What to Do When Served With a Divorce or Child Custody Lawsuit

Getting Served

In Texas, a party must serve two documents to initiate a divorce or custody proceeding: an original petition, and a citation. A citation is a formal notification issued by a court that informs a party that he or she has been sued. An “original petition” is a document filed by the initiating party that details requested relief. The first party to file is designated as the petitioner, while the receiving party is designated as the respondent. An original petition will outline motivations behind a divorce, most commonly in supportability or a “no-fault” grounds. Other grounds for divorce include cruel treatment, abandonment, or adultery. In custody cases, a petition in suit affecting parent child relationship will state the basis for the suit and requested relief. In some circumstances, a court may issue a temporary restraining order (TRO) to accompany a petition and citation. Some common restraints within a TRO include provisions against removing children from their schools, moving or withdrawing money from financial accounts, making disparaging comments about the other party in the earshot of the children, or hiding children from the other parent.

Filing an Answer

Following service, courts require that respondents file an “answer.”  Filing an answer is vital; it informs the court that you intend to present your perspective and prevents a default judgement against you. An answer functions as a direct response to the petition discussed above, and typically denies or admits all or some of the points alleged in the petition. You must file and serve an answer on the petitioner, or if they have hired an attorney, their counsel. In Texas, a responding party has about twenty days to file an answer, specifically by 10 a.m. on the Monday 20 days after service of a petition.

The TRO

Many parties served with  temporary restraining orders feel overwhelmed and confused. However, a TRO simply is a set of restrictions issued by the court meant to protect both parties from acts or omissions of the other. Although a TRO may be issued without testimony heard by the court, they are only in force for 14 days. In Texas, courts aim to protect the parties, their children, and their property. In furtherance of this goal, courts may restrict some or all of the following behavior:

• Moving children to another state
• Withdrawing money from joint bank accounts
• Canceling or changing insurance policies
• Changing beneficiaries on life insurance policies
• Committing family violence
• Making disparaging comments about spouses in the presence of children
• Withdrawing children from school without the other parent’s consent
• Removing money from a retirement account
• Hiding or secreting children from the other parent
• Communicating with (or otherwise threatening) the other party via mail, phone, in-person, or in any other manner
• Destroying, removing, or encumbering property without the permission of the other

There are many possible ordered restrictions, this is not a comprehensive list.

How Does a Court Establish Personal Jurisdiction in Texas?

Jurisdiction refers to a court’s power to hear and decide a case. In Texas, personal jurisdiction exists where one of the following is present:

• Domicile (residing with the intent to remain): The respondent is domiciled in the state;
• Contacts: the respondent has minimum contacts within the state;
• Business: the respondent does business within the state;
• Presence: the respondent was personally served while in the state; or
• Consent: the respondent agrees to submit to the Court’s jurisdiction.

If you do not meet any of the above requirements for personal jurisdiction, you may contest a court’s jurisdiction over a suit filed upon you. Be aware that filing an answer counts as consent to a court’s jurisdiction. If you have hired counsel, they may file a special appearance. Special appearances are a pleading accompanying an answer that informs the court that you do not submit to personal jurisdiction.

Am I Automatically Divorced Once I File My Answer?

Many litigants are under the impression that divorces are official upon the filing of an answer. However, an answer is just one of the steps at the beginning of a suit. A divorce is granted when a judge signs a final divorce decree. In Texas, typically parties must wait 60 days before a judge will sign this document.

What is a Counter-Petition?

Once a respondent has filed an answer, she may also wish to file a counter-petition for divorce. A counter-petition is a pleading in which the respondent (following or concurrent with filing his/her answer) counter-sues the petitioner. When an individual serves their spouse with a petition for divorce, they are requesting that the court make decisions and grant relief on the basis of the information presented in their petition. You may wish to deny or reframe some of this information in a counter petition. Additionally, after the filing of a counter petition, neither party may unilaterally drop the suit.

Are You Required to Hire a Lawyer?

Parties are not required to hire lawyers. However, for individuals involved in complex divorce or custody cases, hiring an attorney will likely be in their best interests. If any of the following describe your situation,  consider consulting with an experienced family law attorney:

• There is a large community or separate estate
• Custody, support or visitation is in dispute
• You suspect fraud against the marital estate 
• There are complex property division issues in the divorce 
• The division of assets is in dispute 
• The other party has an attorney 
• Reasonable fear of international child abduction exists
• You have been served with a deposition notice
• You want more detailed and personalized pleadings to be filed on your behalf
• You would like to apply for spousal maintenance
• Your spouse has requested spousal maintenance and you do not believe that you should either have to pay it