Contested Divorce in Texas

When parties to a divorce do not agree on issues of custody, division of property or visitation rights, the divorce case is considered a contested divorce in Texas.  These issues can be brought up before a court on a "bench" trial or before a jury to make a determination on the rights of parties. 

The contested divorce case typically has the following phases or steps:

1. Filing of the Divorce Petition
2. Issuance of Citation by Court Clerk
3. Service of Process and Citation by Sheriff, Constable of Private Server
4. Filing of Answer
5. Default Judgment If No Answer is Filed
6. Discovery Phase
7. Mediation
8. Trial
9. Judgment
10. Appeal

Filing of Divorce Petition

The initial step in the contested divorce process is the filing of the divorce petition.  The client and divorce or family law attorney will discuss the contested issues and the facts of the case during the initial divorce consultation or follow up meeting.  Based on the facts and issues in the divorce case, a divorce petition is drafted with the client's interest. 

If one party to the divorce or the other spouse is wasting community income or incurring community debt, or unable to agree on the visitation by the other spouse of the child or children of the marriage, then a temporary restraining order may also be incorporated into the divorce petition itself.  To accomplish this, an affidavit is drawn up for the attesting spouse in support of the facts in requesting for a temporary restraining order or TRO.  This affidavit is then presented to the judge along with the divorce petition to seek a court ordered TRO.  Temporary restraining orders in Texas are only good for 14 days.  Thereafter, there must be a hearing, wherein parties present testimony and additional evidence to convert the TRO into temporry orders in the divorce case pending the final trial or adjudication of the case.

Issuance of Citation of the District Clerk

After the divorce petition is filed and the filing fee paid, the Clerk of the district court where the petition and county is filed, issues a Citation for the newly filed divorce lawsuit.  This Citation is a notice provision of the lawsuit itself and the rights of the opposing party to seek counsel and to file an Answer before judgment is rendered, Monday next from the 20th business day that the party being served with Citation is served with process.

Service of Process

Once citation is issued by the clerk, the Citation must then be served by anyone of the following:

• Sheriff
• Constable
• Private Process Server

Depending on the server, the fees for service of process varies.  As a general rule, service by Private Processor is a lot quicker since these processors are not pre-disposed to other duties or time.  The down side is that service through this method is also usually priced more than service through Sheriff or Constable.

Filing of the Answer

The party being served has 20 days, Monday next following the date of service to file a General Denial, Answer and or Counterclaims in the divorce case.

Default Judgment

If the party or spouse served with citation of the divorce lawsuit does not file an Answer within the time alloted, then a Default Judgment may be entered against that spouse or party to the lawsuit.

Discovery

The discovery phase occurs as soon as an Answer is filed with the court.  Discovery is the phase where parties are allowed to seek information, disclosures and documents relating to issues relevant to the lawsuit.  Discovery can be accomplised in the following ways:

• Requests for Rule 194 Disclosures
• Requests for Interrogatories
• Requests for Admissions
• Requests for Production of Documents
• Depositions of Witnesses
• Written Depositions
• Other Discovery

Depending on the complexity of the lawsuit, discovery can be extended into three levels in Texas.  For most cases, discovery is conducted under Level 1 Discovery.

• Level 1 Discovery normally occurs for most divorce cases where property values in dispute are less than $50,000;
• Level 2 Discovery occurs for divorce cases with property disputes in excess of $50,000; and
• Level 3 Discovery is requested when issues in the case are complex or that additional time is needed beyond the normal discovery period of 9 months from the start of the first discovery propounded.

Mediation

Sometime between or after discovery, parties to a divorce case may enter into a formal or informal mediation to iron out issues in the case and attempt to settle the whole case or partial issues in the case.  Frequently, courts in Texas order parties or have a standing order for family law cases to enter into mediation before any trial setting is granted or set with the court's docket.

During mediation, the parties can either be represented by counsel or represent themselves pro se.  An independent third party mediatior typically oversees the mediation discussions.  Parties are allowed to make opening statements.  Thereafter, the parties go into separate caucuses to discuss terms of settlement or offers of settlement.  If the parties agree on terms, then the Mediator draws a Mediated Settlement Agreement for the parties signature.  This agreement can them form the basis of the final judgment or agreed final decree of divorce.

Trial

If the parties to a divorce case are not able to settle the case or issues in the divorce case, and after discovery has been completed, the parties would proceed with the trial on the merits of the divorce case.  Trial can either be before a judge or "bench" trial, or before a jury to determine factual issues in the case and award final custody or division of property.  The entire trial process is very laborious and can be taxing on the parties involved.  If property issues or business ownerships are at issue, frequently, expert witnesses in terms of appraisers, business valuators are brought in to also testify on their respective expert witness opinions.

Judgment

After the trial process is adjudicated either the judge or jury if trial by jury makes the final determination of the contested issues, which is then formalized by a Final Decree of Divorce

Appeal

Upon the issuance of the court of the formal Judgment or Final Decree of Divorce, the losing party is allowed to move for a new trial within 30 days of the judgment.  Once denied, the party then has 30 dyas to file an appeal with the higher court of appeals, and submit legal briefs on points of error that the party deems appealable.  The appellate court will then review the appeal for the various points of error raised and then make it's determination to either deny the appeal or grant the appealing party oral arguments before the appellate court.


Contact the Lorenzana Law Firm and speak to one of our divorce and family law attorneys about your individual divorce or family law case.