Whether you are involved in child custody or a divorce case, you need to know what you will face. Fathers especially, from my experiences, do not know what to anticipate and how important each step in the process is. The reasons for this are probably many, but the bottom line is that I want all parents- fathers notably- to be able to see what happens in a family law case as it approaches a trial.
What you will learn very quickly if you become involved in a family case are many downtimes. You will be aware of the few dates that anything happens (trial, temporary orders hearings, discovery deadlines, etc.), but for the most part, your case is a range of dates that will impact your life for a long time to come. Think of it like a baseball game: the intense moments can be harsh, but the game is pretty routine occurrences for the most part.
A trial in your divorce case, for instance, can be heated depending upon the circumstances of your case. However, there are numerous steps that you will encounter before you get to that final step that is much more anti-climatic than some courtroom drama that you may see on television. While those moments aren't exciting enough to write a television show about, they are crucially important to your case. This process is what I want to write about today- those steps that may not be overly interesting but can make or break your case.
Settlement negotiations do not just occur in mediation.
If you are familiar with the blog posts we have written here on our website; you know that our attorneys are enormous fans of mediation. Mediation is a process where you and your attorney meet with your spouse and their attorney at a neutral attorney's office to negotiate and settle your divorce. You all will be in different rooms and will not have to interact directly with one another. The mediator will act like a ping pong ball, bouncing back and forth between your rooms to facilitate a settlement.
Sort of a last-ditch effort to settle your case will occur in a setting called a pre-trial conference. A pre-trial conference is mandatory and will require that you attend along with your spouse. The purpose of the conference is to bring you and your spouse together one more time to see if there is any chance that you all could settle your case rather than have to proceed to a contested trial. The judge will be prepared to hear the arguments in your trial but understands that you and your spouse are in a better position to come up with an equitable solution to your case than they are.
The pre-trial settlement also forces your attorney and your spouse to discuss the main issues in your case before a trial. Sometimes in a highly contested case, we can get lost in the details and lose sight of how we can lead clients to settlement—forcing the attorneys to come together one time before the trial is an excellent way to "force" settlement talks even when all other efforts to do so have failed.
The length of your trial, the sort of evidence that will be presented, and any topics that may end up being an issue will be discussed. Pre-trial conferences can also cause both sides to understand that a trial's outcome is unknown completely, and the costs of proceeding to that step can be high. Your attorney can lead you towards a settlement, but ultimately only you and your spouse can decide whether or not to settle.
Know your judge before making any decision to go to trial
Your attorney should be counseling you in your lead-up to a trial because many judges will state their opinions on your case without much hesitation. You and your attorney need to take note of what your judge has to say about your case. Many judges are highly formulaic and will approach your case from a pretty rigid mindset and perspective. Your attorney and that of your spouse will go over the facts of your case with the judge, and then the judge will likely tell you their tentative position on each of those circumstances.
This courtroom is not one that you should worry about having your case delayed at the last minute, but you should be concerned if you can achieve a just result. If warning signs are coming up that you need to re-consider an aggressive stance as far as going to trial, you should heed those warning signs rather than proceed into a situation in which you are unsure. It may be wiser for you to attempt to settle your case with your spouse.
Custody disputes mean that you are likely headed for a trial.
I think that spouses can settle any issue in their case up until the day of the trial, but if yours is a case where custody of your kids is an issue, then you have little chance at a settlement. I have seen many reasonable parents dig in their heels when it comes to child custody. This technique can be for a good reason in some cases, but at the very least, you need to understand that if this is an issue in your case, you should prepare early for a trial.
If you are a father who wants primary custody of your kids, you should also know that your wife is not likely to allow you to settle the case with you being named as primary conservator. Mothers typically have a perspective that they have an advantage, and sometimes even a right to be called the primary conservator of the kids. Many times they are right. However, if you are an active and involved father, you have just as much right as your wife to ask for primary custody. It just may take a trial to get it, though.
Family law trials in southeast Texas
Here we are. The past few days on our blog have helped walk you through every possible issue in your family cases that could come before a trial occurs. Now we will get to what many of you have probably been waiting for and discuss what can happen in a family law trial in Texas.
If your case makes it to a trial, it is one of the exceptions to the general rule that most family cases in Texas settle before a trial is reached. You will be provided with many opportunities to sit down with your spouse or the opposing party to settle. With that said, some cases cannot settle in time to avoid a trial. We have already discussed that in situations where you cannot agree with your spouse on who will be named the primary conservator of your kids, that is a reasonably obvious situation that will lead to a trial.
Trials that center around child custody issues
Child custody issues within the context of divorce almost surely will lead to a trial if a settlement cannot be reached in mediation. These are not financial numbers that can be exchanged and negotiated for an extended period. No small, incremental shifts take a case from "headed to trial" to "settled." If you want to be named as the primary conservator of your children, then there is no middle ground available to you.
Keep in mind that ultimately you are trying to persuade a judge that you offer a home environment that is superior to that of your spouse. Primarily living in your environment would be in the best interests of your child, essentially. The judge need only make a decision that falls somewhat in line with the Texas Family Code to have their decision held up on appeal.
This gives judges a great deal of latitude to make decisions and to assess your situation.
Many times fathers pursue primary custody out of a sense that they genuinely offer a better environment for their children. Mothers will typically have the same feeling. However, I have also seen many mothers push hard to become the primary conservator because people will view her differently if the kids don't live with her full-time.
At the end of the day, if you are aiming to be named the primary conservator of your kids, you need to be able to speak to your attorney early on about your chances of success. The last thing you want to do is push for a trial you won't win.
Financial issues that come up in trial settings
Your trial could end up including issues that go beyond child custody, such as the finances of you and your spouse. Texas is a community property state which means that most of the property you own will be subject to division in your divorce, assuming that you and your spouse have been married for an extended period. Child support, spousal maintenance, and division of community property are likely the most significant three areas that deal with your finances that will become relevant in your divorce.
Child support follows a pretty straightforward method for calculation in Texas. The number you ultimately end up owing will factor in how many children you have before the court and how much net income you earn every month. There are some formulas and guidelines in the Texas Family Code that can guide you in greater detail. However, unless your family faces exceptional circumstances, there are less likely to be disputes regarding child support than many other subjects in family law.
Spousal maintenance is what is commonly referred to as spousal alimony or spousal support. Your marriage must have lasted longer than ten years for your wife to be eligible to request spousal maintenance unless there is a recent history of family violence in the home. Otherwise, the length of your marriage and the disparity in future income potential will determine how much spousal maintenance you may be in line to pay.
For example, spousal maintenance may be awarded if you were married for over twenty years and your spouse will not provide for her minimal needs after your divorce. However, keep in mind that if your spouse is getting a substantial amount of community property in the divorce, there may be less need for spousal maintenance. Texas judges do not readily award spousal maintenance except in situations that truly merit it.
In tomorrow's blog post, we will discuss how long your divorce or child custody trial could last and the factors that will impact the length of your trial.
Questions about family law in Texas? Contact the Law Office of Bryan Fagan
If you have any questions about the material that we discussed in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys work on behalf of clients across southeast Texas and do so with a great deal of pride. A consultation with our attorneys is free of charge and can go a long way towards helping you resolve whatever problem you have in your life.
Our attorneys and staff pledge that we will work tirelessly to help you achieve your goals regarding your family law case. We understand how complex, emotional and difficult the subject matter is in family cases, and we want to do whatever we can to help our clients through their tough times.