Setting yourself up for success in a family law case means having goals. To have goals, you need to have put a great deal of thought into your case. It is easy to wander into a family law case. However, it is difficult to wander out of a family law case while accomplishing anything important. If you plan on filing a family law case and then coasting to the finish, then you are in for a rude awakening. A better idea would be to try and accomplish goals efficiently. The question you’re probably asking yourself is: how can I do this?
The attorneys with the Law Office of Bryan Fagan are here to help. We understand that having goals is important. From there, accomplishing those goals is even more important. We create strategies for our clients that allow them to achieve their goals as efficiently as possible. In today’s blog post, our attorneys will share with you their thoughts on summary judgments. If you are unfamiliar with what a summary judgment is but are involved in a family law case, then today’s blog post is just for you.
Considering jurisdiction and its importance in a family law case
A challenge to the jurisdiction of a case presents you with an opportunity for a summary judgment when. Jurisdiction is the ability of a court to issue orders and hear arguments. Without jurisdiction, any actions by a court are invalid and can be overturned. This should give you reason for pause. Since jurisdiction is so important you need to find a court that has the appropriate jurisdiction to hear your case. With jurisdiction being a complicated issue having experienced representation in your case is essential. This is not optional as far as your success.
If you are the responding party to a divorce, then you are responsible for filing an Answer to the original petition for divorce. However, if you suspect that there is a jurisdictional issue in the case then before filing your answer contact an attorney. For example, suppose that your ex-spouse has filed a child custody case in a county where you do not live. You do not believe that your children have lived there, either. It also is not the court where the initial child custody orders for granted.
These are the reasons why you may choose to contest jurisdiction. Instead of filing an answer you may choose to file a motion for summary judgment. Within that motion for summary judgment, you should be sure to argue a lack of jurisdiction. Since these are intricate legal arguments, it would behoove you to consider hiring a family law attorney. The last thing you want to do is fail to make the correct argument on jurisdiction and then lose. You may find yourself defending a child custody case in an unfamiliar place. Contact the Law Office of Bryan Fagan about how we can help you and your family.
The different types of motions for summary judgment
Understanding the difference between the two types of motions for summary judgment is important. While one type of motion for summary judgment may not apply to your case the other may be relevant. Distinguishing between the two can help you proceed better in a family law setting. If you have any questions about this material, please do not hesitate to reach out to the Law Office of Bryan Fagan. Our experienced family law attorneys know how to walk with clients just like you.
What is called a traditional motion for summary judgment relates to evidence submitted in the case by you and your opposing party. On the other hand, in a no evidence motion for summary judgment, you argue that you’re opposing party lacks the evidence sufficient to successfully assert arguments. Being able to distinguish between the two types of motions for summary judgment is important. Your case may involve one but would not involve both. Making the correct arguments in your motion for summary judgment determines your likelihood of success.
They know evidence motion for summary judgment argues to the judge that you’re opposing party has insufficient evidence to present a claim. You are asking your opponent to show their cards to the court and determine if there is enough support for the allegations and arguments presented in their petition. In doing this, you not only keep yourself a chance to win on a motion for summary judgment but also learn about their case.
A traditional motion for summary judgment involves you arguing that there is no dispute on material facts to the case. If you and your opposing party agree on the essential facts of the case then a summary judgment can be granted.
Filing a motion for summary judgment: Practical steps to take
It is all good and well for you to understand the difference between the types of motions for summary judgment. However, that does not help you with the mechanics of getting your motion before a judge. For that, you would need to understand the process involved with filing documents in court. Suppose that your co-parent has filed a child custody case against you. While reading her child custody petition you begin to see that she has made allegations that are not accurate. Even her accusations that are somewhat meritorious likely lacked sufficient evidence for her to prove them in court.
This is a circumstance that is tailor-made for a motion for summary judgment. You can attempt to argue that she does not have sufficient evidence to proceed with her case. It makes sense to you to try and end the case now rather than proceed with the time and expense of a family law case. Reaching out to the Law Office of Bryan Fagan you attempt to determine how best to in the case.
A motion for summary judgment forces your co-parent to present sufficient evidence to sustain their case. If unable to do so, then your motion for summary judgment should be granted.
Learning about your opposing party’s case via discovery
It may be difficult to discern at the beginning of a case whether your motion for summary judgment would be successful. You may have a suspicion that your co-parent lacks the evidence needed to proceed in a particular family law case. However, you need to be able to have more than just a suspicion when it comes to filing a motion for summary judgment. For you to gain confidence in your summary judgment case filing a discovery request may be helpful.
Discovery is a process whereby you can request information and documents from your opposing party. He or she can choose to do the same to you. In a typical family law case, discovery is used to gain insight into the opposing party’s case. This can help you to prepare for mediation or a trial. However, it is a potential summary judgment case your discovery requests may help you to to proceed into a motion for summary judgment with greater confidence.
Even if you are unsuccessful in arguing a motion for summary judgment the process involved with discovery can still help you. Many people use discovery as preparation for mediation. In mediation, you and your co-parent can use your time effectively to work towards a settlement of your case. Even if you two are not seeing eye to eye on much now that does not mean you can’t settle your case. Using the information gained through discovery can give you both an opportunity to focus on the most important issues of your case.
The impact of a motion for summary judgment on a child custody modification case
Filing a motion to modify pre-existing child custody orders is a common family law case. Modifications, as they are casually referred to involve two different sets of analysis from a court. First is that a court will need to determine that a material and substantial change has occurred in the circumstances of your family since you were in court last. Material and substantial should be read to mean a major change. It must have been something that did not exist at the time of your prior case. However, it is now a major influence on the life of your family.
Secondly, if you can show that a material and substantial change occurred you must further show that the requested modification is in the best interests of your child. The best interest determination attempts to look at your child’s life from multiple vantage points. Their emotional, physical, and educational well-being are all considered. For some families, it is difficult to distinguish between what is in your best interest and what is in your child’s best interests. A judge has the job of determining this so that your child’s needs can be better attended to.
When filing a motion for summary judgment against your co-parent it is critical to be specific about what you are alleging in your motion. Which claims of your co-parent are without merit? If your co-parent can produce sufficient evidence to raise a genuine issue of material fact, then your motion for summary judgment will not be granted. Modifications force a parent to argue a major change has occurred since you were last in court. Forcing him or her to produce sufficient evidence on this matter can and the case before it even begins.
Filing a motion for summary judgment in a divorce
Consider the impact of a motion for summary judgment on community property division. It is presumed at the beginning of a divorce that all property is community. This means that your case begins with the presumption that all property owned by you and your spouse is subject to division. By exchanging discovery, you can learn a lot about your spouse’s position on that subject. Along the way, you may also learn whether a motion for summary judgment would be appropriate considering the circumstances of your case.
Inherited property frequently becomes a subject of debate during a divorce. For instance, suppose that you inherited property from your deceased father during your marriage. Texas treats inherited property as separately owned. This means that it would not be divisible in the divorce. However, your spouse may be trying to argue in her petition that the particular property you inherited should be divisible in the divorce. A motion for summary judgment regarding that issue may be submitted to the court. Eliminating that issue early in the case can help you focus your attention on matters of actual dispute.
Evidence needed to win a motion for summary judgment
Even if you are confident in your ability to win on a motion for summary judgment that does not necessarily mean anything. For example, in a hearing regarding summary judgment, you would still need to be able to submit sufficient evidence to prove your point. Alright in the above situation, we discussed a separate property inheritance being disputed in a divorce. What if instead of an inheritance it was your marital home? Suppose that your spouse lists in the petition that the home should be divided. However, you know that the house was purchased before your marriage.
In that type of situation coming up with concrete evidence is essential. For instance, the closing documents for the house are important. These would be able to show that the purchase stated the house was from before your marriage. Additionally, you may also be able to show that your spouse is due no reimbursement if you paid the mortgage out of a separate property. The more precise your documents can be the better case you can make.
Motion for summary judgment As a time and money saver
Again, the attorneys with the Law Office of Bryan Fagan want to point out that a motion for summary judgment is among the most effective methods a person can utilize to shorten their family law case. Fewer issues in a family law case means less to argue about. Less to argue about means less time in the case. It is a noble goal to try and shorten your case. A shorter case means you are more quickly able to return to your family life.
Time is money in the world of family law. Understand that the more time is spent on your case the more expenses go up. Does this mean that You should purposefully speed through your case to get to the other side? No, but you should take whatever steps you can to shorten the case if possible. Having goals within the case is an important part of this discussion. If you have goals, then you can better focus on what you want to accomplish. People who wander through a family law case typically are unable to express with confidence their goals. Being in a position like this means the possibility is higher that you shorten your family law case.
From our experience, nobody files a motion for summary judgment on an accident. Rather, it takes a great deal of intentionality to file this type of motion. If you are considering the intricacies of a family law case to this extent, then you are light years ahead of most people in a family law case. However, it is still necessary to develop a case strategy and specific goals. The more you can do this the better chance you have at a positive experience in family court.
Last thoughts on motions for summary judgment
Paying attention to the details in a family law case is not always fun. It is easy to become fatigued or worn out by the process. There are many people in a family law setting who can tell you that the biggest mistake they ever made in the case was to start paying attention. When you can spend your time and energy focusing on the important points of your case then everything else falls into place. Even if you have an attorney, it is not a good idea to stop focusing on the details. Rather, always pay attention to the details and think critically about your goals and case strategy.
Thank you for spending part of your day here at the blog for the Law Office of Bryan Fagan. Our experienced family law attorneys know how to help you win a motion for summary judgment. Every family law case is different. However, our attorneys know how to utilize our experience to your advantage and a family loss setting. You can trust our office to represent your interests and those of your family in family court.
Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law. Before signing a document or negotiating on a subject you do not know well, contact our office. We look forward to the opportunity of serving you during an important part of your life. The Law Office of Bryan Fagan is on your side.
