Plano Proveups

Page Contents

1. Divorce Proveups Are A Pain

2. There's a Better Way

3. What is a proveup?

4. What happens at the proveup?

5. Which judges allow in-office proveups?

Divorce Proveups Are A Pain

(the way everybody else does them, that is)

I hate going to downtown Dallas* for a proveup!

 * (or Fort Worth, or Denton, or Rockwall, or Sherman, or Emory, or McKinney, or wherever)

I hate getting up much earlier than usual to allow for driving time in rush hour traffic to get to the courthouse on time. I hate missing breakfast with my family. I hate the stop and go traffic. I hate the wasted time. I hate giving my car to someone else to park, or I hate running back out to the street to feed the parking meter.

I hate leaving my home at 6:30 a.m. to beat the traffic to get to the courthouse when the clerks open their doors so I can try to find out which judge will most likely hear my proveup before 10:00.

I hate it when the bailiff accidentally reverses the stack of cases to be proved up and my case, which is supposed to be first, winds up being 25^th, 1½ hours after the judge takes the bench.

I hate it when the judge who’s expected to start hearing divorce proveups at 8:30 has a doctor’s appointment he didn’t tell anybody about, and the divorce proveups start being heard at 9:45.

I hate it when I’ve been waiting to have my divorce heard for 2 hours when the judge announces, “no more proveups.”

I hate it when I find out when the judge is going to be on the bench in Emory to hear my divorce proveup, then I show up and find the judge’s other case has settled and there will be no proveups that day. Hey, just make the 3-hour round trip the next time it’s convenient for the clerk to say that your case can be heard then.

I hate putting on my wool suit and tie when it’s supposed to be 118 degrees in the shade with 99% humidity to spend 2 minutes in front of the judge (otherwise, I’d have worn my khakis and polo shirt for the day).

I hate parking 4 blocks away from the courthouse for a 2-minute hearing.

I hate walking past homeless people and panhandlers.

I hate giving my client directions to get to the courthouse, and hoping that they'll be able to find it, find a parking place, and find the right place in the courthouse to meet me.

I hate standing in line to give up my Swiss Army Knife.

I hate worrying about whether I turned off my phone and I’ll be held in contempt of court.

I hate charging my client for 2 or 3 hours of my time for something that should take less than an hour of my time. OR, I hate using up 2 or 3 hours of my day and only charging my client for an hour.

There's a Better Way

Suzanne Bays, Dallas (first feedback from someone who had their proveup in my office): I think you provide a wonderful service. ... you make a very difficult time easier.  You seem to go out of you way to make it easier for your clients.  For example, doing the prove up in your office.  I think this is a wonderful service and is less stressful than having to go to the court house.

I've hired a retired judge to come to my office once a month to hear all of my proveups. Sure, it's more convenient for me, but it's a whole lot easier for my clients, too. And, to make it more affordable, I've made it available to other attorneys who work near my office.

I usually have a judge in my office at 4:00 p.m. on the 1^st Thursday of each month. That may change with holidays and vacations, but that's the current plan.

It's strictly by appointment, as there's some paperwork that has to be mailed to the regular judge to allow our special judge to hear the case.

No hanging around waiting for the judge to take the bench, or take a break from a trial, no waiting in line to pick up your file from the clerk, or to give it back.

I’ve picked the day and time to minimize conflicts with work, school, trials, and docket calls. Plus, you can go directly from proveup to Happy Hour if you choose.

I’ve obtained a ruling that a lawyer wearing khakis and a polo shirt will not be in contempt of court. Similarly, clients can wear what he or she wears to work, assuming he or she is not an exotic dancer.

My building is easy to give directions to. It's a straight shot to my office from the George Bush Turnpike, the Dallas North Tollway, or Central Expressway. Click here for directions to my office. 

Lots of free parking a few steps from my building.

You’ll need to prepare and file a motion and order to refer the case to a special judge. The forms are available for download from www.mc2legal.us. If time is short, just verify by phone that the judge has signed the Order (you don’t need a signed copy or the court’s file). You’ll need to get opposing counsel, if any, to agree to the Motion. No agreement from Respondent should be necessary if you have a Waiver of Service. I’ve taken to adding one more sentence to my Waivers, and one more sentence to my Decrees.

There’s no reason why you can’t proveup a Dallas case, a Denton case, and a Collin case all at the same time. Or, for that matter, Grayson, Tarrant, or Rockwall.

Lawyers click here to contact the judge or download forms for a proveup in my office.

Click here for the Civilized Divorce (SM) web site

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 "old rules" -- 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. 

The "new rules" -- now that we're doing proveup hearings in my office

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.

• Come to my office at the appointed time.
• Plenty of free parking, especially on the south end of the building.
• It's OK to bring your coffee or slurpee.
• Wear what you normally wear to work (unless you're an exotic dancer, cocktail waitress, or lifeguard).

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 proveup in the office was very convenient, quick, and professional.

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.

Lawyers click here to contact the judge or download forms for a proveup in my office.

Click here for the Civilized Divorce (SM) web site

Which judges allow in-office proveups?

In order for us to do a proveup in my office, the elected judge has to sign an Order of Referral to Special Judge. As of February 12, 2008, most of my cases are being approved for office proveups, but part of that is that most of my cases are filed in Collin County, and right now all the judges in Collin County are approving my office proveups. In Dallas County 4 are saying yes and 3 are saying no. In Denton County 2 are saying yes and 4 are saying no. It's purely in the discretion of the judge, so if your case winds up being assigned to a court where the judge doesn't like office proveups (or, the way I do them), then you're just going to have to go to the courthouse to prove up your case.

Several judges were signing our Orders of Referral to Special Judge, but suddenly stopped signing them a few months before the November, 2006 elections. One can only suppose that judges, who are elected, may have become concerned that somehow someone might find a way to make a campaign issue out of allowing folks to prove up agreed divorces in private. We had hoped that reason would prevail after the elections. (I am told there is case law that says that a judge shall sign an agreed order -- but I haven't found it, yet).

*It's inappropriate for a judge to say how he would rule on any given matter, and it's inappropriate for an attorney to say how a judge would rule on any given matter. However, judges also like to be consistent, and if a given judge has approved an office proveup in the past, it's likely the judge will approve them in the future, assuming all other factors are similar. 

**Some judges believe that court orders may only be signed in the county where the court is, and therefore a special judge must sign the order in the county where the case was filed. § 74.094 of the Texas Government Code makes it doubly clear that this is not the case. First, the entire section applies only to the elected judge, not to special judges (thus, the elected judge would have to sign it in the county where the case is, but it wouldn't apply to a special judge). And, even so, subsection (e) says, "A judge who has jurisdiction over a suit pending in one county may, unless objected to by any party, conduct any of the judicial proceedings except the trial on the merits in a different county." Indeed, under the special judge statute, special judges are prohibited from holding court in any public facility, such as the courthouse.

Over a sample period of 14 months, about half of my cases were in Collin County, about a quarter were in  Dallas, and about a quarter were in Denton County. I will occasionally get a case in another county, such as Tarrant, Rockwall, Grayson, or Rains, but if not listed above, I haven't yet asked a judge in that county to approve an in-office proveup.

Click here for the Civilized Divorce (SM) web site