The Divorce Process - How It Works
John C. Mallios and Associates, PC is devoted to educating their clients and future clients. Navigating the legal proceedings associated with divorce and custody can be intimidating and worrisome. John Mallios and Associates, PC believes that understanding The Procedures which lie ahead can alleviate some of the fear and concern associated with divorce. In a divorce proceeding the court will divide the assets of the marital estate in a 'just and right division' unless the parties can agree on a division. The court will make the decision regarding the conservatorship (custody) of the children of the marriage and the support of the children in the 'best interest' of the children unless the parties can agree on these issues.
John C. Mallios and Associates, PC is devoted to helping you present your postion to the Court should you and your spouse not be able to agree on some of all of the issues associated with divorce. The Court will be called upon to make decisions for the family with the paramount and guiding principle: 'the best interest of the child(ren).' The Court will apply the law to the unique factual situations of your case and has some discretion based on the facts as presented to the Court. It is important to explain your unique factual situation to your attorney so your case can be fully presented to the Court for full consideration and review.
This website is designed to enable you to understand how a divorce case works and what special fact situations exist so that John Mallios can make a full and effective presentation to the Court.
John C. Mallios and Associates, PC has attempted to address these substantive issues of law in this website on topical pages as identified in the column to the right. The chronological procedural time table of addressing thes issues is found below.
ORIGINAL PETITION FOR DIVORCE
The Original Petition for Divorce is your statement to the Court that you are seeking divorce. This is filed in your county of residence in the District Court with the District Court Clerk. In some counties such as Dallas and Tarrant, there are specific Family Courts. In smaller counties the District Court serves as the Family Court. Your petition will be filed with the Family Court or if there is no Family Court in your county with the District Court. This petition will ask the Court to take jurisdiction over your marriage, your assets and your children. The Petition will state the grounds for divorce and ask the Court to grant the divorce.
In most counties you will be required to file a Financial Statement advising the Court of your expenses. Preparing this statement before you seek the advice of an attorney will better able your attorney to help you toward your goals. It will also help you begin to organize your life for the next phase -- post divorce. A generic form of this Financial Statement is included in this website for your convenience.
VENUE OF DIVORCE
The divorce will be filed in the county in which you reside.You may also verify marriage and divorce records through the Texas Department of Public Health TDH website. These websites may help you in understanding the legal process you will encounter. In addition to the Texas Family Code some courts have Local Rules which will govern your divorce.
SERVICE OF PROCESS ON SPOUSE OF PETITION FOR DIVORCE
A signed waiver will save a spouse the pain and embarrassment that traditional service of process may bring. A waiver is prepared by your attorney which allows a party to a suit for the dissolution of a marriage to waive the issuance or service of process after the suit is filed. This is done by filing with the clerk of the court in which the suit is filed the waiver of the party served. This wavier acknowledges receipt of a copy of the filed petition. The waiver must contain the mailing address of the party who executed the waiver. The waiver must be sworn but may not be sworn before an attorney in the suit. If a waiver is not signed traditional service of process of the Original Petition for Divorce will be initiated. The Texas Family Code also provides for Citation by Publication as well. This is used when the spouse cannot be found and citation must be made in a public newspaper.
TEMPORARY ORDERS AND INJUNCTIONS
John Mallios will be able to advise you regarding the need for immediate Protective Orders and an Injunction. The Texas Family Code allows immediate Protective Orders. Notice for a protective order must be served in the same manner as a citation except citation by publication is not allowed in this instance. Shortly after these are granted a hearing will be set and through your testimony John Mallios will able to explain to the Court how you believe matters should be handled during the pendancy of a divorce. Either party may request interim attorneys fees at the temporary hearing.
The Court may award temporary support be paid while a case is pending. At this hearing in setting support the Court will consider the needs of the requesting spouse and the ability of the other spouse to pay at the Temporary Hearing.
It is important to be prepared with as much financial information as you can before this hearing and for your attorney.If you do not have access to your income tax returns you may want to contact the IRS regarding copies of your returns. In some IRS offices you can be provided with a computer printout of your last several returns. This will not be your actual return but will contain important information regarding your income as represented to the Internal Revenue Service. After the filing of a suit for dissolution of a marriage, on the motion of a party or on the court's own motion, the court may grant an immediate temporary restraining order without notice to the adverse party for the preservation of the property and for the protection of the parties as necessary, including an order prohibiting one or both parties from:
(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 debts and liabilities;
(2) requiring payments to be made for the support of
either spouse;
(3) requiring the production of books, papers,
documents, and tangible things by a party;
(4) ordering payment of reasonable attorney's fees and
expenses;
(5) appointing a receiver for the preservation and
protection of the property 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 for
reasonable and necessary living expenses;
(8) awarding one spouse exclusive control of a party's
usual business or occupation; or
(9) prohibiting an act described by Section 6.501(a).
DISCOVERY
John Mallios will work closely with you and with chosen experts in developing your case. The discovery phase of divorce allows parties to inquire formally about the position of the other party. This will include written questions and depositions. It may also include the opportunity to send an appraiser to evaluate property or a demand that certain information or documents be produced. One of the most important elements of discovery is the Sworn Inventory and Appraisal that is filed. This tells the other side how that party believes the property should be valued by the Court in dividing the property.
MEDIATION
John Mallios will prepare you for mediation and be with you during this phase of the divorce should it be the course of action taken in your case. One way of reaching a resolution can be through mediation. All facets of a divorce case can be mediated including Child Custody, Child Support, and Child Possession Schedule. Property issues can also be mediated.Many Courts require mediation when matters cannot be resolved between the parties and before the Court will undertake to hear contested issues. Some courts will order property sold and the proceeds divided when parties cannot agree on the value or disposition of assets of the marital estate.
John Mallios' years of experience guide him in understanding how specific Court have historically handled contested issues.
TRIAL
Not all issues must be tried. Those issues upon which there has been no agreement will be tried before the Court. Once issues are resolved by trial or agreed upon by the parteis a proposed Decree of Divorce is submitted to the Court.
ATTORNEY'S FEES
Typically each party is responsible for their own attorney's fees and costs of litigation. It may be treated as a marital debt and divided like all other property in the divorce. The Court at its discretion may require one party to pay all or any part of the attorney's fees and costs for the other party depending on their respective financial resources and the facts of the case.
