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Family Law Office FAQs: What Happens If a Collaborative Divorce Process Fails?

Apr 2, 2021 | Divorce

Getting a divorce is not an easy process, and it can become even more difficult if you and your spouse are not able to amicably resolve your conflicts without going to court. If you’re in Houston, and you’re finding that the collaborative divorce process isn’t working for you, it’s possible you need to speak with an attorney at a local family law office to consider your next steps.

Family Law Office FAQs: What Happens If a Collaborative Divorce Process Fails?

If you and your spouse initially agreed to enter into a Collaborative Law Participation Agreement in an attempt to negotiate disputed issues in a civil manner, but now you’re discovering that you’re both too far away to come to a peaceful agreement on certain subjects, either you or your spouse can end the collaborative process at any time. There’s no set path to take after this process terminates, but one or the other party usually files a divorce petition.

A divorce petition is a formal declaration of the dissolution of a marriage and notice that the case will be litigated in a courtroom rather than solved through mediation. The attorney who has been representing you during the collaborative process is prohibited by law from representing you in divorce proceedings, which can make the termination of the process stressful as well as upsetting. You’ll have to hire a new attorney and start the litigation process from scratch.

How Should a Divorce Petition Be Filed?

If you’re the party who has terminated the collaborative divorce process and are filing the divorce petition, you need to follow specific steps to keep the process on track. Missing a step could mean that your case will be dismissed and once again, you’ll have to start over. Although you won’t need to find a new attorney this time, you’ll still have to repeat the filing process, which is not something anyone wants to do.

Components of a Divorce Petition

One of the reasons you want to have a divorce attorney assisting you through this process is because the divorce petition must contain specific information to ensure it doesn’t get dismissed. While you can file for divorce on your own, the likelihood of making mistakes is high, but with an experienced divorce attorney, your paperwork will be completed properly and filed in a timely manner. The components that are required in a divorce petition are the following.

Identification

You will need to provide your full legal name, your spouse’s full legal name, and the full legal names of any children from your marriage. Additionally, birthdays and addresses for all members of the family are required as well. In some states, you may not have to fully identify minor children, but your attorney will know what to include for your specific location.

Residency

This is a component of a divorce petition that varies from state to state. In Texas, you must be a resident in the county in which you file for divorce for a minimum of 90 days. Moreover, you must have resided in Texas for at least six months before you can submit the paperwork requesting a dissolution of marriage. No matter where you live, you’ll need to include proof that you meet the residency requirements in your petition.

Grounds

All states require the petitioner to state the reasons, or grounds, for the divorce. In some states, like Texas, you can file for a fault divorce, which allows you to blame your spouse for the divorce You will have to provide evidence to show your spouse is responsible for the split. You can also file a no-fault divorce, which claims that neither person was at fault for the breakup, but at least one person wants out of the marriage.

Other Information

In addition to identification, residency, and grounds, a divorce petition will also require your proposal for handling property division, child custody, and financial support matters. This is where you can include the issues you were able to agree upon in the collaborative divorce process, along with your proposal for how to resolve the issues that caused the process to fail. Your proposal will be taken into consideration along with your spouse’s proposal by the judge in your case.

The date and location of your wedding and the date of your separation from your spouse are other pieces of information that are required in a divorce petition. You will then need to pay the filing fee, which ranges from $250 to $330 in Texas based on the county in which you file. In Houston, you’ll pay $267 for the petition and an additional $3.00 for electronic service or $14.00 for certified service.

How Should a Divorce Petition Be Served?

Filing for divorce doesn’t end with paying the fee. You have to make sure your spouse receives a copy of the petition, which can be hard if you don’t know where your spouse is. Fortunately, if you’ve been going through the collaborative process, you probably know where to find them. The best way to serve the divorce petition to your spouse is to let them know it’s coming. They can sign an acknowledgment of service and move the process along.

If you’re not able to find your spouse on your own, or you’re not on speaking terms, you may want to ask the sheriff’s department or a third-party process server to do it for you. While this involves paying another fee, sometimes it’s better to let a third-party handle the service to avoid an unnecessary confrontation. You can even ask another adult who’s not involved in your case to serve your spouse, which would likely be free of charge.

Are There Advantages to a Collaborative Divorce?

In most cases, the collaborative divorce process is less stressful and cheaper than filing a divorce petition. This is because it’s less time-consuming than a trial, as most couples are able to agree on most issues fairly quickly. When you’re paying for a lawyer’s time, you want to cut down wherever you can. However, if there are significant disagreements, this process can end up costing you more, especially if the process is terminated and new attorneys have to be hired.

Moreover, a collaborative divorce is usually more private than a court case because the documents involved during mediation do not have to be publicly filed. When it comes to custody issues and at-fault concerns, it may be to your benefit, or your spouse’s benefit, to keep discussions and documents as private as possible. Both parties will have attorneys representing them during the collaborative process, but it feels less formal and less intimidating as well.

Do All Divorce Lawyers Handle Collaborative Divorces?

Most divorce attorneys are willing to represent one party during a collaborative divorce process, but there are some law offices that specialize in mediation. Remember that if the collaborative process breaks down and you end up in court, you’ll have to hire a different lawyer anyway. At that point, you’ll want a divorce attorney who has significant experience in the courtroom and is comfortable presenting a case in front of a judge.

Divorce is a difficult situation no matter how it comes about, whether through a collaborative process or in a courtroom. Contact Skillern Firm today to ensure your rights are protected either way.

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