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When you are ending a marriage in Texas, you need the help of an experienced divorce lawyer who will guide you through the legal proceedings every step of the way. Your lawyer should have a deep knowledge of Texas divorce law, along with skill and experience in applying it. Your lawyer should also be a compassionate person who understands what you are going through in this difficult period of your life.
Diana Cavazos is an outstanding divorce lawyer serving clients throughout Houston and the Harris and Montgomery County areas, with an office located in The Woodlands. She will handle your case with the care and individual attention she is known for.
You should know that a divorce is one of the most difficult times most people will ever have in their lives, so be prepared. The emotional, physical, and financial toll on you (and your kids) is something that you should prepare for if possible. I can help you plan and strategize your split, giving you an advantage over your future ex and working to reduce the stress and vulnerability on you, your children, and your estate.
Try to contain your excitement, and refrain from breaking the news until your attorney advises you to do so.
The information on this page will tell you everything you need to know before hiring a lawyer to begin the divorce process. We know it will at least answer some of your questions about divorce in Texas, but likely not all of them.
Please feel free to call experienced divorce attorney Diana Cavazos at 281-222-9113 to ask any other questions you may have about dissolving your marriage.
So you decided that your marriage is over, but you do not know what do next, where to begin, or how to start the divorce process. The first thing you should do after deciding to get a divorce is obtain legal counsel from a good lawyer for divorce. As an attorney experienced with dissolution of marriage cases (that’s Texas family law code for divorce), I can help you through each step of the process.
There are three basic steps to ending your marriage legally.
1. File a Petition for Divorce
Unfortunately, most divorce actions are not this simple or uncomplicated. Between the three basic procedural steps, many other actions may need to take place. For instance, there may need to be a temporary orders hearing, discovery information may need to be exchanged, and mediation may be required. If there is a custody battle over the children, a request for a lawyer for the children may be necessary, and an expert to counsel the children may be needed to investigate claims brought by either party.
In more complicated actions, other experts may be needed to determine the value of assets or to determine whether an asset is community property or separate property, or a valuation expert may need to be hired to value a business.
The Law Office of Diana Cavazos works through the steps with you while partnering with the experts needed to help ensure that your divorce runs as smoothly as possible. This will not be an easy time for you. Divorce is one of the top ten most stressful things that a person can undergo in his or her life. We are here to make the process as easy as possible for you to reduce your stress, fear and worry. We will devise a strategy so that you can make that next step to a better life. Schedule a consultation.
First you file a petition for divorce. Texas law requires that you have lived in the State of Texas for six months and the county where you file for ninety days. However, there are a few exceptions.
A family law case starts with a document called a petition. You can file an “Original Petition for Divorce,” a “Petition in Suit Affecting the Parent-Child Relationship,” or many others. This document tells the Court generally what you are asking the Court to do.
A Petition contains a list of “Standing Orders” (called “Temporary Restraining Orders” in Harris County). Standing Orders require both parties to maintain the status quo and prevent parties from making changes. Standing Orders apply to both parties. For instance, you cannot empty the bank account, nor can your spouse.
Also, you cannot threaten each other, you cannot open each other’s mail, you cannot transfer or hide property, you cannot cancel insurance policies or utilities, you cannot spend money except on necessary living expenses, business expenses or attorney fees, and more.
Standing Orders offers some protection, but sometimes a Protective Order is necessary if there is family violence.
A Protective Order in a family law case prohibits someone from coming within a specific distance of your home, your job, or a school or a day-care facility where your child is enrolled. The Texas Family Code (TFC) requires that you must prove family violence has occurred and is likely to occur in the future. If the person comes too close to you, the police can, and often will, arrest them for coming too close.
However, like a TRO, protective orders are also not full proof. If the person is determined to hurt you, a TRO will not protect you. You will need to be very careful. See below for more information on family violence.
If the parties cannot agree on issues, sometimes you need the court to put temporary orders in place to decide unresolved issues while the divorce is pending. For example:
If you and your spouse can agree on these issues, you can avoid avoid the temporary orders hearing and enter into Agreed Temporary Orders.
However, if these issues are unresolved, the court will enter a hearing date where both parties and the lawyers go to court and present the issues before a family law judge who will make the decisions and enter an order. It is very important to follow the judge’s orders. However, keep in mind that these orders are temporary and only last until either the parties reach a final divorce agreement or until the case goes to trial.
This is a process in a family law divorce that lawyers use to exchange information. Discovery, put simply, is fact gathering. You can ask the other party to answer questions, produce documents, or admit things. The other party can also request this information from you. The other side must tell you what they want, why they want it and what evidence they have which supports their position. They might also have information you need to help support your case, and they must give it to you if they have the information in their possession.
Discovery can be an informal process or a formal process. Sometimes you can agree to do informal discovery in which the parties simply agree to obtain documents and answer questions for the other side. Sometimes the process is much more formal. The more formal it is, the more it costs. This is because the more formal discovery is, the more time it takes to complete.
Discovery is important because you can get a lot of information that you don’t have any other access to and you can use that information to help you either resolve the case or present your arguments at trial. It gives you an idea of what you will see at trial. For instance, if the other side has tapes of you threatening to abscond with the children, your lawyer will want to have this information prior to trial. It is necessary to respond to discovery requests. If you do not, the other side can ask the Judge to punish you by striking your pleadings and/or making you pay their attorney fees.
Once the fact gathering is finished each side usually has much of the information they need to go to trial. However, before you can try your case in front of a judge, the judge will order you to mediation to try and resolve the issues with the other party. If you cannot agree on the issues in mediation, then the Judge will be the one to make the decisions in your case. If an agreement is reached through mediation, then those issues no longer need to be heard by a Judge.
Mediation is a process that encourages the parties in a family law divorce case to settle their case without going to trial. A mediator helps the parties find compromises so they can come to an agreement rather than let a Judge decide how the issues will be resolved. Mediation before final trial is required by the Montgomery and Harris County courts. It is a good idea to find a mediator who is familiar with the court in which your case will be heard. This is because the mediator can give you an idea of how the judge has typically ruled on issues in the past.
If mediation fails or partly fails (i.e. you settle some issues but not all of them), then a trial will be held in front of the judge. In Texas, either party may also ask for a jury to make the decision on some issues, like custody.
Texas has both fault and no-fault divorces. Title 1, Chapter 6 of the Texas Family Code describes the grounds that Texas considers for fault divorces, which are cruelty, adultery, conviction of a felony during the marriage, abandonment of at least a year, separation of at least three years, or confinement in a mental hospital for at least three years. Most divorces in Texas, however, are no-fault.
Is it better to get a fault or a no-fault divorce? That depends on your individual circumstances. Your choice may affect the way that marital property is divided and whether or not alimony is awarded. You should talk to a divorce lawyer before making a decision.
The terms “uncontested” and “contested” divorce refer to whether the divorcing spouses agree on how they will divide their property and how they will divide parenting responsibilities for their children. In order for a divorce to be uncontested, you and your spouse must agree on all of the issues. If you disagree on even one thing, then your divorce will be contested.
Uncontested divorces are simpler than contested divorces, and people sometimes try to save money by handling an uncontested divorce themselves, without an attorney. There is a risk in taking this approach, though, because the agreements you make with your spouse may not be fair to you if you don’t have an attorney to help you negotiate. You should talk to a Texas divorce attorney even if your divorce is uncontested to make sure your rights are protected.
Contested divorces are significantly more complicated, and you should consult an experienced divorce attorney if you and your spouse do not agree on all the issues.
Texas is one of only a few states that are community property states. All the income that both you and your spouse earned during the marriage and anything you bought with that money is considered community property, which is split 50-50 when you divorce. Not all property is community property. For example, property that you owned before the marriage that you kept separate during the marriage would be treated as your separate property, and you would not have to split it with your spouse. Talk to a Texas divorce lawyer to find out more about how property is divided in Texas.
When couples with children split up, Texas law says that judges must base their decisions on what would be in the best interest of the children. Beyond that, judges have a lot of leeway when making child custody rulings.
The laws regarding child custody are found in Title 5 of the Texas Family Code. These laws favor child custody arrangements where both parents get to have frequent contact with their children, as long as that would be in the children’s best interest. The law also forbids discrimination based on gender when making custody arrangements, but in practice men sometimes face discrimination in Texas divorce courts. Attorney Diana Cavazos fights for the rights of fathers in child custody cases when necessary to ensure that all of the custody terms and conditions are fair.
The law expects both parents to help support their children financially, but how that obligation is divided depends on the income of each parent and on which parent spends the most time with the children.
As soon as you file a petition for divorce, standing orders (called “temporary restraining orders” in Harris County) go into effect. These orders prohibit both spouses from threatening each other or from making any changes, such as transferring property or emptying bank accounts, that could affect the divorce proceedings.
The court may place additional protective and temporary orders into effect when necessary.
You then go though a discovery process, where your attorney and your spouse’s attorney exchange information.
In Montgomery and Harris Counties, you are required to participate in mediation to try to resolve your differences without having to go to trial. If you don’t reach agreement in mediation on all the issues, then you will have a trial in court before a judge.
Regardless of which of the two counties you live in, you must file for divorce in the county where either you or your spouse have been living for at least the last 90 days.
To start a divorce, you file a form called a “Petition” in the District Clerk’s office of your County Courthouse. If you are handling your own divorce without an attorney, you can file electronically, in person, or by mail. You will need to include a filing fee, and if you are filing on paper, you will need to include two extra copies.
In Harris County, which includes Houston, you file at the Harris Family Law Center, located at 1115 Congress in Houston. Their phone number is 832-927-5800. If you live in Montgomery County, you file in the Family Department of the Montgomery County Circuit Court, located at Montgomery County Circuit Court, on the first floor of South Tower, Room 1460. Their phone number is 240-777-9426.
After filing the Petition in court, you must serve your spouse by having your spouse sign a waiver or by using a process server or county constable to file. If you don’t know your spouse’s address and can’t find it, you will need to get a court order to serve by posting or publication.
If you have an attorney handling your divorce, then your attorney will take care of filing all the required documents, serving your spouse, and taking care of all the many technical requirements, so you won’t have to worry about these technical details.
An “uncontested” divorce means that the parties have reached an agreement about all the issues in their case. Issues in a family law divorce case typically involve the division of property and assets, such as the home, bank accounts, retirement accounts, and personal property (furniture, art, etc.). This agreement may have been made by the parties without or without the help of attorneys or mediators, and may be made very early or very late in the case, In short, if you and your spouse agree about everything, your case is uncontested.
In the process of divorce, many parties try to work together to agree on as much as possible without the help of attorneys. The benefits of such agreements are that they save money for the parties and give the parties more control in negotiating the terms (as opposed to leaving these decisions to a judge). The drawbacks of these agreements are that private negotiations may often result in agreements that are very unfair to one party or to the children. For example, husband and wife agree that he will pay her child support of $500 per month. According to the Texas Family Code, however, he should be paying her $1,000 per month.
We recommend that parties consult with an experienced family law attorney before negotiating with a spouse to prevent unfair terms. Negotiating from an educated point of view prevents hard feelings and unfair outcomes. With the guidance of an attorney, you can learn what is reasonable in a negotiation (e.g., who will have primary conservatorship of the children, how the bank accounts will be split, etc.), and what you may expect if you must litigate the case in court before a judge.
After the parties have had the opportunity to negotiate with each other, they still may not be able to settle all of the issues. In this case, their attorneys will negotiate on behalf of the parties. If the attorneys negotiate the remaining issues to the satisfaction of the parties, then the agreement is placed into writing, signed by the parties and presented to the judge for his or her approval.
However, if the parties are still unable to settle the issues, mediation is the next step. Mediation is required when parties have not settled all of the issues and the issues must be brought before a judge in a temporary orders hearing or a trial. During mediation, the mediator will try to help the parties reach decisions together by helping the parties to compromise.
Along the road to divorce, the parties have many opportunities to negotiate and turn a “contested” case into an agreed or “uncontested” case. If the parties cannot agree on one or more issues, then the case remains “contested.” For instance, husband and wife agree on the amount of child support that should be paid but cannot agree on the division of their property. In this example, the case remains “contested.”
Texas is a community property state. This means that all property acquired during marriage is defined as community property. The exception is that property owned prior to marriage or property acquired during marriage by gift or inheritance is defined as separate property. Community property is subject to a roughly 50/50 division between the parties. Separate property is not subject to division and remains the property of its owner.
“Property” includes income and most retirement benefits earned during marriage. Clients often believe that money they earned is “my money” and “my 401(k),” but in Texas, if this money was earned during the marriage, those assets belong to the community and usually are divided between the parties at divorce.
When community property funds are spent on a separate property asset, the community may make a reimbursement claim. Likewise, when separate property funds are spent on a community property asset, the party can make a reimbursement claim. For instance, when income from husband’s job (community property) is used to make mortgage payments on husband’s separate property house, a reimbursement claim can be made. A reimbursement claim in this instance is a request that the community be reimbursed for some of the funds that have been spent on the husband’s separate property.
Likewise, a reimbursement claim can be raised when wife’s money from an inheritance is spent on community property (e.g. home improvements to a community property home).
However, reimbursement is not dollar for dollar, and it is important to consult with an attorney to determine the value of the reimbursement claim.
A “No fault divorce” is a term commonly used to refer to a divorce based on “discord or conflict of personalities that destroys the legitimate ends of a marriage.” Another term that can be used is that it is a divorce on the “grounds of insupportability.” “Insupportability” means that the marriage has become insupportable because of the discord or conflict.
The common “fault” grounds for divorce in Texas are adultery and cruelty. The primary reason to request a divorce based on fault grounds is to obtain a disproportionate share of the community estate (for instance, more than fifty percent of the community assets).
The answer to this is that it depends on the facts and complexities of the case.
A divorce may not be filed until one of the parties has been a domiciliary of Texas for at least six months and a resident of the county where the divorce is filed for at least ninety days. It does not have to be you; it can be your spouse who has lived there for the required period of time.
After a divorce is filed, it may not be granted by the Court for at least sixty days. The state of Texas encourages marriage and the reason for the sixty day period is to allow the spouses to cool off and think about reconciling before they go through with the divorce. This is merely the minimum time period. If the divorce is contested, the Court will not grant your case on the sixty-first day. If the divorce is contested, it will very likely take much longer than sixty days.
If the case goes all the way to trial (judge hears the case), an average divorce or modification suit can take at least eight months or longer. However, your case could be over more quickly if you and your spouse can come to some agreements more quickly. Because it depends upon the facts and complexities of the case, there is no way to accurately cite a time period of how long it will take.
A contested matter involves hearings, discovery, and possibly more. If you have an uncontested divorce, the process will be completed much more quickly. The attorney will draft the Final Decree of Divorce and the divorce could be ready for completion once the Final Decree is signed by the parties and filed with the Court.
To help the process move more quickly, you should gather documents before the divorce starts. This will not only shorten the time for the process but can also help save you money and make it easier to complete the discovery process. Things to gather and organize include statements from banks, credit cards, telephone, retirement, brokerage, debts, and even utilities.
After a Divorce or an Order on a Suit Affecting the Parent-Child Relationship (SAPCR), child custody, child visitation and child support may be modified. However, you should know the burden of proof, because depending upon what you would like to modify, the burden of proof is fairly high.
If you are seeking to modify custody and visitation, the Texas Family Code provides for a two-pronged burden of proof: (1) that there has been a material and substantial change in circumstances since the last Order was signed; and (2) that the requested modification will be in the children’s best interest.
What constitutes a material and substantial change is up to the Court’s judgment. For instance, changes in employment, health, the child’s age, might constitute a material and substantial change. Your attorney will help you identify what has changed since the Order was entered and advise you on whether those changes are likely to be considered material and substantial by the Court.
The second prong, the best interest of the child, is the guiding light in any family law child-related modifications. A crucial question to ask yourself before you begin a modification suit is this: why and how is what you are asking for in your children’s best interest? Because family law cases are very fact specific, it is helpful to give your lawyer your unique facts so that he or she can guide you through the process and come up with a strategy.
Our firm will guide you each step of the way in a family law modification case so that your divorce or modification case goes along as smoothly as possible.
Without Standing Orders, a divorce case could become chaotic. A husband who has just filed for divorce could empty the bank accounts and hide it in another account. A wife who has just filed for divorce could run off with the children. A standing order basically “freezes” everything in place so that both parties are protected. The order is a court order and can be enforced by the court.
A Standing Order would prevent the spouses of these clients from hiding the children or running off with the marital assets. Standing orders exist because of these types of situations. You can find a list of standing orders on the Montgomery County’s website. They become effective against the filing party as soon as the case is filed and against the other spouse as soon as they are served.
The activities that the parties in a family law case are prevented from doing include, but are not limited to:
A family law attorney can help you get your case filed and get a Standing Order in place so that you, your children, and property are protected.