Since you’re here, we assume that you’re considering contacting an Austin Divorce Attorney. If that’s true, there are a few things you should know about the Law Office of Ben Carrasco:
- Ben is an experienced family law attorney and an Austin native. He litigates all aspects of family law, including divorce, child custody, child support, property division, modifications, spousal support and marital agreements. You can learn more about Ben’s background and experience here.
- We have served many happy clients. We invite you to read our testimonials and check out our Google Reviews
Not ready to talk to Ben? We invite you to keep reading to learn more about the Austin Divorce Process and if it’s time to get a divorce.
The Austin Divorce Process
My name is Ben Carrasco. I am an experienced Austin divorce attorney and the founder of the Law Office of Ben Carrasco. As you can see from the chart above, there are 5 steps to the divorce process in Austin. It is essential that you hire the right Austin divorce lawyer to help you successfully navigate this process. Let’s talk about the Austin divorce process and how I can help you with your divorce.
Initiating a Divorce Suit
In Texas, a divorce suit begins when one spouse files a petition for divorce. The spouse filing the petition is referred to as the petitioner, and the opposing spouse is referred to as the respondent.
To maintain a divorce suit in Texas, certain residency requirements must be satisfied. At the time the suit is filed by your Austin divorce lawyer, either the petitioner or the respondent must have been a Texas resident for the preceding six months. Additionally, either party must have been a resident of the county in which the suit is filed for the preceding 90 days.
Once the respondent is served with the petition, he or she will have approximately 20 days to file a written answer to the petition. A divorce suit must be on file for at least 60 days before the court may grant a divorce.
Grounds For Divorce
Texas is a “no-fault” divorce state. This means that a divorce may be granted without regard to which spouse caused the breakdown of the marriage.
There are several no-fault grounds that can be alleged in a divorce action. The most common no-fault ground is insupportability.
To assert this ground, a party simply needs to allege that the “marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.”
In addition to no-fault grounds, a petitioner (or the respondent if he or she files a counter-petition for divorce) may seek a divorce on fault grounds. Available fault grounds include cruelty, adultery, abandonment, and felony conviction and imprisonment of a spouse.
Fault and no-fault grounds can be alleged together in the same petition. Proving a fault ground can impact how the court decides other issues in the divorce, including child custody and property division. For example, if you can prove that your spouse committed adultery or abused you during the marriage, the court can award you a larger share of the community property.
I am frequently asked whether a spouse’s conduct during a period of “separation” is relevant once a party files for divorce. The answer is “yes.” Texas does not recognize legal separation. You and your spouse are married until a final decree of divorce is entered by a court. This means, for example, that being romantically involved with someone other than your spouse while “separated” constitutes adultery under Texas law and can be used against you in a future divorce proceeding.
Once the petition and answer are filed, the next stage in the divorce process is the entry of temporary orders. Temporary orders can happen relatively quickly—within a week of when the divorce petition is filed.
Temporary orders in family law litigation are orders issued by the court following a hearing that govern custody and support of the children, the preservation and protection of the parties’ property, and the parties’ interaction with each other while the divorce is pending.
Why Temporary Orders Are Important
Given that divorce litigation can last for months, if not years, this is a critical phase in the divorce process. For example, temporary orders can prohibit the parties from hiding or selling assets, raiding the checking account, shutting off the utilities, or removing the children from the county where the divorce is pending. If you’re the less-monied spouse—perhaps a stay-at-home mom—and don’t have access to your spouse’s assets to pay an Austin divorce lawyer, the court can order the monied spouse to pay your reasonable attorney fees while the divorce is pending.
As any good Austin divorce lawyer will tell you, temporary orders are important because temporary orders have a tendency to become final orders, meaning that the court’s final orders with respect to property, child support, child custody, and other issues often mirror the temporary orders.
Temporary Orders Hearings
A temporary orders hearing is not necessary in every case. However, because of the gravity of the stakes in a temporary orders hearing— the results of which can impact the entire trajectory of your case— hiring the best Austin divorce lawyer with strong courtroom skills is vital.
Surprisingly, many divorce lawyers are fearful of the courtroom and try desperately to avoid it. These types of divorce attorneys will push you to reach a negotiated settlement on the eve of your hearing on terms that might not be in your best interest.
Aside from being intimidated by the courtroom, some divorce lawyers run high-volume, assembly-line practices and are incentivized to finalize your case as quickly as possible. As a result, they don’t have the time or inclination to properly prepare for contested hearings where they might actually be required to make arguments, present evidence, and cross-examine witnesses.
I do not run that kind of practice. I approach every case with the expectation that it will involve a contested hearing and prepare accordingly.
Relief issued by a court at a temporary orders hearing can include the following:
- Requiring a sworn inventory and appraisal of all real and personal property owned or claimed by the parties-, and a list of all debts and liabilities owed by the parties;
- Requiring temporary support of either spouse;
- Requiring the payment of Austin divorce lawyer fees and expenses;
- Awarding one spouse exclusive occupancy of the residence during the pendency of the case;
- Prohibiting one or both parties from spending funds beyond what the court determines to be for reasonable and necessary living expenses;
- Awarding one spouse exclusive control of a party’s usual business or occupation;
- Restraining the parties from destroying their tangible property;
- Restraining the parties from communicating by telephone or in writing in a profane manner; and
- Restraining the parties from making threats of bodily injury.
If child custody is an issue in the divorce, the court will enter temporary orders regarding custody of the children, child support, and visitation during the pendency of the case.
The above list of potential orders is not exclusive. The court has broad discretion to enter any order necessary to protect the parties, property, and children during the litigation.
A temporary orders hearing is like a mini-trial. Each party will be permitted to testify and put on evidence, including witnesses, regarding the matters at issue.
In a child custody case, for example, a party may call family members, friends, neighbors, teachers, etc. to testify regarding a party’s parenting abilities and relationship with the children. The key distinction between a temporary orders hearing and a final trial is the element of surprise.
Because a temporary orders hearing can occur within days after the divorce petition is filed, the parties haven’t had an opportunity to conduct discovery and determine what evidence exists to support the other side’s case.
As a result, a temporary orders hearing can be a trial by ambush. You don’t know what witnesses your spouse will bring to the hearing, much less what these people might say about your character and fitness as a parent. You don’t know what text messages, e-mails or other evidence might be used to impeach your credibility.
After the initial divorce petition and answer are filed, discovery is the next important stage in the litigation process. Discovery is the process whereby both sides, using various discovery tools such as document requests and depositions, gather and exchange relevant information about the case.
In a divorce case, particularly if children are involved, just about everything pertaining to your life is relevant —phone records, e-mails, text messages, sexual history, drug use, photographs, and social media postings (Facebook, Twitter) are all fair game.
Discovery is also used to identify the parties’ assets and liabilities—tax returns and bank records are obvious discovery targets in this context.
Conducting proper discovery is invasive and costly. But it is essential to gather the information necessary to properly evaluate the merits of the parties’ respective claims and defenses. This minimizes the potential for surprises at trial and helps determine whether settlement is appropriate.
When used strategically, discovery can help a party achieve critical bargaining leverage and bring about a quick settlement. I have seen parties capitulate and settle early on in a case rather than submit to the cost and inconvenience of producing reams of sensitive documents or sitting for a six-hour deposition.
Settlement, Mediation, and Final Trial
At some point during the litigation, the parties will typically explore the possibility of settlement. In fact, the vast majority of divorce cases are settled before a final trial. If the parties can reach agreement on the issues, the divorce attorneys involved can prepare a written settlement agreement that is presented to the court for incorporation in the final divorce decree.
The parties may also elect to participate in mediation to resolve their case. Mediation is a forum in which an impartial person—the divorce mediator—assists the parties in coming to an agreement that resolves some or all of the issues in dispute. In some Texas counties, including Travis County, divorce mediation is mandatory before a final trial.
If the parties cannot resolve their issues through mediation, the next step is a final trial before a judge or jury. In a divorce suit, either party may demand a jury trial.
A jury can decide custody of the children as well as the characterization and valuation of property. Whether a jury trial is preferable to a bench trial (where the judge decides the outcome) necessarily depends on the facts of your case and the amount of money you’re willing to spend.
When Is It Time To Get a Divorce?
There is no one-size-fits-all reason for getting a divorce. Relationships are complicated for everyone, and what may be a complete deal-breaker for one couple could be totally tolerable for another.
If you’re considering getting a divorce, you should seriously analyze the main reasons prompting your divorce.
While every situation is full of completely unique variables, these questions will help you know if getting a divorce could be right for you and, if so, when you should do it.
Is This Just a Rough Patch or Something More?
Do you feel like you can’t get along? Do you feel like you’ve fallen out of love and don’t enjoy being together anymore?
Every relationship has its ups and downs, so before you rush to get a divorce, ask yourself if this is just a temporary struggle that may change soon. Can you see your relationship moving past this point? Could the two of you improve things with counseling? Or are you stuck in a downward spiral with no chance of recovering?
What Are the Consequences of Staying?
Ask yourself if staying in the relationship would have more negative consequences than leaving. You may be experiencing physical, emotional, or financial abuse. This likely won’t change.
Staying in the relationship could leave you and your children with worse consequences than leaving the relationship. Everyone deserves respect and kindness, and if you aren’t getting that in your marriage, the long-term consequences of staying may be unacceptable. This isn’t always easy to see, and you may have to listen to an outside perspective to help you understand you deserve more.
Why Are You Staying Together?
Have you stayed together because you still have hope for a better marriage in the future when circumstances have changed? Or are you only staying together for the kids? If you have kids, you certainly have thought about how splitting up may affect their lives.
However, the fear of what will happen to your kids if you divorce should not be the only thing guiding your decision. Kids understand when their parents aren’t happy, and they may already be suffering in a variety of ways with the two of you staying together.
Both you and your spouse deserve to be happy, and your children deserve to see and feel that happiness.
Can Marriage Counseling Prevent a Divorce?
To be fair, couples who want to save their marriage should at least give marriage counseling a shot, including trying new counselors if one isn’t a good fit. If you give marriage counseling a solid effort and there is still no improvement in your marriage, it may be a sign that you should consider divorce.
Where Are You Emotionally?
If you’re considering divorce, your emotions are probably in a rough place. A divorce will only make your emotions worse. However, that doesn’t mean you shouldn’t go through with it if you’ve determined it’s the right choice.
To make it through a divorce, you will have to do it when you’re emotionally ready. Can you handle the upcoming important decisions related to child support and child custody? If not, work with a counselor to get yourself in a more emotionally stable place.
Do You Understand the Divorce Process?
Being caught unaware in a divorce process can cost you. Do your homework to understand the different avenues you can pursue in your divorce.
Should you try mediation? Should you hire a divorce attorney? Understand the divorce process so you can know the best path to follow.
Are You Prepared for Post-Divorce Life?
If you’ve determined a divorce is the right path for you, proceed with your eyes wide open. Know that you’ll have disagreements and battles, and know that if you have kids, the post-divorce life will continue indefinitely. You’ll still see each other and talk to each other, and may have to even make decisions together.
Make sure you’re emotionally ready for this and proceed when you feel you’ve considered everything a divorce will bring.
Why You Should Contact the Law Office of Ben Carrasco
If you believe it is time to file for a divorce, you should contact me at the Law Office of Ben Carrasco. I am an experienced Austin Divorce attorney and proud Austin native. I chose to open my own family law practice because it gives me the ability to make a significant difference in people’s lives.
Unlike other divorce lawyers, I am prepared to go to trial but have the poise to settle. I believe that developing every case with the expectation of going to trial increases the chances of entering into a favorable settlement agreement.
I will be handling your case at every step of the process. Unlike large law firms, I do not pass on the day-to-day tasks to a less experienced attorney.
As a result, I will be better prepared to fight for you at a critical deposition or hearing. Finally, I will be clear about the strengths and weaknesses of your case, and I will always make time to talk to you. Contact me today to schedule your consultation.