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The Divorce Process Naked and Exposed

Specific TROs (1) Intentionally communicating by telephone or in writing with the other party by use of vulgar, profane, obscene, or indecent language or in a course or offensive manner, with intent to annoy or alarm the other; (2) Threatening the other party, by telephone or in writing, to take unlawful action against any person, intending by this action to annoy or alarm the other; (3) Placing a telephone call, anonymously, at an unreasonable hour, in an offensive and repetitious manner, or without a legitimate purpose of communication with the intent to annoy or alarm the other party; (4) Intentionally, Knowingly, or recklessly causing bodily injury to the other party or child of either party; (5) Threatening the other spouse/party or a child of either party with imminent bodily harm; (6) Intentionally, knowingly, or recklessly destroying, removing, concealing, encumbering, transferring, or otherwise harming or reducing the value of the property of the parties or either party with the intent to obstruct the authority of the Court to order a division of the estate of the parties in a manner that the Court deems just and right, having due regard for the rights of each party and any children of the marriage; (7) Intentionally falsifying a writing or record relating to the property of either party; (8) Intentionally misrepresenting or refusing to disclose to the other party or to the Court, on proper request, the existence, amount, or location of any property of the parties or either party; (9) Intentionally or knowingly damaging or destroying the tangible property of the parties or either party; or, (10) Intentionally or knowingly tampering with the tangible property of the parties or either party and causing pecuniary loss or substantial inconvenience to the other. Temporary Orders and Injunctions These temporary rules are called Temporary Orders and Injunctions. If one were to look at the divorce process in a linear fashion, the Court can maintain control over all aspects of the parties during the divorce starting with TROs, discussed above, Protective Orders, Injunctions, and Temporary Orders.

(1) Requiring a sworn inventory and appraisement of the real and personal property owned or claimed by the parties and specifying the form, manner, and substance of the inventory and appraisal and list of debt and liabilities; (2) Requiring payments to be made for support of either spouse. Generally, spousal support is rare in Texas unless a couple has been married 10 years or longer, shows financial need, and/or is handicapped in some manner; (3) Requiring the production of books, papers, documents, and tangible things by a party; (4) Ordering payment of reasonable attorney's fees; (5) Appointing a receiver for the preservation and protection of the parties; (6) Awarding one spouse exclusive occupancy of the residence during the pendency of the case; (7) Prohibiting the parties, or either party, from spending funds beyond an amount the Court determines to be reasonable and necessary living expenses; (8) Awarding one spouse exclusive control of a party's usual business or occupation; (9) Awarding one spouse temporary possessorary rights to the children; and, (10) Ordering temporary child support. Temporary child support or any child support in Texas is based upon a percentage of the obligor's net income adjusted by the number of children. Of course, as with TRO's, this list is certainly not exhaustive and a Court, for the benefit of either party, to protect the assets, to protect the children, or to ensure certain safeguards may make as many orders as it deems appropriate. Mediation Prior to Entry of Temporary Orders A recent trend in avoiding the necessity of a long and drawn out hearing on Temporary Orders has been for Courts to order Mediation prior to the hearing for Temporary Orders.

Mediation is simply a process where an impartial third party helps two or more parties discuss a dispute and work toward a solution that is acceptable to all parties. Unlike a judge or arbitrator, the mediator does not decide the outcome of the dispute. Mediated agreements tend to succeed because they result from a process that allows parties to create their own solutions.

If the mediation process is successful and the parties are able to agree on terms for Temporary Orders, the agreed Temporary Orders can be submitted to the Court for entry. If, however, the parties are unable to agree on the terms for Temporary Orders, the Court will decide the issues after a hearing. Hearing on Temporary Orders Often, the first time the parties appear in Court is for the hearing on Temporary Orders. This hearing in effect is basically a mini-trial in front of the presiding judge.

The parties are able to testify, put on witnesses and present other evidence needed to establish their position. After hearing all the evidence and listening to argument by both parties, the presiding judge will enter the appropriate Temporary Orders which will be operative until a final decree is entered. Once a final decree is entered, the Temporary Orders will no longer be valid.

On an additional note, if the parties simply initiate the divorce and enter Temporary Orders but fail to prosecute the divorce further, the case will eventually be dismissed and the Temporary Orders will no longer be valid. So, it is important, one way or another, to bring resolution to the case once it has been initiated with the Court. Discovery (Production, Interrogatories, Depositions) Once either the Temporary Orders have been entered, or even before they have been entered in some cases, the dreaded discovery process begins. The horror stories people often hear with regard to divorce generally occur during the discovery process.

"Discovery" is essentially a process whereby each spouse can ask the other spouse questions regarding acts which occurred during the marriage, to produce documents, bank records and other information needed to determine the value of assets or to assess fault in the divorce. The discovery process also includes the ability of each side to take depositions of each party and also of potential witnesses. Many times when fault is at issue in a divorce, this process can be very emotional. Additionally, the discovery process can be very time consuming and, as a corollary, can be very expensive. Pre-Trial Mediation After a substantial amount of the discovery process is finished, generally a Court will order mediation. In many counties in the State of Texas, this will often be the second mediation.

However, the purpose of this mediation is to settle the remaining disputes between the Parties prior to the case going to trial. If the case settles during the pre-trial mediation, then the parties will simply enter into an Agreed Final Order and file it with the Court, subject, of course, to Court approval and a process called "proving up the Final Decree." Trial Entry of Final Order The ultimate goal of the divorce process is the entry of the Final Divorce Decree. The Final Decree is essentially a document which puts an official end to the marriage partnership and lays out the terms under which the newly emancipated individuals will operate in limited fashion. The Final Decree will decide who gets which assets, who inherits which debts, who the children reside with, the terms of visitation, the amount of child support which will be paid, the amount of spousal support which will be paid (if any), and a host of other issues which could be specific to each marriage. The Final Decree is entered in generally two ways.

The most common way is by agreement of the parties, the terms of which are verified in front of a judge; this process takes about 5 to 10 minutes. The other way a Final Decree is entered is the forced method. This is when the case goes to trial and the judge or a jury decides the outcome.

This, obviously, is the stonier road to travel. Closing Remarks Generally, when two people decide to get married, they do not plan for the marriage to fail. However, sometimes life leads people in different directions and things do not always evolve the way they were originally intended. As a result, the couple ends up going through the divorce process. As discussed above, the divorce process can be complex, emotional, and expensive.

The only real way to mitigate the inevitable damage a divorce will cause is to compromise early and often. And, if there are children involved in the marriage, it is important to keep in mind that a smooth transition, without unnecessary conflict, will be extremely beneficial in assisting the children in their transition as well. Whether or not the divorce process proceeds smoothly or is full of discord, the process is not pleasant but can be eased marginally if you are familiar with the process and know what to expect.

Smith and Garg LLC Author Brian Smith The Woodlands Divorce Lawyers The Woodlands Family Law Attorneys



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