At the Lorenzana Law Firm, P.C., our Texas divorce attorneys and lawyers are experienced in handling all matters concerning divorce from the initial divorce consultation to the filing of the petition for divorce in district court and through final hearing or trial. The firm’s objective and philosophy in handling divorce cases is geared towards the client’s best interest with the utmost care yet aggressive litigation positions to maximize our client’s winning advantage in the divorce lawsuit.
Divorce in Texas
Texas divorce or sometimes referred to as legal dissolution of marriage is a legal process in Texas whereby legally married individuals or common law married individuals can legally end or terminate the marriage relationship. Divorce is different from separation in that the latter is considered as temporary because legally they’re married but living apart or are no longer cohabitating together.
No Fault Jurisdiction
Although, in some states in the United States, the fault is still an issue or factor in divorce, in Texas the legal divorce procedure is under a “no fault” jurisdiction. In other words, any one individual of the marriage relationship can file a petition of divorce with or without claiming fault in the marriage but merely stating or pleading that the marriage has become insupportable or irreconcilable.
Basis for Fault in the Marriage
However, even though Texas follows a no-fault jurisdiction, fault can still be a factor in the ultimate dissolution or divorce proceeding in that fault can bear a factor in terms of the property settlement and or the custody of the children of the marriage. Fault can plead and be based on factual allegations including that of:
- Cruelty in the marriage
- Adultery committed
- Conviction of one spouse of a felony criminal offense in Texas
- Abandonment by one spouse
- Living apart without cohabitation for at least three years; and
- Confinement in a mental hospital.
Although very rarely defended, Texas does allow for condonation as a valid legal
Defense only if the court finds that there is a valid reasonable expectation of reconciliation. As a matter of practicality, most individuals would have already tried marriage counseling or having given the marriage enough time before they consult with a divorce attorney. In most cases, clients have already given much thought into filing for divorce when consulting a divorce lawyer.
What are the minimum requirements for filing for divorce in Texas?
Before filing for a petition for divorce in Texas, one must have been a resident of the State of Texas for at least the preceding six (6) months and a resident of the county of filing for at least the preceding ninety (90) days. This residency requirement must be met or satisfied at the time of filing for the petition.
Section 6.301 of the Texas Family Code states:
General Residency Rule for Divorce Suit. A suit for divorce may not be maintained in this state unless at the time the suit is filed either the petitioner or the respondent has been:
(1) a domiciliary of this state for the preceding six-month period; and
(2) a resident of the county in which the suit is filed for the preceding 90-day period.
What is the “cooling off” period in Texas?
In Texas, a decree for divorce cannot be issued unless 60 days have passed from the time of filing the divorce petition. This is considered as the “cooling off” period for the parties to a divorce proceeding to reconsider their marriage to attempt reconciliation if the petition was perhaps filed in haste at the Petitioner’s request through his or her counsel or divorce attorney.
Contested or Uncontested Divorce
Most divorce cases filed in Texas go uncontested, that is, both parties have agreed to the divorce and have agreed to the terms of the divorce from child custody, child visitation, and the division of the marital estate. Generally when the case is uncontested, the legal fees and costs are significantly lower than divorce cases that are contested. Divorce litigation in Texas can cost a good sum especially when parties to a divorce are each fighting over every issue in the marriage.
Waiver of Service
When a divorce case is uncontested, the other party, usually named the Respondent, or the spouse who did not file for the petition, generally signs a waiver of service. In Texas, Respondents, as with any Defendant in a civil lawsuit in Texas must be served with service of the process including the District Clerk’s citation of the divorce petition and the petition itself. Service is usually made by the Sheriff or Constable’s office for a standard fee. Although the Petitioner can certainly hire or have the divorce papers served through a certified Private Process Server. [Note: in Texas, Private Process Servers are now required to be officially certified in the State of Texas].
If, however, the parties do not agree to one or any of the issues in the divorce proceeding, then the case is considered a contested divorce case. This is usually the case when parties to a divorce do not agree on the issue of custody, visitation, child support, and or division of the marital estate. In contested cases, the Respondent must be served with service of process.
Once the petition is filed and the Respondent is served with service of process, then the divorce lawsuit has officially started and Respondent has Monday next after the 20th day from the date of service on Respondent under rules of civil procedure as with any other civil lawsuit in the State of Texas.
Discovery in a divorce lawsuit is the legal process whereby the parties by and through the respective legal representatives or divorce attorneys file discovery requests to discover or search for relevant evidence material to the case for each side of the divorce lawsuit. Discovery also allows for the full disclosure of factual evidence and legal arguments from both sides of the divorce case so that the merits of the case can be narrowed down before trial or that the parties can see the wisdom of settling the case or stipulating to certain facts or legal positions.
Discovery in Texas Divorce Lawsuits include:
- Requests for Production or Inspection of Document
- Requests for Interrogatories of questions to each side regarding issues relevant to the case
- Requests for Admissions of facts and legal positions that would narrow down the issues in the divorce case
- Requests for Disclosures under Rule 194 of the Rules of Civil Procedure for disclosure of facts, witnesses, statements, evidence, and legal arguments or points of contention so as to facilitate the clarification of contested issues.
There are also other means of discovery allowed in Texas for divorce cases including oral and or video depositions of parties and witnesses including that of expert and factual witnesses. Subpoena of records and non-party witnesses, and deposition by written questions propounded and given to witnesses such as custodian of records to determine and ascertain the validity of records, evidence, and facts.
Bench Trials and Jury Trials
Parties can request for either a trial by Judge or trial by jury in Texas divorce cases. In a trial by judge or “bench trial”, the divorce case and all issues contended are heard and decided upon by the court or judge, compared to a trial by jury, wherein the jury decides issues of fact but not issues of law or legal issues.
In Texas, a party to a divorce, cannot marry a third party until after the 31st day from the date of the divorce decree, however, both parties to a divorce can always remarry at any time without regard to the 31-day waiting period.
Divorce Litigation Trial Attorneys & Lawyers
Although based in Austin, Texas, the divorce and family law attorneys of the Lorenzana Law Firm, P.C. handle divorce and Texas family law cases statewide and in all counties. From the basic uncontested divorce case to the most complex high net worth property disputes, our firm analyzes each case based on the unique facts of the case and provide viable cost effective legal solutions. At every step of the divorce process, our attorneys are actively engaged with our clients in consultation and legal advice as to the best possible and probable solution and outcome so as to fully inform our clients of their respective cases in accordance with the Texas Lawyer’s Creed.
Each case is unique and carries its set of variables that must be taken into consideration by competent legal counsel. For specific questions about your case, please contact us in Austin.