One must be a resident of the state of Texas for six months and a resident of the county for at least 90 days before filing for divorce. Grounds for divorce can include adultery and cruelty, but most divorces are brought on “no fault” grounds – that the marriage has become insupportable due to dischord or conflict of personalities (insupportability). Once a divorce is filed, there is a 60 day minimum waiting period. If there are minor children involved, then the suit for divorce is combined with a Suit Affecting Parent-Child Relationship (SAPCR). In Travis County, a standing order is attached to each petition filed in family law matters, which outlines prohibited conduct during a divorce or child custody case.
Often during the waiting period, there is a necessity for orders (or in the collaborative process – agreements) to take care of immediate necessities, such as how the bills will be paid, who will live in the family homestead, how much time the children will have with each parent, how lawyers and experts will be paid, etc. These orders, which are interim in nature, are called “temporary orders”. The definition of a final order is that it disposes of all issues before the court; a temporary order only disposes of immediate and pressing issues.
After a divorce suit is filed, the case goes into the “discovery phase”. In litigation, this may involve taking oral depositions, sending written document requests or interrogatories (questions to be answered under oath), and requiring certain information be disclosed. Often, the parties will exchange sworn inventories of all their significant property. In collaborative divorce, discovery is done by providing documents to the financial professional who will create an inventory, which is also verified under oath by the parties.
Once discovery is complete, in the collaborative process, the parties usually work to generate options for settlement. In the litigation process, there are usually offers of settlement, which may be far apart, depending on how positional the lawyers are. Mediation is a tool used in settlement, and it is required in Travis County before a case can proceed to trial (upon penalty of dropping behind the cases on the docket which have been to mediation) unless waived by the court. In collaborative divorce, mediation is also an option, but one used less often, because collaborative divorce is itself an alternative dispute resolution method.
The Texas Family Code outlines the rights of parents (called “conservators”) and presumptive possession times for children (the “Standard Possession Order”). The parties are free to create their own orders despite any legal presumptions, but the guiding principle for a court, whether in a litigated case or being asked to approve a settlement, is the “best interests of the child”. The standard for division of community property in Texas is whether it is a “just and right” division. There is a legal presumption that all property acquired up to the date of divorce is community property (i.e. property that is subject to division by the court) and a party must prove separate property claims by a high standard of evidence – “clear and convincing” vs. “preponderance” of the evidence. Property which is proven to be a party’s separate property is generally not subject to division by the courts, but sometimes property is of mixed character and the rules for tracing and characterization of property become quite complicated.
There are a number of good books on divorce and on collaborative divorce. Below are some we have found to be especially useful:
Constance Ahrons, Ph.D., The Good Divorce
How to divorce without destruction – written before collaborative divorce came into widespread use.
Janet Brumley, JD, Divorce Without Disaster
Written by a Texas collaboative practitioner.
Ike Vanden Eykel, JD, Lone Star Divorce
Written by a litigator – some good commonsense tips.
Wallerstein & Kelly, Surviving the Breakup
One of the first clinical works on the effects of divorce.
Richard Warshak, Ph.D., Divorce Poison
The effects parental alienation can have on children.
The following web links may also have helpful information:
Texas Academy of Family Law Specialists