DIVORCE
The Law Offices of Kris J. Balekian, P.C.
developed this site to help the people of Dallas and the State
of Texas find divorce, child custody, and community property
information.
Please use this site as a source for
understanding the divorce process. We have also included many
facts and frequently asked questions. The
process of burying a dead marriage is often very painful and
difficult both to the spouses and to their children. Fighting in
divorce court about property, custody, and child support is
emotionally draining and can be expensive to all parties
involved. We recognize the emotional struggles already involved
with divorce and attempt to make the dissolution as pain free as
possible. Below you will find a summary of the divorce process.
Understand that this is not the sequence of events that each and every
divorce will follow, but the chronological sequence of events that
usually take place in a divorce. You should also recognize the
importance of having an attorney familiar with the court system
your case will be held in. If you are looking for an experienced
Dallas divorce lawyer, Kris Balekian, P.C., should be your first
choice. The following is only a general outline representing
the common events of most cases. Again, please note that your case
may or will be different from the one described below. Also note
that the person who brings the case first gets to talk first. Some
believe that there is an advantage to being first, while others say it
doesn’t really matter. There is no “Downside” attributable to the spouse
who brings the action or to the person who responds to the action.
Prior to beginning the divorce process, we must first
establish that the court has jurisdiction over the matter. A suit for
divorce may not be maintained in this State unless at the time the suit
is filed either the petitioner or the respondent (one of the parties)
has been domiciled in the State of Texas for the preceding six month
period; and a resident of the county in which the suit is filed for the
preceding 90 day period.
DIVORCE PROCESS
ORIGINAL PETITION FOR DIVORCE
The divorce process starts by filing a document
entitled "Original Petition For Divorce." A petition, called a
complaint in other jurisdictions, is nothing more than a
"letter" to the court asking the court to grant a divorce and
any other relief requested. It will identify the parties and the
children. Furthermore, it will apprise the court of those
reasons why divorce is sought, i.e., "discord and conflict that
destroys the legitimate ends of the marital relationship,
adultery, abandonment, etc. . . ." The person who files for
divorce is called the "Petitioner." The person who answers the
divorce petition is called the "Respondent." The Original
Petition is served upon the Respondent. Concurrently with the
filling of the Original Petition, a party may ask for "Temporary
Orders", "Temporary Restraining Orders", "A Protective Order",
and/or a "Writ of Habeas Corpus".
Texas is a no-fault
divorce state. It is suitable to merely plead “conflict of
personalities that destroy the legitimate ends of the marital
relationship.” No spouse has to “give” the other spouse a
divorce anymore.
TEMPORARY ORDERS
Temporary Orders are orders issued by the court
to place immediate controls upon the relationship of the
parties, the parties' financial affairs, and child custody
during the pendency of the divorce. Temporary Orders are legally
binding. Violation of the orders can subject a party to contempt
proceedings. A finding of contempt may result in a fine and/or
jail.
Temporary Orders can specify who will live in the marital
residence, who will be able to write checks on what bank
accounts, and who will have primary custody of the children. In
a divorce, you are entitled to have temporary orders issued
without your spouse being present. They are valid for 14 days.
After that you must legally give your spouse notice that there
will be a trial on temporary orders. Temporary orders can be
issued voluntarily, by order of the court after hearing, or not
at all. Depending upon the type of divorce.
If you and your spouse cannot agree on
possession and access to your minor children, you will have to
move for Temporary Orders. You have a right to be a parent to
your children. If your spouse is currently refusing to let you
see or contact your children, seek legal counsel. Do not attempt
to force possession! Even if it seems like the fair thing to do.
You can endanger yourself and your children, as well as
jeopardize your right to custody in the future. If your spouse
fails to abide by the Temporary Orders, he or she is in
contempt, and can be ordered to appear in Court. If he or she
doesn't appear, a bench warrant can be issued, and he or she
will be taken into custody. At the contempt hearing, he or she
can be sentenced to jail, or have their assets taken to satisfy
the Court's order.
DISCOVERY
The term "Discovery" is a broad general
description for a number of legal devices designed to gather
information. There are five basic devices which comes under the
umbrella of "Discovery." These devices are Disclosures,
Interrogatories, Requests for Production, Admissions, and
Depositions. This is not an exclusive list of available tools
for the discovery of information. It is only the basic and most
common set.
Disclosures are based upon Rule 194 of the Texas
Rules of Civil Procedure. Upon request, a party must give to the
other side those items which are set out in Rule 194 within
thirty days of the request.
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Interrogatories are written questions
directed to the other party. Each side is allowed one set
calling for 25 answers. These are required to be answered
under oath and notarized.
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Admissions of Fact are written declarations
of fact directed to the other party asking them to admit or
deny an undisputed fact. They are designed to authenticate
documents and to dispense with the necessity of proving
uncontested or indisputable facts.
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Request for Production is a device used to
obtain documents. Upon request, the other party must provide
to you any records that you have requested for inspection
and photocopying.
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Depositions are devices whereby sworn
testimony is taken from the other party, or witness.
It is a discovery device where your lawyer will
have the opportunity to question the other side before a court
reporter. The testimony taken is admissible for all purposes in
Texas.
A lawyer should issue basic discovery on behalf of every client,
except for the most agreeable of agreed divorces. The amount and
type of discovery called for in a case is directly dependent
upon the type of case and is normally determined by the lawyer.
MEDIATION
Mediation is process where both parties meet in
a neutral setting to discuss their differences, and attempt to
resolve the case. The process is controlled by a mediator,
usually a lawyer. He or she facilitates the discussions. The
mediator's task is to help the parties settle the case. In Texas
it is a required process, and will be ordered by the Court. It
is the policy of the State of Texas that parties are to try and
resolve their conflicts without court intervention other than
granting the divorce. The Texas Family Code requires that each
party sign an Alternative Dispute Resolution clause attached to
their initial pleading.
Usually, by the time all of the events above
have taken place, both sides will have enough information, to be
able to resolve the contested issues of the divorce without
further Court process.
TRIAL
If the case can't be settled, then it will be
set for trial. This is the process where both parties present
the evidence to the Court for determination. The Court will hear
the evidence, examine the pleadings of both parties, and make
it's decision. A trial can be for the court or before a jury
upon request.
POST TRIAL
At conclusion of the trial, the parties will
draft a "Final Decree of Divorce." this will reflect the Court's
determination. This document will spell out who gets what
property, where the primary residence of the children will be,
how the parties are to conduct their relationship as the
children grow, and will set child support. The document will
attempt to resolve all issues between the parties. In addition,
there may be a number of closing documents involved, such as
deeds, and automotive titles. Furthermore, a qualified domestic
relations order may be necessary if community property is
contained in a 401(k), for example.
If children were involved in the divorce, the
Court's jurisdiction over the matter continues. It is called a
"Court of Continuing Jurisdiction." The Court's powers remain in
place to enforce it's decree until your children are eighteen
years of age, or otherwise emancipated. You may go back and ask
the Court to modify it's decree, to change child custody, or
child support. For a variety of reasons.
Texas law requires
that the couple wait 60 days before the Court can grant a
divorce. This is known as the cooling off period. It is the
policy of the State of Texas that parties are to remain married.
The 60-day period is about giving the parties an opportunity to
reconcile. Therefore. No Final Decree of Divorce can be entered
within 60 days of the filing of the Original Petition for
Divorce.
APPEAL
If a ruling in your divorce is not a fair one,
or new evidence has come to light, you may file a motion for a
new trial, or begin an appeal.
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