Divorce Law Overview

Going through a divorce is troubling for everyone involved. Emotions run high at a time when crucial decisions must be made, which in turn makes the process even more problematic. Knowing what to expect, however, and being educated on the legal process can help ease the pain during what is undoubtedly a trying time. There is no resource more important than an attorney trained in divorce law.

In Texas, a divorce is either an at-fault divorce or a no-fault divorce. In a no-fault divorce, neither party is legally responsible for the failure of the marriage. Either party may initiate a no-fault divorce if the marriage has become insupportable or if the couple has been living apart for at least three years. Because of the broad definition of "insupportable," the majority of no-fault divorces cite this reason.

An at-fault divorce requires one party to declare a specific reason why he or she seeks a divorce. Such a divorce is sought usually when the parties cannot agree on terms such as child custody, child visitation and property division or when the party seeking the divorce wants the court to consider the conduct of the other party. The most common reason for an at-fault divorce is adultery, but other reasons include cruel and inhuman treatment, imprisonment for a felony conviction and abandonment.

The divorce process starts with the original petition. The petition is simply a document that lays out one party's grievances against the other party and what type of relief he or she is seeking. Once an attorney files the petition with the proper court, the other spouse receives a copy.

After the petition is filed, a party may get a temporary restraining order. An attorney can help decide whether this is necessary. A temporary restraining order prohibits an adverse party from taking some action while the divorce is pending, such as transferring property. These orders also may be sought to prevent harassment. A temporary restraining order is effective for only 14 days; however, if the court agrees that this type of order is needed, it will grant a temporary injunction, which remains in effect until the divorce is final.

After the petition is filed, the parties begin the discovery process. Discovery is simply a means for each party to learn relevant information from the other side regarding the divorce. Among other items, this includes interrogatories (written questions), oral depositions, and requests for documents, which compel a party to turn over pertinent information, such as tax returns, bank statements and credit card statements.

Interrogatories are formal, written questions sent from one party to the other. They help the attorneys determine the facts necessary for the case. An attorney may help a client answer the interrogatories.

In depositions, the opposing attorneys ask the parties questions under oath. Depositions are less formal than examination in court, but a court reporter will be present and the event likely will be videotaped. Depositions, like interrogatories, help the attorneys prepare for trial.

When both sides are satisfied that they have the information they need, settlement negotiations begin. This is often best done through mediation, which is a type of dispute resolution that facilitates communication. During settlement negotiations, the spouses and their attorneys attempt to resolve disputes regarding the divorce, such as property division and child custody. If negotiations break down, either party may request a trial, in which the court decides on all disputed aspects of the divorce.

Even if the parties agree, the court must approve the divorce settlement. If a child is involved, the court's order will contain a "parenting plan," which sets out the rights and duties of each parent relating to all matters affecting the child. The order also will specify property division, alimony (if necessary) and any other matter that affects the divorce.

Divorce law is complicated matter, and the importance of hiring an attorney cannot be overstated. Most people who have gone through a divorce can testify that hiring an attorney makes the process easier. This is especially true if the divorce is contested and if the other party has an attorney. Even in no-fault divorces, however, an attorney can be invaluable in helping you navigate the process of moving your divorce through the court system.

An attorney experienced in divorce law can educate you about the law and will look out for your best interests. If you prefer, he or she will attempt to end the divorce proceedings amicably through mediation. If not, he or she will do whatever is legally possible to ensure that you obtain the best outcome at trial.