It’s hard to say that a typical divorce time line truly exists. Every case is susceptible to twists and turns that can’t be predicted at the outset—particularly if issues involving children and property are bitterly contested.
In Texas, a divorce cannot be granted until at least 60 days have elapsed since the petition was filed with the court. That 60 day lapse commonly is referred to as the “cooling off” period. Texas obviously doesn’t want a system that encourages people who are “mad today” to get “divorced tomorrow.”
It’s possible for a simple, uncontested divorce to be finalized within 60 to 75 days from filing. More complex and contested divorces can take several months to a year. A few highly contested divorces may take more than a year.
What follows is a general description of the major steps and time line in a contested divorce. Your case may or may not fit this general description. A qualified attorney will be able to give you a better idea of what to expect after discussing the specific facts of your case and your objectives.
This phase starts with the initial consultation between the client and attorney. Preliminary info is gathered such as the full names, addresses, places of employment, and assets and debts of the two parties. If applicable, information about children of the marriage is gathered too. Other facts of the case are discussed along with the client’s objectives. This phase ends when an “engagement agreement” is signed that defines what the attorney will do for the client and how much it will cost.
The petition is prepared and filed with the court. The party filing the petition is called, rightfully, the Petitioner. The other party is called the Respondent.
Filing officially starts the lawsuit and the clock on the 60 day “cooling off” period. Upon filing, the clerk of the court prepares a notice to the Respondent. The notice is called the “citation” and it is accompanied by a copy of the petition. The citation informs the Respondent that he or she is being sued and states the deadline for filing an optional response (“answer”) with the court. It usually takes the clerk a day or two to prepare the citation.
Phase Two—Service of Process
The petitioner’s attorney hires a private process server to locate the Respondent in order to deliver the citation and copy of the petition. Delivery is called “service of process.” Service of process is designed to protect the Respondent’s Constitutional right to receive “notice and opportunity to be heard” any time a person gets sued. How long service of process takes is tough to pinpoint. Sometimes the Respondent can be located the same day. Sometimes it takes several days or weeks.
The Respondent has a limited time from service of process to file an optional answer with the court. The optional answer is due roughly three weeks after service of process. An answer may also include requests that the Respondent makes to the court (called “motions”). Sometimes a Respondent will include a counterpetition with the answer. Whether the Respondent chooses to file an answer, motions or counterpetition, the Petitioner and his or her attorney receive copies of all documents. The attorney will evaluate the documents and advise the Petitioner of actions that may be required or advisable.
Phase Four—Temporary Orders
As needed, a hearing might be scheduled by either attorney to consider court-imposed temporary solutions to key issues until the divorce is finalized. Temporary solutions may involve things such as: (1) which party gets exclusive occupancy of the home during the divorce process; (2) temporary injunctions that prohibit certain actions; and, temporary child support. A temporary orders hearing generally occurs within two to three weeks after service of process.
Discovery is where both sides exchange relevant information about each other’s allegations, income, assets, debts and objectives. Witness statements may be taken and exchanged as well. Discovery usually runs for several months in contested cases. The type and quality of information obtained during discovery can make or break a case. Keep in mind that everything alleged in the Petition must be proven at trial. Discovery helps gather evidence needed for trial. Thus, discovery is not something to be hurried or taken lightly—especially if the case involves highly contested issues.
If child custody is contested, the judge may order a “Social Study.” A licensed social worker will examine and report on the roles and relationships of relevant persons (i.e. the children, school teachers, the parents, etc.) and home environment of each parent. The Social Study itself can take several weeks to a few months’ time. A Social Study results in a recommendation to the court on who should receive custody.
As the discovery period nears an end, the Petitioner and Respondent—through their attorneys—may try to negotiate solutions to all contested issues. The relationship between discovery and negotiation is both real and meaningful. The quality of information obtained during discovery generally strengthens or weakens each side’s position in negotiation and at trial.
While neither side tends to get everything they want in a negotiation, attempting to resolve all contested issues through negotiation is not a bad thing. If mutual agreement fails, the case will go to trial. At that point, the two parties don’t have the same ability to make decisions. In a trial, the judge or the jury make all the decisions—and the two parties simply live with the outcome.
Negotiation can last a few days or weeks. If mutual agreement is reached during negotiation, the two attorneys will prepare an “Agreed Order” for review and approval by their respective clients. Once approved, the Agreed Order is filed with the court and signed by the judge. An Agreed Order grants the divorce and makes all other terms agreed to by the parties official and enforceable. That ends the lawsuit. If mutual agreement is not reached, then the case proceeds to Phase Seven.
The case goes to trial. Trial occurs either as a “bench” or jury trial. In a bench trial, the judge hears all evidence and argument—and decides the case. A jury trial is self-explanatory and the concept is familiar to nearly everyone. A bench trial generally lasts one day. A jury trial may take longer depending on the complexity of the issues and evidence.