Rob Teir

Contested Divorce

The language of divorce can be confusing. Contested, uncontested, collaborative, mediated, what does it all mean? The key to getting though a divorce with the least amount of frustration is to understand the differences in the process.

Contested divorce does not necessarily mean that the two parties do not both want to get a divorce. It does mean however, that they do not agree on the terms of the divorce. Whether you cannot resolve the property division, custody of the children, a visitation schedule, or who the family pet will live with, not coming to terms on all matters related to separating your lives results in a contested divorce. The outline below is not, nor is it intended to be legal advice. However, it does give you a very good look at the "process" of a contested matter.

THE STEPS OF A CONTEST DIVORCE

1.       Filing: One spouse files for divorce (called AN ORIGINAL PETITION FOR DIVORCE), in the County in which they live, or where their spouse lives. The Court receiving the filing then issues a CITATION, which is returned to the filing spouse's lawyer. The Citation is then formally served upon the other spouse, by a professional process server, or, sometimes, by a Constable.



2.       The person receiving the filing for divorce usually then files an ANSWER. If they have been properly served, and they do not file a timely answer, the filing spouse can get a DEFAULT JUDGMENT. A default judgment is pretty much a divorce on the terms selected by the filing spouse, although a Judge will make sure the terms are reasonable, and are in the best interest of any children involved in the marriage.

a.       Sometimes …. The spouse served with a divorce will file a SPECIAL APPEARANCE, which argues that they do not live in Texas, and that that is unfair for them to be dragged into court in Texas.
b.       Sometimes… the spouse served with a divorce will file SPECIAL EXCEPTIONS, which is a request to the Court to order the filing spouse to make changes in the Divorce Petition, such as providing more facts, or to make their accusations clearer.
c.       Sometimes …. The spouse served with a Divorce will file a COUNTERPETITION FOR DIVORCE, which asserts that they too want a divorce, and have divorce-related accusations to make.

 

3.       The filing for a divorce usually asks for some immediate order, ordering one or both parties to refrain from doing certain things, such as removing the children out of the state, or empting the bank account. A party can ask a Court to set such RESTRAINING ORDERS even before a divorce petition is served on the other party.

a.       Texas courts almost always insist that this kind of ORDER is reciprocal; that is, that it apply to both parties.
b.       Although a filing party may ask for and get such an Order without the other party being served, after the other party is served, they have a right to be heard in Court as to why the Order(s) should be changed or eliminated.


4.       At any time, after filing, the party filling may drop the case and terminate the divorce. However, if there is a Counterpetition for Divorce, the divorce litigation does not end unless both parties request the Court to terminate the case.



5.       Usually, one or both parties to a divorce ask for TEMPORARY ORDERS. Temporary Orders are formal Order from a Court about the property at issue in a marriage, and about the children in a marriage, that will be in effect until the divorce is final. For instance, until a divorce reaches an end, the parties need to know where the kids will live, who will support them, who gets to live where, who keeps what property, etc.

a.      Temporary Orders hearings are often hotly contested. Although the temporary orders will not necessarily be the final orders in a divorce, they often are, and the parties usually fight just as strongly for temporary orders as to they do on a final divorce.
b.      Violations of temporary orders can be sanctioned by the Court by various means, up to and including sentencing someone to jail for contempt of court.
c.      Some Texas courts insist that the parties try MEDIATION before a hearing on temporary orders is held.


6.       After a divorce is launched, and an Answer is filed, divorce cases generally head in one of two directions:

a.       Most contested divorces proceed into DISCOVERY. "Discovery" is the formal exchange of information between the parties, which include lawyers requesting documents from the other side (such as banking and credit card statements). Discovery can occur before or after temporary orders are resolved.
     i. Discovery also includes asking questions in writing, called INTERROGATORIES, which      require written, sworn answers by the other party. Other forms of discovery include      requests to the other party to admit or deny certain statements of fact, or to inspect certain      property.
     ii. Discovery can also include DEPOSITIONS, which means the formal interrogation, under      oath, with a court reporter, or the parties to the divorce, or, sometime, of other witnesses.      The spouse not being deposed may attend the deposition. Depositions are sometimes      lengthy (Texas law limits question time to six hours, but, with breaks, that could mean a      10-12 hour session of questioning).
b.       Some divorces go into negotiation mode, where the parties, or their lawyers, or both, try to resolve all property issues and all issues relating to minor children. This can work if the parties are willing to compromise, and is a better option is the parties do not have big budgets for divorce litigation.


7.       If children are involved, the Court can order, on its own or upon the request of one of the parties, that a sociologist's review the situation of the child (or children), and make recommendations to the Court. The court can also order that a lawyer be appointed to represent the interest of the child. The Court, if it makes either or both of these orders, will also decide who should pay for the sociologist and the child's lawyer. The answer could be one or the spouses, or, possibly, that the spouses split the cost.



8.      The Court can also order, on its own or at the request of a party, a psychological or psychiatric examination, either of the parties or of the children.



9.      If there is no settlement, the case proceeds to a TRIAL, either before a Judge or before a Jury.



10.       Sometimes, before a trial, a Court will order the parties to attend MEDIATION. Mediation is a formal settlement conference, presided over by a professional dispute-resolver, the mediator. Mediators can offer observations, and try to persuade, but cannot impose a resolution and cannot decide disputed issues. A mediator is also under an obligation of confidentiality. That is, he/she cannot tell anyone, including the Court, what happened during the mediation.



11.       A divorce trial is like any other non-criminal trial. The party petitioning for divorce presents witnesses and evidence, and the other party may cross-examine those witnesses. Then, the other party presents witnesses and evidence, and the filing party can cross-examine those witnesses. Formal rules of evidence apply.



12.       A Divorce Decree, then, can arise from one of three avenues:

a.      From a negotiated settlement
b.      From a mediated settlement
c.      After a trial, based on the outcome (VERDICT) of the trial.


13.      The result of a trial can be appealed, but not on findings of fact. No appeal can occur, for instance, over questions such as whether adultery occurred. Rather, appeals can be made only based on claims that the Judge made an error in applying Texas law at some point in the divorce. Appeals in divorce matters are rare, and are usually very expensive.



If you are considering a divorce consult an attorney early in the process, before you make decisions to explore your rights and options before frustrations begin to rise. Teir & Associates has experience in heavily contested divorces. Call us today and put our skill and tenacity on your side!

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