There’s no doubt that filing for divorce, or learning that your spouse has filed for divorce, is a difficult and anxious time. There are so many unknowns ahead and the information available is often vague and unhelpful. Sometimes just understanding the basics of what happens when you file for divorce can alleviate some of the stress. This article was crafted to help you understand and navigate through this difficult time.
What is Filed?
A divorce is a lawsuit, plain and simple. Just like a personal injury suit or a breach of contract suit, a divorce is started with an Original Petition. The pleading is most commonly called an Original Petition for Divorce (the word “original” is used because oftentimes pleadings are updated, and subsequent filings are called First Amended Petition for Divorce; Second Amended Petition for Divorce; etc.).
What is Contained in the Original Filing?
In most lawsuits, facts are contained in the Original Petition. For example, a breach of contract suit will typically have a section entitled “statement of facts” within the petition that contains the underlying facts of the lawsuit. These sections contain the pertinent facts that led up to the lawsuit.
Divorce suits are different. Facts about the marriage are not put in the pleading other than very general statements about the statutory authority for a divorce. Section 6.402 of the Texas Family Code states:
Sec. 6.402. PLEADINGS. (a) A petition in a suit for dissolution of a marriage is sufficient without the necessity of specifying the underlying evidentiary facts if the petition alleges the grounds relied on substantially in the language of the statute. (b) Allegations of grounds for relief, matters of defense, or facts relied on for a temporary order that are stated in short and plain terms are not subject to special exceptions because of form or sufficiency. (c) The court shall strike an allegation of evidentiary fact from the pleadings on the motion of a party or on the court's own motion.
It explains that a divorce petition will not contain all the facts about an individual marriage. Rather, there are very basic statutory allegations that are made. In general, the sections include:
- Statement of Discovery Level (Level 2 for divorce cases unless modified – this has to do with the rules of discovery and deadlines);
- Names of the parties of the suit;
- A statement that a party meets the domicile requirements for a divorce (90 days in the county; 6 months in the state);
- Service (how the other side is to receive the paperwork);
- A statement whether or not a protective order is in effect;
- The date of marriage and separation;
- Grounds for divorce;
- Names and ages of the children of the marriage and the requested relief for the children;
- A request that the court divide the property and confirm community property;
- A request for attorney’s fees (this is a standard request – don’t be alarmed if you see it in the petition!);
- A prayer for relief; and
- Signature of the attorney.
Temporary Injunctions, Standing Orders and Restraining Order
Most divorces when filed will have additional orders attached to them (or served alongside with them), a Temporary Restraining Order or a Standing Order. Most of the time, a Temporary Restraining Order is not as frightening as it sounds. The Texas Family Code allows a court to enter a “standard” temporary injunction for the preservation of property without the need of any verified pleading. Section 6.502 of the Texas Family Code states:
Sec. 6.502. TEMPORARY INJUNCTION AND OTHER TEMPORARY ORDERS. (a) While a suit for dissolution of a marriage is pending and on the motion of a party or on the court's own motion after notice and hearing, the court may render an appropriate order, including the granting of a temporary injunction for the preservation of the property and protection of the parties as deemed necessary and equitable and including an order directed to one or both parties: (1) requiring a sworn inventory and appraisement of the real and personal property owned or claimed by the parties and specifying the form, manner, and substance of the inventory and appraisal and list of debts and liabilities; (2) requiring payments to be made for the support of either spouse; (3) requiring the production of books, papers, documents, and tangible things by a party; (4) ordering payment of reasonable attorney's fees and expenses; (5) appointing a receiver for the preservation and protection of the property of the parties; (6) awarding one spouse exclusive occupancy of the residence during the pendency of the case; (7) prohibiting the parties, or either party, from spending funds beyond an amount the court determines to be for reasonable and necessary living expenses; (8) awarding one spouse exclusive control of a party's usual business or occupation; or (9) prohibiting an act described by Section 6.501(a). (b) Not later than the 30th day after the date a receiver is appointed under Subsection (a)(5), the receiver shall give notice of the appointment to each lien holder of any property under the receiver's control. (c) Not later than the seventh day after the date a receiver is appointed under Subsection (a)(5), the court shall issue written findings of fact and conclusions of law in support of the receiver's appointment. If the court dispenses with the issuance of a bond between the spouses as provided by Section 6.503(b) in connection with the receiver's appointment, the court shall include in the court's findings an explanation of the reasons the court dispensed with the issuance of a bond.
This is essentially a long way of saying the relief that can be granted by a Temporary Injunction or Temporary Restraining Order without a verified request is fairly basic. Simply put, it is an order that puts in place basic rules to preserve property while the case is pending. The Temporary Injunction will be served along with the divorce petition and will be in place until the court enters temporary orders.
Many counties have a “Standing Order” that is attached to the divorce petition, rather than requiring a stand-alone Temporary Injunction or Temporary Restraining Order. The “Standing Order” is typically attached to all divorce and custody lawsuits and goes into effect upon filing and remains in effect during the case unless modified by the court. Examples of standing orders can be found online for counties like Travis, Williamson, Hays, Bexar, Bastrop, Bell, Comal, Montgomery, Dallas, Collin, Rockwall, Ellis, and Denton.
If there is more extraordinary relief requested beyond what is already in the Temporary Injunction, Temporary Restraining Order, or the accompanying Standing Order, the requesting party must file an affidavit along with the pleading, outlining the need for the extraordinary relief. If the judge grants the extraordinary relief, there will be a separate stand-alone Temporary Restraining Order that is specifically tailored to your case.
NOTE: If you have been served with any type of Temporary Restraining Order, it is very important that you consult an attorney immediately.
How Does the Other Side Receive the Divorce Paperwork?
There are two options for the other side to receive paperwork:
- Personal service
- Informal delivery with a Waiver of Citation
In any lawsuit, the other side has the right to be served with the lawsuit by personal service. This is carried out by a constable or process server delivering the paperwork to the other side. Once the other side is served the lawsuit, the person who served the paperwork will file with the court a Return of Citation.
To avoid this process, the other side can be sent informally (by email, mail, or hand deliver) a file stamped copy of the divorce petition and the receiving party will sign a “Waiver of Citation.” Once the waiver is signed, it is the same as if the person has been served with the lawsuit.
NOTE: If you have been presented a waiver of citation, you should consult with an attorney before signing the waiver.
The lawsuit cannot proceed until the other party has been served or signed a Waiver of Citation (or made an appearance by filing a responsive pleading).
Does the Other Side Have to File a Response?
In order to avoid a default judgment being taken against him or her, the other side must file an “Original Answer.” This is a simple document that is filed with the court denying the allegations in the petition. Texas is what is referred to as a “general denial” state. In some states, if you are served with a lawsuit, you must file a response to each allegation in the lawsuit paragraph by paragraph. Texas does not require this. All Texas requires is a “general denial,” e.g. a general statement that the defendant denies the allegations.
In the divorce context, a “general denial” looks a bit bizarre since the Respondent is not really denying the allegations alleged in the petition for divorce. However, as strange as it may look in the divorce context, the “general denial” is routinely used.
Often times, the other side will file a “Counterpetition to Divorce”—and it is best practices to do so. This is an important document to file so that the other side can also request relief from the divorce court. Furthermore, a counterpetition is often a necessary document to preserve claims of the Respondent such as separate property, reimbursement, etc. Finally, if the responding party does not file a Counterpetition, the original party could simply dismiss his or her Petition, and you will be back to the drawing table. Thus, it is important for the responding party to have a Counterpetition on file along with the Original Answer.
Does it Matter Who Files First?
One of the most common questions is “does it matter who files first?” The answer is generally “yes” and “no.” Who files first does not affect whether or not either side can request certain relief or how the divorce will be granted. However, strategically speaking, it may make sense to file first. The party that files first gets to present evidence first at court. This may give the party filing first a strategic advantage in court, particularly if a divorce is going to a contested jury trial for final determination. Of course, if you are seeking extraordinary relief, it is important that you file immediately so you can seek protection from the court.
Because of this, time is often an essential element of the lawsuit and a party seeking a divorce should consult an attorney immediately and locate a law firm that can move quickly.
What are the Next Steps After Filing?
After the initial filing, the next steps depend on underlying facts of the case and the parties. During the first consultation, your attorney should be able to outline the next steps after the initial filings. You deserve answers, so don’t settle for a vague or noncommittal path forward. Hire an attorney that can give you clear direction, answer your questions, and give you peace of mind moving forward.