Houston Divorce Lawyers For Contested Divorces

Basic Elements

In family law cases the plaintiff and his or her Houston divorce lawyer is always referred to as the petitioner and the defendant and his or her Houston divorce lawyer is referred to as the respondent.

A Houston divorce lawyer should always plead for separate property in the petition. Invariably, even if great care is taken to tell the client exactly what the legal definition of separate property is, the client will not realize that the small do-dad that once belonged to great aunt Clara could possibly become an issue in the divorce. If the Houston divorce lawyer makes a request for separate property in the Original Petition, it will not be necessary to re-draft and re-file the petition.

The Houston divorce lawyer should also discuss the following issues with the client before the Original Petition is filed, and that they are included in the original petition, if applicable:

• Retroactive child support and maintenance
• Temporary orders
  

A Houston divorce lawyer should learn whether there is the slightest chance that they may at a later time be requested;

• If the client is the least bit unsure that there will be a name change, request it
• Reimbursement of time, toil and talent on the other spouse's separate property
• Reimbursement for payments made on the other spouse's separate property

Fifty-six percent of all marriages in Texas are now ending in divorce. The grounds for annulment presentable by a Houston divorce lawyer are:

• Marriage to a person under age 14;
• Under the influence of alcohol or narcotics at the time of the marriage;
• Impotency;
• Fraud;
• Duress or force;
• Mental incapacity;
• Concealed prior divorce.

Generally, a Houston divorce lawyer brings suit for a contested divorce or annulment at any time. However, a Houston divorce lawyer must bring suit for annulment within one year after the marriage if the suit is based on concealment of a prior divorce that occurred less than 30 days before the marriage.

Common Law Marriage

A Houston divorce lawyer may show informal marriage in the following ways:

1. In a judicial, administrative, or other proceeding, the marriage of a man and woman may be proved by evidence that (1) A declaration of their marriage has been signed as provided by this subchapter; or (2) The man and woman agreed to be married and after the agreement they lived together in this state as husband and wife and they represented to others that they were married.
   
   
2. If a proceeding in which a marriage is to be proved as provided by Subsection (a)(2) is not commenced before the second anniversary of the date on which the parties separated and ceased living together, it is rebuttably presumed that the parties did not enter into an agreement to be married.
   
   
3. A person under 18 years of age may not (1) be a party to an informal marriage or (2) execute a declaration of informal marriage under Section 2.402.

A valid common law marriage in Texas consists of three elements:

1. An agreement presently to be husband and wife.
2. Living together in Texas as husband and wife.
3. Representing to others in Texas that they are married.
   

Proof of cohabitation and representing to others that they were married may constitute circumstantial evidence from a Houston divorce lawyer from which a jury could find an agreement to be married. If an impediment to the creation of a lawful marriage between the parties exists (e.g., one party is married to someone else) there can be no common law marriage, even if all three elements are proven. The existence or nonexistence of a common law marriage is a question of fact to be argued by a Houston divorce lawyer. To avoid a later claim of common law marriage, the parties may enter into a co-habitation agreement with the guidance of Houston divorce lawyers clearly setting out their intention that the arrangement not be construed as a marriage.

Pre-Marital Agreements

Parties can enter into marital agreements either before or after marriage. As of 1996, Texas and many other states have enacted the Uniform Pre-Marital Agreement Act. The pre-marital agreement should recite that the governing law is "the law of Texas as it existed on the day of signing." If the parties do not enter into a pre-marital agreement, the state provides one in the form of "community property." These agreements are especially valuable in second marriages and later marriages when the parties have acquired substantial assets and desire to protect the rights of the parties' children from prior relationships.

Texas Contested Divorce Requirements

1. Establish Jurisdiction

A primary question for the Houston divorce lawyer is "How long have you lived in this county?" If the client has not lived in the county for 90 days and in the state for six months, the Houston divorce lawyer cannot bring a suit to take place in that county, as another county or state still has jurisdiction. This time limitation does not apply to annulments. However, a Houston divorce lawyer cannot argue for annulments nearly as often as for divorce. Also, if you are in one of the many counties that border the State line, it may be that Texas does not have jurisdiction and a Houston divorce lawyer cannot help you. A person must be a Texas resident or domiciliary for a Houston divorce lawyer to bring suit on his or her behalf as a petitioner for divorce or child custody in a Texas court. Frequently, clients live in a neighboring state but work in Texas and assume that Texas would have jurisdiction. They contact a Houston divorce lawyer only to find out they need another district. Clients may even live in a bordering country (Mexico) and do not realize that Texas cannot exercise jurisdiction over the divorce and Houston divorce lawyers are of minimal help.

2. Obtain Preliminary Information

The first contact the client has with a Houston divorce lawyer is generally by telephone. Many answers can be obtained from this phone call with the Houston divorce lawyer to determine if an interview is even necessary. The receptionist should ask preliminary questions, and more detailed questions may be asked by the Houston divorce lawyer.

At the interview, a Houston divorce lawyer should obtain pertinent information from the client. Information that the client will know is all that is necessary for the Houston divorce lawyer to file the original petition to get the divorce started. Other information that the client will not know without reviewing the relevant documents (e.g., VIN numbers on the vehicle, or legal descriptions of property) will not be necessary until the 60-day waiting period has passed and the final paperwork is being prepared by the Houston divorce lawyer.

Determine Appropriate Lawsuit

Three different types of lawsuits may be filed with the help of a Houston divorce lawyer to end a marital relationship:

1. Divorce;
2. Annulment;
3. A suit brought by a Houston divorce lawyer to declare a marriage void (bigamy or consanguinity).

Frequently, clients will ask: "Can I get a legal separation?" While there is no such thing as a "legal separation" in Texas, if there are children involved a Suit Affecting the Parent Child Relationship (SAPCR) may be filed by the Houston divorce lawyer. This determines the issue of custody and support for the children without dissolving the marriage, but the expense and cost are just as much as a divorce and more in some situations. Therefore, Houston divorce lawyers usually find it best to proceed with a divorce if possible.

Preparing The File

When a divorce case file is opened it should include:

• The employment contract;
• A client interview sheet/questionnaire;
• A checklist of things to be done by Houston divorce lawyer and client that preferably incorporates a significant date list;
• Report of Divorce or Annulment of Marriage-this is a statistical report to be completed at the time of the final divorce hearing that can be obtained from the district clerk's office;
• A service of process information sheet (if applicable).

 

The Original Petition And Jurisdiction

Matrimonial Long Arm Statute

The Texas Family Code provides for jurisdiction over nonresidents on "any basis consistent with" the United States and Texas Constitutions. In addition, if the spouse bringing a divorce action is a Texas resident or domiciliary and Texas is the parties' last marital residence, Texas courts have personal jurisdiction over a nonresident spouse if suit is brought within 2 years after the marital residence ended.

Minimum Contacts

As with other civil cases, attempts to exercise jurisdiction over nonresidents in family law matters must meet not only the relevant long arm statute but also constitutional due process requirements.Generally, personal jurisdiction over nonresidents in divorce and other family cases is determined by the same minimum contacts test that applies to other nonresidents.

Divorce And Child Custody: Personal Jurisdiction Not Required

If one spouse is a nonresident over whom the court has no personal jurisdiction, a Texas court still has jurisdiction with respect to the marital status of the resident spouse. In a custody case, a Houston divorce lawyer may find the Texas court has jurisdiction even if one of the parents does not have minimum contacts here.

Property Division and Child Support: Personal Jurisdiction Required

A Texas court must have personal jurisdiction over a nonresident spouse before it may entertain arguments from a Houston divorce lawyer to determine matters that are basically claims for debt, such as the amount of child support. A nonresident spouse must have minimum contacts with Texas before a Texas court may adjudicate property division disputes, and thus before a Houston divorce lawyer can assist.

 

Filing The Texas Divorce Petition

Waiver Of Service

If the client believes that the other side will sign a waiver of service, then the Original Petition should simply state "no service is necessary at this time." If the person does not sign the waiver, a citation should be issued. A Houston divorce lawyer should give the district court a copy of the petition with the service address. It is not necessary to amend the petition in most counties.

Domestic Torts

Consider alleging any domestic torts that have occurred (e.g., fraud, breach of fiduciary duty, assaults, third party liability and conspiracy, privacy issues, intentional infliction of emotional distress).

A spouse and his or her Houston divorce lawyer may bring an independent tort claim against the other spouse for fraud for which exemplary damages may be awarded, even when the fraud resulted only in a depletion of community assets and not the wronged spouse's separate estate. A presumption of constructive fraud arises where one spouse breaches the fiduciary duty owed to the other spouse and disposes of the other spouse's one-half interest in community property without the other's knowledge or consent. Remember it is always simpler and less work for the Houston divorce lawyer to include this information in the Original Petition than to amend the petition at a later date.

Filing The Petition

File the Original Petition for Divorce in District Court.

Make three copies:

• One for the adverse party (to leave with the clerk to prepare the citation if service is necessary).
• One for your client.
• One for your file.

Make the copies before you go to the clerk's office, as the clerk's office charges per page for copies.Additional copies will be needed if a TRO or Notice of a Temporary Hearing is issued in addition to the citation.

Request For A Jury Trial

Texas allows jury trials in family law matters. This is one of the reasons other states tend to look to the plethora of Texas law in domestic matters. A Houston divorce lawyer should request a jury trial 30 days before any portion of the case proceeds to trial.

Notice To The Attorney General

If there has ever been any involvement with the Attorney General's Office (e.g., Aid to Families with Dependent Children [AFDC], or an assignment of child support) a Houston divorce lawyer must notify the Attorney General's Office of any proceedings at the following address:

Texas Attorney General

830 Central Parkway East, Suite 350

Plano, Texas 75074

A Houston divorce lawyer gives this notice by listing the Attorney General's office in a certificate of service on the pleadings and sending them a copy of the pleadings by certified mail. If you receive this information after pleadings are filed, send a letter to that effect to the District Court Coordinator. If the Attorney General's office has received no notice of the case, the judge will probably not allow you to proceed at the court hearing.

Waiver Of Service

In a simple divorce the opposing party may agree to sign a waiver. This is desired and less expensive. Send the opposing party a letter, if the party is not represented by a Houston divorce lawyer.

In the letter make sure that the opposing party understands that you do not represent that party. This will cut down on a waste of the receptionist's time later in explaining to the non-client spouse that the Houston divorce lawyer cannot talk to the non-client. A legally competent adult may waive service of process by signing a written memorandum under oath. The defendant or defendant's Houston divorce lawyer may not waive service of process until after the plaintiff files suit. A waiver executed before the plaintiff files suit is void.

The waiver must:

1. State that the defendant waives service of process;
2. Acknowledge the defendant's receipt of a copy of the petition;
3. Be signed by the defendant or the defendant's authorized agent;
4. Be sworn before someone other than an attorney in the case;
5. Be dated after the case is filed.

In divorce cases, the waiver of service must also include the defendant's mailing address. Before waiving service, the defendant must be given a copy of the petition. When the waiver is returned, file it with the District Clerk's office. A Houston divorce lawyer must be sure that the waiver is on file before the divorce is proved up (finalized). The waiver can be filed the day of the divorce. Never sign a waiver without consulting your Houston divorce lawyer. After waiving service a defendant that never answers is not entitled to receive amended petitions, even if the petitions change the plaintiff's claim. If you signed a waiver, immediately file a notice with the court that the waiver is withdrawn and the client is now represented by a Houston divorce lawyer. Send this notice to the opposing party. Also file an answer and a cross-action to protect your client. If the opposing side already has a Houston divorce lawyer, call the attorney and ask if the Houston divorce lawyer will accept service for the attorney's client. This is less expensive than service of process and may alleviate the negative impact of having the spouse served by a process server.

Serve The Opponent

If it is necessary to serve the opposing party, have the Order for Service of Process by a Disinterested Party signed by the judge at the same time that the petition is filed. After the judge has signed the order, get the order file-marked by the clerk. When the citation has been prepared by the clerk, call the officer you have selected to serve process. Give the officer the original citation prepared by the clerk. Advise the officer to return the citation to your law office. Make a copy of the officer's completed forms for the law office file. After service, take the original citations to the district clerk (with copies for the file) to be filed (or file marked) by the district clerk. Once served, the respondent or Houston divorce lawyer has until the next Monday after the expiration of 21 days from the date of service to answer. However, a default may not be "proven up" until the 60-day waiting period has expired. If the respondent is to be served out of state, the Houston divorce lawyer sends the petition and accompanying documents to the sheriff's department in the proper county and state. Many district clerks will assist the Houston divorce lawyer with this process.

Service By Posting Or Publication

If a party is missing, a Houston divorce lawyer should follow the normal guidelines for service by posting or publication. When the client does not know where the custodial parent or the children are located, certain considerations should be made regarding service by publication and the pleadings. Remember in every default judgment when the service is by posting or publication, an attorney ad litem must be appointed for the defendant.

Service by Posting

Prepare the Petitioner's Supporting Affidavit to be filed with the petition. The clerk will prepare the citation by posting. The citation is posted (on a public bulletin board in the courthouse) and put back in the court's file.

Service by Publication

If citation is by publication, posting by the district clerk is sufficient where there are no children. However, if there are children an attorney ad litem must be appointed to represent the absent party. In these situations the publication must also be in the newspaper and not simply posted at the courthouse. If the Houston divorce lawyer appointed to represent the absent party cannot locate the absent party, the client must pay for the ad litem's fee. If the ad litem locates the absent party, the party that the ad litem represents must pay the ad litem's fee. The Houston divorce lawyer appointed to represent the absent party should always file a general denial. Notify the District Clerk if you discover after the suit is filed that the person will have to be served by publication. Obtain the fee from the client and take it to the district clerk's office along with the client's affidavit. Remember that there will be a charge by the local newspaper after the notice is published. The newspaper will send the Houston divorce lawyer a bill for this service after the publication has been accomplished. The district clerk's office has a citation that they must prepare for the paper in these types of cases. When citation was done by publication (in the newspaper or posting), after the hearing include a "Statement of Evidence" in the record.

Obtaining Temporary Orders

A Houston divorce lawyer should try to include a request for Temporary Orders in every petition. You can always disregard it later, but re-pleading it usually requires unnecessary work and the starting over again of the time period in which an answer may be received. You may request a Temporary Orders hearing if you have not requested Temporary Orders but the other side has. In such a situation, you will be bound by the pleadings entered by the other side's Houston divorce lawyer. Check to see if the Request for Temporary Orders needs to be verified. The party is entitled to 3 days' notice before a Temporary Orders Hearing. If notice is faxed or mailed, then 3 additional days' notice is required. Take the pre-prepared Temporary Orders to the hearing. Violations of Temporary Orders are punishable by contempt until the final orders are entered. Once the final orders are entered, you cannot go back and complain later about something that you did not get under the temporary orders. If a temporary order is entered precluding harassment of the spouse (which is standard), then it is unlawful for the party to possess a firearm or ammunition.

Temporary Ex Parte Restraining Order

Prepare a temporary ex parte restraining order for the judge's signature. It will have the order setting hearing. The respondent must be personally served. A hearing must be held within 14 days of when the Temporary Restraining Order is signed. Temporary ex parte orders will expire automatically in 14 days. No bond is required in family law cases for a Houston divorce lawyer to obtain Temporary Injunctions or Temporary Restraining Orders.