September 23, 2015
An Overview of the Divorce Process
Most people in Texas will only experience the judicial system through jury duty and/or divorce. While we all seem to know someone going through a divorce, very few understand the procedural mechanics of the divorce process. The attention given to Josh Hamilton’s divorce last year highlights just how foreign this common event can be to the general public. Some news outlets gave a lot of attention to the fact that Josh Hamilton sought a restraining order (a “TRO”) against his wife to prevent certain actions, yet most news anchors and other media personalities failed to explain that the terms in Josh Hamilton’s TRO are quite standard. In fact, the only unusual request in Hamilton’s petition is his request that his wife be prevented from involving the children in any reality TV show.
As it turns out, the Hamiltons have thus far avoided a media circus, but, just like any other divorce, this divorce can be long or short. Hard or easy. Expensive or cheap. But, it will definitely be emotional. The process of untangling your financial, emotional, and familial life from that of your spouse is complicated and hard. When emotions are at play, you don’t always understand what is going on. This roadmap will help.
- A Divorce starts with an Original Petition for Divorce. The petition is generally always basic and universal. However, depending on the family’s circumstances, the party filing for divorce may feel the need to protect himself or herself in addition to certain assets. As a result, some petitions, including Josh Hamilton’s Petition, seek a “Temporary Restraining Order” (“TRO”) to be signed by a judge, which prohibits the other party from draining bank accounts, changing insurance, changing the locks, cancelling cell phones, etc. A TRO is essentially the judge ordering a party to maintain the status quo for a short period. TROs are fairly common, but will require either a hearing at the courthouse, unless both parties can agree to certain injunctions to govern the case while the divorce is pending. In the Hamilton’s case, they avoided the hearing by reaching agreements set out through an Agreed Mutual Injunction (also standard and to be expected in most divorces).
“Easy” divorces (where the spouses basically get along and are working together to unwind their affairs) may not need a TRO or any injunction; however, these temporary “rules” are recommended even for “easy” divorces. For the purpose of this article, we will focus on a “difficult” divorce.
- Temporary Orders and Temporary Injunctions set out the “rules” while a divorce is pending. Once a judge signs a TRO, the clock starts ticking. Generally, TROs are effective for just two weeks. Because of this, the parties in a divorce must make a trip to the courthouse at least once to have a hearing on temporary injunctions or “Temporary Orders.” These orders generally extend certain parts of the TRO to apply throughout the divorce process. In addition, temporary orders will decide child support, custody, and possession issues. This Temporary Orders Hearing is important because it sets a precedent for everything else that happens down the road. If one spouse gets custody at this hearing, it will be harder to “flip” custody later unless there is a material and substantial change in the parties’ circumstances. As you can imagine, this hearing can get quite emotional.
- After Temporary Orders, you can keep fighting or work towards an Agreed Decree of Divorce. Once Temporary Orders have been put in place, the ultimate goal is obtaining a Decree of Divorce. Parties can engage in discovery to assist in dividing property and/or exchange a Sworn Inventory. Discovery gets expensive quickly, but sometimes it’s necessary, especially if the other party may be hiding or wasting assets. Generally, as soon as both parties are able to put their emotions behind them, the real work can begin with drafting a workable Agreed Decree of Divorce. If kids are involved, a comprehensive, workable decree is an absolute necessity—after all, this document will govern your relationship with your future ex for years to come. If the emotions are too much and agreements are impossible, you will proceed to trial and put the contested issues before the judge and/or jury.
- After an agreement or trial, the divorce is finalized through a Decree of Divorce. While the Decree is just a piece of paper; it will play a role in your life for the years to come. That’s why proper drafting with an eye towards the future is so important. People change, grow, move, get new jobs, get remarried, have more kids, etc. Despite all these life changes, the terms stated in the decree will not change without court intervention. The court that granted your divorce and determined the associated custody issues is now your “go to” court if problems arise. This court has “continuing, exclusive jurisdiction” over all issues related to your case, even if one spouse moves away.
- After divorce, if custody or child support need to be changed, the party seeking the change must file a Petition to Modify. These changes can be accomplished through a Petition to Modify, which can be used to change conservatorship, possession and access and/or child support obligations. Any decree in Josh Hamilton’s divorce will need enough flexibility to allow for changes in his future baseball career. He could be traded to a team in the Northeast, become a free agent, a media personality, etc. Any change from his current lifestyle could necessitate a corresponding change with his kids’ custody arrangement. However, decrees cannot be modified just because one parent wants more time with the child. There must be a good reason to modify the decree. The same court that granted your divorce will be the court to determine the petition to modify. Any ability to modify custody and child support depends in part on the amount of time that elapsed since the decree was granted, changed circumstances, and several other factors. Consult an attorney to determine if you can modify any aspect of your decree.
- After divorce, if your ex isn’t following the Decree, you can file a Motion to Enforce. The Decree of Divorce is a court order. It is not an agreement (although you may have agreed to its terms, calling it an Agreed Final Decree of Divorce). While most decrees allow the parties the flexibility to deviate from the Decrees terms by agreement only, once the parties stop agree the Decree terms take effect. Since it is a court order, the decree is enforceable by contempt. If your spouse isn’t abiding by the possession/visitation terms set out in the Decree, contact an attorney immediately to determine how to proceed (for more on enforcement actions, check out this article). If you feel a Motion to Enforce is necessary, you will have to file the Motion with the court that originally granted your divorce.
Every divorce is different. Not all divorces will proceed in this manner. Some will be more contentious; others may not even need temporary orders. This outline is a very broad, simplified overview of what can be a long and drawn out process. If you have any questions about divorce and what to expect, call the attorneys at Gardner & Smith, PLLC