While most people know what a divorce is, many don’t understand how a person actually goes about getting one, so we thought it would be helpful to give you an idea of what the process looks like.
Most importantly, while a man and a woman can get married in Texas without a marriage license (lawyers call it an informal marriage while the rest of you probably know it as a common law marriage) we don’t have the opposite – there’s no such thing as a “common law divorce.” A divorce is a court order and to get a court order you have to get into court.
And you get into court by filing a lawsuit, so a divorce starts out with a lawsuit being filed which asks a court to divorce the spouses, divide their estate, and provide for custody, support and visitation of their children.
Do you have to have a lawyer to get divorced? No, you don’t. You may do it yourself, if you are so inclined. If you have any property to speak of or minor children, or both, we think most folks are well advised to at least get some legal advice if not hire a lawyer but that’s up to you. One caution, however: one lawyer may not represent the both of you.
In Texas, the divorce lawsuit has to be filed in the county where one or both spouses have resided for at least 90 days. If husband and wife have been separated and living in different counties for more than three months then, yes, their divorce lawsuit can be filed in either county. So, the first to file usually ends up being the place the lawsuit gets heard.
Our state law says that the divorce lawsuit has to be on file (“file” means the day on which the lawsuit – which has to be written down on paper – is presented to the proper official, like a district clerk, who accepts it and places it in a court file) for 60 days before the court can sign the final divorce order, so the process takes at least two months.
The party who filed the divorce can get official notice served on the other party, who then has to file a written response within a certain time period. Or, the filing party can decide not to send out official notice, usually because he or she believes the parties will reach an agreed upon resolution of their divorce in the form of an agreed decree of divorce.
During the time the divorce lawsuit is on file, the parties can require each other to furnish documents and information about their estate or the children – this is a process called “discovery.” It often includes the parties exchanging sworn financial statements and can also include a report from a social investigator who is appointed by the court to make a recommendation on custody (for those parents can’t agree on it between themselves, of course).
And finally, whether by agreement or after a trial, the court will sign a divorce decree which ends the marriage and which deals with the couple’s property and their children. Getting from the day the lawsuit was filed until the day the court signs the decree can be as short as 61 days or as long as several years although most divorces seem to get from start to finish in less than a year’s time.
So, that’s a quick look at the process of divorce. Obviously, there’s a lot more to it but this is just a brief overview and we hope it has been helpful.
Lewis, Passons & Darnell, P.C.