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In most cases, however, Service of Process is done by a Sheriff, Constable or private server. The process includes the Petition and a Citation, which tells the respondent he or she has 20 days plus the following Monday to file an answer to the Petition.
If the Respondent answers the Petition, most likely he or she is preparing for a contested divorce. In this event, at the time of the filing, the Petitioner can request a standard Temporary Restraining Order. This stock order preserves the status quo, enjoins both parties from hiding or stealing marital assets, demands civility, enjoins harassment and threats, warns against the stealing of mail or cars.
If no Temporary Restraining Order has been issued, the court sets a hearing within 14 days. At this hearing, the court issues temporary orders, which are a set of rules for the parties to live by while the divorce is pending.
These rules deal with the temporary terms and conditions of custody, visitation and support of children, the use of property including the marital home and servicing of debt. Thereafter, the parties engage in Discovery, by which both sides gain information and later negotiate a Marital Settlement Agreement.
If the parties cannot reach an accord, they may be required to attempt Mediation, by which a neutral third party attempts to help them negotiate the Marital Settlement Agreement. If they cannot reach agreement, a trial date is set. Texas is one of two states that permit jury trials for divorce cases upon request. There is a day waiting period between the filing of petition and the court judgment of divorce, but this does not mean that all divorces are automatically final on the 61st day.
When the parties begin the action with agreement about the terms and conditions of their divorce, the final decree can be prepared and signed at any time. The divorce then becomes final when the judge so proclaims it in open court and signs the judgment. Neither party may marry a third party before the 31st day after the Decree of Divorce is granted. At least 60 days must transpire between the filing and a divorce hearing, but because of the way the law it worded, the day period may be hard to calculate.
Many lawyers play it safe by waiting two months and two weeks from the filing of the petition.
If the Respondent signs a Waiver agreeing to forgo service, this is the only waiting period required. If, however, the Respondent was served, there are three different waiting periods that must be observed.
When the parties are not in agreement, however, a divorce can take six months to a year or longer, pending upon the complexities of the case. In Texas, when the Petitioner and Respondent agree on the terms and conditions of the divorce asset and liabilities distribution, spousal and child support, and visitation , they have what is called an Agreed Divorce.
This is also called an uncontested divorce. In this routine, the Respondent signs a Waiver permitting the case to be finished without his or her participation. The Petitioner and his or her attorney go court for hearing and "prove up the divorce," by which a judge works through a list of standard questions and approves the divorce then and there.
The Texas State Law Library is unable to give legal advice, legal opinions or any Respond when your spouse has served you with divorce papers. Approved by the Supreme Court of Texas for use in uncontested divorces. This toolkit includes: Checklists that explain the steps in a divorce without children; Forms for divorce without children; Frequently Asked Questions about divorce.
A variation of this is called the default divorce. In this regime, the Respondent is notified of the divorce action, but does nothing about it, and no Answer is filed within the 20 days plus Monday time period and there is no waiver. In Texas and other jurisdictions, a person who does not show up loses by default.
If the spouse is missing or will not be found, a default divorce also requires that Notice of Service be made by publication, which means the Citation must be published a number of times in a newspaper. The most difficult emotionally and financially is by contest, which happens when the Respondent files an Answer and prepares for battle. Many marriages end by default, when the other spouse cannot be located or will not accept service of process.
The Petition, however, must be delivered to the Respondent in all cases. The petition, which is seven-page form, tells the court basic information about the marriage and states relief asked of the court. Sometimes, divorcing couples include the Marital Settlement Agreement with the Petition as an attachment and thus pave the way to the divorce hearing. When a couple divorce by agreement, the Waiver, which is signed by the spouse before a notary public, states he or she has received the Petition and the case can proceed without further Notice.