By Larry Chamberlin, 10 June 2020
It has often been said that marriage is like a partnership; one significant difference is that the state does not require you to sue your partner to dissolve the partnership. In a divorce, that’s exactly what happens: you must sue your spouse in Court to obtain a divorce. Even when both parties agree on all aspects of the break-up, a lawsuit must be initiated and carried all the way through to completion in order to be free of the marital bonds. Even if one party provides all the necessary signatures and documents, where the other spouse allows the active lawsuit to be dismissed, they are still married. This happens a lot.
The procedure begins with an Original Petition for Divorce which is filed with the District Clerk’s office in the appropriate county. The petition generally, but not always, includes a request for a Temporary Restraining Order or TRO. In most cases the TRO will be granted and is mutual, meaning the order imposes restrictions on both the Petitioner and the Respondent. These restrictions are designed to preserve the current situation, or status quo, until the Court has a chance to hear both sides before rendering decisions. The TRO includes prohibition against violence or threats of violence and restrictions against hiding or wasting assets and provides for the protection of the children from the inappropriate behavior of either parent. In some cases, where the Petitioner provides a credible affidavit, the TRO imposes restrictions only on the Respondent; issues giving rise to this type of TRO often involve domestic violence, sexual assault, criminal behavior or terroristic threats.
Once the Petition is filed and the TRO, if any, is signed by the judge, the district clerk’s office incorporates them into forms, Citation and Precept respectively, that are to be served on the Respondent. Constables are often used to perform the service, but private process servers regulated by the state may be used. Harris County has innovated a service procedure with electronic versions of the forms which are emailed to the attorney who requested them. The attorney in turn sends them to a private process server who prints them out and serves them on the Respondent. Chamberlin Law and Mediation works with the process server and our client to get the Respondent served in the most expeditious time possible. The client not only advises the server, but also learns quickly when service has occurred. In delicate situations this early knowledge helps protect the client and children from the initial anger that often accompanies service.
The TRO not only sets out the restrictions on people’s actions, it also sets a date for Temporary Orders. On this date the parties are set to appear in Court for the Judge to make decisions as to temporary use of assets, such as which party stays in the marital residence or uses vehicles while the divorce is going on. The Temporary Orders also determine how finances will be used, such as paying bills, protecting retirement funds and other accounts and sometimes orders payment of temporary spousal support. Where children are involved, the Court decides several matters: whether the parents will be joint managing conservators (which happens in most cases), who determines the children’s primary residence (meaning in most cases who they will primarily stay with during the divorce), what visitation the other parent will have, who pays child support to the other parent and how much, how the children’s medical and dental insurance will be paid, how the parents will split the uninsured medical and dental costs, and finally, how various rights and duties to the children will be allocated between the parents. The Court will also render Temporary Injunctions to replace the TRO. These injunctions may include individual as well as mutual requirements and are often crafted to individual needs and circumstances. Where the TRO is a short-term order, the Temporary Injunctions remain in place until the end of the case or until the Court changes them.
Most Courts require that the parties attend mediation before the Court will allow them to go before the Judge for Temporary Orders. Mediation allows each party to express their concerns and wishes in a way that is not generally possible in Court. The parties and their attorneys will meet with the mediator in person or by Zoom conference. They may all be in the same room (or Zoom Room) at first or they may meet with the mediator separately from the other spouse in split sessions. Regardless, the intent of mediation is to come up with decisions between the parties of all, or at least some of the issues the Court would otherwise be required to determine. If mediation is fully successful, all issues will be decided and the mediator drafts a Mediated Settlement Agreement (MSA). Once all parties have signed this agreement two important factors have occurred. First, neither party can change their mind about one of the issues and try to get a better deal. Once the agreement has been signed by all parties it is non-revokable. Second, the Court no longer must make a decision as to any matter covered in the MSA, since the parties have already made these decisions. In fact, even if the Court does not agree with the decisions made by fit parents in the MSA, the Judge cannot substitute his or her own opinion for that of the parents. Obviously, the importance of mediation cannot be overstated: where two parties have the chance to arrive at their own choices, negotiated with the other party and an impartial mediator, they are far wiser to make these choices than to trust the decisions to a judge who does not know them and who must make these long reaching decisions after hearing form the parties for only a couple or so hours.
If no agreement is reached, or if some issues remain unresolved, the parties continue to Court for the hearing. Sometimes this phase of the process can be frustrating. On any given day there may be more than twenty cases before the Court. Between the elected or Presiding Judge and the judge’s appointed Associate Judge only so many cases can be heard in a day. As a result the case may be continued to another day. When the case is heard, for that same reason of limited time available, often only a few witnesses can be heard, depending on the importance of the disputed issues. It is always better to be the Petitioner for the reason that the Petitioner usually speaks first, thereby setting the framework for the Judge’s understanding of hte case. In some cases the Petitioner’s attorney may have a different strategy. Regardless, each side must testify about the facts and explain their own side of issues. The Court hears the testimony and makes his or her decision which the attorneys commemorate into an order that also incorporates the partial Mediated Settlement Agreement, if any, and the Temporary Injunctions.
Since the impact of the new coronavirus pandemic Court hearings have become even more frustrating. Hearings are mandated to be in person or by Zoom, as determined by the Court. Where the process is by Zoom, each party must be responsible for it’s own telecommunication and that of it’s witnesses. Court sets up invitations to a Zoom Conference and places the online participants into an electronic “waiting room,” from which individual cases are placed before hte Judge. Although it sounds complicated it is fairly simple and a good attorney will prepare his client and witnesses adequately.
After the Temporary Orders and Temporary Injunctions are put into place, the parties prepare for the final divorce trial. Each party sends out to the other side demands for information called Discovery. Some of these are Disclosure Requests which seek basic information; others are Interrogatories, which are questions the other side must answer under oath; and the third most common are Requests for Production which call for information in document form which the other side must provide unless the requests are unreasonable. Responses to discovery are time limited and must be taken serious. Often, there will be requests to admit or deny certain facts or the authenticity of documents. Occasionally there will be Depositions: a requirement to appear for sworn testimony in the office of one or the other attorneys.
This discovery period takes up the time between the Temporary Orders and the final Trial on the Merits. In most cases the parties, through their attorneys, are discussing the issues with the aim of coming to some sort of compromise that would allow them not to have to try the case. If no compromise is reached most cases are required to attend a second mediation before going to trial. The same process occurs here as in the temporary orders mediation already described. The same results hold true as well: neither party can change their mind if an MSA has been properly executed and the Judge cannot deny an MSA arrived at by two fit parents. There are exceptions to the non-revokable rule if an MSA is obtained through deliberate fraud or undue coercion that resulted in an agreement unfair to the innocent party, but the threshold of proof of such matters is high.
The Final Trial on the Merits is much like the Temporary Orders Hearing: if the MSA covers all matters, there is no trial, but the MSA must be supported by testimony. In the age of Covid-19, this testimony can be by affidavit, as the Court allows, or by Zoom Conference. If Trial is required it follows the patterns set out above for Temporary Order Hearings with the exception that the Court does not impose a time limit on your case. The decision of the Judge is usually rendered at the close of testimony although the Judge may occasionally ask the attorneys to provide written briefs dealing with the legal aspect of one or more issue. The final order is in the form of a Decree of Divorce, which may be appealed under circumstances too variable to discuss in this broad overview.
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© 10 June 2020 Larry Chamberlin, Chamberlin Law & Mediation