Litigation is by nature adversarial, with each party and their attorney advocating for their separate interests. However, we have found that the most satisfactory approach is to search for common ground and craft reasonable, realistic solutions to which both parties can agree. If agreement cannot be accomplished, these reasonable and realistic solutions will often win in Court.
In litigation, many divorces proceed through the following sequential steps. (Cases that are settled or resolved in mediation do not proceed to trial.)
The Steps in the Litigation Process
Petition for Divorce: A Petition for Divorce must be filed in the county of your residence or that of your spouse. There must be a showing of domicile in Texas for at least 6 months and residency in the county of the suit for at least 90 days. A Petition may include a request for a Temporary Restraining Order and other orders as explained below.
Serving the Petition: The other party is served with the Petition and is required to file an Answer. The other party may also file a Counter-Petition.
Temporary Orders: Upon the filing of the petition, either party may request temporary orders that either permit or prohibit one or both parties from doing certain things, such as, unnecessarily spending or interfering with the other party's use of property. Temporary Orders establish "ground rules" for the conduct of the parties while the case is pending.
There are two types of temporary orders. The first type is a Temporary Restraining Order (TRO). A TRO can be granted immediately upon request and without any type of court hearing and often without the knowledge or consent of the other party. A TRO is designed to control the conduct of the parties and preserve the property of the parties until a full hearing can be held within two weeks (14 days) after the TRO is granted and is conducted with both parties present. Because Travis County has an established Standing Order that applies to every family law case filed, TROs have become rare in Travis County.
The second type of temporary order is granted after a court hearing, or in many cases, after the parties reach agreement as to the content of the Temporary Orders. Temporary Orders may include a variety of provisions not only to control the conduct of the parties but also to determine temporary use of property, allocate available funds, and assign responsibility for payment of debts. If the parties have minor children, the temporary orders will determine temporary possession, child support and spousal support.
Discovery: Discovery is the process of documenting the facts pertinent to the case. During discovery, each provides information requested by the other party. This typically includes financial records from the past five years, such as income tax returns, bank statements, employment records, and life insurance policies. The parties also disclose the names of fact and expert witnesses who may testify at trial.
Honest disclosure of all assets and liabilities is essential during discovery to obtain a fair and equitable division of all the community property. Unfortunately, some parties are not forth coming and honest. We have a great deal of experience dealing with these problems and will use the discovery process to gather complete information.
The parties also exchange sworn Inventory and Appraisement documents, which list all property owned by the parties whether separate or community and all liabilities owed by the parties.
Mediation: Please see more information on our Mediation page.
Mediation can occur at any point in the litigation process but in most cases, mediation follows the discovery phase. It is required in Travis County if the final hearing will last more than three hours.
Deposition: Depositions are a form of discovery in which the person being deposed answers questions, under oath, that an attorney asks. Each party may take the deposition of the other party and witnesses. The witnesses may include employers, doctors, counselors, neighbors, and family members. Depositions of the children's counselors and teachers may also be required.
Final Preparation for Trial: About a month before trial, both parties submit pre-trial documents to the court which set out how they want the various issues, such as property division and child support, resolved by the court. The complexities of the issues usually determines how much time will be devoted to trial preparation. Much more time will be spent in trial preparation than in the actual trial. This preparation includes talking with witnesses, preparing exhibits, and drafting direct and cross examination questions, as well as anticipating and preparing to meet the tactics and strategy of the opposition.
Trial: At the trial of the divorce case, each party presents evidence on the contested issues in the case. Determination of the separate property of a party, division of the community property and liabilities, and determine the validity and meaning of premarital and post-marital agreements are some of the most common contested issues in a divorce case. If minor children are involved, the contested issues will include the rights and duties of each parent, who the child or children will reside with, whether child support will be paid and the amount of child support, and the time sharing schedule.
At trial, each party testifies under oath about facts that are relevant to the contested issues. Each party may also call witnesses to testify. Typically documents relevant to one or more of the issues are offered into evidence, the judge announces the decision on each of the disputed issues and pronounces the parties divorced.
After trial, the attorney for one of the parties must prepare a Final Decree of Divorce which contains the decisions that were about the issues in the case. The judge signs the Final Decree of Divorce.
Appeal: A party who is disappointed with the Court's decision or who feels a mistake of law has been made may initiate the appeal process within 30 days after a Final Decree is signed by the Court.