Divorce in a same-sex marriage is no different than in a heterosexual marriage. The steps and process is exactly the same. However, it is important to note that every divorce is different. Often times our clients like to know the basics of the process, despite such differences. These are some of the typical steps for getting a Divorce in Texas. If you are not in Texas the process may vary depending on which state you are in. Depending on your case some additional steps may apply:
1. File Petition for Divorce
The first step to divorce in Texas is to file for a Petition for Divorce with the family court in the county you (or your spouse) reside and have been residing in at least 90 days prior to filing of the divorce petition. This form tells the court/judge and your spouse that you want a divorce.
2. Notice (Service)
Now that you have filed the Petition for Divorce, you (the Petitioner) must give legal notice to your spouse (the Respondent). This means that a file-stamped copy of the Petition for Divorce that you filed with the court must be delivered or served to your spouse. This is to let your spouse know that you have filed for divorce. You must use an official process server or have your spouse sign a waiver. If you cannot do this the court will not find that legal notice was given.
If you do not know where your spouse lives this can be a stumbling block in proving you have provided adequate notice to your spouse to the court. If this is the case we highly suggest you consult an attorney on alternative pathways.
After this notice has been delivered, it will become clear whether your divorce will be contested or uncontested. Many times our clients believe their spouse will not contest the divorce only to find that once the divorce has been filed their spouse decides to fight it.
If your spouse is in agreement (which is the most amicable way to end your marriage), then you and your spouse will work together to agree on the terms of your divorce (i.e. custody, visitation, division of property, etc.). There does not need to be a formal trial, and you may not need to go to Court at all.
The Judge will probably sign off on your Agreed Final Decree of Divorce (your settlement agreement) unless it is clear that the terms are completely unfair to one person or it appears to have been arranged while one person was under duress (being forced). It is wise to have an attorney review your agreed decree before filing it in order to make sure you are filing a complete and comprehensive document. The final divorce decree must meet several legal technicalities in order for the court to accepted it even if both parties have agreed to the terms. An attorney will be able to ensure that your final decree complies with the requirements of Texas State Law. Using an attorney also may prevent you from having to revisit the court later to address any loose ends that you may not have thought of.
If you and your spouse cannot come to an agreement on the terms of your divorce, the divorce becomes contested. Contested cases will be taken before the Judge. However, before you go to a full blown trial, the parties may decide or the Judge may require mediation (our firm also specializes in mediation). Mediation is an out of court settlement negotiation where the parties attempt to work together to reach a compromise. At the mediation, if you come to an agreement called the Mediated Settlement Agreement (MSA), it is as binding as a judgment by the Judge. Mediations can save significant time and cost. Often times, even if couples are agreed, they will use mediation as tool to work out the details of their agreement. Mediation allows the parties to make their own decisions instead of having a Judge unilaterally decide what is best for both parties. Many people prefer mediation because it is collaborative instead of adversarial.
However, if you and your spouse are not able to come to an agreement, then you will go to trial. The trial process is long and complex with discovery, rules of evidence, etc. Having an attorney in a contested divorce is crucial. Among other reasons it is important to have attorney so you know your rights and you are able to navigate through procedural requirements that may be used against you.
4. Finalization of Divorce
Whether uncontested or contested, when the judge signs the divorce papers (Final orders and Decree), your marriage has officially been dissolved. The Judge cannot finalize the divorce by signing unless at least 60 days have passed from the date of filing the petition. However, it typically takes 6 to 18 months on average from filing the petition to get to this stage. However, the process of divorce is not yet final. Yes, you are divorced, but there are other aspects that you need to take care or look into such as updating your Will (if you have one), filing tax returns, QDROs, etc. Also, you need to know that if you want to get married again, under Texas law, you must wait 30 days after your divorce has been granted (except if you want to remarry your spouse).
These are only the very basic steps for a typical divorce in Texas. We know that divorce is an emotional and complicated legal process. If you or someone you know needs more information on the process or needs help in getting divorced, please contact us or schedule an appointment with us and we will be glad to help.