Updated on June 28, 2024
If you’re facing a divorce, you may feel as if you’re in over your head and like you’re having a difficult time keeping up. If this is where you’re at, don’t beat yourself up. You’re under a tremendous amount of pressure, and – let’s face it – there are a lot of unfamiliar divorce terms out there that can be pretty confusing.
Becoming better acquainted with these divorce basics can make your case easier to navigate. As you move forward with the process, the most important move you can make in terms of protecting your parental and financial rights – and your future – is consulting with an experienced Round Rock divorce attorney early in the process.
The Petitioner
The petitioner refers to the spouse who files for divorce first. This begins the divorce process and sets the timeline for specific actions that must follow. Many people believe that filing for divorce before their spouse gives them a serious advantage and that being served with divorce papers puts them at a serious disadvantage, but this doesn’t have a lot of bearing in reality.
Filing first puts you in the position of having the time you need to gather the documentation that can help your divorce proceed more smoothly, and it means that you’re not the spouse who ends up being surprised by the service of divorce papers. Any advantage, however, is likely to even out as the case marches forward.
Divorces that tend to be resolved more amicably, to be less costly, and to be finalized more quickly are cases in which the spouses work together toward a common goal throughout the process. And this generally means accepting the fact that divorce is imminent, which triggers either spouse to file. In these cases, there is no benefit other than getting the ball rolling..
The Respondent
The petitioner files for divorce, and at this point, the other spouse becomes the respondent. As the respondent, you have only a specific number of days to file your response – or answer – with the court, and if you don’t already have a seasoned Round Rock divorce attorney on your side, it’s time to retain one.
The Petition
The petitioner in your case files the original petition for divorce, which includes this spouse’s requests—or the divorce terms they seek. The respondent answers with terms of their own, which is the starting point for negotiations.
The Answer
The respondent files a response to the original petition for divorce, and their response is called their answer. If you are the respondent, you’ll need to file your answer within the set timeline, and at this point, your divorce is in full swing. Often, the answer comes in the form of a counterpetition in which the respondent sets forth requests of their own.
The Court
The involved court is the court where you make your filings and where your divorce will be finalized. In Texas, this can be a district court or a county court – depending on the county in which you live.
The Residency Requirements
In order to obtain a divorce in Texas, you need to meet the state’s residency requirements, which include the following:
Either you or your spouse must have lived in Texas for at least the six months prior to filing.
Either you or your spouse must have lived in the county you file in for at least the 90 days prior to filing.
The Cooling Off Period
In Texas, divorcing couples must wait at least 60 days after filing for divorce before their cases can be finalized, and this stretch of time is known as the cooling off period. This means that a divorce can be finalized in as few as 61 days, but you should know that most take significantly more time.
During this period, you and your soon-to-be ex will negotiate the terms of your divorce, which can be a long, drawn-out process. Even if you are able to hammer out terms that you both find acceptable during this timeframe, there is also the matter of the court’s busy docket to consider. Ultimately, the speedier your negotiations are, the speedier your divorce will be, but sacrificing your rights in order to obtain a faster divorce is never advised.
Agreed Divorce, Uncontested Divorce, Default Divorce, and Contested Divorce
An agreed divorce is a form of uncontested divorce, which is a divorce in which you and your spouse are able to resolve the terms of your divorce without the court’s intervention.
To obtain an agreed divorce, you and your divorcing spouse don’t have to be in perfect harmony regarding every divorce term – and are unlikely to be. Instead, you and your divorcing spouse will need to find a way to negotiate mutually acceptable terms. This can include all the following:
Negotiating terms between yourselves under the guidance of your respective divorce attorneys
Allowing your attorneys to negotiate your divorce terms on behalf of each of your best interests – if communications with your spouse break down
Heading to facilitative mediation – at which a professional mediator, in their role as a neutral third party – will facilitate a back-and-forth between the two of you that supports compromise
Another form of uncontested divorce is a default divorce, which is sometimes called a no-answer divorce and is far less common than other kinds of divorce. In a default divorce, the respondent – or the spouse who is served with divorce papers – doesn’t respond within the allotted time frame, which is 20 days plus the following Monday at 10 AM.
In a default divorce, the terms are determined in accordance with the petitioner’s requests because the respondent doesn’t participate. A default divorce generally applies in situations like the following:
If your spouse is missing as a matter of their own design
If your spouse is purposefully evading service of your divorce papers
If your spouse refuses to communicate with you regarding the divorce or anything else
It’s important to note here that proceeding with a default divorce may not be to your advantage if you’re not clear regarding your spouse’s financial situation. In other words, you may be entitled to greater assets than you realize.
A contested divorce is one in which you and your spouse aren’t able to resolve each of the divorce terms that apply to your case. Contested divorces proceed to court, and they tend to be more expensive, take longer to finalize, and stir up more drama.
The Dissolution of Marriage
Divorce refers to the dissolution of marriage, which also applies to annulments. If you divorce, your marriage is dissolved, but the fact of its existence isn’t altered. If your marriage is annulled, on the other hand, your union is dissolved, and in the eyes of the law, it never happened.
The grounds for annulment are quite limited and include conditions like the following:
One spouse was underage at the time of the marriage.
One spouse was impaired to the extent they couldn’t provide consent at the time of the marriage.
The marriage was the result of fraud or coercion.
One spouse was very recently divorced – unbeknownst to the other – at the time of the marriage.
The Terms of Divorce
The meat of your divorce is the divorce terms that you hammer out, and understanding each of these in relation to your own case is critical.
The Just and Right Division of Marital Property
The property that you and your spouse – either separately or together – come to own while you’re married is called your marital estate – or community estate. In the event of divorce, these assets must be divided between you in a manner that is considered just and right in the context of factors like the following:
The length of your marriage
Each spouse’s separate estate – or the assets each owned prior to marriage and kept separate throughout the marriage
The contributions each spouse made to the marriage, including in the form of homemaking and providing childcare
Whether either spouse is at fault for the dissolution of the marriage, which can play a role even in no-fault divorces
Whether either spouse engaged in fraud on the community, such as spending down, giving away, hiding, or otherwise diminishing marital assets
Whether domestic abuse or child abuse or neglect is an issue
A just and right division of assets can mean an equal division, but the court has considerable discretion in the matter, and if the circumstances are right, a lopsided division can be ordered.
Conservatorship
In Texas, child custody arrangements come under the title of conservatorship, but the basics are very similar to the terms you’re likely more used to, including physical and legal custody. Physical custody – or parenting time – is often referred to as visitation, and it determines how you and your ex will divide your time with your shared children.
Texas courts determine parenting time in accordance with the children’s best interests, which is often called BIC. The overriding theory when it comes to what serves children best is that continuing to have a close relationship with each parent and spending a significant amount of time with each is optimal – barring a serious reason for ruling otherwise.
While one of you may become the primary custodial parent – whom your children live with the majority of the time – the other can expect a generous parenting time schedule.
Legal custody, on the other hand, refers to parental responsibilities, and this determines how you and your divorcing spouse will address primary parenting decisions, such as the following:
The school or daycare your children attend
The religious education your children receive
Your children’s participation in extracurricular activities and travel
This responsibility can be shared jointly, but one parent may be awarded tie-breaking authority. Another option is dividing these decisions between you according to category. Finally, one parent is sometimes afforded sole legal custody.
In Texas, most divorcing couples become joint managing conservators of their children. This means that they each receive ample parenting time schedules and that they make primary parenting decisions together.
Child Support
Child support in Texas is calculated according to state guidelines that take a variety of factors into consideration, including:
Each parent’s earnings and earning power
Each parent’s age and overall physical and mental health
The amount of parenting time each parent receives
Any extraordinary needs any of the children have
Generally, the parent who earns less becomes the obligee, while the parent with higher earnings becomes the obligor. The obligor makes child support payments to the obligee.
Child support is based on each parent’s ability to support their children financially, and as such, the higher earner generally has the child support obligation – even when parenting time is split evenly down the middle.
Alimony
In Texas, alimony is called spousal maintenance, and it is reserved for highly specific cases. If the divorce leaves one spouse without the financial means to cover their reasonable needs – in relation to the standard of living achieved during the marriage – and the other is able to help, alimony for a specific period of time may be ordered.
The guiding force behind alimony in Texas is allowing the recipient to become more financially independent through further education or job training.
Legal Separation
Texas does not recognize legal separation, which means that you are legally married until you are divorced, and this fact can directly affect the terms of your divorce.
For example, starting a new relationship while you are separated from your spouse is the equivalent of adultery in the eyes of the law. Further, any assets or debts that either of you acquires during this so-called separation will very likely be addressed as marital property.
Discovery
Divorce terms – especially the terms related to finances – hinge on documentation, and any documentation that either side needs from the other is obtained during discovery. This is the formal process whereby each spouse requests the information they need from the other side.
Common examples of information sought during discovery include all the following:
Financial information
Titles and deeds
Appraisals and valuations
Information about communications, including phone logs, text logs, and social media accounts
Medical history, including records related to either spouse’s mental health as well as any addiction issues
Information about personal relationships, including any extramarital affairs
In other words, discovery can be a complicated, lengthy, and very personal process.
Negotiations
To begin, you and your divorcing spouse – along with your respective divorce attorneys – will attempt to negotiate divorce terms that you are each willing to sign off on. This is often a laborious process, but most couples prefer keeping decision-making authority between themselves – rather than allowing the court to make important decisions on their behalf.
Mediation
If you and your divorcing spouse are unable to successfully negotiate the terms of your divorce through direct negotiations, mediation is an option. At mediation, you, your spouse, and your respective divorce attorneys will meet with a professional mediator in a focused attempt to find middle ground.
The mediator serves in the role of a neutral third party, and while they guide the proceedings, they don’t participate in the decision-making process. Mediation comes with a range of perks that include all the following:
It allows you to keep the details of your divorce private.
It puts decision-making authority squarely in you and your divorcing spouse’s hands.
It is a far less formal process than court.
It is less costly and less time-consuming than going to court.
It is only legally binding if you reach terms that you each accept.
A successful divorce mediation leads to a mediated settlement agreement, which is legally binding.
The Collaborative Divorce Process
In Texas, you can go a different route than the traditional divorce process by seeking a collaborative divorce. This involves you and your collaborative divorce attorney and your spouse and theirs putting your shoulders into negotiating fair divorce terms with the help of a team that includes relevant professionals who are all working to resolve the issues at hand.
The Final Decree of Divorce
Ultimately, you will walk away with a final decree of divorce – regardless of how your case is resolved. This decree is handed down by the court, and it includes the specific terms of your unique case.
Look to an Experienced Round Rock Divorce Attorney for the Help You Need
Brett Pritchard at The Law Office of Brett H. Pritchard is a trusted Round Rock divorce attorney who dedicates his impressive practice to seamlessly advancing challenging cases like yours toward advantageous outcomes that support his clients’ rights and best interests.
To learn more about what we can do to help you, please contact or call us at 254-781-4222 and schedule a free consultation today.