If you are considering divorce, or have been served with an Original Petition for Divorce, time can be extremely important and influential upon the outcome. Determining when to file for divorce and under what terms may influence the proceedings. If you have already been served if you do not answer in time you could risk a default that is counter to your best interests.
Divorces in Texas may be agreed upon, by default, or contested, and regardless of which of these three they develop into, certain requirements must be met to file, and certain requirements to proceed forward. For help throughout the process, a Grapevine divorce attorney from Mims Ballew Hollingsworth | Family Law is available to review your situation and help support your intended outcome however possible, whether through a negotiated out-of-court agreement or in court.
In Texas, the person who files a divorce is the “petitioner”, while the other party to the divorce is the respondent. If you have been served with divorce papers, it is important to take the following steps to protect your rights and ability to contribute to key decisions surrounding your divorce. From there you must calculate the deadline for your answer, 20 days after you received service, with day 1 being the day following service.
Your answer must address all aspects of the Original Petition for Divorce to address your position and provide your own best interests. If your spouse hired an attorney it may be difficult to process and understand the legal complexities of the agreement without an attorney of your own to assist in reviewing the contents.
When divorces are contested, the court gains the power to influence the outcome of your and your spouse’s futures and has access to very private information. Working with an experienced attorney to come to a divorce agreement that can then simply be submitted to court can be the most effective and efficient way to protect the best interests of all parties involved.
The first thing to do if you have been served divorce papers is to immediately review them. The Original Petition for Divorce that you receive will contain any temporary orders or temporary restraining orders that were issued by the judge. One of the potential advantages of being the petitioner is that you get to shape some of these orders, which may impact both spouses in the dissolving marriage. If you believe that divorce is pending, it can be beneficial to reach out to a Grapevine divorce lawyer as soon as possible to determine if being the petitioner might be to your advantage.
Given that your divorce may take some time to file, the judge can be asked to make temporary orders through the filling of a Motion for Temporary Orders, which will cue the setting of a hearing, and may include such factors as:
For lengthy divorce proceedings, these temporary orders can be in place and impactful upon your life for many months or over a year or more, underlining the importance of effectively negotiating them.
If you believe that some harm may come to your position, whether physical, financial or otherwise, prior to the hearing for any proposed temporary orders, you may request a temporary restraining order (TRO). A TRO is an emergency court order that requires that the relevant party not engage in some specified action until a hearing can be held. A TRO generally lasts for 14 days or until your temporary orders hearing is conducted.
A TRO is created by filing a Motion for Temporary Restraining Order, a Temporary Injunction, and Temporary Order. Alongside the TRO application, you’ll also need to provide an affidavit or statement that is made under penalty of perjury that explains the reasons why a TRO is needed immediately, prior to the temporary orders hearing.
A TRO may be necessary if you believe that your spouse may take an unfair share of shared accounts or assets, which can serve to create an accounting of assets and also limit the ability of spouses to liquidate them until the divorce proceedings finish.
Connecting with a Grapevine divorce lawyer from MBG as soon as possible once you believe that divorce is pending will support your best interests in any resulting pre-trial negotiations or court proceedings. Reach us by phone at 817-476-7964, or visit our site to request a consultation.
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In Texas, there is a 60-day waiting period before a divorce can become final (unless an exception is granted due to family violence. Even if both spouses agree on everything, there must be at least 60 days from the date you file with the Court until the date the Court grants your divorce. If you and your spouse have an agreement, the divorce attorneys at Mims Ballew Hollingsworth can help you finalize your divorce on the sixty-first day after filing. This is the fastest possible outcome.
If you and your spouse do not have an agreement before filing, the time it takes to finalize your divorce depends on many factors including: whether children are involved, whether is there a business to value, whether discovery is needed, and the amount of conflict between spouses. Most cases reach a final resolution through an agreement at some point, but if your case goes to final trial, it can often take more than a year to resolve (especially in larger counties where court dockets are backed up).
While some contested divorces can be resolved in a few months, others can take years to finalize. If your divorce involves significant contested issues (i.e. which parent the children will live with, whether one spouse will receive alimony, who will be awarded the marital home), it is best to plan for anywhere between six months to eighteen months to get to the finish line.
Being the first to file a case (the Petitioner) provides strategic advantages throughout litigation. At trial, the Petitioner makes their opening statement first, calls their witnesses first, can delay the other party (the Respondent) from speaking until after all the Petitioner’s evidence is presented, and in closing arguments speaks both first and last.
While the Petitioner and Respondent have the same rights and often share the same burden of proof, filing first can certainly help with persuading the Court. Letting the Court know your side of the story first can help when it comes to decisions such as why your children should live primarily with you, why you deserve alimony or why the other party does not need it, or who gets to keep the marital home. If there are facts harmful to your case, filing first allows you to get in front of these and take the sting out of the Respondent’s argument.
Aside from benefits at trial, filing first provides an opportunity to send a message to the Respondent and direct how the case proceeds. Your first filing can indicate a desire to be amicable or can let the other side know you are prepared to fight. Your first filing can also be used to obtain a restraining order or set a hearing before the Respondent even knows a case is filed. Even how you notify the Respondent can impact your case, whether it is with a formal process server at their place of employment or through providing them the opportunity to avoid this scenario and voluntarily accept the filing.
Texas is a community property state. This means when you file for divorce our Courts assume that all property you and your spouse have is owned by the marriage and can be divided. However, if you can prove separate property (e.g., what you had before marriage, gifts you received during marriage or inheritance), then you will have property that the Court cannot take away from you in a divorce.
When property is divided, the Court does so in a manner that the Judge deems “just and right,” considering the rights of each party and any children of the marriage. This does not necessarily mean an equal division between spouses. What one Judge believes is “just and right” may differ from what another Judge right across the hall in the same courthouse believes.
At Mims Ballew Hollingsworth, one of the first things we do in your divorce is finding out what property exists for division. We work with you to obtain information on homes, bank accounts, vehicles, business interests, retirement, stock accounts, debts, and separate property claims. If you are concerned your spouse may be hiding assets we will work with you to find this information and ensure all property is accounted for.
After determining divisible property, the next step is valuation. With some assets, it is not as straight forward as looking at an account balance. Business interests can be difficult to value, home prices are constantly changing, and there may be certain tax implications (capital gains) that need to be assessed.
The process of determining what property is divisible and assessing values can be extremely complex, especially in high-asset divorces. The divorce attorneys at Mims Ballew Hollingsworth are experienced in dividing high-asset estates and will work with you and financial professionals to protect your financial interests.
A contested divorce or family law case does not require costly litigation in a public courtroom. You can resolve contested issues through alternative dispute resolution, such as collaborative law, mediation, or arbitration.
These alternatives are often more cost-efficient when compared to going to court, and can result in a faster resolution to your case (in large counties it is not uncommon to wait over a year before having a final trial due to the court’s docket).
Alternative dispute resolution methods, including mediation, are also confidential and do not take place in a courtroom that is open to public viewing. This can be beneficial for divorces and family law cases involving high-profile individuals (e.g. athletes, celebrities, politicians, etc.) or topics of a sensitive nature (i.e. business trade secrets or high-asset divorces).
Collaborative law is a confidential method of resolving a divorce or child custody case where parties work together through joint sessions with the help of specially trained professionals to assist with resolving financial and parenting issues. The focus is on finding mutually beneficial solutions and sharing information that would normally be kept confidential during litigation. Collaborative law is unique and may not be right for everyone, but for some, it is an effective method to lessen conflict.
Just because your divorce or child custody case is contested does not mean it needs to become high conflict and involve costly public court hearings. The family law attorneys at Mims Ballew Hollingsworth can talk you through these options and develop a plan for resolving your case in through alternative dispute resolution.