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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 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 rules

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.

Because I've had problems in the past with the client telling me the papers were good to go, but they actually weren't, I won't even schedule a proveup until I have the signed documents in my hands.

I also try to be efficient with my time and prove up more than one divorce with each trip to the courthouse. So, if I have a case that's suddenly ready to be proved up in Denton, I'll set the proveup date a couple of weeks out to give one of my other Denton cases a chance to get ready so we can do them both at once.

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 the bailiff (deputy sheriff) may take it away from you. Seriously.
• 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 (which may be difficult at 9:15 in the morning).

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

 

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.

 

Which Judges Allow In-Office Proveups?

I used to do proveups in my office, which was very convenient for the clients. But most of the judges in Denton and Dallas Counties have not been approving the office proveups. It became cost-prohibitive for me to pay a retired judge and a court reporter to come to my office for just one or two divorces.