Dallas Divorce Lawyer Blog

So, could someone come to your home and take you kids? It is a fear, or maybe depending on a night of unending shrieking, a fantasy of all parents. The answer is, as any good attorney worth his/her salt will tell you, “It depends.”

Are you using hard illegal drugs in front of your children? Are you leaving them at the tender age of 5 alone for hours on end? Are you feeding them only when you remember to on a weekly basis? Are you knowingly letting your children be abused or mistreated by registered sex offenders?

I sure hope you said no to all of these questions. If you did say yes to any of the above, know that there is help. Stop what you are doing right now. Call CPS on yourself immediately. Do it for your children. You are not ready to be a parent, maybe ever (probably ever, but we have other blog posts for you to read).

So now that we have that out of the way.

For the rest of you: I know you have critics. You can work really hard at your job, come home make a meal, that is (let’s be honest) less than nutritious just with the sliver of hope that your kid will eat it, take 3 hours trying to get your kid to lie down and go to sleep. Then some relative, neighbor, or otherwise “do-gooder” comes and points out to you everything you are doing wrong and how if you would just feed them that broccoli rutabaga watermelon puree they read about on Pinterest, then your little darling would stop throwing fits immediately. These are the people you can ignore.

Then there are some serious assholes in this world who will not only tell you how to raise your kids, but file a lawsuit against you because they don’t think you are doing it right.

So what are your rights in Texas?

This is where the Parental Presumption comes into play. The Texas Legislature and the Texas Supreme Court have stated and held, respectfully of course, that a nonparent could only be appointed as managing conservator of a child instead of the parent when they can show that they child would be Significantly Impaired, either physically or emotionally. Just putting of evidence that the nonparent would be a better parent to the child is not enough.1

That’s right. YOU are presumed to be best for your kid, unless you significantly impair them. We, as parents all feel the extreme guilt of doing something that will permanently damage your kid. We are already walking balls of anxiety and guilt. Our kids will probably blame us for lots (read ALL) of the issues they have later on in life. They may even claim to be impaired. But the law believes at the end of the day, WE, the parent, what is best for them (unless of course you answered yes to any of the above questions and we have another blog for you to read).

If someone is trying to take your kid away call us now. Do not stick your head in the sand. Do silently hope that the “authorities” will simply see the truth and return your kids. These are your kids. You ARE what is best for them. Let Guest & Gray fight for your family.

1 Lewelling v. Lewilling, 796 S.W.2d 164 (Tex. 1990), Tex. Fam. Code Sec. 153.131(a), (b).

Divorce cost money, no matter how easy a lawyer and the client try to make the process, one cannot get around the fact that going through a divorce is expensive. There are, however, certain alternatives that couples can partake in to try and reduce the amount of time spent in court and may also help lessen the costs. One of these ways is through family mediation.

Although it is presumed that couples going through a divorce are so completely filled with hate that no agreements can ever be made, this is not always the case. And for clients who believe that they may be able to come to certain agreements on topics such as, child custody and splits of assets or debts, mediation is a great alternative to litigation. Parties that choose to go through mediation are able to make equitable choices of how to divide their assets and debts rather than being stuck with how the court decides to distribute them.

A neutral third party, whose goal is to help couples reach an agreement that satisfies their needs and interests, conducts the mediation. The mediator is not partial to either party, but only helps each party to make decisions that will be beneficial to themselves and each other’s interest.

Family Mediations can be performed in one big room where everyone is present. In this type of mediation, clients, the mediator, and any other agreed parties such as lawyers and/or family members are present. These types of mediations are only beneficial when both parties are able to speak with each other in a civilized manner, and can come to agreements with out emotions getting in the way.

However, if couples are unable to be in the same room together without letting emotions get the best of them, mediations can be performed in a caucus type atmosphere. That is, each party can be in a separate room with their lawyer and/or family members and the mediator can go from room to room presenting to each side the other’s proposals. In this type of mediation you and the mediator can work out certain offers, such as child custody for instances. You may decide to tell the mediator that your spouse can have custody of the children each weekend since you have them all week. The mediator would then take this proposal to your spouse who could agree, not agree, or counter the offer with a different proposal. Here is where the mediations can become very lengthy. If two spouses refuse to agree on a proposal and are constantly making counter offers the mediator can become like a ping pong ball going back and forth the entire mediation. This would then be up to the mediator as to when to stop the mediation. Some only allow for a mediation to go a certain length, while others will mediate until 2:00 a.m. Length of the mediation can also be up to the parties and how long they have hired the mediator for.

Although mediation can last a great length and it sometimes can be difficult to reach certain agreements, there are many benefits in trying to settle a divorce through mediation rather than litigation. Some benefits are that mediation is less expensive than litigation, mediation is more timely than litigation (rather than waiting months or sometimes years for a court date), you and your spouse are able to make more satisfying mutual decisions rather then having the court decide, and parties can tailor their settlement to their particular situation.

On June 26, 2015, the Supreme Court of the United States held, in Obergefell v. Hodges, Director, Ohio Department of Health, Et Al., that the 14th amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of State.

Since the establishment of the Supreme Court in 1789, landmark decisions, similar to the opinion formed on June 26th, have changed America, and will continue to do so. Whether we agree with the Supreme Court’s decisions or not, they are a part of our history and have shifted America. And whether we agree or not with the decision made on Friday, it will be one that fills the history books for our children’s children to read.

The Court, in this case, points out that marriage is a union that has evolved over time. At one time marriage was an arrangement, made by the parents, that was based on political, religious, and financial concerns. And before women began to gain legal, political, and property rights, a married man and woman were treated by the State as a single, male-dominated legal body.

In the written opinion, the Supreme Court explains that there are four principles and traditions that demonstrate the reasons marriage is fundamental under the Constitution and that all four apply equally to same sex marriages.

First the Court’s decision is based off of the inherited rights a person has in regards to personal choice in marriage. The Court illustrates that marital decisions are very intimate to a person, no matter their sexual orientation. Second, the Court explains that the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals. Thirdly, the Court states that without the recognition of marriage, and the stability that the term offers, children will be shamed with disgrace by knowing that their family is insignificant. The Court goes on to demonstrate that children raised by unmarried parents, will face an uncertain family life. Thus, the Court explained, the marriage laws that were at issue harm children raised by same-sex couples. Finally the Court positioned its argument on the basis of National traditions, explaining that marriage is a keystone of the Nation’s social order. Same-sex couples are denied the same benefits that are linked to heterosexual marriages, such as, taxation, inheritance and property rights, rules of intestate succession, spousal privilege in the law of evidence, hospital access, medical decision making, adoption rights, health insurance, etc., and the court reasons that it is demeaning to not allow same-sex couples these same benefits.

The decision was derived from the 14th Amendment, the Due Process Clause, that states: “no state shall deprive any person of life, liberty, or property, without due process of law.” The Supreme Court reveals that it is natural to not always see injustice in our own times. The court goes on to say that the drafters of the 14th Amendment could not have considered what the reach of freedom would define as time progressed, so they allocated future generations to protect the rights of the people as we learn what freedom is.

In the opinion of the court, the court describes some of the stories of the same-sex petitioners, and the hardships the couples and, in some cases their children, have faced because of the old laws. The court shares these stores in the opinion to show that the petitioners are not seeking to slander the union of marriage, but rather to live their lives, joined by the bond that marriage brings.

So, in general, what does this mean?

Well, exactly what the holding says; a State is required to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of State.

What does this mean for divorce?

That is a statistic that will be interesting to watch as the time progresses. Statistically divorce is low at this time, but some sources explain that this is due to there being fewer marriages. Because same-sex marriage is no longer outlawed, it will be interesting to see how these rates change over the years. Will divorce rates rise as same-sex couples begin to exchange their vows? Only time will tell. Whatever the outcome, maybe the hallmark-like words authored by Justice Kennedy in the Supreme Court opinion will leave couples, no matter their orientation, fixated on love and positivism:

No union is more profound than marriage, for it embodies the highest ideals of love, fidelity, devotion, sacrifice, and family. In forming a martial union, two people become something greater than once they were. As some of the petitioners in these cases demonstrate, marriage embodies a love that may endure even past death. It would misunderstand these men and women to say they disrespect the idea of marriage. Their plea is that they do respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is not to be condemned to live in loneliness, excluded from one of civilization’s oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right…”

How do I prove that certain property in my divorce is separate from the community property?

When the court divides property in Texas there is a presumption that the community owns everything, that is both parties will have a right to it. Anything that you or your spouse has received through gift, devise, or descent is your separate property, and you will need to show this to the court. But, if there is some property that you have used your separate funds to purchase, and is your separate property you will have to prove this to the court through clear and convincing evidence. The Fifth District Dallas Court of Appeals case, Slicker v. Slicker, defines clear and convincing evidence as the “measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” So, you and your lawyer will need to bring in enough evidence and proof that will reasonably convince the judge or the jury the property is in fact your separate property.

How does the court divide community property?

The court will divide the property in a manner that is just and right, taking both parties circumstances into consideration. The Supreme Court of Texas case Murff v. Murff noted that the division need not be equal and established several factors, known as the “Murff Factors” to consider when making the just and right division, such as, the nature of the martial property, the relative earning capacity and business opportunities of the parties, the parties’ relative financial condition and obligations, the parties’ education, the size of the separate estates, the age, health, and physical conditions of the parties, fault in breaking up the marriage, the benefit the innocent spouse would have received had the marriage continued, and the probable need for future support. When dividing your property the court will look to these to make a just and right property division.

What is waste/fraud on the community estate and how is it handled in the divorce?

Waste or fraud is when you or your spouse has purposefully taking funds from the community estate with intent to keep it from your spouse through dishonesty. If your spouse has committed waste and/or fraud on the community, the Texas Family Code in Section 7.009(b)(1) requires for the court to “calculate the value by which the community estate was depleted as a result of the fraud on the community and calculate the amount of the reconstituted estate.” Reconstituted estate is further defined in subsection (a) of 7.009 as “the total value of the community estate that would exist if the actual or constructive fraud on the community had not occurred.” The amount that the community would have had had there been no fraud/waste will then be divided between the parties in a just and right division. The court will have the option to grant any relief necessary to the harmed spouse, subsection (c) explains that the court can grant the wronged spouse an appropriate share of the community estate remaining after the actual or constructive fraud on the community, or can grant a money judgment, or both. It will be up to the court to decide what is just and right.

What is spousal maintenance and how is it determined?

Texas Family Code section 8.051 allows for a court to order spousal maintenance if the party seeking the maintenance meets specific requirements. Spousal maintenance occurs when after the divorce is granted, a spouse is ordered to pay the other spouse a court determined amount of money for a period of time. To qualify for maintenance the marriage must have lasted 10 years or more, the spouse wanting maintenance must lack sufficient property to meet minimum reasonable needs, and lack the ability to earn sufficient income to provide for minimum reasonable needs. The spouse wanting maintenance must also show they have put good effort into finding a job or into developing skills to do so. To determine the amount, and how long the maintenance will need to be paid, the court will use the factors listed in Section 8.052 of the Texas Family Code such as, the ability of the spouse seeking maintenance to provide for his or her own minimum reasonable needs independently, considering the spousal’s financial resources at the time of the divorce, the age, employment history, earning ability, and physical emotional condition of the spouse seeking the maintenance; the duration of the marriage; the availability and feasibility of the education or training necessary to enable the spouse to earn sufficient income; the spouse’s contribution as a homemaker, or to the other spouse’s education, training, or increased earning power; and the property brought to the marriage by either spouse. The court can also consider any fraudulent acts by either spouse when determining the maintenance amount and duration. Each case will be determined on its specific facts and circumstances when calculating maintenance.

In most family law cases children are seldom asked to testify because of unreliability. But, in some cases a teenager may be called to testify in situations such as; when a teenager wants to live with a different parent, where a parent has made serious accusations about the other parent and the only witness is the child, an enforcement action, or a custody or termination where the child wants to testify.

How is a child called to court?

If you know that you will be calling a child to testify in a case, it is good practice to notify the judge in advance. Most of the time lawyers will serve subpoenas to the parent of the child. This is the most common way because the parent will be actually driving the child to the court The judge can be specific about the provisions of the subpoena, providing guidance on who will bring the child to the courthouse, where the child is to go when he or she gets there, and who can talk to the child before giving the testimony.

Is the child competent?

As earlier stated, children are seldom called as witnesses because of their unreliability. Texas Rules of Evidence 601 explains that if a child does not posses sufficient intellect to the subject matter they are then deemed incompetent and unable to testify. The Texas Appeals case, Reyna v. State, came up with three elements that can determine child competency (1) the competence to observe intelligently the events in question at the time of their occurrence, (2) the capacity to recollect the events, and (3) the capacity to narrate them, which involves the ability to understand the questions asked and to frame intelligent answers, and the ability to understand the moral responsibility to tell the truth.

No set procedure to determine competency has been laid in place with the courts. The person arguing that the child is not competent has the burden to establish proof that he or she is not competent. The party can file a motion to strike a child’s testimony before the trial and have the matter resolved before the trial begins.

The party proving that the child is competent to testify can do so by calling a mental health worker, parent, or teacher to testify to the child’s competency.

How should I prepare the child prior to their testimony?

The attorney should begin preparing the child weeks before trial. To help the child feel more comfortable, the attorney should have the child visit the courtroom and become familiar with how the process will work. The attorney should inform the child of each step of the process, such as taking the oath and the questioning process, so the child will be prepared and lessen the chances to be taken by surprise.

To help lower anxiety, courts have allowed for a screen to be put up so the child cannot see their parents when testifying to help lower intimidation. Also, if the child has a counselor, they can be allowed to accompany the child to help minimize the stress of the situation.

Does the child’s testimony have to be given live in court?

No. A child can tell the judge or jury their story outside of the courtroom. The child can be interviewed in the judge’s chambers provided by Section 153.009 of the Texas Family Code. In summary, this Section provides that, (1) a judge shall interview a child 12 years or older to determine residence when requested by a party or amicus attorney, (2) a judge may interview a child under 12 about primary custody, (3) a judge cannot interview a child in a jury trial when an issue is being determined by the jury, (4) a judge can interview a child of any age with issues regarding visitation, injunctions or other issues that involve the child, (5) the judge shall make a record of the in chamber interview if a party or amicus attorney requests it, (5) the judge can decide who will be present during the interview in chambers.

The Texas Family Code allows other ways to present a child’s testimony. A videotaped statement of a child under 12 made under certain conditions, playing pre-recorded sworn testimony of a child recorded outside of the courtroom, or allowing the child to testify via close circuit television from a location other than the courtroom are others ways to have the testimony presented to the court. Courts have also allowed an expert to testify before the court what the child has told them or also through a child counselor or therapist.

An amicus attorney has been mentioned several times above. An amicus attorney is appointed by the court to represent the best interests of a child and is generally not allowed to testify to the child’s statements. But, the attorney can question another witness in the case using questions to get the same information across to the court.

There are many reasons to call or to not call a child as a witness in a family law case. But, just as in all situations involving children in family law cases, the best interest of the child will always be the primary focus when determining if the child should or should not testify.

What steps will my lawyer take to file for divorce, annulment, or to declare my marriage void?

First, the attorney will need to file a petition for divorce to the court. When filing a petition for divorce, the attorney will not have to be specific with the facts, unless the parties are seeking specific property rights. If children will be involved in the divorce, a SAPCR (suit affecting the parent-child relationship) must also be included. The attorney will make sure that all the relief that is sought is filed in this initial pleading. The pleading can be changed as the case goes on. In Texas, the petition will need to meet the fair notice requirement, requiring the party to provide a short statement to give fair notice of the party’s claims. This will give the other opposing party an idea of what the controversy will be about. If you are representing yourself you must sign the pleading, or if an attorney represents you the attorney will sign it.


There are three ways that a marriage can be dissolved, 1) divorce 2) annulment and 3) suit declaring a marriage void. To be able to file suit for divorce in Texas, either party must, 1) have domiciled in Texas for the past six months before the divorce and 2) be a resident of the county the divorce is being filed in ninety days prior to the suit. Only owning property in the state is not enough to be domiciled in the state; the party must be physically present in the state with the intention to establish a permanent home in Texas. If both parties file suit for divorce, without each other’s knowledge, the jurisdiction of the suit will be determined by which suit is filed first.

After the jurisdiction of the divorce suit has been determined, the court must also have in rem jurisdiction. In rem jurisdiction is met when 1) one of the spouses qualifies as a Texas domiciliary and 2) the non-resident spouse is served properly.

If I am filing for divorce, what must the petition include?

A petition must be drafted in the divorce proceeding. The pleading must contain the proper style of the case and the type of relief that you are requesting, such as whether you are seeking a divorce, annulment, or voided marriage. The initial discovery pleading in Texas Rule of Civil Procedure 190.1 states that you need only notify the court and other parties of what your intentions are.

Every pleading must have the names of each party in the dissolution and the last three digits of your social security number and driver’s license number.

The petition must have facts that show that the trial court has subject matter jurisdiction, in rem jurisdiction, and long arm jurisdiction, when it applies. You should put in the petition that at least one of you have resided in Texas for six months and in the county for ninety days.

The petition must include the date of the marriage and the date when you both stopped living together as husband and wife.

You will either plead fault or no fault on the petition. If you are divorcing because of insupportability then you will plead no fault. But, you can plead on fault grounds that include: cruelty, adultery, the other spouse’s conviction of a felony, the grounds that your spouse has abandoned you for one year, living apart, or because your spouse has been confined to a mental hospital.

If children are part of the divorce a Suit Affecting the Parent Child Relationship (SAPCR) must be joined in with the divorce proceedings.

If you want to make sure that the other party stays away from you or the children, or you are seeking some sort of temporary relief, such as protecting your assets or property before the trial begins, then you must put this in the petition.

You must make sure and ask the court, in the petition, to dissolve the marriage and divide and confirm the marital property in the final relief of the petition.

What is a SAPCR?

SAPCR stands for suit affecting the parent-child relationship, and is used if you are requesting to appoint a managing or possessory conservator of the child, wanting access to a child, needing support of a child, wanting to establish a parent-child relationship or if you are wanting to terminate a parent-child relationship. If a SAPCR has already been filed before you want a divorce, then the SAPCR case will need to be transferred to the court where the divorce is filed. A SAPCR case will need to have the same contents as a petition for divorce that is listed above in the petition.

What kind of temporary relief can I get before the divorce proceedings begin?

If you are making the decision to file for divorce suddenly and you need temporary or immediate relief, you can file for a Temporary Restraining Order

(TRO). If you want to prevent your spouse from transferring or altering any property before the dissolution begins you can file a TRO. The court can issue this without notice to your spouse, if you can state specific facts as to why you need immediate relief. You would need to show that immediate and irreparable injury, loss or damage would result if you wait for a hearing.

You can also file a TRO to make sure that your spouse will not try and move away with the child, or if you need to protect the safety and welfare of the child through temporary conservatorship.

Temporary Orders can also be filed when you need to decide who will maintain the residence, pay the bills, and who will use the vehicles in the marriage while the divorce suit is pending.


To get court ordered relief, you must make sure that your husband or wife is served properly, unless they have waived their right to be served. If your husband or wife files an answer to the divorce then there is no need for service. You cannot serve your husband or wife yourself.

Your husband or wife can waive their right to service by written waiver in the presence of a notary.

Protective Orders for Safety

If there is any abuse, violence or harassment in the household then you may want to file a petition for a protective order. If you choose to do so, you will need to show that family violence has occurred and is likely to occur in the future. The Family Code defines family violence as an “act by a member of a family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault or sexual assault but does not include defensive measures to protect oneself; abuse as otherwise defined in the family code by a member of a family or household toward a child of the family or household; or dating violence.” TEX. FAM. CODE § 71.004. If you can show that this applies to your situation, the protective order can exclude your spouse from the house, prohibit communications from your spouse or even keep your spouse from going near a specific residence, place of employment or child’s school.

If your spouse has filed for a divorce:

If you are the respondent in a divorce, meaning your wife or husband has filed a divorce against you, you will need to make sure and file an answer. Filing an answer to the divorce will waive the need for service. If you have any defense, you should plead so specifically in your answer. If you do have a defense, this means you are not just denying the claims against you but that you are establishing a reason why the other person should not recover.

This is a basic run down of what will happen in the first 45 days of your divorce proceedings. Your lawyer will work with you to make sure he or she has all the information they need to have your divorce proceeding run as smoothly as possible.

When the judge signs your divorce decree you and your ex must abide by the terms of the decree from that moment. If you or your ex does not comply with the terms you can be held in Constructive Contempt. Constructive Contempt is a type of contempt that is used to enforce the court’s order making the party perform an act that he or she has failed to do. Contempt is either civil contempt or criminal contempt and the court can either impose a fine, imprisonment, or both in any case. For civil contempt, the court will try to persuade your ex to abide by the order, for criminal, the court is invoking punishment for an act your ex may have completed that offended the court.

Once your ex has failed to comply with the divorce decree or custody order, you and your lawyer will need to make sure and do several things before the court will seek compliance from your ex.

Plead a proper contempt

         You will want to make sure and properly plead to the court how your ex has violated the divorce decree or custody order. To do this, first you must list in the pleading the portion of the order that has been violated. For example, listing where in the order that your ex is supposed to pay child support. Then you will want to list how the ex has violated this order. Going back to the child support example, there you would list that a payment, in a specific amount, was due on a specific date and your ex failed to make this payment. Third, you and your lawyer will want to make sure and notify your ex of the contempt hearing. Your ex must be personally served, serving his or her attorney will not be sufficient. If you are pleading contempt for child support your ex must be served with a citation and show cause order, a citation must be given to support a money judgment. If your ex has violated an order by a criminal act that has offended the court then the punishment cannot exceed 6 months, if so, he or she will be entitled a jury trial.

The Hearing

Next, the pleading will need to be proven up before the court. To prove up the case, first you will be asked to identify your ex as the person whom who are filing contempt against. Second, you must ask the court to take notice of the order that you are trying to enforce. Third, you will have to prove, before the court, that your ex was given notice about which he or she is being filed for contempt against. Example: prove that your ex was aware that he or she was supposed to pay child support on a certain day but did not. Fourth, you and the lawyer will need to make sure and have a proposed order ready at the hearing, such as an order holding your ex in contempt and committing him to jail or based on certain conditions. Fifth, your ex will need to be read his rights and it must be put on the record.

What to do next if you have a successful contempt hearing:    

         There will need to be a punishment assessed for each act of contempt that you have won against your spouse. You and your lawyer will want to do this in case your ex is able to appeal one of the charges, assuming there are multiple. If he or she wins on appeal for one charge, he or she will still have to face the punishments for the other contempt charges.

The order for contempt must include how your ex can meet the requirements for the punishment that is given.

Can I file contempt against my ex for debts?

         Under Article I Section 18 of Texas Constitution a person cannot be jailed for not paying a debt, except for: child support, spousal support, and attorney’s fees and costs incidental to the collection of a child support obligation. Failure to pay attorney’s fees can be enforced by contempt, if the fees or costs are being paid out of property or funds in your ex’s possession when the order was made.

Can I file contempt against my ex for not following a child possession order?

         Yes, but only if you have strictly followed the order in your custody agreement. You must have attempted to get the child at the time, date, and location that are designated in your order and your ex must have refused to turn over the child to you. It will not be enough in court if your ex has only called and told you that you could not have the child.

What If my child refuses to visit me, according to the possession order?    

         This is known as passive contempt. Your ex, having primary possession, may claim that he or she had the child ready and packed, but the child refuses to go. If so, the courts have taken different views on this subject. Some courts refuse to acknowledge passive contempt and some hold the parent that has primary possession is in contempt. The Houston 14th Court of Appeals recognizes passive contempt, and has said that it is the obligation for the parent to drag the child to the visiting parent.

A trial court has plenary jurisdiction (complete control) over a case for 30 days after the judge signs the final judgment in a divorce decree. During those 30 days, one of the parties may file a motion for a new trial or a motion to modify, correct, or reform a judgment. That is, either party can file a motion to have the divorce re-tried before a court or if a party is not satisfied with the final judgment given by the court, then the party can file to have it changed. But, each party only has 30 days from when the judge signs the final divorce decree to do so. Rule 329b(c) requires that these motions be in writing and signed by the court for them to be enforceable. Parties cannot give their consent to allow the court to have more control than what it specified in the rule.

Take, for example, the Dallas Fifth District Court of Appeals Case, In the Interest of M.A.C. and M.T.C. Here a Final Decree of Divorce was rendered on August 28, 2013. The Mother filed motions for a new trial and a motion to modify, reform, and correct the judgment on September 6, 2013, well within the 30 days set out in the rule, but the record did not contain a written and signed order from the trial court on either motion. Because there was no written and signed order, both motions were overruled by law on November 11, 2013. But, the record in the case contained a “First Amended Decree of Divorce” signed on January 22, 2014. Thus, the father here filed a motion for a new trial January 27, 2014 were he argued that the trial court’s plenary power had already expired when the First Amended Decree was signed.

The two motions the mother filed were overruled by law November 11, 2013, seventy-five days after the final divorce decree was signed. When she filed the motions, the court retained control over the matter for 30 days after the law overruled the motions. Therefore, the court here had control over this case until December 11, 2013, one hundred and five days after the Final Divorce Decree judgment was signed. The First Amended Decree signed on January 22, 2014 was void because the court no longer had jurisdiction or plenary power over the matter.

Thus, if a court renders a final judgment for your divorce the court will have jurisdiction 30 days after it is signed. You or your ex-spouse will have those 30 days to file a motion for new trial or a motion to modify, correct, or reform the judgment. If there is no written and signed order on those motions, they will be overruled 75 days after the final divorce was signed. Once these time periods have run, the court will no longer have any control or jurisdiction over the matter.

Discovery Explained

In a nutshell, discovery is a procedure in which information is exchanged between two parties. This is a general description to be used for civil cases only (as opposed to criminal cases). The term “discovery” is very broad. It covers a wide variety of requests that one party makes to another in order to obtain information.

There are several reasons why providing one party with information regarding litigation is important, but under the American system, no other reason is more important than the concept of fairness and a fair trial. If one party withholds potentially powerful evidence or information from the other party, because that information is damning to their case, then that is not fair to other party, especially in a criminal setting, but almost as much in a civil trial. If a party has information helpful to their case withheld from them on the basis that the other party was in control of it and they knew it was harmful to their case, without discovery rules, the other party almost certainly would not be able to present their case fairly before a judge or jury.

Think about it this way: a chemical company is being sued for contaminating the water supply to a small town. They have information that shows that they knew about the contamination and continued on without working towards fixing the contamination or remediating it. If there were no rules that compelled the chemical company to release such information, then the people of the small town may have a very difficult time trying to prove that the water company knowingly continued to contaminate the water supply. (This is not the best analogy because there are likely other ways of obtaining the information, and there are probably ways that the chemical company could try to deny discovery of such material, but you get the gist).

Types and Scope of Discovery

Rule 192 explains the permissible forms of discovery:

(a) requests for disclosure;

(b) requests for production and inspection of documents and tangible things;

(c) requests and motions for entry upon and examination of real property;

(d) interrogatories to a party;

(e) requests for admission;

(f) oral or written depositions; and

(g) motions for mental or physical examinations

Tex. R. C. Proc. 192.1. There are also rule regarding what is and what is not information that can be admitted into discovery. Rule 192 further explains that,

“In general, a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action … It is not a ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

Tex. R. C. Proc. 192.3.

Put into perspective, Rule 192.1 outlines the various types of discovery allowed in a given case. Not all forms of discovery are needed in a given case, but they can apply to any type of civil case in Texas if necessary. Rule 192.3(a) provides a general scope of discovery applicable to all types of discovery under 192.1. It states generally that a party may request information that is not privileged, that is relevant to the subject matter in some way, and appears to be “reasonably calculated to lead to the discovery of admissible evidence. Tex. R. Civ. P. 192.3(a). The word appears is absolutely important to that sentence. It means that it doesn’t necessarily have to lead to the discovery of admissible evidence, and it doesn’t as a matter of face have to be “reasonably calculated”, it only has to appear to be reasonably calculated. That is very important. It provides the requesting party with just a little more leeway in their requests. That does not exclude the other party’s ability to object to requests, but they must assert that the request does not on appear to be reasonably calculated to lead to the discovery of admissible evidence. Taken together, rules 192.1 and 192.3 taken together help us to understand the types of discovery and an outline of their scope.

Requests must be made with relative specificity. Tex. R. Civ. P. 196.1(b). Under rule 196.1(b), the requesting party must provide the other party with what they’re looking for from the other party and in specific enough terms so that the other party will know what they are to send. Additionally under 196.1(b), if you plan on testing the thing produced for inspection in a lab or some other way, you must disclose what you plan to test or sample regarding any such item.

Objections and assertions of privilege will necessarily affect what is shared between parties, but we do not need to worry about these for now. The concept of discovery is what we are trying to understand

Compelling Discovery

Request for Admissions, Request for Interrogatories, Request for Production, and Request for Disclosure are the four most common ways to obtain information from another party. Requests for admissions and interrogatories are typically in the format of question and answer. The request for production and inspection of tangible things is just how it sounds, but it is usually provided in an enumerated form to provide the responding party with specific enough requests to know what needs to be found and produced. The request for disclosure is more like the first two. The party requesting disclosure may request that the responding party provide them with any and all potential legal claims/defenses in the litigation as well as any factual bases for their legal contentions. It also requests the responding party to provide their names, addresses and contact information, as well as name and contact information of any witnesses. But before we go too far, lets take a look at each of the four types individually.

Request for Admissions

Within the realm of written discovery requests you can request another party to make certain their position on certain facts or situations related to the case. They typically come in the form of enumerated sentences or descriptions of events. Responses to such a request can take the form of an admission or a denial. They can also be yes or no, true or false, but the point is always the same. The party seeking answers is trying to verify which facts are actually in contention in the case. This is actually a much more important tool in litigation than might originally appear. Sifting through the contested facts and circumstances to get to a set that are agreed on by both parties allows the court to get a better picture of the events that led to the litigation.

Request for Interrogatories

Interrogatories are slightly different from requests of admissions in that instead of admitting or denying specific things, they are requested to give an answer to a specific question. It is not that they are admitting anything, they are simply answering a question about a fact. A common question in an interrogatory requests that the responding party provide their account of the event or circumstances that gave rise to the litigation. That is the difference: In an interrogatory, you are giving an account or description of the events that eventually lead up to the litigation, or providing information about the parties involved, not admitting or denying whether those certain things happened, or about whether they happened in a certain way. The party responding only needs to respond to things that they have actual knowledge of, or can acquire the information through a reasonable search.

Request for Production

This is the more commonly known form of discovery. Once requested, the other side is required to compile information that they have and hand it over to the other side. This is usually done by both parties in a civil suit, and sometimes it is supplemented when new information is discovered. As always, there are certain privileges and exclusions that can apply to production requests. The requests have to be reasonably specific so that the other party knows what to prepare and hand over. When making an objection or asserting a privilege to production, it must be done in regards to a specific request, in writing, and state the legal and factual bases for the objection so that the other party knows what you are trying to withhold and why.

  1. Request for Disclosure

Disclosure is a bit like an interrogatory in that there is a series of enumerated requests and questions to answer on a standardized form, but they usually aren’t as involved as interrogatories. Disclosure requests usually ask for the names and addresses of parties or persons with relevant information (witnesses, experts). For experts they request to know the information the expert will testifying to, and the information or documents they will be referencing. Disclosure requests will also contain requests for legal theories the party will be using at trial.


According to the Texas Rules of Civil Procedure, responses must be served on the requesting party within 30 days after having been served. However, if the request is received before the Defendant’s answer is due, such as being served with everything at once (notice of the suit, and request for disclosure, etc… at the same time). In that case, the response is not due until 50 days after service of the request. (Tex .R. Civ. P. 194.3, 196.2(a), 197.2(a), 198.2(a)).

Each type of response has its own procedural rules governing what the “content” of each type of response should be. For instance, the Texas rules for an interrogatory state that the response should include “the parties answers … and may include objections and assertions of privilege.” Tex. R. Civ. P. 197.2(b). But it also provides an option to produce certain records if the “burden” is substantially the same for either party to derive or ascertain the information from public record, responding party’s business records or a compilation of the business records. Tex. R. Civ. P. 197.2(c). This means that if the information is just as easily obtainable by the other party through the public record or the business records, the responding party can just provide that information and have the other party find it in the record. But you cannot just send the party on a wild goose chase through thousands of pages of documents. The answer that the requesting party sought must be “specified in sufficient detail” to allow them to find the information as easy as it would have been for the party who gave up the information.


It is important to understand that discovery is a broad term with broad goals. The concept of discovery encompasses many different types of information. The rules in Texas are meant to organize a broad and complicated process into a streamlined, understandable, and cost-efficient tool for both sides of the litigation. Knowing the what and how of the response is pivotal to providing the correct information to the other side. Understanding what can be objected to, or what could be privileged is paramount to the case. With discovery, it is about having a keen eye. A keen eye that is fixed on the minutia of the question or request, but also on the bigger picture of the litigation at hand.

The purpose of the discovery rules in Texas is to facilitate a cost-efficient transfer of information between opposing parties in a lawsuit. The rules seek to accomplish this goal by providing parties with notice of how discovery should be conducted, explaining what may be requested, and the proper form of how to request it.

 What is Discovery?

Discovery is the transfer of information from one party to another party or multiple other parties. It is an immensely important function in litigation because in all likelihood the information you need to win your case will come, at least in part, from the other side during discovery.

In a world of extreme competition, why would the legal system require one side to provide the other with potentially damning information? In a word, fairness. Sharing information between the parties is but a subpart to broader goals of the law, which is to deal in good-faith with one another.

Discovery allows for a more expedient trial. One, because it provides the parties with dates that they must abide by to turn over the information. Secondly, it puts the other party on notice of information the other side plans to use against them, and the legal theories that will accompany that information.

The two sides in the litigation are still adversarial, to say the least, but the right to a fair trial is at the heart of the American system.

Please do not misunderstand me, it is not like discovery is always a field of flowers to get from the other side. And it is not like there cannot be contention between what should and should not be shared between the parties. There is also abuse of discovery. Sometimes what one party requests of another is a huge burden to obtain, or it is very costly. Then there are the times when you just are not exactly sure of the scope of the request. Situations such as these will be discussed in further detail below. 

Responding to Discovery

Responding to discovery is all at once a complicated and very simple process. Usually it is not incredibly difficult to understand what has been requested by an opposing party during discovery. What makes it difficult is to comply with the response by getting the information and returning it on time. The standard time frame for responding to all types of discovery is 30 days under the Texas rules. There is an exception to the 30 days rule if the request for discovery is received prior to sending in the defendant’s original answer. The parties can, at there discretion, or by order of the court, set their own time period for discovery.

Responses to discovery must be made in writing (or whichever format or type of discovery requested), and must form a complete response to the question or request for production or inspection of documents, etc.. An objection, or assertion of privilege, if the legal and factual bases for their assertion is proffered, will act as a complete response to the request because it is your complete and full response to their request. If the other side would like to argue about it, they have the opportunity to request a hearing before the court regarding that objection or assertion of privilege, and the court can decide whether or not the assertion of the privilege or objection is proper.

If the court overrules the objection or assertion of privilege, the party losing the assertion would do well to object and make an offer of proof (statement to the court arguing why you believe the assertion should stand) and ask that the objection be preserved on the record. By doing so, you preserve the record on appeal, so that in the event there is an appeal, the ruling on the assertion may be argued on appeal and possibly overturned.

Objections, Privileges, and Exemption: Know the Difference!

There are three powerful tools at the respondents’ disposal that provide a means for not complying with some or all of the requested discovery materials. Two of which were discussed briefly above, the objection and the assertion of privilege. The third, the exemption, is handled in a much different way by the courts.

The Objection

An objection is usually made because there is something about the request that subjects it to repudiation by the responding party. The most common objections are claims that the request is overly broad, cumulative, duplicative, does not state with sufficient clarity the item for inspection or some other combination of the above. In a single discovery request, if the responding party objects to half of the requests, they must object to each one individually and state the legal or factual basis for the objections. It is a line-by-line procedure.

When something is said to be “overly broad”, it usually means that the requested information is outside of the requisite relevancy to the litigation. All information requested under the rules of discovery in Texas must be relevant to the litigation, and must appear to be reasonably calculated to lead to the discovery of admissible evidence at trial.

If a party makes the claim that the request is overly broad, they must explain in what way the request is overly broad. First, provide the legal bases for why the request is “overly broad”. Is the requested information irrelevant to the case? Does it appear to be reasonably calculated to lead to the discovery of admissible evidence? Second, provide the factual basis for the objection. These will be determined on a case by case basis as the facts of each case are different.

The Privilege

A second type of protection from disclosure is the privilege. The privilege is a function of the law that protects certain type of information from disclosure to the opposing party. Spousal privilege and attorney-client privilege are the greatest examples under the Texas rules. As with objections, all assertions of privilege must be made in writing to the other party. It must state the privilege asserted, and state the information or materials that is being withheld due to the privilege. An example of a privilege would be where a spouse has been subpoenaed to testify against her own husband in a trial or hearing. She would be protected from having to testify against her husband under the spousal privilege.

The Exemption

The last type of protection is the exemption from discovery. A good example of an exempted material is an attorney’s work-product. It is probably the biggest example of an exemption because an attorney has his or her own work product in every single case. This would likely include communications between attorney and staff or other attorneys working with him on the case, as well documents prepared in advance of litigation to prepare for the lawsuit, such as notes, and memoranda. If an attorney had to hand over work-product, they would be providing the opposing party more than just an idea of where they plan on going with their case, but they’d essentially be handing them the keys to their case.

To be exempt under work-product, the documents must have been created or made by the lawyer in conjunction with legal services provided for the current litigation and the current client. It cannot be from a prior case or a related case. Unlike the objection or an assertion of privilege, an assertion that the information requested is exempt from discovery does not have to be made in writing. Essentially, the other party does not even have to be notified that the information requested is being withheld. The responding party can simply disregard the request.

Tips For Responding to Discovery

Several factors come into play when thinking about just how to respond to a discovery request. The important thing to remember is that making full and complete responses is the goal. This is true regardless of whether you are answering their request by providing what they asked for or objecting to it. Whatever you do, never leave a question blank. Even if you are stating that the information is exempt, or asserting that the information is not discloseable. You are required to make a full and complete response.

When the Cost Outweighs the Benefits

            When looking at a discovery request, you must ask yourself, “what is the cost of responding to this request relative to the value of the claim?” Unreasonable cost would be a valid objection. Requests that are overly burdensome are also likely to be overly broad because the way they are worded expands the scope of the request and creates a greater burden on the responding party for trying to complete the request. For example, if the cost of providing the information will cost Corporation A $200,000, but the value of the claim against Corporation A is only $100,000, would it be unreasonable for the court to require Corporation A to provide that information? There is very a good chance that it would be unreasonable. Because of this, the court would likely require Corporation A to provide another form or type of information to complete the response that is less costly. If the court did not provide Corporation A with a means to object to the cost as unduly burdensome, what is the likelihood that Corporation A settled with the requesting party as opposed to completing the request and continuing on in the litigation? They’d probably settle. Without the ability to object to such requests, plaintiff’s or defendant’s could easily misuse the system and make requests that squeezed at the pocket book of the opposing party until they were forced to settle or back away from their claims.

Requests that are Overly Broad

As discussed earlier, discovery requests can be overly broad or request irrelevant information. An overly broad question can do several things: (1) it can log jam discovery by creating a burden on the party trying to figure out what the request means, and how to comply with it, or (2) it is meant to drive up the cost of litigation. If the information requested is quite costly, then it might incline the responding party to settle or back down from the action for fear of the expense.

Do Not Let Them Go Fishing!

When a party requests information that is irrelevant, that type of request considered a “fishing expedition” and can be objected as such. When a party goes on a “fishing expedition”, they are likely seeking additional information outside of the scope of discovery for potential new parties and new claims, or they just do not have a particularly strong case, and they are fishing for anything they can catch.

Duplicative Requests

  1. If the request seeks information that has already disclosed, then it is considered to be duplicative. It is key for an attorney to keep an eye out for these types of requests. They are time-consuming, and costly. Objecting to this type of request does not hurt anyone involved. Simply object to the information as duplicative and provide the type of information that was sent previously and in what format.

Get it Yourself!

If the request seeks information that can be obtained in some reasonable manner, an objection should be made. This type of request amounts to having the other party do their due diligence for them. It is unnecessary to request another party to provide you information that is reasonably and easily obtainable for yourself. It is a common sense objection.

Be Sure of the Time and Place

            Every request for discovery will have a time and place provided to the responding party to advise when and where the discovery should be sent. If the time and place provided is unreasonable or burdensome, then request that it be changed. This must be done in writing, prior to the deadline for returning the requested discovery documents and items.


Overall, it is important to pay close attention to each and every discovery request. There are procedures in place that require the responding to party to comply with the requests, but there are safeguards from unreasonable requests. It is important for an attorney to be keenly aware of what is being requested, why it is being requested, and how it is being requested, in order to fully comply with the discovery rules in Texas and provide the absolute best legal aide to their clients. It is important to keep the scope of discovery in mind while going through a discovery request. Is the request going to be costly? Too costly? If you find yourself asking what a question means, then you may want to think about an objection for it being vague, overly broad, or unduly burdensome.