civilized-divorce.com

Home › Read the Divorce FAQ › Procedural Matters

Procedural Matters

 

Filing Real Estate Documents after the Proveup, at the County Clerk

Proveup Hearings — Click here for more info

If there's any real estate (such as a house) that's changing hands in the divorce, you'll have a Special Warranty Deed and maybe a Deed of Trust to Secure Assumption. These need to be filed with the County Clerk in the county where the property is located. When we prove up your divorce at the courthouse, the county clerk will be nearby, and I'll direct you to the County Clerk's office. It's very important that you do this, as it protects the new owner of the property even if the original deed is lost or destroyed. You need to be prepared to pay the filing fee. Recently the County Clerk's filing fees were $20 for the first page and $4 per page for each additional page: (if you have a 2-page Special Warranty Deed and a 5-page Deed of Trust to Secure Assumption, the total fee will be $60 (20+4+20+4+4+4+4)). The County Clerk in Collin County takes personal checks or cash. The County Clerk in Denton County does not take personal checks. Other clerks fees should be in the same ballpark, but may not be exactly the same.

Don't be confused: for court business we talk about the District Clerk, but for land recording we're talking about the County Clerk. The County Clerk may have branch offices, but one usually cannot record land records anywhere but the main office. Here's where the County Clerk's land recording office is in the three counties I work in most often:

You can have your items recorded by mail, but you'll need to call the clerk first to find out exactly how much the fee is, and whether you can just mail a check with the things to be recorded.

Collin County: At the county courts campus at the northwest corner of Bloomdale Road and US-75 Central Expresway. Going north on Central, it's the first exit north of US-380, University Drive. The first building contains the courts, and the second building contains the County Clerk offices where you record your documents. Warning: several clients have reported that their GPS units think that Bloomdale road is continuous, when it's not. I recommend approaching it from Central Expressway. Click here for their web site (please tell me if they change the web site and this link stops working)

Denton County: 1450 E McKinney Street in Denton, on the first floor. If we had to do your proveup at the courthouse, this is in the same building where we proved up the divorce. This is not in downtown McKinney. It's about halfway between downtown and Loop 288. Click here for their web site

Dallas County: In the Records Building at 509 Main Street, second floor, in downtown Dallas. From the George Allen Courts Building (where we proved up your divorce), the Records Building is just two buildings north (on the other side of the Old Red Courthouse). It's just across the street from the Grassy Knoll at Dealey Plaza. Click here for their web site.

 

 

Reconciliation

If you and your spouse are trying to put your marriage back together and you want to put the divorce "on hold," there are a couple of options. If you're sure you want the divorce dismissed right away, let me know, and I'll file a "Nonsuit" which dismisses the case. If you decide later to file for divorce again, you'll be looking at new attorney's fees, new filing fees, and a new 60-day waiting period.

However, if you're more tentative, and would like to keep the divorce on the back burner in case the reconciliation fails, let me know. I'll stop work, and try to slow things down. But it's up to the judge to decide if he or she wants to dismiss the case when enough time has gone by. See below.

 

 

Time Limits/Dismissal/"Show Cause" Hearing

How soon can we get divorced? Here's a diagram of what happens when, or a flow chart, or timeline, of the divorce process.

Sometimes the couple will try to reconcile, or one party is just plain not cooperative and the other party isn't willing to push it. Or it just takes longer to get around to getting the information together. The question changes from "how soon can we get divorced?" to "what happens if we take a lot longer than expected?"

Judges run for re-election every 4 years, and one way they show that they are an efficient judge is that they "move their docket," meaning they don't let things just lie around. As a result, after a case has been on the books for a while, they like to either dismiss it or set it for trial. How long your case will be allowed to "just sit" depends on many factors beyond our control. Some courts will review cases after they have been on the books for more than two or three months. Other courts will periodically go through and set all the older cases for dismissal or trial. Every time I give a rule of thumb, I get a broken thumb. Sometimes a judge will set a case for dismissal shortly after the initial 60 days are over. Sometimes the case will be on the books for nearly a year before it's set for dismissal.

Most courts will give you plenty of warning before your case is dismissed, but I've had a couple of cases where we got notice only 10 days before the dismissal date. You may receive a "Notice of Setting by the Court", a "Show Cause Notice" or something along those lines. If you wish to proceed with the divorce, it's time to get the case moving. It's time to wrap up that agreement and get the paperwork to me to prepare a decree. Feel free to contact me to discuss your options.

If you're almost finished with your case when the judge dismisses it, there's still hope, if you act quickly. Judges sometimes make mistakes, so the law allows them 30 days for "do-overs". In this case, that means that if the judge dismisses your case, you have 30 days to convince the judge to "reinstate" the case, which effectively means to cancel the dismissal. But there are several things to keep in mind:

• The judge does not have the power to reinstate the case after 30 days. Even if day number 30 was a Saturday, and you appear before the judge on the following Monday, the judge just doesn't have the legal authority to reinstate the case.
• I've never known a judge to reinstate a dismissed divorce unless the judge was faced with an agreed final decree of divorce ready to be proved up. That is, I've never known a judge to reinstate a case based on a promise that the case will be wrapped up "soon."
• You still have to allow time for the other stuff that needs to happen. If you tell me that you and your spouse have an agreement on the 25th day after your case is dismissed, there probably won't be time for me to prepare the agreement, get it to you, get it signed and returned to me, and find time in my schedule to go to court for the reinstatement and proveup. Here's a diagram of what happens when, or a flow chart, or timeline, of the divorce process. And, just because you and your spouse have a signed agreement on day 27, it may be that my schedule does not permit me to go to that courthouse on day 28, 29, or 30.

If your case is dismissed, and you don't get it reinstated in 30 days, then the only way to get divorced is to start over again. New Petition for Divorce, new filing fee, new 60-day waiting period, etc. And, my fee only covers the first time around, although I may offer a discount for the second time around if I'm rehired shortly after the first case is dismissed and I'm able to recycle most of the paperwork from the first time.

 

 

Moving Things Forward

Sometimes my client is ready to get the divorce wrapped up and their spouse just isn't ready, won't negotiate, and won't sign papers. So, that leaves us trying to move the case forward, "encouraging" your spouse to negotiate and agree. This becomes delicate, because it's really easy to irritate your spouse to the point that an agreement just is no longer in the cards. So, it's balance between being patient, hoping for an agreement, and deciding that it's time to force things along. Nearly anything we do starts with having your spouse served with papers. We'd use a private process server or have the constable do it. This may be enough to get her/him serious all by itself. Additional fees and costs will probably start at $300.

We can have a Temporary Orders Hearing set. If we do this, we'd want to do it at the same time we have hyour spouse served, as that would also give him/her formal notice of the hearing. The hearing would normally be scheduled within 2 weeks of the request. In response, your spouse may hire an attorney to negotiate the terms of the temporary orders, and if we reach a written agreement in time, then we wouldn't have to go to the hearing. Temporary Orders would cover what the deal is until the divorce is final, such as who lives in the house, who pays the mortgage, who the kids live with, how much child support is paid, who pays what bills, who drives which car, and on and on. Good news is that it definitely gets your spouse involved in the terms. The bad news is that if we only get temporary orders and don't have the resolve to move forward, the temporary orders adds enough stability that it can remove incentives to get the final orders done. Costs (expenses paid, but not legal fees) are only about $100 more than just having your spouse served, but I'd require a retainer (deposit), probably at lest $3,000, against my fees at my hourly rate. The $3,000 may or may not be sufficient to cover my fees through completion of temporary orders. If it isn't enough, I'll ask for more, but if there's money left over, it'll be returned to you.

We can also ask the judge to order us to go to mediation,(next section) but the judge isn't likely to do that unless your spouse has signed a waiver of service or we've had him or her served. The judge would likely give us 30 days to schedule the mediation, and another 30 days to actually do the mediation. I'd ask for a retainer against my fees. Your spouse would likely hire a lawyer, who'd probably charge a similar retainer, and you and your spouse would normally split the costs of the mediator, at something probably on the order of $2500. The mediator would have no authority to force an agreement. But, the odds are very good that we'd leave the mediation with a complete agreement. Then, I'd prepare documents that I believe reflect the terms of the mediated settlement agreement and send them to your spouse's attorney. We negotiate the nitpicks (the four or so page mediated settlement agreement is going to be silent on a lot of issues that will be addressed in the ~35 page divorce decree). If we can't reach an agreement, we have a hearing to have the judge rule on the disagreements. Then, I fix the papers per the judge's ruling, and send the proposed Decree to counsel. If we can't get them to sign it, we set another hearing to ask the judge to sign the docs without their signatures because it matches the agreement and his rulings.

Of course, anywhere along the line your spouse's attorney could decide to get serious about discovery, and you'd be caught in a paperwork blizzard.

And, if we just can't reach an agreement, all that's left is setting the matter for trial. If there is no agreement on which parent will determine the primary legal residence of the child, the judge will order a social study that you and your spouse will have to pay for, for someone to investigate and make a recommendation to the judge.

 

 

Mediation

The overwhelming majority of divorces are settled by agreement rather than taken to trial. Aside from the expense, time, and aggravation of a trial, a judge or jury has limited flexibility in structuring the divorce. It is almost always better for the parties to reach an agreement than to go to trial. For example, Bill has a retirement account he wants to keep intact, but there are insufficient other assets to fairly compensate Jane, who needs cash on a monthly basis. At trial, the judge or jury could only decide to split the retirement account, and Jane would have to pay penalties and taxes on every withdrawal. However, the parties could settle the case with the agreement that Bill would voluntarily pay alimony so that his retirement account would be protected and Jane would have cash each month for her needs.

Mediation is a settlement conference which is run by a person whose only job is to help the parties reach an agreement. The mediator cannot simply announce the terms of divorce, as an arbitrator could. The mediator cannot force anyone to do anything, and all proceedings are confidential. I will only work with experienced mediators have a working knowledge of Texas family law (usually, but not exclusively, the mediator will be a lawyer). I will not work with a client who has a mediated settlement agreement from a non-lawyer mediator, because I have found it nearly impossible to translate these agreements into a workable, enforceable divorce decree.

Because judges view mediation as a "good thing," and because cases that settle do not clog up the court's dockets with trials, you should expect your case to be ordered to mediation if it looks like it's headed for trial. If you reach an agreement before the mediation date, you will not have to pay for the mediator or for my fees attending mediation. But you cannot get to trial without at least trying mediation first. And it always surprises me how often parties that I thought were heading for trial were able to reach an agreement at mediation.

 

 

What Is a Proveup?

First, the theory. What is a proveup? Quite simply, a proveup is the world's shortest trial. A judge cannot issue final orders on a matter before them without hearing some sort of evidence on which to base the orders. For example, the judge has to "find" that the court has jurisdiction to enter orders on the matter. In the proveup one party is sworn in, and testifies that he/she has lived in Texas for the last 6 months. Then, there is "some" evidence that the court has jurisdiction. Of course, at the proveup, there is no opposing testimony saying that the court does not have jurisdiction, so the court "finds" that it does have jurisdiction. So, to rephrase, at the proveup someone will testify that certain facts are true to give the judge a basis for signing the agreed order.

The job of "proving up" an agreed divorce falls to the petitioner and his or her attorney. That is, to the person who filed the first papers in the divorce. The other party, and the other attorney (if there is one) do not need to go to the courthouse.

 

The advice I give my clients when we have to go to the courthouse for a proveup hearing

Assuming you are the petitioner and I am your attorney, and we have a divorce decree signed by both parties, you and I just need to pick a day convenient for the two of us that is more than 60 days after the petition was filed.

No appointment with the court is necessary. Judges do "proveups" as their first item of business every day. The only appointment necessary is between you and me. It's my policy to not schedule a proveup until I have the signed, original documents in my hands. It's also my promise that I will be available to go to the courthouse within the week following the expiration of the 60 day waiting period, assuming I have the signed documents in hand.

Your spouse's presence at the proveup hearing is unnecessary and awkward. Please don't tell your spouse when and where we'll be proving this up, because he or she will just be in the way. He or she has signed the docs, and we'll send him or her copies once the judge has signed them.

• Wear business attire. I've had bailiffs turn away people dressed in t-shirts, halter tops, shorts, sandals, or provocative clothing, or even men without socks.
• If you have a cell phone or pager you bring with you, make darn sure it's off or silent before you go in the courtroom. Or you could lose it.
• Wait for me where I tell you to meet me in my confirming email. Sometimes it'll be by the elevators on the floor where your court is, sometimes it'll be outside the District Clerk's office.
• We'll go in the courtroom and wait for the judge to enter and be seated. You'll sit in the gallery (audience) and I'll sit at a counsel table, doing last minute paperwork. No talking in the courtroom after the judge has entered. If you need me, come tap me on the shoulder and we'll go out in the hall.

 

 

What Happens at the Proveup

Nina Trail, Dallas: ...you made this entire process as simple and easy as it possibly could be without multiple trips, appointments, etc. For someone who is truly not in for a fight and just wants a divorce, you are the right attorney to choose.

 

 

The judge will call the case, perhaps calling out the case number, but always calling your last name. You and I will go stand in front of the judge, and the judge will swear you in.

I'll ask you questions from the Petition for Divorce, which you answer under oath, giving the judge the proof he or she needs to grant the divorce. The questions I might ask would be:

• Your name is John Jacob Jingleheimer Schmidt?
• You are married to Mary Sue JoBob Schmidt?
• Before we filed this petition for divorce had you lived in Texas for at least 6 months and in this County for more than 90 days? (The court doesn't have jurisdiction unless one of the parties is a Texas resident, and venue isn't proper in a particular county unless one of the parties has lived in that county for at least 90 days)
• You were married on or about February 14, 1990?
• Did you cease to live together as husband and wife on or about May 13, 2001? (The court can't grant the divorce unless there's testimony that the marriage is over)
• Has the marriage become insupportable because of discord or conflict of personalities?
• Has that destroyed the legitimate ends of the marriage relationship?
• Is there any reasonable expectation of reconciliation? (These last 3 questions break up into bite-size pieces the Texas statutory grounds for a no-fault divorce. The court can't grant the divorce without citing the grounds (basis))
• You are the parents of Suzy Creamcheese Schmidt and Ralph Waldo Schmidt?
• Are there any other children born or adopted of this marriage? (The court needs to know if all of the children are being addressed in the Decree, so there aren't any loose ends)
• Is your wife pregnant? (The judge will not grant a divorce if there is an unborn child because of concerns for a child being born without parental rights and obligations being established for it)
• Have you and your wife entered into an agreement for the terms of the divorce? (Is it OK that we don't have both sides here?)
• Do you believe that the provisions regarding the children are in the best interest of the children? (The court cannot enter orders regarding the children unless it finds that the orders are in the best interest of the children)
• Do you believe that the division of the community property estate is a just and right division? (The Texas Family Code requires that the judge divide the community property estate in a just and right manner)
• Are you familiar with your wife's signature?
• Is that her signature where it purports to be her signature on the last page? (If your spouse comes back later and says her/his signature is a forgery, the judge is off the hook because there was sworn testimony that the signature was authentic)
• Are you asking the judge the grant the divorce according to the terms of the proposed decree?

The judge signs the decree, and signs a copy for you to take with you. You're divorced! Time for you to find a happy hour.

There may be additional paperwork, and I'll do it by mail, unless you want to pay extra for expedited service to have someone walk it through:

• If there's a name change, or if you're dividing or reassigning an IRA (Individual Retirement Account), you'll need a certified copy of the decree. I'll mail a copy of the decree to the district clerk, have them certify it, and mail it back to us. Then, I'll send it to you, or to the IRA custodian. If it's for a name change, take the certified copy to the driver's license bureau and the social security administration.  
• If another type of retirement account is to be divided, we may have a Qualified Domestic Relations Order (QDRO, usually pronounced "KWAD row"). The judge will sign it and we'll mail it to the plan administrator to actually divide the funds.
• If you owned a home jointly and only one of you is keeping it, there'll be a Special Warranty Deed, and maybe a Deed of Trust to Secure Assumption. Those will need to be recorded with the county clerk in the county where the land is, and there'll be a recording fee, probably less than $50 for both documents. I'll leave it to you to get these recorded.

Click here for the Civilized Divorce^SM web site

 

Hon. John Marshall, Alan Liebel, Steve Palmer, and Hal Davis present 2-hour webcast of continuing education for Texas lawyers and judges on how Chapter 151 of the Texas Civil Practices and Remedies Code provides for Private Trials (and proveups) in Austin on November 6, 2008.