FAMILY LAW

This section contains limited information that may assist self-represented (pro se) litigants in common family law matters. The best advice you can get is GET A GOOD LAWYER!


It is a violation of the Code of Judicial Conduct for the Judge to participate in ex parte communications with the attorneys or litigants in a lawsuit. Ex Parte communication is any communication with the Judge or his staff about the facts of the case when the other party is not present or included in the communication.  For more information on the limitations the Court has in communicating with you, please read here.  You may also look at this explanation of what court personnel can and cannot do.


In addition to the information and forms on this site, the State Bar has set up a site for self represented clients at http://www.texascourthelp.org/. You may also wish to see http://www.texaslawhelp.org/ for assistance in obtaining and preparing some of your family law forms. Also, you may wish to go to http://www.freetexasforms.org/

for assistance. The Court makes no recommendation on either of those sites and recommends that you seek competent legal assistance with your situation.


It is important that you understand that if you are representing yourself in these matters you will be at a disadvantage if there is a trained attorney on the other side of your case. The Rules of Civil Procedure, the Rules of Evidence and all the provisions of the Family Code and other laws will apply to you and your case the same as if you are an attorney. Neither the Judge, the court staff nor the District Clerk’s Office can give you legal advice. All they can do is give you the assistance you will find on this web site and get your case properly set. If you still want to proceed on your own, the information in this section of the web site will give you as much assistance as is allowed.  


Pro Se litigants, must review and complete the Pro Se Checklist on our webpage. Advance approval of all documentation by the Judge is required.  Remember, neither the Grimes County District Clerk nor the Court Staff can give you legal advice. If you have legal questions you should contact a competent attorney to assist you.


For a no-contest divorce you may be eligible to use the set of free forms provided below. You may use the provided forms only if your divorce is not contested by the other party, there are no children involved, and you have no complicated property issues. You will also need to get a copy of the Divorce Checklist that is listed above.


Click here for Simple, No-Contest, No-Children Divorce Forms Package. 


In addition to orders of the court rendered in open court and whether reduced to writing or not, certain Supplemental Temporary Orders or Standing Orders will be issued and will remain in effect until revoked by written order of this court. These orders govern the handling of property as well as the rules governing access to any children during the divorce. In some cases, the Court may, at the request of a party and after a hearing, issue additional orders, called Temporary Orders, that will govern specific issues not addressed by the Standing Order during the pendency of the divorce. This Court requires the parties attend mediation prior to setting any hearing for additional Temporary Orders. See the Courts rules governing mediation. 


In most cases involving children, the parties will be ordered to obtain internet access and to visit the www.Ourfamilywizard.com website, take the tour by clicking on the Families tab on the main page, and each establishing a parent account to utilize the tools listed in the Services tab. 


After the statutory time has expired and all legal prerequisites have been met, a pro se/SRL party may submit final paperwork along with a setting request to the District Clerk for review by the Judge. Seven to ten days after submission of the final paperwork, the party may call the District Clerk’s Office to ascertain if the paperwork has been approved. If not approved, the party should pick up the paperwork and the Judge's Review at the District Clerk’s Office, make all required corrections, and resubmit. If/When approved, the party will receive a “prove-up” date from the court coordinator for one of the Pro Se/SRL dockets.

 

Pro se cases are heard on Pro Se/Self Represented Litigant Dockets. The dates for ProSe/SRL dockets can be located on the Court’s Calendar (link). With permission of the Court, a Pro Se/SRL matter may be set on regular (non-pro se) dockets. 


You must personally serve the other party or obtain a legally valid waiver of service.  Under certain circumstances, a party may ask the Court for "Substitute Service" including "Service by Publication"  however, the Court will only approve Substitute Service when all legal requirements have been strictly met and proof of those requirements are in the file.


Defaults:

Check file for proof of service return. The following items MUST be in the file:

  1. Decree/Judgment;
  2. require a record; 
  3. Certificate of Last Known Address per Rule 239a; 
  4. Non- Military Affidavit and 
  5. sworn inventory and appraisement 
  6. Employers Order to Withhold Wages (if children)
  7. Medical Child Support Order (if children)
  8. BVS 165 

Notice of hearings will/must be sent to the Respondent at least 45 days before the hearing date.

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INMATE/INCARCERATED PARTIES IN FAMILY LAW

Inmates or individuals incarcerated in County or State facilities in Grimes County may file cases in Grimes County.  However, in Family Law cases, such individuals still must establish proper venue in Grimes County.  To further that end and insure the party's time nor the Court's time is not wasted, the Court has entered a Standing Order directing the Clerk to verify Grimes County as the proper venue for the filing of any Family Law matters.  If the Clerk is unable to determine if venue in Grimes County is proper or determines Grimes County is not the proper venue, the filing will be refused.  For more information, you may review the Court's Standing Order for Inmates Filing Family Law Matters.

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IN CRIMINAL CASES

It is a violation of the Code of Judicial Conduct for the Judge to participate in ex parte communications with the attorneys or litigants in a lawsuit. Ex Parte communication is any communication with the Judge or his staff about the facts of the case when the other party is not present or included in the communication.  For more information on the limitations the Court has in communicating with you, please read here.  You may also look at this explanation of what court personnel can and cannot do.


As a defendant (someone accused of a crime) in a criminal case, you have three options: 


  1. You may hire an attorney; 
  2. If you do not have enough money to hire an attorney, you may request an attorney be appointed to represent you; 
  3. You may represent yourself. 


If you want an attorney to represent you and have enough money to hire an attorney, the case will be reset to give you time to do so. 


 If you want an attorney and do not have the money to hire one, you will need to fill out a financial questionnaire so that the proper person can determine whether or not to appoint an attorney to represent you. 


You may speak to the prosecutor about your case only if you sign a written waiver of your right to represented by an attorney or waive that right on the record in court. 


Be aware that there are dangers to self-representation. Waiving your right to an attorney and representing yourself may result in a worse outcome for you and your case, including the loss of significant legal rights and opportunities relating to military service, possession of a firearm, housing and public benefits, child custody, immigration status for non-citizens, and employment. If you choose to proceed without an attorney, you may change your mind at any time and may request counsel from the Court.   


Generally, your first appearance date will be for "Arraignment".  An arraignment is set to formally inform you of the charges against you, explain the punishment range and to enter your plea.  You should attempt to hire an attorney prior to arraignment, however, if you can not afford an attorney and intend to request a court appointed attorney, you will be allowed to do this at the arraignment.  You may fill out this form indicating you desire to hire an attorney, to request a court appointed attorney or to discuss your case with the prosecutor.  Fill it out and bring it with you to court on your first appearance.  If you intend to request a court appointed attorney, fill our this form and bring it with you to your arraignment.



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IN PROBATE/GURDIANSHIP CASES

You are not required to have a lawyer to file papers or to participate in a case.  You have a right to represent yourself.  However, a self represented party/pro se individual may not represent others.  Under Texas law, only a licensed attorney may represent the interests of third-party individuals or entities, including guardianship wards and probate estates.  See In re: Guetersloh, 326 S.W.3d 737 (Tex. App.–Amarillo, 2010) and Steele v. McDonald, 202 S.W.3d 926 (Tex. App.–Waco, 2006). Therefore, individuals applying for letters testamentary, letters of administration, determinations of heirship, and guardianships of the person or estate must be represented by a licensed attorney.  The only time a pro se applicant may proceed in court is when they truly are representing only himself or herself. 


Because an estate (whether a decedent's estate or a guardianship estate) can only appear in a court proceeding by or through its personal representative, an individual attempting to represent "himself' or "herself' is necessarily also attempting to represent others such as the estate beneficiaries, the heirs or the ward. This responsibility to act for the benefit of another is known as a fiduciary relationship. It gives rise to certain legal obligations and responsibilities that require legal expertise.


Under Texas law, individuals applying for letters testamentary, letters of administration, determinations of heirship, and guardianships of the person or estate must be represented by a licensed attorney. This rule follows from the requirement that only a licensed attorney may represent the interests of third-party individuals or entities and follows case law that fiduciaries must be represented by an attorney. 


An individual attempting to represent himself or herself without an attorney is referred to a party proceeding pro se, in propriam personam or pro per. Unless the pro se applicant appearing as a fiduciary is also a licensed attorney, this constitutes the unauthorized practice of law and will not be allowed by the Court. 


While "[a]ny party to a suit may appear and prosecute or defend his rights therein, either in person or by an attorney," TEX. R. Civ. P. 7. only those persons who are members of the State Bar of Texas may practice law in Texas. TEX. Gov. CODE ANN. §81.102(a) (Vernon 1988). The Texas Supreme Court may promulgate rules allowing others to practice law, but that power is limited to the practice by 1) attorneys licensed in foreign jurisdictions, 2) bona fide law students, and 3) unlicensed graduate students who attend or attended a law school approved by the Supreme Court. TEX. Gov. CODE ANN. §81.102(b ).

 

Other instances where this policy applies include: attempting to appear as "next friend" pursuant to TEX. R. Crv. P. 44 without an attorney; individually pursuing claims assigned by others without retaining counsel; appearing as a trustee without trust counsel; and non-attorneys appearing, intervening or filing matters as an amicus curiae ("friend of the court"). 


Courts have the inherent power to inquire into the qualifications of those persons practicing law therein. This power is essential to the fair administration of justice and an orderly discharge of the judicial function.


However, in certain defined instances (see below), a person has the right to represent himself or herself in court. These are proceedings in the individual is truly representing only one's self.

Although the clerk is required to accept documents for filing by pro se applicants, the ·court will take no action on the documents unless there is an attorney of record in that case.


Permitted Instances of Pro Se Representation: 

In limited situations, a person may represent himself or herself. These are situations in which that person is representing only himself or herself.


Examples:

1. An individual applying to probate a will as a muniment of title when the applicant is the sole beneficiary under the will and there are no debts against the estate other than debts secured by liens against real estate.


Note: Whether a muniment of title is the correct probate procedure for a particular situation is a legal decision that is best made by an attorney. One falsely swearing that the estate has no creditors, including Medicaid estate recovery, is subject to a perjury charge.


2. An individual contesting the application of another where the contestant is not seeking to be appointed as a personal representative.


3. A non-corporate creditor making a claim against an estate under administration in the probate court.


4. A non-corporate party in a civil action ancillary to a proceeding in the probate court.


Subsequent Discharge of Attorney

In certain cases, an individual may become a personal representative in a probate or guardianship proceeding with the help of an attorney and thereafter discharge that attorney or the attorney may seek to withdraw from representing the individual. Should this occur, and the personal representative has not yet complied with all the requirements of the Texas Probate Code to fully administer that estate, that individual will be required to retain other legal counsel to complete the administration. It is recommended that a representative NOT discharge the originating or subsequent attorney until such time that the case is closed or all the business of the case has been completed. 


In hearing a Motion for Counsel to Withdraw pursuant to TEX. R. Crv. P. 10, if no counsel is to be substituted in at the time of the hearing, the court will hear the motion and take it under advisement for thirty (30) days. This will give the personal representative sufficient time to retain counsel. The order allowing the withdrawal of counsel shall also order the personal representative to retain- counsel within thirty (30) days of the order allowing such withdrawal or be subject to citation and show cause for removal pursuant of TEX. PROB. CODE §§149C(a)(5)&(6) and 761(c)(3).


Contested Matters: Pro Se Appearance

In a contested proceeding, if a party appears pro se, whether filing an answer or making an appearance, arid it is a situation other than those above listed as exceptions, the court may continue any pending matter by written order, to a date certain, not to exceed sixty (60) days, to enable the individual to retain counsel. Once retained counsel has made an appearance, the matter may proceed. 


If the pro se individual fails to retain counsel, or if no counsel makes an appearance by the date in the order of continuance, the court may dismiss the pleadings or application of the prose individual for failure to prosecute the case with due diligence.


Court appointed Counsel

It is the policy of this court that counsel will be appointed for litigants only where mandated by state law, such as guardianship, trust and mental health proceedings. The court does not appoint counsel for litigants because of indigency.


Frequently Asked Questions in Probate Matters:

Q: What is a pro se?

A: A pro se is an individual who has not hired a lawyer and appears in court to represent himself and no other person or entity.


Q: Can I still serve as an executor, administrator, or guardian even though I’m not a lawyer?

A: Yes. One need not be a lawyer to serve as an executor, administrator, or guardian. However, the executor, administrator, or guardian must be represented by a lawyer.


Q: But I’m the only one that needs letters testamentary. As executor, how would I be representing the interests of others?

A: As executor of a decedent’s estate, you don’t represent only yourself. An executor represents the interests of beneficiaries and creditors. This responsibility to act for the benefit of another is known as a fiduciary relationship. It gives rise to certain legal obligations and responsibilities that require legal expertise. The lawyer you hire represents you in your capacity as executor and assists you in representing those for whom you are responsible.


Q: If I get the paperwork from a law library or the Internet, can I fill it out and file it? Isn’t that what lawyers do?

A: Lawyers don’t just fill out forms. Lawyers (1) determine what method of probate or guardianship is appropriate in a particular situation, (2) create or adapt any necessary paperwork, and – importantly – (3) advise the client about the ongoing responsibilities of a fiduciary. If you are not a lawyer, your creating legal pleadings while acting as a fiduciary would constitute the unauthorized practice of law.


Q: As a pro se, what proceedings can I do on my own in Probate Court?

A: In Probate Court or any other court, the only proceedings you can handle as a pro se are those in which you truly would be representing only yourself. For example, a pro se applicant may probate a Will as a muniment of title when he or she is the sole beneficiary under the Will, and there are no debts against the estate other than those secured by liens against real estate. 


Note, though, that probating a Will as a muniment of title is not always a good option even if there are no debts and the applicant is the sole beneficiary. Whether a muniment of title is the best probate procedure for a particular situation is a legal decision best made by a lawyer.


As another example, all of a decedent’s heirs may work together without a lawyer to file a small estate affidavit in the limited situations in which a small estate affidavit might be appropriate. For further information, see Texas Estates Code Chapter 205 and the  Probate Court’s Small Estate Affidavit Checklist. As the checklist notes, the complexity of the Code poses many pitfalls for non-lawyers attempting to comply with the requirements for a small estate affidavit. An attorney’s assistance in drafting a small estate affidavit may prevent the denial of an Affidavit where it would have been an appropriate probate procedure if the Affidavit had been prepared correctly.


Q: What procedures should I follow if I decide to probate a Will as a muniment of title as a pro se applicant?

A: As stated above, whether a muniment of title is the best probate procedure for a particular situation is a legal decision best made by a lawyer; Court staff cannot guide you or advise what you should do in your case. If you decide to proceed with your case without a lawyer, the County Law Library has reference materials that may be helpful. If you proceed with an application to probate a Will as a muniment of title, note the following:


  • All beneficiaries. In a pro se application to probate a Will as a muniment of title, all beneficiaries under the Will must be applicants, and all beneficiaries must testify at the hearing.
  • Must swear no debts. To probate a Will as a muniment of title, each applicant must be able to swear on personal knowledge that there are no debts against the estate other than those secured by liens against real estate – that includes credit card balances, doctor’s bills, utility bills, Medicaid estate recovery claims, etc. – anything owed by decedent and not paid off. Anyone falsely swearing that the estate has no creditors is subject to a perjury charge.

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