Brian K. Tackett

divorce processAs a party in a new divorce case, the process can seem confusing and overwhelming.  There is no template that every divorce can follow.  The issues to be addressed in a divorce case are fairly consistent: Who has primary custody of the kids?  What will be the possession schedule for the non-custodial parent?  How much child support will the non-custodial parent pay? How will the assets be divided? How will the debts be divided?   There are certainly other potential issues, but these are the most common.  Though most divorce cases will be limited to these issues, the process for resolving these issues can vary greatly.  The purpose of this article is to outline some of the more commons steps in the life of a divorce case.

The Perfect World Divorce

In a perfect world, a divorce case lasts 61 days.  In Texas, there is a 60 day waiting period (a “cooling off” period) before a divorce can be made final.  In other words, the judge will not sign the final decree of divorce until the 61st day after the date that the original petition is filed.  In a perfect world, once your divorce is filed, you, your spouse, and your lawyers hammer out the details of the final decree and present it to the judge on the 61st day.

Unfortunately, we do not live in a perfect world.  It is extremely rare for a divorce case to be completed on the 61st day.  There are numerous factors that delay the resolution of a divorce.  The most common factor is the inability of the spouses to compromise.   A final decree presented on the 61st day is almost always an agreed decree.  The spouses’ ability to reach an agreement may be impacted by unrealistic expectations, emotional conflict, lack of knowledge of legal rights, or a lack of information needed to reach an agreement.

Divorce Cases in the Real World

In the real world, spouses will face one or more of the following steps.

  1. Temporary Restraining Order (TRO) – Often times, a party needs immediate relief from the Court.  The need for immediate relief may involve the safety of a spouse or the children, or it may involve preserving assets.  A TRO is effective and enforceable once it is served on the other party.  A TRO is by definition temporary.  The Court will set the TRO for a hearing within fourteen days from the date of its filing.  At that hearing the Court will determine whether the relief granted in the TRO bcomes a temporary injunction which remains in place until the case is concluded or until the Court modifies it.
  2. Temporary Orders – Temporary orders are orders which establish the status quo while the case is pending.  The issues addressed in temporary orders usually include: who has primary custody of the kids; who pays child support; the amount of child support; the possession schedule; who gets to live in the residence; and which bills are paid by whom.  The Court can impose any other orders deemed to be in the best interest of the children or necessary to preserve the assets of the parties.  The temporary orders are just that – temporary.  They can be modified while the case is pending or changed in the final decree.
  3. Discovery – The process of “discovery” is used to gather information from the other party or from third parties.  The parties can request documents, testimony, and other information crucial to the strategy of the case.  Discovery can be used to acquire information that supports a party’s strategy.  It can also be used to reveal the strategy of the other party or to limit that party’s evidence in trial.
  4. Sworn Inventory and Appraisements (I&A) – Most courts require the parties to exchange sworn inventory and appraisements.  The purpose of an I&A is for the parties to reveal, under oath, a true accounting of the assets, debts, and claims for reimbursement.  Each spouse will complete his/her own sworn I&A.  In some cases, an I&A may eliminate the need for discovery.
  5. Mediation – Mediation is an alternative to trial.  It is a tool for reaching a settlement.  In mediation, a third party mediator works with both sides to reach a settlement agreement.  The mediator is independent and does not have an allegiance to either party.  Most cases that go to mediation settle in mediation.
  6. Trial – Trial is the last resort for concluding the case.  If the parties are unable to reach an agreement, the judge (or jury) will decide each of the contested issues.
  7. Final Decree  – Once the case is resolved, whether by informal settlement, mediation, or trial, a final decree has to be drafted.  The final decree is a long, detailed document that permanently memorializes the resolution.  The process of drafting the decree often involves some negotiation of the details.  If the parties cannot agree on a particular detail, the judge will resolve the dispute   
  8. Closing Documents – In most divorce cases, other documentation is needed to wrap up the case.  The parties may need additional documentation to transfer the deed to a residence, a motor vehicle title, or a retirement account.  These closing documents are essential to achieving the directives contained in the final decree.

There are numerous other actions that may be taken in a divorce case, such as enforcing or modifying temporary orders or compelling discovery.  It is important to be mindful that the costs – attorney fees, time, energy, stress, and emotion – associated with a divorce can be lessened greatly by the spouses’ ability to cooperate and compromise.