In most cases, it is very difficult to predict exactly how long a divorce will take. Many factors are at play, the most important being the complexity of the issues involved in the case. If a divorce is not settled and is set for a final trial, a date for the trial will be scheduled. That date will depend on the court’s docket and availability. A very rough estimate may be anywhere from six months up to a year.
A: Texas is a community property state. The presumption is that all property acquired during the marriage is community property. It encompasses all the property that the spouses own. Therefore, any property obtained by either spouse after the date of marriage is subject to division on divorce. This presumption applies regardless of whether ownership of property reflects the name of only one of the spouses. Property may include real estate, personal property items, cash, accounts, investments, etc.
The community property presumption applies equally to debts.
Conversely, any property obtained by a spouse prior to the marriage is presumed to be that spouse’s separate property. Separate property may also include property acquired during the marriage by gift, devise, or descent. It also may include property obtained with that spouse’s separate property money. In this case a spouse must overcome the community property presumption by clear and convincing evidence. This may involve the daunting task of “tracing” the source of those funds.
A: Like any lawsuit, principles of due process require that a spouse be served with a copy of the divorce petition. The most common method of service is by personal service, whereby a process server delivers the petition to the spouse. If that fails or is not possible, the Texas Family Code allows for alternate methods of service, as well as service by publication in some cases.
Sometimes traditional service is not necessary. When the other spouse agrees to accept the petition for divorce without service, that spouse may sign what is known as a “waiver of service.” Once the waiver is properly executed and on file with the court, the divorce proceedings may begin. This happens often in uncontested divorce cases.
A: You may still obtain a divorce. But, as stated above, a spouse in a divorce proceeding must always be served. Where the address of a spouse is unknown, traditional service by a process server is impossible. In this case your attorney will ask the court to allow service by publication. This rule will allow you to effectively “serve” your spouse by filing a notice in an appropriate section of a newspaper.
The court will then appoint an attorney to stand in as legal counsel for the missing spouse. That attorney will attempt to locate the missing spouse and notify the court and make a report. When the court is satisfied that all procedures have been followed, the court will then be able to grant the divorce.
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