The first step in the Austin divorce process is filing for divorce. One spouse must file a petition for divorce. That petition is filed with the court and then served on the other spouse. Once the other spouse is served with the copy of the divorce petition, then the other spouse can file a counterpetition for divorce or an answer to the divorce petition. Our dedicated attorneys could help throughout the challenging marriage dissolution process.
Once the divorce petition is filed, the next step is determining what orders with respect to property and child custody will govern the spouses while their divorce case is pending. For example, the spouses must determine how household bills will be allocated, whether temporary support will be paid and by whom, who will have the exclusive right to occupy the marital residence, what the visitation schedule with the children will be, and how much child support will be paid, as well as any other temporary issues that need to be discussed.
If the spouses can agree on all these issues, then that agreement will be incorporated into an agreed temporary order that is filed with the court. If two spouses cannot agree on temporary orders, then they will have to go to court and a judge will decide, after considering the evidence, what the visitation schedule will be, who will have exclusive use of the marital residence, how household bills will be allocated, how attorney’s fees will be paid, among other issues. It is a critical phase of the case, particularly with respect to the child custody, because if one parent wins primary custody on temporary orders, for example, it is unlikely that there is going to be a different outcome at the final trial.
The judge looks at the temporary order as a starting point, and assuming that the order has been followed and is working, then it is unlikely that the court is going to deviate from that order at the final trial.
If a spouse violates a temporary order, then the other spouse can file a motion for enforcement to enforce the order. The violating spouse can be held in contempt and ordered to pay the attorney’s fees incurred by the other spouse to enforce the order. Temporary orders can be changed. If circumstances during the divorce change, then the parties can go to court and try to get those orders modified.
The third phase of the divorce process in Austin is discovery. Discovery, in a nutshell, is evidence gathering. It is the formal exchange of information about the evidence and witnesses that will be presented at trial. In a divorce case, discovery involves exchanging evidence relevant to the court’s determination of child custody, division of assets, and the amount of child support or alimony, Information exchanged in discovery can include testimony (depositions), bank and credit card records; tax returns; pay stubs; mortgage documents; retirement account statements; school records; health records (including mental health); social media postings; property appraisals; text messages; emails; phone records, etc.
After discovery comes mediation, although in more amicable divorces, it is not unusual for mediation to occur without any formal discovery. Mediation generally occurs after formal discovery so that the spouses are aware, prior to mediation, of the evidence that will be used at trial. For example, it is advisable to know the value of the community estate before mediation so that spouses are in a better position to negotiate a realistic and a reasonable settlement.
If a case cannot be settled in mediation, then the last step of the divorce process in Austin would be the final trial. In this stage, two spouses will go before a judge (or, in some instances, a jury) make their arguments, and present their evidence. Then the judge decides will decide who should have primary custody of the children, and how the assets and liabilities of the community estate are going to be divided.
How Long Does the Divorce Process Take?
A typical Austin divorce case takes between six and eight months to resolve. The length of a divorce is largely driven by how contentious it is. It is not unusual for high conflict divorces to last over a year. In cases involving allegations of child neglect or questions about a parent’s mental health, the judge may need to bring in expert witnesses and psychological evaluations may need to be conducted. Additionally, in contentious custody battles, the court may appoint an independent professional called a guardian ad litem who will represent the child’s best interest and make recommendations to the court regarding custody. In the property context, cases involving business valuation, reimbursement claims, or separate property tracing will require expert testimony from forensic accountants. Adding experts to an Austin divorce case results in a longer and costlier process.
The other thing to keep in mind is that how quickly a divorce is resolved is, to a large extent, dependent on how each party handles the situation. In many cases, it is not unusual for one spouse to deliberately try to drag the process out by filing continuances or not being responsive to discovery.
At some point, one spouse can appeal to the court to set a trial date. Once a trial date is set, it gives both parties an endpoint in mind. What we often recommend is setting a trial date relatively early on in the case in order to keep both parties focused and on track to getting the case resolved.
It is important to note that either party can file for a continuance and get a trial date extended or delayed, but there is only so many times each party could do that. Courts are generally receptive and open to granting one continuance depending on what the reason for it is, but it is not an endless thing the court will keep agreeing to. If it is a low-conflict case, a divorce can be resolved within 60 days, which is the minimum waiting period in Texas.