Divorce Pleadings are used to give notice to the Court and the other side the requested relief you would like a Judge or Jury to grant upon dissolution of your marriage.
In this article I will address examples of form pleadings and required information and where to place in your divorce petition.
Divorce Pleadings
The style of the case is where you name the parties and any children of the marriage.
This is on the first page along with a protective order statement must also be part of the petition which states whether or not a protective order under either the criminal code or the family code entitled for has been brought by either party.
The dates of the marriage and separation this is very important as if you are alleging an informal marriage, also called a common-law marriage, or a putative marriage and then for characterization of property you’ll need to have a date and also for the children as a child born prior to the marriage you may not have the husband as a presumed father.
Many times judges will want acknowledgements of paternities or DNA tests, if the parties were together as a boyfriend and girlfriend and had children together and then married when the child was perhaps four or five years old.
Your grounds for divorce, the petition must state the grounds on which a party seeks divorce the various grounds are contained in section 6.402 of the Texas family code.
And those grounds for divorce include no fault divorce which is the marriage has become insupportable because of a discord or conflict of personalities between the parties that destroys the legitimate ends of the marriage relationship and prevents any chance of reasonable expectation that the parties would reconcile.
- Cruel treatment towards the other party.
- Adultery since the date of the marriage.
- One of the parties has been convicted of a felony and has been imprisoned for at least one year.
- One of the parties one of the spouses has left the other spouse with the intention of abandonment and remained away for at least a year.
- You’ve lived apart for at least three years.
- Or one of the parties has been combined to a mental hospital for at least three years and that the mental disorder is of such a degree that the nature of that mental impairment is that that person will never return to capacity.
Children of the marriage
Children of the marriage any children born or adopted during the marriage regardless of who the father is should be addressed to the children wife has birthed.
Any children born of the woman must be stated in the petition and you are required to adjudicate paternity of children who are born during the marriage even if husband is not the father.
Now the one exception that you cannot adjudicate children is if those children don’t reside in Texas and then you can plead to the court that there is no jurisdiction over those children, because they do not reside in Texas.
Also, if you’ve went to the attorney general and you’ve already set up a child support order or if you’ve done a separate private of action with that child in a SAPCR case (suit affecting parent-child relationship) then you’ve already addressed it and you need not address it again.
The relief you’re requesting in regards to the children whether or not you’re asking to be a sole possessory or a joint managing conservator what type of rights and duties you’re asking to be allocated between the parents and then, child support if you’re asking for statutory guidelines or above guideline child support you would need to plead for that and you need to state to the court how you would like those rights allocated, how you would like child support to be ordered by the court, and then what possession and access you would request each parent have. Relief related to the marital property, if you have a fault-based divorce that is typically a grounds to ask for more in regards to this estate but then if you are a traditional stay-at-home parent and then the other parent is a breadwinner you can ask for a disproportionate share based on yourself being the homemaker and the other spouse being the breadwinner.
Other relief that you would necessarily want to request or may request should you expect a prolonged divorce, would be temporary orders, temporary orders preserve the status quo at the beginning of the divorce.
You generally want to set up some rules as many times when a relationship dissolves people start to hoard or hide monies and then assets start to be liquidated.
Wealth preservation is important in a divorce
Also you have insurance many times people will cancel someone else’s health insurance,
They will also terminate the cell phone contracts that are jointly held and can cause someone else to lose their cell phone number, and then auto insurance many times is shared.
You will want to set up those rules so that way there is a consequence if you were to cancel those joint accounts and polices whether it’s insurance or its accounts that you may have with your spouse.
In regards to the property if you should have a claim for what’s called reimbursement or you suspect that there is fraud in the relationship to the extent that someone spent money on a paramour that is considered constructive fraud, so if husband has a girlfriend and girlfriend husband has taken to Las Vegas and he has bought that girlfriend plane tickets and he has accommodated her at a hotel and taken her to dinner you can ask for an accounting and that is considered fraud, and you can ask that the community estate be reconstituted to account for that fraud.
Reimbursement is the easiest reimbursement claim for this presentation is the pay down of separate property mortgage, you become married and your spouse owns property prior to the marriage and then that once you marry the property mortgage is taken over by the community, you pay some of the mortgage on the residence that is reducing the principal of the other party’s separate property estate and therefore you can seek a claim for reimbursement.
Alter ego is where you attempt to pierce a corporation as you attempt to pierce a corporation you say that the individual and the individual spouse and the corporation are one in the same and many times corporate assets are not subject to partition, because the corporation is the assets of the corporation are owned by the corporation of course if the spouse owns 100% of the corporation and the corporation was formed during the marriage one can always argue its community.
However there is an argument to make that the corporation is a separate entity depending on the timing in the other partners in the corporation, then you may have to attempt to punch the corporate shell and claim alter ego and that usually happens where one spouse is not taking the proper deductions and not claiming as income, certain expenses, using corporate income to pay for personal expenses and that when you get audited by the IRS usually results in income to the person who has taken those monies and then there’s usually a penalty that comes with that.
Any marital property agreements that you may have whether it’s a premarital or post-marital agreement should be disclosed to the court.
If you’re asking for a name change you should plead that for the court
Group health insurance if you’re asking to extend out someone’s health insurance after the divorce you should plead for that, spousal maintenance is alimony we call it spousal maintenance in Texas you should also ask the court to award spousal support if you think you are eligible.
If you think you qualify for spousal support you need to plead for that and specifically tell the court that you believe you’re entitled to it.
Tort claims, tort claims in the divorce context are generally going to be the fraud and waste claims which one may bring based on the spending down of the estate by one of the spouses.
You owe a fiduciary duty to your spouse in the marriage context very similar to a banker and so you can bring claims for the spending down of this state to a certain extent, now if someone goes and they spend a fair amount of money at a couple baseball games or football games it’s a little bit harder, but if they gamble, if they go to the horse track, if they do drugs illegal drugs and they spend a lot of money on illegal drugs then usually you can ask for the state to be reconstituted.
Also if you’ve been assaulted during your marriage by your spouse and you filed a protective order, the protective order was granted those are personal injury claims and you can bring those as well.
Attorney’s fees if you’re
Attorney’s fees if you’re asking your spouse to pay your attorney’s fees and then attorney’s fees on appeal are separate pleading for which you must file, so if you’re asking for attorney’s fees you have three types
- Interim attorney’s fees,
- Attorney’s fees for final trial,
- And attorney’s fees on appeal I plead for all three in my cases.
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