Family Law Cases: The first 45 Days; Filing the petition, Temporary Relief, Service, Protective Orders and Answering a Divorce

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.

Jurisdiction

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.

Service

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.