The process of a divorce case can be intimidating and confusing for the average person. How does a case start? What happens during the case? How does the case end? These are all very common questions I hear as an attorney. Most divorce cases in Harris County, Texas and Fort Bend County, Texas follow a certain routine. This article will provide a broad overview of the major steps in a routine divorce case in Harris County, Texas and Fort Bend County, Texas. Your individual case may not exactly follow this pattern, but many cases have and will follow this pattern. Remember, this article is not about what is fought over in a divorce case, but rather about how the fight happens. Let's begin.
Step 1 - Filing for Divorce
All divorce cases start with the filing of a document called the "Petition." In the broadest terms, a Petition lets the Court know (1) that you are seeking a divorce, (2) why you have the legal right to be divorced, and (3) what specific relief you want the court to grant you. Additional documents also need to be filed along with the Petition. A document is "filed" when it is properly submitted to the county's District Clerk. When your attorney files your divorce Petition with your county's District Clerk, the District Clerk will assign your case to a specific District Court and provide your case with an unique number.
Step 2 - Service of Process
Once your case has been assigned to a District Court and given a case number, it is then your responsibility to let your spouse know that you have filed for divorce. However, you can't simply call them and leave a message. The law requires that your spouse be served with Process. In practical terms, Process is a packet of documents that needs to be personally delivered to your spouse. The documents constituting Process notify your spouse about the particulars of the divorce suit you filed and how much time they have to respond. The individual personally delivering the Process to your spouse needs to be a certified process server, constable or sheriff. If the Court has proof that your spouse has been served with Process and your spouse fails to file a response with the Court, then you can seek a Default Judgment. Basically, a Default Judgment is when the Court grants you everything you've asked for in your Petition because your spouse didn't respond to your Petition after being served with Process.
Step 3 - Answer
Once your spouse is served with Process, he or she will most likely go out and hire a lawyer. Your spouse's lawyer will then file an "Answer" with the Court. An Answer is just what it sounds like. It is an answer to your Petition. An Answer lets the Court know that your spouse denies the claims in your Petition. An Answer may also assert defenses against the claims in your Petition. Your spouse may also file a Counter-Petition, which is your spouse's own Petition, in which your spouse asks the Court for the relief that your spouse wants. It will be your spouse's responsibility to provide your attorney with a copy of the Answer and Counter-Petition.
Step 4 - Temporary Orders
In many divorce suits, but not all, the next step is Temporary Orders. Temporary Orders are orders from the Court that control how you and your spouse will use your property and interact with each other and your children while the divorce case is ongoing. Temporary Orders are generally necessary when the parties don't get along well. Some common issues dealt with in Temporary Orders include child support, visitation and custody, use of the home, use of vehicles and use of bank accounts. Temporary Orders also usually prohibit conduct that the Court considers harmful, including destroying evidence, acting inappropriately around the children and harassing each other.
If you and your spouse can agree on the terms of the Temporary Orders, you can submit an agreed draft of the Temporary Orders to the Court for approval. However, if you and your spouse can't agree on the Temporary Orders, then there will be a Temporary Orders hearing in which you and your spouse will likely testify. Some Courts will require you to attend mediation prior to a Temporary Orders hearing. A Temporary Orders hearing is like a very focused trial. At the hearing, the Court just wants to know about the day to day workings of your family. The Court's goal is to get just enough information to create Temporary Orders that will allow your family to function while the divorce case is ongoing. It's very important to remember that a Temporary Orders hearing is often your first impression on the Court. After the hearing, the Court will make its decision on the terms of the Temporary Orders. It will then be the responsibility of the attorneys to draft Temporary Orders that comply with the Court's decision and submit that draft to the Court for approval.
Step 5 - Discovery
Discovery is how parties in a divorce gather evidence and information about each other. In practical terms, discovery occurs when your attorney drafts and serves very specific documents on your spouse. Generally, these discovery documents will request your spouse to either answer questions or turnover evidence. If discovery requests are made properly, then your spouse will have to answer the questions asked or turnover the evidence requested. Discovery works both ways. Your spouse's attorney may serve you with discovery requests and, if the requests are proper, you will have to answer the questions asked and turnover the documents requested. Among the various types of discovery requests, all types of discovery requests can be served on your spouse, and only specific types of discovery requests can be served on third parties. There is a time limit for discovery. In most cases, discovery can start as soon as the case starts and must end 30 days before trial.
Discovery is generally the most expensive and vital part of any divorce. Attorneys build evidence for their divorce cases through discovery. Just think about all the kinds of documents that make up your and your spouse's daily life: bank account statements, report cards for your children, phone records, social media pages, emails, text messages, tax returns and etc. Also think about all the questions you would want answered ahead of time if you were going to trial. If your case is highly disputed, your attorney will have to obtain these documents and answers, review them and prepare them for use at trial. This takes time and racks up legal fees.
Step 6 - Mediation
Mediation is when you and your spouse meet with a mediator in an attempt to resolve your divorce case without trial. In Harris County and Fort Bend County, all family courts require mediation prior to trial. You cannot go to trial without first having attempted mediation. Both you and your spouse need to agree on when and with whom mediation will happen, or the Court will decide for you upon the request of either party. The mediator is a neutral third-party who has been trained and qualified to act as a mediator. Mediation sessions occur in half-day periods, each lasting about 3 to 4 hours. Ideally, mediation should occur near the end of discovery so that both parties have a clear picture of what the other side's case is.
On the day of mediation, you and your attorney will go the mediator's facility and will be placed in your own room. Your spouse and your spouse's attorney will be in their own room. Some mediators will start the session with everyone in the same room to go over the ground rules and then split you and your spouse into two different rooms. The mediator will go back and forth between rooms attempting to help you and your spouse reach common ground on how the divorce should be finalized. If you and your spouse reach an agreement at mediation, then you both will sign a mediated settlement agreement that contains the terms of your agreement. Mediated settlement agreements in a divorce case are binding. That means you or your spouse cannot change your mind on the terms of the divorce after signing a properly executed mediated settlement agreement. If you and your spouse have signed a mediated settlement agreement, then your attorney or your spouse's attorney will prepare a final order based on the settlement agreement and submit it to the Court for approval.
Step 7 - Trial
If mediation didn't work and the parties can't settle, then a trial will be necessary. The trial is a final hearing where both parties present their evidence to the finder of fact. You and your spouse's evidence will be in the form of testimony, documents and media. The witnesses will present testimony through examination by your attorney and your spouse's attorney. The finder of fact can be either the judge or a jury. It is the finder of fact's job to determine what facts are true. The judge always serves as the interpreter of the law. As the interpreter of the law, it is the judge's job to decide whether the activities at trial conform to the law and to determine how the law should be applied to the facts. A "bench trial" is when the judge acts as both the finder of fact and the interpreter of the law. A "jury trial" is when a jury acts as the finder of fact and the judge acts as the interpreter of the law. In Harris County and Fort Bend County, bench trials are common in divorce cases.
After both sides have presented their evidence, the finder of fact will decide what facts are true. The judge will then render a final order applying the law to the facts. Then your attorney or your spouse's attorney will prepare a final order based on the Court's rendition and submit it to the Court for approval. Once the judge signs the final order, your divorce is final.
Step 8 - Post Judgment Motions
If you or your spouse isn't happy with the outcome of the trial, then either party has 30 days from the judge signing the final order to seek a new trial or appeal the trial court's decision to a higher appellate court. Generally, most attorneys will file a Motion for New Trial with the trial court because it preserves errors for appeal. A trial court has many justifications at its disposal to grant a new trial, including for "good cause." Once a Motion for New Trial has been filed, the deadline to appeal to a higher court becomes 90 days after the final order was signed. If the Court grants a new trial, then all the issues litigated in the first trial will need to be litigated again in a new trial. If the Court denies the Motion for New Trial, then the unsatisfied party will need to appeal with the higher appellate court or live with the trial court's ruling.