With the backlog in the court systems around the country due to the COVID-19 Pandemic, how can someone who is ready to get divorced move forward? The laws related to divorce in each state are different, but at least in Texas, it is very possible to start and complete a divorce during this unprecedented time without getting bogged down by court delays or even having to go to court. In fact, because courts have suspended the normal rules requiring a divorcing party to appear in court to finalize their divorce due to COVID-19, it is actually easier than ever to get an agreed divorce in Texas.
Beginning a Texas Divorce
Generally, a spouse can seek a divorce if they have lived in Texas for at least 6 months and in their county of residence for at least 90 days. The divorce is begun by filing an Original Petition for Divorce in the county of residence of either spouse who meets that residency requirement. In the Dallas-Fort Worth Metroplex, once filed, a divorce case is usually assigned to a particular district court. The progress of the case is then governed by the state laws applicable to divorces, the county local rules and the particular judge’s court policies. Each judge has different rules about how long a case may remain on his or her court’s docket before being set for trial or being dismissed for lack of forward progress, as well as about what other steps must be taken while the case is pending.
Finishing a Divorce Requires Either an Agreement or a Trial
A Texas divorce concludes with the granting of the divorce by the judge. There are basically two ways that can happen:
(1) Have a trial and let the judge decide how all contested issues will be resolved; or
(2) Agree on all issues and submit that agreement to the judge for his or her approval.
With the current COVID-19 court backlog, the first option is particularly difficult. Judges right now are only able to hear the most time-sensitive matters, such as criminal cases and those involving emergency situations. Most divorces are not high on the courts’ priority lists right now.
Two Options for an Agreed Divorce in Texas
Fortunately, in Texas, there are options for obtaining an agreed divorce and not having to deal with court delays.
Pro Se Agreed Divorce - It is possible for a person to represent themselves in their own divorce. This is called being Pro Se. If there are no children or very few assets besides household items, it may be fine for spouses to obtain online forms to file for divorce and prepare their own simple divorce decree and other necessary paperwork. Some judges allow these Pro Se divorce decrees to be submitted electronically for approval, and others will require a brief court appearance for some testimony before the divorce is granted.
However, people considering a Pro Se divorce should proceed with caution. Court personnel cannot provide legal advice to Pro Se parties. If items are left out of the divorce decree because the spouses did not know they should be included, there is no ability to change the divorce decree later to include them. Serious negative consequences can result. It is almost always worth your time and money to at least have a consultation with an attorney before you head down this path.
Agreed Divorce with an Attorney - If there are children and/or property such as a home, retirement accounts, investments, etc., the issues and paperwork can get complicated and it is probably a good idea to involve a family law attorney. Having an attorney represent you in a divorce gives you more options for obtaining an agreed divorce. It also gives you the peace of mind that you are making informed decisions when dividing your assets and debts and setting up your parenting plan.
Ways for an Attorney to Help You Get an Agreed Divorce
There are 3 main ways an attorney can help you obtain an agreed divorce in Texas as an alternative to the traditional litigation model:
(1) Uncontested Divorce – if you feel you can resolve the issues in your divorce directly with your spouse but still have legal questions about some issues, you can consult with a divorce attorney. The divorce attorney can answer your legal questions. He or she can also make you aware of things you may not have considered that will need to be addressed in your settlement. The attorney can help you prepare for discussions with your spouse as you work through the issues. Once agreement is reached, the attorney can prepare the Agreed Final Decree of Divorce and other necessary paperwork.
Often, and particularly during the COVID-19 pandemic, the attorney can submit your agreed paperwork online to the judge for approval so you do not need to go to court for your divorce to be granted. Many judges require an affidavit of some basic testimony to be submitted as well. If the judge does require a court appearance (which will likely happen again after the pandemic), your attorney can go with you to put the needed testimony on the court record so the judge can grant your divorce. Most local counties do not require you to have a court setting to submit your agreed divorce paperwork and have your divorce granted.
(2) Collaborative Divorce - if your divorce has issues that you and your spouse aren’t able to resolve on your own, a Collaborative Divorce may be appropriate.
The Collaborative Divorce Team
In a Collaborative Divorce, a team of professionals helps the spouses work through their divorce in private, business-like settings. The spouses basically opt out of court. Each spouse hires his or her own collaborative divorce attorney. A neutral financial professional gathers all financial data instead of each spouse’s lawyer doing it separately. He or she can also answer financial questions and help generate options that meet each spouse’s goals for settlement of the financial issues. A neutral communications coach, typically a mental health professional trained in collaborative divorce, guides the group in productive discussions, manages emotions, teaches communication skills, and helps the clients formulate a parenting plan if there are children. Some meetings include the clients and the four professionals, but most involve the clients working directly with the neutral professionals at their offices. The attorneys are always available to their client as needed but don’t attend all meetings. Efficiency is always a top priority.
The Collaborative Divorce Process
A collaborative divorce uses a personalized, step-by-step process. The group works through goal setting, information gathering, option generating, and issue resolution at a pace and in the meeting format appropriate for the particular case at hand. The tasks performed in each step are tailored to the needs of the clients and are discussed and agreed upon before they are begun. This gives clients more control over how their time and money is being spent. The ultimate objective is the achievement of as many of each client’s goals as possible. When clients actively participate in the divorce process, become informed and are able to make decisions that achieve their goals, there is long-term agreement. This lessens the chance that a future modification or enforcement action will be needed.
Finishing the Collaborative Divorce
Once all issues in a collaborative divorce are resolved and agreement is reached, the collaborative attorneys draft the agreed divorce decree and other necessary paperwork to reflect the agreements. Other commonly needed documents are Deeds to transfer interests in real estate and Qualified Domestic Relations Orders to divide company retirement plans. After all of the documents are prepared, reviewed, approved and signed by the spouses and their attorneys, they can be submitted to the court as discussed above, just like any other agreed divorce. There is no court delay and, during the COVID-19 pandemic, no court appearance required.
(3) Mediated Divorce - a Mediator is a neutral third party who is not associated with the divorce but is employed to help the spouses reach a binding agreement on all issues. A mediator can work with Pro Se spouses or with spouses who are represented by an attorney. However, a mediator cannot give legal advice to either spouse. The mediator also cannot prepare the agreed divorce decree and other final paperwork if an agreement is reached. An attorney is still needed for that unless Pro Se spouses use online forms.
Mediation during COVID-19
There is quite a bit of flexibility these days in how mediations are conducted. During the COVID-19 pandemic, most mediations in Texas are happening remotely. In the past, the spouses, attorneys and the mediator gathered at one office where the mediation would take place. Now mediations are occurring on virtual platforms like Zoom. They can be set for multiple short sessions, or they can take place over a half day or whole day. No matter the format, though, mediations are confidential settlement proceedings. The court cannot know the details of the discussions. The court is only informed that the case did settle and upon what terms, or that it did not settle.
In Texas, a divorce mediator is most often used in one of two ways:
(a) If spouses have a relatively simple divorce, are not seeking legal advice, and just need someone to help them communicate effectively as they work through the issues.
(b) If spouses are having trouble reaching agreement on certain issues or at a stalemate. Mediation is a good way to try to get resolution and closure on difficult issues when other settlement efforts have been unsuccessful and the only step left is a court trial. It can be helpful to bring in someone with no connection to the case for a fresh perspective and new ideas. Mediators are trained in conflict resolution and have many tools to help resolve tough issues. Most cases in this category involve spouses represented by attorneys who can provide legal advice and guidance to obtain solutions that will best fit their client’s needs.
Finishing the Mediated Divorce
If a settlement is reached in mediation, the clients and their attorneys sign a binding Mediated Settlement Agreement. There is no changing the agreement after mediation. The court is then notified of the settlement, usually by the e-filing of the Mediated Settlement Agreement with the court. An agreed divorce decree is prepared, approved, signed by the clients and their attorneys, and submitted to the court for the judge to grant the divorce. Again, during the COVID-19 pandemic, a court appearance is not required.
Getting an Agreed Divorce May Actually Be Easier than Before
There are many things to be considered before deciding to proceed with a divorce. People’s lives in general and this decision in particular became more complicated with the onset of COVID-19. But if you are sure divorce is where you are headed, there is no obstacle to obtaining it except the agreement of you and your spouse on the issues. A Texas divorce can be granted 60 days following the date it was filed if the required paperwork is executed and ready to be submitted to the judge. Attorneys are meeting remotely with clients so there is access to the legal advice you need. And with judges not requiring people to appear at court to complete their divorce during COVID-19, now may actually be the best time to get an agreed divorce.