The Texas Divorce Rule Book

Walters Gilbreath, PLLC

Although it may not seem like it, a divorce is a lawsuit. In Texas, you must sue your spouse (or be sued) for divorce in order for one to be granted. Just as with any type of divorce suit, lawyers and parties are required to follow the Texas Rules of Civil Procedure, the Texas Family Code, and the specific rules of the court that you file in. There is not one rule book, but instead there are several. Courts tend to inflict harsh punishment on any party that violates the rules. Here is a list of things that you should and should not do when going through a divorce. Of course, this list is not exhaustive but it is meant to keep you on the correct path to a fair case conclusion.

Texas Divorce Rule #1: If You are Seeking Custody, Access, Visitation or Support for Your Child(ren)

Always:

  • Try to co-parent with the other party if you have children together. Courts really want the children to be in an environment where the parents can work together.
  • Use the visitation granted with your children by the Court unless it is an emergency.
  • Timely pay any spousal or child support.
  • Work on your relationship with your children. Be sincere in how you spend time with them. Try not to become a “helicopter parent”, hovering over the child(ren) too much or frequently buying the child(ren) gifts so that they will take your side.
  • Act in the best interests of your children. Put them first.

Never:

  • Withdraw and relocate the children’s school without the knowledge of the other spouse.
  • Involve the children in the litigation. You should be honest with your children, not open with them about the details, specifics, and frustrations of the case.
  • Do Drugs or excessively drink alcohol if custody is at issue.
  • Unfairly deny your spouse access to and/or visitation with the children.
  • Choose to be intentionally unemployed or underemployed to reduce what you’d be ordered to pay in support.

Sometimes:

  • You must be willing to compromise. It is unlikely that you will get 100% of what you want.

Texas Divorce Rule #2: Be on Your Best Behavior

Always:

  • Show up to any court hearing when your presence is required. Don’t be late.
  • Keep notes. Keep a diary of what has been occurring during the case. Record the dates too.

Never:

  • Withdraw or hide a substantial amount of money from your spouse. Chances are, it will be discovered and you will be punished by the Court for not disclosing assets.
  • Send threatening text messages or emails (or leave threatening voicemails) to your spouse.
  • Make disparaging remarks about your spouse to their friends, co-workers, employers, children, etc.
  • Damage the personal property of your spouse.
  • Change all of the passwords to your joint financial account logins.

Sometimes:

  • You have to be the bigger person to minimize conflict with your spouse. If you are wrong, say nothing and if you are right, speak up.

Texas Divorce Rule #3: Maintain a Positive Attorney-Client Relationship

Always:

  • Tell your attorney the truth. Don’t leave out facts because it is embarrassing or because you fear being judged. It is likely that the other side will surprise your attorney with the information that you are hiding, which harms your case.
  • Trust your attorney. Your attorney is like the driver, you are the passenger that gets to decide the destination. Your attorney will work with you to determine the best route to take, however. Trust is key.
  • Provide your attorney with any relevant and material documentation that helps to prove your case.
  • Finally, remember to choose an experienced attorney.

Never:

  • Contact the Judge directly.
  • Contact your spouse’s attorney directly if you have an attorney. Only your attorney should have contact with your spouse’s attorney.
  • Sign any legal document that you do not fully understand or approve.
  • Post anything on the internet that you wouldn’t feel comfortable letting your grandmother read. In other words, don’t use social media to incriminate yourself.

Sometimes:

  • You should conduct discovery to gain valuable information from your spouse.
  • You have to hire an expert. If you have complex property issues, speak with your attorney about hiring an expert.
  • You’ll need to use witnesses to help your case. If there is any person that has direct and personal knowledge of a material fact then they should testify on your behalf. However, it is not required that you have any witness, besides yourself.

Texas Divorce Rule #4: Don’t Make Things Worse

Always:

  • Try to work with your spouse to make the divorce process as easy as possible.
  • Be empathetic to what your spouse is going through. Chances are, this is hard for you both.
  • Speak up when you are feeling backed into a corner, upset, or like you aren’t being treated fairly.
  • Try to resolve small conflicts with your spouse without the necessity of court intervention. You should even try to resolve these issues without the help from your attorney if possible.

Never:

  • Put tracking devices or “snoop” through your spouse’s personal property (including e-mails, text messages, etc.) without permission or if it is password protected.
  • Contact your spouse’s employer in order to harm (or otherwise terminate) their employment or future chances of employment.
  • Lose your Cool. Your spouse may make you angry or upset but don’t lose your temper.
  • Violate a Court Order. No matter what. If you aren’t sure whether or not you’d be violating any Court order, consult with your attorney.
  • Make your children choose between you and your spouse if you don’t have to.

Sometimes:

  • You may feel overwhelmed and like you just want it all to be over. This does not mean that you are weak.
  • You and your spouse will need to calmly talk to each other in private to get closure.
  • You won’t recognize your spouse. Going through a divorce can change a person.

Texas Divorce Rule #5: You May Have to Attend Mediation

Always:

  • Consider what your spouse is proposing, even if you choose not to agree in the end.
  • Be open to compromising when considering settlement. Sometimes you won’t get everything that you want and neither will your spouse.
  • Pay for mediation in advance.
  • Meet or speak with your attorney, prior to mediation.

Never:

  • Agree to a Settlement Agreement that you are not comfortable with. Speak up. Tell your attorney.
  • Neglect to tell your attorney something important and relevant to the case. Chances are, your spouse will bring it up in mediation and try to use it as leverage.

Sometimes:

  • The Court will require you to attend mediation. If you have children, it is highly likely that the court will require mediation before you can have a hearing.
  • Your mediation won’t last long. If you and your spouse cannot agree to any terms for settlement, you won’t be required to stay for the entire time that you booked (or paid for).
  • Your mediation will last a while. If you have a complex case then you may need more time to mediate. You can usually book mediation for a full or half-day.

Texas Divorce Rule #6: Help Your Attorney

Always:

  • Respond to any communication from your attorney in a timely manner.
  • Ask questions about anything that you do not fully understand.
  • Give your attorney any and all evidence that you have as soon as possible. This is important.
  • Adequately (and timely) complete any paperwork or tasks that your attorney has asked you to complete in regards to your case. Your attorney likely needs the paperwork or task completed to be able to better work on your case.
  • Timely provide your attorney with any documentation or information needed to complete discovery.
  • Keep a record of every time you communicate with your spouse. You may need to reduce your conversations to text messages or emails so that it will be in writing. This is especially true if you and your spouse are discussing the children, assets, or are engaged in an argument with your spouse.

Never:

  • Hide assets from your spouse, and not disclose this fact to your attorney.
  • Intentionally withhold vital information from your attorney.
  • Question your attorney’s experience or expertise. That is why you hired him/her, right?

Sometimes:

  • You won’t agree with your attorney. This is why you should hire an attorney that you trust.
  • You won’t like your bill for the month. Speak with your attorney anytime you’d like to find ways to reduce your fees or if you don’t agree with or understand them.

Texas Divorce Rule #7: Try to Land on Your Feet

Always:

  • Try to find employment if you are unemployed and physically able to work. If your spouse was your source for funds before, you will want to be able to financially survive without them (even if you get spousal support).
  • If the Court has ordered your spouse to pay you spousal support, you should save all documentation that shows that you are looking for work (i.e. job applications, emails to potential employers, etc.). Chances are, you wont have spousal support forever. A judge may reduce your spousal support (or shorten the length of time that you receive it) if it is found that you are intentionally unemployed.
  • Try to find your own place (within your budget) if you anticipate that your spouse will be awarded the marital home or if you just would no longer like to live there.

Never:

  • Try to live above your means. Some people find themselves in direct competition with their spouse, their spouse’s mistress or paramour, or just want things to be so different from their life shared with their spouse that they may buy lavish items that he/she cannot really afford. This will harm you in the long run.
  • Waste community assets on useless or lavish expenses. This is not the time to buy the Lamborghini that you always wanted.

Sometimes:

  • You might have to withdraw some or all of your retirement or sell some stock to pay attorney’s fees; this is most true when a spouse lacks any liquid assets.
  • You will have to take out independent loans, loans from family, or get a line of credit or credit card to help pay for litigation. When it gets costly, you have to decide if it is all worth it.

Texas Divorce Rule #8: Have Proper Courtroom Etiquette

Always:

  • Show up to any and all hearings on time. Most courts call their docket between 8:30 a.m. and 9:00 a.m. (depending on the specific court) so you’ll want to be in the courtroom by then.
  • Dress professionally. You don’t have to dress as fancy as your lawyer might, but dress like you are going to a job interview for an office position or church. No shorts, flip flops, hats, sunglasses or dresses or skirts more than 2 inches above your knees.
  • Speak loudly and clearly when testifying.
  • Answer every question that your attorney asks you.
  • IMMEDIATELY stop talking if you are testifying and you hear your attorney say, “Objection”.

Never:

  • Speak over/interrupt your attorney (or the other attorney) when you are testifying. Wait until you’ve heard the full question before attempting to answer.
  • Lose your cool in the courtroom. Don’t allow the other lawyer to make you upset while you are testifying in court.
  • Roll your eyes, suck your teeth, etc. while your spouse is talking. Even if you know that your spouse is lying for example, you must maintain your composure. The court reporter records everything and the judges do not tolerate this behavior.
  • Speak to the judge directly when testifying unless they specifically address you.

Sometimes:

  • The court won’t hear your case, even if you are on the docket. If your setting is not a preferential setting then the Court hears cases according to what other cases are on the docket and the importance of hearing other cases above yours is weighed. In the end, it is fully in the judge’s discretion.

Texas Divorce Rule #9: Don’t Move on Too Fast (Mistresses & Paramours)

Always:

  • Listen to your attorney’s advice concerning any extramarital affair that you had (or are currently engaged in).
  • Be honest about your extra-marital affair(s) when speaking with your attorney.

Never:

  • Move the person that you were having extramarital relations with into the marital home while the suit is pending.
  • Bring the person that you were having extramarital relations with around mutual friends or family that you have with your spouse. Trust me, this will do more harm than good.
  • Bring your children in the presence of the person that you were having extramarital relations with (without prior acknowledgment and consent from your spouse or the court).

Sometimes:

  • You will have to be discreet with anyone that you are dating. Wait until the litigation is over.

Texas Divorce Rule #10: Be Patient. Getting Divorced Takes Time

Always:

  • Remember that in Texas, a divorce must be on file for 60 days before a judge will sign off on your Final Order. This means that you have to wait at least 60 days after you filed for divorce to get divorced. An exception for this is rarely made.
  • Remember that it takes time to attend mediation, conduct discovery, attend any hearings, etc.
  • Remember that you may not always get exactly what you want when it comes to scheduling. Try to be as flexible as possible. It is likely that you (or your attorney) will need to coordinate with at least 4 schedules: yours, your attorney’s, your spouse’s, and your spouse’s attorney.

Never:

  • Sign any legal document that you do not agree with, just to speed things along.

Sometimes:

  • The court will re-set your hearing to another date. It is the Court’s prerogative to do so.
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