Basic Agreed Divorce Process Overview
One of the most frequent questions I get asked by those considering divorce is, "What does the process involve and how long will it take?" The "process," in it simplest form, depends upon how the divorce is going to be approached. There are several ways to approach divorce, and which process is best depends upon the spouses. If the divorce is agreed and the spouses are generally amicable, then the divorce can be apprached as agreed or uncontested. This simply means the parties want to work together to get through the process. The spouses can also look at mediating issues they're not able to resolve themselves, or look at the collaborative process. There is more information about these processes on my website, so I won't get into a lot of detail here.
Presuming an agreed divorce, the process usually involves the filing of a petition for divorce with the approriate court. The non-filing spouse receives a copy of the file-stamped petition and a Waiver. There is some confusion about what a Waiver is. In this circumstance, a waiver should generally state that:
- the non-filing party has received a file-stamped copy of the petition for divorce;
- the non-filing spouse does not want to be served with process by a constable or process server and the requirement of service is waived;
- the Waiver should state that the non-filing spouse enters an appearance in the divorce; and
- states the non-filing spouse's mailing and physical addresses so the Court knows where to send any notices.
Once the petition is filed, there is a mandatory 60 day period that must pass from the date of filing before the Court can enter a divorce. During this period, the spouses work to exchange information regarding their property and debts, and work out details of conservatorship, possession, and support for any minor children they have. Once an agreement is reached, the parties draw up a proposed form of agreed divorce decree that accurately reflects the agreements the parties have reached. Both spouses, and their attorneys if they have attorneys, sign the decree and file it with the Court. A hearing is then set with the Court to "prove up" the divorce. This is usually a short hearing where the Court receives evidence from one of the spouses that confirms the legal requirements for divorce are met, that the parties have reached acceptable agreements regarding their property and debts, and the agreements regarding conservatorship, possession, and support of any minor children comply with the law and are acceptable to the Court. Usually only one spouse needs to attend the prove up hearing; both spouses are certainly entitled to attend but only one is usually needed to prove up the divorce if both have signed the decree. If everything is proper and the Court is in agreement, the Court will grant the divorce and will usually sign the decree at the hearing.
If there are aspects of the divorce the parties cannot agree upon, such as division of some assets or debts or some aspects of possession or support for the children, tools (such as mediation or collaboration) are available to assist the spouses in reaching agreement. If agreement cannot be reached, the decision can be placed in the hands of someone else, such as an arbitrator, judge or jury. One of the most common disputes we see in agreed divorces involves child support. Texas law mandates that both parents must support their children, and imposition of child support is mandatory in almost every divorce case with minor children. There are very few, very limited exceptions to this rule. A spouse generally cannot escape child support because he/she is currently unemployed or experiencing financial hardship. In these circumstances, most Courts may allow some time before a child support obligation begins, or require child support be calculated at minimum wage, or may entertain other requests from the parties appropriate for the parties' financial circumstances. However, the Court will not (in most circumstances) sign a decree that does not provide for child support in some amount. Many spouses come to us with this proposal: dad will agree mom can be the primary conservator for the children, and dad will agree to the standard possession order, but will do so only if mom doesn't get child support. Courts will not approve this agreement, even if both spouses are in agreement. Courts will not let a party contract away his/her obligation to support a child. Child support must be awarded in all but a very limited set of circumstances. Parties to a divorce should understand this is a Court requirement, not a bargaining tool, and should take this into consideration in negotiating their divorce.
Another question we are frequently asked is, "How long will this take?" Texas is a no-fault state. Anyone that wants a divorce can get one. That being said, a divorce generally moves at the speed of the slowest participant. That is not to say that a spouse that does not agree with a divorce can postpone it indefinitely. If a spouse is obstructing the process, then litigation, arbitration, mediation, or the collaborative process can be used to keep the case moving. For example, temporary orders can be secured that establish support, conservatorship, possession, use of the family home, use of vehicles, and other matters during the pendency of the divorce case. These tools are available to keep the process moving, but add time and cost to the divorce. We therefore encourage parties to try to work together and come to agreement on as many issues as possible. This allows us to focus the resources on those contested disputes that can't be resolved. If agreement cannot be reached, then formal relief such as arbitration or trial are available so the parties can stay on track toward finalizing the divorce.
Another very popular question we get about agreed divorce, especially involving children, is "Why does it cost so much? We're in agreement so there's not a lot for a lawyer to do, right?" Divorce, whether agreed or contested, is a complex, time-intensive process. The decree has to be correct, it has to be specific, and it has to address all of the parties' property and debts as well as the children. For instance, if the decree fails to award a credit account and its corresponding debt to one spouse, this can create issues down the road if the other spouse uses the card and incurs debt. This is also true for vehicles, and there may be issues with establishing ownership of a vehicle down the road if the decree fails to adequately address ownership and possession. Similarly, where children are involved, the decree has to specifically set out the rights/duties/obligations of the parents. It has to set out very specifically when each parent has rights of posession of the children. It also has to set child support, medical support, the obligation to insure the children, deal with tax issues regarding the children, and other duties/obligations of the parents. Every decree is different, because the property, debts, and needs of each couple are different. A divorce decree has to be correct and specific or it may not be enforceable. Once the Court signs it and grants the divorce, it can be very difficult and expensive to correct mistakes or make changes to the decree. There are also some aspects of the decree that cannot be changed until a specific period of time passes. It is also relied upon by the Texas Attorney General in enforcing child support oblgiations. Creditors and other third parties may also rely upon the decree down the road. Failure to spend proper time and attention to the deatils of the decree can have significant ramifications. It is well worth the cost of a good attorney to make sure this is done right the first time.
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