Brian
Smith
Specific TROs
(1) Intentionally communicating by telephone or
in writing with the other party by use of vulgar, profane, obscene,
or indecent language or in a course or offensive manner, with
intent to annoy or alarm the other;
(2) Threatening the other party, by telephone
or in writing, to take unlawful action against any person, intending
by this action to annoy or alarm the other;
(3) Placing a telephone call, anonymously, at
an unreasonable hour, in an offensive and repetitious manner,
or without a legitimate purpose of communication with the intent
to annoy or alarm the other party;
(4) Intentionally, Knowingly, or recklessly causing
bodily injury to the other party or child of either party;
(5) Threatening the other spouse/party or a child
of either party with imminent bodily harm;
(6) Intentionally, knowingly, or recklessly destroying,
removing, concealing, encumbering, transferring, or otherwise
harming or reducing the value of the property of the parties or
either party with the intent to obstruct the authority of the
Court to order a division of the estate of the parties in a manner
that the Court deems just and right, having due regard for the
rights of each party and any children of the marriage;
(7) Intentionally falsifying a writing or record
relating to the property of either party;
(8) Intentionally misrepresenting or refusing
to disclose to the other party or to the Court, on proper request,
the existence, amount, or location of any property of the parties
or either party;
(9) Intentionally or knowingly damaging or destroying
the tangible property of the parties or either party; or,
(10) Intentionally or knowingly tampering with
the tangible property of the parties or either party and causing
pecuniary loss or substantial inconvenience to the other.
Temporary Orders and Injunctions
These temporary rules are called Temporary Orders
and Injunctions. If one were to look at the divorce process in
a linear fashion, the Court can maintain control over all aspects
of the parties during the divorce starting with TROs, discussed
above, Protective Orders, Injunctions, and Temporary Orders.
(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 debt and liabilities;
(2) Requiring payments to be made for support
of either spouse. Generally, spousal support is rare in Texas
unless a couple has been married 10 years or longer, shows financial
need, and/or is handicapped in some manner;
(3) Requiring the production of books, papers,
documents, and tangible things by a party;
(4) Ordering payment of reasonable attorney's
fees;
(5) Appointing a receiver for the preservation
and protection 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
reasonable and necessary living expenses;
(8) Awarding one spouse exclusive control of a
party's usual business or occupation;
(9) Awarding one spouse temporary possessorary
rights to the children; and,
(10) Ordering temporary child support. Temporary
child support or any child support in Texas is based upon a percentage
of the obligor's net income adjusted by the number of children.
Of course, as with TRO's, this list is certainly
not exhaustive and a Court, for the benefit of either party, to
protect the assets, to protect the children, or to ensure certain
safeguards may make as many orders as it deems appropriate. Mediation
Prior to Entry of Temporary Orders A recent trend in avoiding
the necessity of a long and drawn out hearing on Temporary Orders
has been for Courts to order Mediation prior to the hearing for
Temporary Orders. Mediation is simply a process where an impartial
third party helps two or more parties discuss a dispute and work
toward a solution that is acceptable to all parties. Unlike a
judge or arbitrator, the mediator does not decide the outcome
of the dispute. Mediated agreements tend to succeed because they
result from a process that allows parties to create their own
solutions. If the mediation process is successful and the parties
are able to agree on terms for Temporary Orders, the agreed Temporary
Orders can be submitted to the Court for entry. If, however, the
parties are unable to agree on the terms for Temporary Orders,
the Court will decide the issues after a hearing. Hearing on Temporary
Orders Often, the first time the parties appear in Court is for
the hearing on Temporary Orders. This hearing in effect is basically
a mini-trial in front of the presiding judge. The parties are
able to testify, put on witnesses and present other evidence needed
to establish their position. After hearing all the evidence and
listening to argument by both parties, the presiding judge will
enter the appropriate Temporary Orders which will be operative
until a final decree is entered. Once a final decree is entered,
the Temporary Orders will no longer be valid. On an additional
note, if the parties simply initiate the divorce and enter Temporary
Orders but fail to prosecute the divorce further, the case will
eventually be dismissed and the Temporary Orders will no longer
be valid. So, it is important, one way or another, to bring resolution
to the case once it has been initiated with the Court. Discovery
(Production, Interrogatories, Depositions)
Once either the Temporary Orders have been entered,
or even before they have been entered in some cases, the dreaded
discovery process begins. The horror stories people often hear
with regard to divorce generally occur during the discovery process.
"Discovery" is essentially a process whereby each spouse
can ask the other spouse questions regarding acts which occurred
during the marriage, to produce documents, bank records and other
information needed to determine the value of assets or to assess
fault in the divorce. The discovery process also includes the
ability of each side to take depositions of each party and also
of potential witnesses. Many times when fault is at issue in a
divorce, this process can be very emotional. Additionally, the
discovery process can be very time consuming and, as a corollary,
can be very expensive.
Pre-Trial Mediation
After a substantial amount of the discovery process
is finished, generally a Court will order mediation. In many counties
in the State of Texas, this will often be the second mediation.
However, the purpose of this mediation is to settle the remaining
disputes between the Parties prior to the case going to trial.
If the case settles during the pre-trial mediation, then the parties
will simply enter into an Agreed Final Order and file it with
the Court, subject, of course, to Court approval and a process
called "proving up the Final Decree."
Trial
Entry of Final Order
The ultimate goal of the divorce process is the
entry of the Final Divorce Decree. The Final Decree is essentially
a document which puts an official end to the marriage partnership
and lays out the terms under which the newly emancipated individuals
will operate in limited fashion. The Final Decree will decide
who gets which assets, who inherits which debts, who the children
reside with, the terms of visitation, the amount of child support
which will be paid, the amount of spousal support which will be
paid (if any), and a host of other issues which could be specific
to each marriage. The Final Decree is entered in generally two
ways. The most common way is by agreement of the parties, the
terms of which are verified in front of a judge; this process
takes about 5 to 10 minutes. The other way a Final Decree is entered
is the forced method. This is when the case goes to trial and
the judge or a jury decides the outcome. This, obviously, is the
stonier road to travel.
Closing Remarks
Generally, when two people decide to get married,
they do not plan for the marriage to fail. However, sometimes
life leads people in different directions and things do not always
evolve the way they were originally intended. As a result, the
couple ends up going through the divorce process. As discussed
above, the divorce process can be complex, emotional, and expensive.
The only real way to mitigate the inevitable damage a divorce
will cause is to compromise early and often. And, if there are
children involved in the marriage, it is important to keep in
mind that a smooth transition, without unnecessary conflict, will
be extremely beneficial in assisting the children in their transition
as well. Whether or not the divorce process proceeds smoothly
or is full of discord, the process is not pleasant but can be
eased marginally if you are familiar with the process and know
what to expect.
Article Directory: http://www.articlecube.com Smith and Garg
LLC Author Brian Smith The Woodlands Divorce Lawyers The Woodlands
Family Law Attorneys
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