I sometimes find myself quickly explaining the next steps to my new clients, and they stop me by saying "Wait! I've never done this before!!". I realize the mechanical process of a divorce can seem mysterious. And sometimes my current clients cannot understand why it seems to be taking so long when they know what they want. To deal with the court system takes some steps that are required by law and a few behind the scene things that have to happen before you are finished.
First, any law suit requires some papers to be filed at the courthouse. And before you can do that, you have to figure out what courthouse. In Texas, a divorce is filed in the county where you have lived for ninety days and you have to have lived in Texas for six months. That rule is in place so people can't "forum shop" and just pick a court or county or state because they think it would work out better for them.
The initial papers require a filing fee. Then the other side has to be given notice that a court case has been filed. This is usually by "personal service", which means a constable or private process server personally hands the other side the papers. Another option is for the other side to sign a "waiver of service", saying they know about the court case and don't need to be personally served. If you don't know where they live, or if the other side "ducks service" and hides and avoids the process server, then you can ask the court to let you notify the other side by an alternative means. That can be anything from leaving the notice on their doorstep to posting on the wall at the courthouse or publishing it in a newspaper. Each of these requires certain papers to be drafted, signed, filed at the courthouse and a judge's signature. And more money. But it is fundamental fairness that you cannot ask a court to decide your case without the other side having a chance to answer and put forth their side.
After the other side has been noticed that a divorce has been filed, then you have to decide if you need temporary orders. These are orders that lay out the rules for property use, children, money and any other rules that need to be in place during the time the case is not finished. If temporary orders are needed, then more papers are filed at the courthouse, a court hearing date is requested and the other side has to be told about the court date and the purpose of the hearing. In my courts, you can usually get a temporary orders hearing about two to three weeks after you request it. You need temporary orders when you have to determine who will have possession and responsbility for the home, cars and bills and other things while you are deciding how to permanently divide things up. With children, you have to lay out where they will live, go to school, spend time with each parent, and be supported until permanent decisions are made. Parties can either agree or go to court and ask the judge to decide. Often agreements are reached and the judge just signs the agreed rules. Other times, some or all issues are contested and the judge hears both sides and makes a decision. These rules will generally stay in effect until the case is over.
For a child custody case (without a divorce), the process up to this point is much the same. In a custody case, you have to start in the county where the child has been living for at least six months. If you are modifying a previous order, you start in the court who issued the previous order.
I will talk about the rest of the process in other posts, but this should make it clear that the more agreements you can reach, the less stressful and expensive the process is. However, these are emotional issues and family law lawyers and judges understand that agreements are not always easy. As attorneys, part of our job is to help you sort out what is possible and reasonable, and then to negotiate for you. I cannot begin to list all of the things that must be considered in deciding what orders are necessary. Each family is different and each case is different. I talk with my clients about their financial and emotional situation, review the current arrangements, determine what is important to my client and the family and make recommendations, referrals and suggestions about what orders need to be in place. I review with my client what the court is able to order, what the court is likely to order and what the court is unlikely to address at the beginning of a case. All of this at a time when a family is upset and struggling. It isn't always easy, but this is what family law attorneys do.
