met, then we really meet with the client and decide, where are we going to go from here? That's where the case can kind of take a bunch of different avenues and a bunch of different paths in order to get to that very last step, which is finalizing the divorce process.
Alex Hunt:
And temporary orders would be our next step, but that's not necessarily having to happen in every single case. We've certainly had cases where you go from filing the petition for divorce, getting the other side served, and then them saying, "We really don't have a need for temporary orders. We're able to, either our lives are separated enough by this point that we don't need to have a judge impose rules, or we don't need to come to a formal court agreement on it." But in some cases they are necessary because you need to have in writing the way things are going to work so that even if things are working now, they're not going to break down. So in our neck of the woods in the Houston area, most of the courts require you to go to mediation before you go to a temporary orders hearing. Tell us a little bit about what the mediation process looks like.
Bri Holcombe:
So first, just so you guys are aware, a temporary order is an order that governs during the pendency of the divorce. It says who's going to be living in the house, who's going to be paying what bills, who has access to what bank accounts, everything related to your child, where who is the primary parent, who's paying child support, who's going to see the child when and where. In order though to get those agreements, the first stop is oftentimes mediation.
Mediation is a process where a third party, a neutral third party is in a room, and they go back and forth between the parties who are with their respective attorneys, trying to reach an agreement for these temporary orders. The mediator is bound to confidentiality, so what happens in mediation stays in mediation. In the event that we settle for a temporary order, that's wonderful. Then what we do is we draft a temporary order that the judge will sign in conformance with a mediated settlement agreement. That's the document that comes out of mediation. In the event we don't settle, then we go to court and we have a temporary orders hearing.
A temporary orders hearing, depending on what county you're in, could be severely limited to maybe one hour per side or two hours per side. So it's really important that parties really try and work together because your lives are so big, and there's only a very small fraction that the court can hear, that's going to set the tone for the rest of the divorce case.
Alex Hunt:
And a temporary orders hearing is essentially a mini trial, and although you're only getting an hour, maybe two hours depending on the court, depending on how busy their dock it is, the court's going to see that very small snippet of your life and be issuing very important decisions on it. So that's where I think mediation is particularly important is to maintain some control over those decisions.
Now, sometimes that's not possible. There's a reason that you're getting divorced. There is a reason that you're not able to reach agreements with the other side. Maybe they're unreasonable, whatever, and sometimes you need to go to court. That's why they're there. But the temporary orders process for me takes on an overwhelming amount of importance because it really sets the stage for the rest of the case. If one party gets custody of the kids, there is a very high likelihood that they're going to maintain custody at a final trial.
If everything goes okay during the pendency of the case because the judge is going to say in a final trial, "Well, I gave you temporary custody, the kids are doing well, the kids are thriving, they're doing great, why would I change things now?" Judges are risk averse, they don't want to upset the apple cart either. And so it's especially important to put your best foot forward in a temporary orders hearing and be completely prepared going into that.
So you go to a temporary orders hearing, it is essentially a mini trial in front of the judge, the judge renders a decision. From there, we would typically go and do discovery. Discovery comprises several things. Number one, for your property issues you're going to create what's called an inventory and appraisement. And an inventory and appraisement is just a spreadsheet of your assets and your liabilities, both yours and your spouse's, your separate property and your community property. Everything that you have that the court will need to make a decision on in terms of property will go into that spreadsheet. It's then signed under penalty of perjury, it's sworn before a notary, and then it's provided to both the court and to the other side, your spouse and their lawyer.
The second document that would be provided to the court is a financial information statement. It's very similar, but instead of assets and debts, it's going to lay out your income and your expenses. That's going to help the court in a temporary orders hearing or in a final trial, figure out what child support's going to be, and who should pay some of these bills. Who's going to have the ability based on their income to pay the mortgage note moving forward after this divorce is done? Before temporary orders, who's going to have the ability to pay for the cable bill and car insurance, who can pay for all of those things?
So the court needs to know all of that information in order to make an informed decision. Next are a list of written discovery tools that attorneys have at their disposal. These are Request for Disclosure. They are, Request for Disclosure are basically a list of pre-packaged questions that the Texas Rules of Civil procedure lay out that each side needs to answer in every case.
So example, the names of the parties, who else might need to be a party to this case? What are the basic defenses and things that you're seeking? These are just things that you can't object to, they're questions that you're going to have to answer. Fairly routine. The next two are for me, probably the most important pieces of discovery that we can do in a case. The first one is interrogatories, which is a fancy legal term for questions. These are written questions that the other side needs to answer under oath sworn before a notary.
And those questions can be anything regarding the property, regarding the kids, regarding anything within the marriage, about who committed adultery, about who took the kids' doctor's appointment. Really anything goes. There's a very broad scope of what you can include in these questions, but they're very important because you're getting sworn answers, you're locking the other side into their story, and then you can then use those answers to go and investigate something new if you need to.
And then probably the most important written discovery tool that we have at our disposal as attorneys, a written requests for production of documents. And on the property front we are asking for things like bank statements, title documents, deeds, anything that can show us where the money has gone, what types of assets you have and what types of debts you have. But you can also ask for anything related to children. You can ask for doctor's records, you can ask for school records, you can ask for communications with the teachers, you can ask for medical records.
All these things can be asked for in requests for production of documents, and the other side has an obligation, unless they have a valid objection, which ultimately will be up to the judge to determine if it's a valid objection. They have an obligation to provide this to the other side, whether it shows something bad or not, they've got to turn it over. And the same thing goes for our clients as well.
There's one other important discovery tool that we use, and it's called a deposition. And this is typically saved for clients that have the funds to pursue it. They want the Cadillac plan of representation. They written... A deposition is simply interviewing another party or a witness under oath with a court reporter or a videographer present, and they've got to answer your questions. And it kind of feels like a courtroom, but it's not.
There's no judge there. Objections are still made, and that record is created and then preserved and can be used in court. This is a really high-level way of locking people into their story so they can't wiggle out of it later when they're in court. Of getting as much information as you can, particularly from the other party and from third-party witnesses.
And then third, figuring out other pathways that you need to start looking down in terms of discovery. What else do I need to go and look at? What other banks do I need to subpoena? What other teachers do I need to talk to? So that comprises all of the different discovery rules, and there's a few minor ones that we'll use from time to time. Those are the big ones though. Once you're completed with the discovery process, you usually get a scheduling order, and it's time for final trial.
Bri Holcombe:
So a scheduling order is essentially the judge saying, "This is your trial date." The case has been pending for X number of months or X number of years, and now we're ready to go ahead and proceed and wrap this up. So what happens next, once we typically get that scheduling order is, we're on the downward slope. We want to get everything ready for that final mediation. The court requires us to go to mediation before we can go to final trial. The court wants us to try and resolve our issues amongst ourselves so that they don't have to because again, our lives are so big, and they only see such a small fraction.
So what your attorney is typically doing is preparing that inventory and appraisement, like you mentioned, we're getting the information from the request for production in order to finalize that inventory, swear and sign to it so that we can go into mediation with a plan. We prepare what's called a confidential memo that lays out to the mediator what it is we're asking for. That mediator has to keep that memo a secret until we say otherwise.
The mediator will review our memo, see where we're at. She'll also hopefully get a memo from the other side. Maybe there are some things that we're all in an agreement on, but the issues that we still have left and are still conflicting, we'll have a full-on mediation over. We'll use the inventory in order to effectuate our property division. We'll use the financial information sheet in order to say if we have someone who, they say that they can afford a marital residence. If we're looking at what they actually make and they cannot afford that, we'll use those things in order to help persuade the parties to try and settle. In the event we reach a agreement in mediation for a final order, that's almost done. We're about done, and we're about to finalize the case.
In the event that we don't settle, we go to trial and the court decides what our issues are. So either way, you have a resolution either by reaching an agreement or by the judge telling us what we're doing. You can also bifurcate, which means that maybe we go to mediation and we settle on our property issues. We can figure out who gets the house, who gets what bank accounts, but when it comes to our children, we might not be able to see eye to eye. So we can allow the judge just to try that one particular issue.
We've had cases where we're in an agreement on everything except for the amount of child support someone pays. We can take that one specific issue to the judge, so it doesn't have to be the Cadillac plan where we have a full-on trial about every single issue. In the event that we either reach a mediated settlement agreement or the judge gives us a rendition, the next step is to draft the final decree of divorce, which is the document that officially will divorce us.
In the event that we went to trial and the court had to hear our case, the court is going to pronounce us divorced on the date that they provide the rendition. But if we reach a mediated settlement agreement, the court will divorce us on the date that we either prove up our agreement, or the date that they sign the decree through a prove-up affidavit. It really is just going to depend on what court we land in, but we oftentimes know that once a mediated settlement agreement is reached or once we go to trial, we are on the downward slope to getting the divorce tied up, and then it just comes with tying the bow on top and getting everything packaged up nicely to finalize.
Alex Hunt:
And you mentioned prove-up, so that's if there's a complete agreement on everything you're going before the court, tell me what your options are for prove-ups and what that is.
Bri Holcombe:
So a prove-up is essentially us telling the court that we meet the jurisdiction requirements for the parties to get divorced. They lived in Texas for the last six months. They've lived in the specific county that the divorce is being heard in for the last 90 days prior to filing for divorce. It lists who our children are, if we've reached an agreement, how our divorce is going to be granted, whether on a fault ground or insupportability, meaning a no-fault divorce. What a prove-up does is it allows the court to say, okay, I have heard the jurisdiction requirements. I'm checking the box that you guys have met everything that's needed in order to get divorced. That can be done through an in-person testimony in court, meaning we go down to the courthouse and have a five-minute chat where I ask those basic questions. "You have a child who's four years old, right? You are married to your husband, correct?" "Yes."
Hopefully though, if we reach an agreement, we don't have to go to court. There are a lot of courts that allow what's called a prove-up affidavit, which is essentially a document that I draft stating, "I've lived in Texas for the last six months. I've lived in the county for the last 90 days prior to filing." And when I say "I," I mean the client, because they're ultimately going to sign that document swearing to those facts.
The final decree of divorce, the document that officially will divorce you gets filed alongside that prove-up affidavit., Or it gets filed after that oral testimony. Given the rise of technology, we can also do a prove-up via Zoom, meaning you could log on for the comfort of your own home in order to make that happen without ever stepping foot in the courtroom. Just because you have a contested divorce doesn't mean that you might go to court all the time. It could be that your contested divorce settles in mediation for both temporary and final orders, and you never have to see what the inside of a courtroom looks like. So at the beginning when I said there was a bunch of different paths, there are many ways to kind of get to this final ending point and landing spot.
Alex Hunt:
There are, and this is a very high-level view, and there's a lot of different options that we haven't really talked about. For example, there might be different court hearings throughout this process. Say for example, in between the temporary orders hearing and the final trial, you might have a motion to compel hearing, which is compelling the other side to turn over some of those documents that you asked for. And a hearing is essentially just a meeting with the judge asking the judge to do something.
Both the attorneys are present, the parties can be present and usually are, and then the judge is going to make a decision. So there's a lot of different little hearings that can pop up. Thankfully, a lot of them can be done on Zoom now. It makes it a lot more convenient for parties so they don't have to go all the way down to the courthouse. After the agreed final decree of divorce is signed though, and there may be some additional documents and some additional steps that need to be done. Can you just give us a very high level view of some of those things that might need to be done after the final divorce decree?
Bri Holcombe:
So depending on whether you have kids or property is going to depend what documents you need. So if we have children and someone's paying child support, we're going to have what's called an income withholding order, which is essentially a document that the judge signs withholding an obligor, an individual who's paying the child support, from their paycheck. So this is a document that gets sent to the employer so the child support can be withheld from a paycheck and sent to an obligee, the parent receiving child support. There might also be a Bureau of Vital Statistics form, which is essentially a document for the courts and the county really to gather demographic information about parties.
Alex Hunt:
Which the client will probably never see.
Bri Holcombe:
Right, the clients, I don't think we ever even send it to them, but that's why filling out that worksheet so important. Otherwise, sometimes we might have to ask them, where was your place of marriage? Maybe something that they don't recall. There's also additional child support documents that again, clients typically don't ever see. A record of support, which just is an informational that goes to the child support office in order for them to have information on who's paying child support.
When we have property and that property needs to be effectuated or split, there's a couple of different tools that we use. First is going to be real property documents, which if we are selling a home or one person is keeping a home, that might need to be executed. For example, one is a special warranty deed and a deed of trust.
A special warranty deed says, "I'm keeping this home." So a spouse signs over their interest in that home to another. While a deed of trust is a promise to the spouse who's not keeping the home that the mortgage is going to continue to be paid. We also have what's called a Quadro, a qualified domestic relations order, which is a document that will essentially transfer your retirement to your spouse with no penalties or no fees. That account gets split by a plan administrator with a judge-signed Quadro, qualified domestic relations order.
You also may have vehicles that are titled in two parties' names. We'll execute what's called powers of attorney in order to take a person's name off of a title. And that happens through the DMV with a signed final decree of divorce, and a copy of that title. And if you want your name to be changed, then you've got a name change order in that final decree of divorce. You'll use that to go to the Social Security office, the passport office, the DMV, in order to make those changes. Your final decree of divorce is essentially the sword that you come out of this divorce process with. It's going to be used to change utilities names, take someone off of the health insurance, because this final decree says this marriage is no longer effectuated and it's no longer valid, and so we're able to do these things now that when you're married, you're not able to.
Alex Hunt:
Absolutely. Well, that was an excellent high level view of what a contested divorce looks like. We talked about a lot of these different terms. If some folks out there might be more visual learners, we have a representation of what this Texas divorce process looks like. We have a flow chart on our website. It's at familylawyerkaty.com. On the top of the page, you're going to see a button called resources, and from there you'll be able to see Steps in a Contested Divorce. And you'll not only see the flow chart, you'll also see a number on the back, a number of key terms that are important for you in your divorce journey. So Bri, did we miss anything?
Bri Holcombe:
I don't think so.
Alex Hunt:
Well, thanks so much for joining.
Bri Holcombe:
Thank you.
Alex Hunt:
I'm Alex Hunt. This is the Texas Family Lawyer Podcast. If you're looking for Hunt Law Firm, you can visit us at familylawyerkaty.com. If you're looking to call us, you can call us at (832)-315-5494. We'll see you next time.