What is the Process of a Divorce Case in Texas?

The following is an attempt to give you a very high-level outline of the process of a divorce case (particularly as the process works in Collin County, Texas).

1.    Filing the case

A divorce case begins when one of the spouses files a petition for divorce with the District Clerk.  The petition is a document setting out, in very general terms, what the filing spouse (called the "Petitioner") wants the Court to do in the case (for instance, whether the Petitioner claims the other spouse is “at fault” for the break-up of the marriage; whether the Petitioner claims to have any “separate property”; whether the Petitioner is asking for a “disproportionate division” of any community property; and what general custody arrangement the Petitioner wants, if the spouses have any children).  If you receive a petition that your spouse has filed, keep in mind that the things included in it are just the things your spouse is asking for – the fact that they are in a petition does not mean that the judge has granted them, or ever will (at the outset of a case, the likelihood that the judge has read, or is even aware of the existence of, your spouse’s petition is somewhere just north of 0%).

But, in some counties, there are orders that do take effect as soon as a divorce case is filed. These are called "standing orders" and, if they exist, they should be referenced in the petition (and probably a copy of them should be attached to the petition).  What are standing orders?  They are a se of orders that have been agreed on by all the judges who handle divorce cases in a county as things that should take effect immediately, in every case, without exception.  The general purpose of standing orders is to maintain the status quo until the judge can hold a hearing to make more specific orders tailored to your case.  So, typically, standing orders will say things like:

“Both parties are prohibited from harassing or threatening the other.”

“Both parties are prohibited from destroying, removing or concealing their property.”

“Both parties are prohibited from accessing the other’s email, social media or bank accounts.”

The Petitioner will be bound by the terms of the standing order as soon as he or she files the petition, and the other spouse (called the “Respondent”) will be bound by them as soon as he or she is served with the petition (or as soon as he or she waives service or files some document in the case).  Read the standing orders carefully, because, unlike the other things in the petition, those things really are coming from the judge and you will be expected to comply with them.

2.    Serving the petition

After the petition is filed, one of two things has to happen for the case to proceed any further:

1.      either the Respondent must be served with a copy of the petition by a process server or constable (an email from the Petitioner, or his/her attorney does not count as service); or,

2.      the Respondent must sign what's called a "waiver of service."

With very few exceptions, one of those two things must happen before the case can proceed.  Usually, the petition will be served on the Respondent by a private process server.  After being served, the Respondent has a deadline to file a written answer to the petition.  The deadline is not simple, like “You must file your answer by 5:00 pm on June 16.”  The deadline will be at 10:00 am on the first Monday after 20 days have passed from the date of service.  So, if you are served on Saturday, May 23, 20 days later would be Friday, June 12 – meaning your answer would be due at 10:00 am on the following Monday, June 15.

If the Respondent signs a waiver of service, no constable or process server is necessary. But BE CAREFUL if you're asked to sign a waiver.  Most of the time, there is no danger in signing a waiver of service…..but some waivers may contain language waiving ALL your rights in the case (not just the right to be served).  Some waivers will say things like you agree that the judge can make a decision in the case without ever hearing from you (and without you even being told when the hearing will be!).  Best advice: just file an answer, rather than filing a waiver, or at least talk to a lawyer before signing a waiver. 

3.    The Temporary Order hearing

When the Petitioner files the case, he or she may ask the Court to schedule a temporary order hearing. A temporary order hearing is not required, and does not happen in every case, but they are pretty common.

A temporary order hearing is a short (but very important) hearing where the judge makes orders about what the custody, visitation, child support, and property and debt arrangements will be while the case is pending.  As the word “temporary” makes clear, these orders are not permanent, but they are still very important - especially with respect to child custody.  Because, while the judge has complete discretion to totally reverse the temporary orders at the final trial if he or she wants to…..usually the final orders are going to be pretty close to the temporary orders.

If the Petitioner has scheduled a temporary order hearing, then the Respondent should be served with a notice of the hearing (in addition to the petition).  This notice will tell the Respondent when he or she needs to be at the courthouse for the temporary order hearing, and what issues are going to be decided at the hearing.  Usually, a temporary order hearing will be held within a month-and-a-half of the case being filed.

In Collin County, temporary order hearings are held under strict time constraints. Each side gets 20 minutes (!) and no more.  The judge will, literally, have a countdown clock running on a big television on the wall of the courtroom, and when the clock hits zero, the judge will tell you or your lawyer to stop talking.  This 20 minute per side rule came about years ago when Collin County had many fewer district courts, and was growing rapidly.  And, though the county has many more district courts now, the 20 minute per side rule seems like its here to stay.  In fact, it has spread to other area counties as well.  So, with that kind of time limit,  you'll need to be prepared, organized and move quickly at the hearing.  You are NOT going to have time to give the judge an in-depth history of the marriage and all the issues in the case at the temporary order hearing.  Instead, you’re going to have to focus on the 2 or 3 most significant issues and focus on your strongest evidence (and even then you’ll be rushed).

4.    After the Temporary Order hearing

Most cases involve a flurry of activity at the outset: filing the petition, getting it served on the other party, then going to the temporary order hearing. After the temporary order hearing is held, most cases will enter a period where things slow down (at least in terms of activity at the courthouse).  But a lot of things that will develop the case for the final trial will be happening in this time period:

Discovery: The parties may send each other discovery requests to find out what evidence the other side has. Typical discovery requests are for things like tax returns, W-2s, paychecks, bank statements, copies of e-mails and text messages, or copies of video or audio recordings.

Child Custody Evaluation: If child custody is fiercely contested issue in the case, the judge may appoint a third party to investigate and make recommendations about custody and visitation.

Mediation: Mediation is a settlement conference between the parties. A neutral mediator (usually an experienced family law attorney) tries to help the parties reach an agreement. The mediator can't force either party to do anything. But, if the parties do reach an agreement at mediation, it is binding and enforceable and will resolve the case without the necessity of a final trial.

5.    The Final Trial

Most cases settle at mediation (sometimes even before).  But, for those that don't, the judge will resolve all outstanding issues at a final trial. The final trial is like the temporary order hearing, though it isn't subject to the same strict time limits. How long it may take for the final trial to be scheduled is uncertain - some courts move their dockets faster than others.  But, in general, in Collin County the courts with faster moving dockets might allow a trial date within 6-7 months of the petition being filed, while in the courts with the slower moving dockets it might take a year to get to trial.

After the trial, the judge will either announce his or her rulings, orally, from the bench, or send out a written memo outlining them within a day or two.  Either way, the judge will usually assign the Petitioner (or the Petitioner’s attorney, if there is one) the task of taking those rulings and putting them into writing in a formal divorce “decree”.   A divorce decree is a long document – typically 50-60 pages long – because there are lots of things it has to cover to tie up all loose ends and give the spouse’s a completely final, and enforceable, resolution to their divorce.  Drafting a decree will usually take an attorney about 2 weeks.  Then, it is customary to give the other side at least 10 days to review the decree (to make sure that what it says matches up with what the judge said in his or her ruling).

If both sides agree that the decree matches up with the judge’s ruling (or, with the parties’ agreement if that’s how the case was resolved), then both parties will sign the decree, and the decree can then be presented to the judge to sign.  If the parties disagree with how the decree has been drafted, there might need to be one last hearing where the judge hears what the drafting issues are and resolves them one way or the other.