Divorce – Answering the Petition
The following information is not legal advice and is not a substitute for legal representation by an attorney.
Composite of Calendar Pages and ClockComposite of Calendar Pages and Clock In the previous blog post, we discussed how the Petitioner (the spouse who filed the Petition for divorce) legally notifies the Respondent (their soon-to-be ex-spouse) that the Petition has been filed for divorce. In this post, we discuss the Respondent’s answer to the Petition, along with a couple of steps that normally follow the Respondent’s answer before a divorce is final.The Answer Deadline a/k/a Should Counting Days Really be this Difficult?
Once the Respondent has been notified of the Petition for Divorce through one of the methods discussed in the previous blog post, the deadline for the Respondent to file an answer is at 10:00 a.m. on the Monday following 20 complete days after the date that the Respondent is served. Sound confusing? It can be. (Only lawyers would make it difficult to count days, right?)
Let’s look at a couple of examples to show how this actually works.
Example 1 - Assume that the Respondent is served with the Petition for divorce on a Monday. The Respondent would begin counting days on the following day, meaning that Tuesday becomes Day 1, Wednesday is Day 2, etc. Because Day 20 will be a Sunday, the Answer is due at 10:00 a.m. on the next day, the Monday that would be Day 21.
Example 2 - If the Respondent is served on a Tuesday (just one day later), however, they will have a later answer date. In that example, the Respondent would begin counting days on the following day, making Wednesday Day 1, Thursday Day 2, etc. In that case, Day 20 would be a Monday. Because the answer has to be filed by 10:00 a.m. on the Monday after 20 complete days have passed, the Respondent’s answer would not be due until the following Monday, day 27. (Because the Answer has to be filed by 10:00 a.m., a Monday that is Day 20 is not a complete day for purposes of counting days.)
Once the Respondent files an Answer, he or she is entitled to receive notice of all court hearings and to be present in court for any proceedings in the case. While an Answer is still considered valid in a divorce case as long as it is filed before the divorce is final, waiting too long can have negative consequences. And if the Respondent does not file an Answer, it is possible for the Petitioner to move forward with the divorce without any further notice to the Respondent until after the divorce is final.
Contents of the Answer. In Texas, it is sufficient for the Respondent to file a “general denial” answer – that is, as the name suggests, an answer that generally denies the Petitioner’s allegations. The Respondent also has the opportunity to deny specific allegations in the Petition. In addition to filing an answer, The Respondent can also file what is called a “counter-petition” for divorce. In the counter-petition, the Respondent essentially describes their own allegations for seeking a divorce and the relief that they want the Court to award.
Waiting Period. A Court cannot grant a divorce until after the Petition for divorce has been pending for at least sixty days. This time period begins to run on the date the Petition is filed with the Court. This so-called “waiting period” serves multiple purposes. Sometimes it permits the parties to “cool down” and, perhaps, reconcile. Generally, however, the parties use this time to reach agreements regarding the specifics of their pending divorce. By reaching agreements during the waiting period, the spouses can prevent an outside party (usually a judge) from making decisions regarding their lives, property and relationship with their children.
Temporary Orders. After the Petition for divorce is filed, the Court, acting on its own or on the motion of either party, may conduct an initial hearing and grant “temporary orders.” Temporary Orders set out the “ground rules” for the parties’ conduct during the waiting period (see above) regarding matters like preservation of property, the safety of both parties, and child-related issues, e.g. child support, custody, and visitation.
Temporary Orders usually function like a short-term divorce decree. They are legally binding guidelines for both parties until the Court makes its ruling in the final divorce decree. The Court can decide who will temporarily remain in the marital residence, which spouse will have to move out, and how family expenses and bills will be paid until the divorce is final. This is also the proper time to ask the Court appoint a therapist or parenting coordinator/facilitator. If the right to determine the primary residence of the children or possession of the children is at issue, the Court may order the parties to complete an evaluation with an expert to assist the Court in determining what is in the best interest of the children. This is known as a “social study” or “custody evaluation.”
If either spouse violates the Temporary Orders, they are in contempt and can be ordered to appear in Court. If the spouse who violated the Temporary Orders does not appear for the hearing, the Court can issue a bench warrant and that spouse will be taken into custody. At the contempt hearing, that spouse can be sentenced to jail or have assets taken to satisfy the Court’s orders.
Next week, I will wrap up this series as I touch on the topics of mediation, parenting courses, and finalizing your divorce.
~ The preceding information was adapted from Pro Se Divorce Handbook created as a public service by The Texas Young Lawyers Association and The State Bar of Texas, 2014.