Assessing Alternatives to Litigation During a Texas Divorce

Have you ever heard the expression said: A lie can travel around the world before the truth can put its pants on? The expression means to say that a lie tends to spread faster than the truth. Once the lie gets out the truth has a hard time making progress against the damage of a lie. We know this from first-hand experience and also from seeing falsehoods spread in the media about any number of subjects. No matter your political persuasion or your position on the major issues of the day we can all probably agree that lies are told with boldness while the truth is sometimes whispered meekly. 

In the context of a family law case, one of the most well-known beliefs that I am aware of as an attorney is that most family law cases end up going before a judge to be decided. There are images that we see in television and movies that involve spouses sitting with their attorneys in front of a judge’s bench while the judge reads out their decisions in dramatic fashion. The screen cuts to the faces of the parties as they hear what the judge has decided for them. There are countless examples of this and I’m sure we can all think of a handful of examples from our memory of seeing scenes exactly like this. 

While this sort of scene may make for good television viewing it does not make for the most accurate portrayal of a real divorce. We all live in the real world and as a result, we will want to explore what you are likely to encounter in a real-world divorce. It is all good and well to be able to learn what you think a divorce will be like, but it is something altogether different to be able to learn what a divorce could be for you considering your unique situation and circumstances. That is what we are going to explore in today’s blog post from the Law Office of Bryan Fagan.

Going to trial is not a foregone conclusion in the world of Texas divorce cases. It may feel like this is quite the opposite of what you have been told or have heard about divorce cases based on what the people in your life have been telling you. However, this is the reality for people like you who are headed to a divorce. The feeling that a trial is inevitable can be overwhelming but there are a handful of opportunities that you will have to avoid that fate. We are going to discuss with you these options as well as some tips that you can implement in your divorce to avoid being in a position where you have to “settle” on going to trial. 

Why do people need to go to trial for a divorce?

There are several reasons why people end up having to go before a judge in their divorce case. First, it is easier to go before a judge than to work at settling your case with your spouse. You and your spouse are not seeing eye to eye on much of anything at the moment. You are upset, hurt, frustrated, and angry at him or her. The easier way out is to ignore him or her until the case is over. You may want to ignore him or her as much as possible until you can just get on with your life but that may not be the best course of action to take. 

You also need to consider that many people who go through a divorce do so without a proper understanding of all the issues in their case. Divorce is a complex subject within the world of Texas family law. There are subjects related to child custody, child support, conservatorship, and possession if you are a parent. On the flip side of the case, some issues are related to property division, spousal maintenance, and community property which also demand a great deal of attention. Do not underestimate how easy it is to get sidetracked on one issue in particular in your case only to leave yourself susceptible to others. 

Not talking to your spouse during the divorce can greatly increase the likelihood that you will end up going before the judge for a trial. It is difficult enough to try and look at the case from the perspective of your spouse. It is even more difficult to see where they are coming from, be rational about the perspective, and then be willing to talk to your spouse and negotiate your way through these issues. This is as opposed to ignoring him or her throughout the case because it is the easier thing to do. While it may be easier to behave in that way it is not going to be the better route to take. Rather, it makes more sense for you to be practical and do the dirty work by being direct and honest with your spouse and trying to see the case from their perspective. That strategy won’t always work for you but in many divorces, you can accomplish a great deal simply by working to try and be fair with him or her as much as possible. 

Not talking or communicating with your spouse during the divorce can be compounded by not thinking through the issues in your case and being prepared to make settlement offers where you are able. The issues of your divorce can be complex, but they are not impossible to deal with. If anything, you can focus on the most important issues of the case, to begin with, and then think about the issues that are less important at the end of the case. Or, if there are issues that are most important to you now then you can talk to your spouse about them. Either way, have a plan when it comes to negotiation, and you will fare much better from the beginning to the end of your case. 

Going into the divorce with an expectation that your attorney is going to do all of the work for you is a mistake. For starters, hiring an attorney does not mean that you have someone who is going to drive the car for you while you take a nap in the backseat. Rather, you should think of the relationship as one where your attorney is going to sit in the passenger seat while you drive. The lawyer points out the potholes, helps you find the exits, and generally helps you understand the different routes you can take to reach your final destination. In other words, your attorney is more a backseat driver than an autopilot. More accurately, the attorney is going to be your co-pilot. 

This is what you want- trust me. It is nice to pass off your stress and anxiety to another person (in theory). In practice, what you want to do is focus your time and attention on the things that matter the most to you and your spouse. It is not enough to simply pass on your anxieties about your case to another person. It may feel good at the moment to do this but in the long run, it is not a great option for you. What I tell clients all the time is that at the end of the day, I can leave the job behind at the office and go home to my family. Your divorce stays with you through thick and thin. So, the motivation for you to want to have a favorable result in your divorce is even greater than your attorney’s motivation in the case. There is no substitute for wanting what is best for your children and yourself. When we talk about divorce it is a personal thing for you. This isn’t a business transaction, car wreck, or copyright infringement for you. This is your family and your relationships coming into focus. A family law case is intensely personal. To assume that your attorney is going to have as much skin in the game as you would be a mistake. This is your case and your responsibility. Take that responsibility seriously. 

Choose carefully the attorney representing you

Hiring an experienced family law attorney is a great idea for your divorce case. An attorney can provide you with knowledge of the law in Texas. The Texas Family Code in addition to appellate court cases will determine how a judge will rule on issues that arise in your case. These laws will also make a difference when it comes to determining how you and your spouse negotiate with one another during the divorce. For example, if you are trying to negotiate for spousal maintenance in the divorce but your spouse knows that you have not been married long enough for that to be awarded then you will not be successful in negotiating that subject most likely. Unless your spouse is just a kind person there is no reason for him or her to pursue a settlement on that subject given what they know about the Texas Family Code.

Next, an attorney will help you to move your case along in the divorce process. How many of you are in a position where you are wavering on whether to file for divorce? You have an idea that the divorce is something that you need to file but it is not a sure thing in your mind. How can you know that it is right to file for divorce? What are the factors that you should consider? Even after you decide that now is the time to file for divorce how do you get your case off the ground? All of these are relevant questions to ask and certainly ones that you should know the answer to sooner rather than later. The longer you leave these questions unanswered the longer you will probably go without seeing progress in your divorce. 

A divorce is not something fun and enjoyable- something that you will be excited to get off the ground. This is not a great activity for your kids or a project around the house that you have been looking forward to completing. Rather, a divorce is the king of the activities that you may know that you need to do but is not something that you ever really want to begin. It is with great reservation and frustration, that you would begin the divorce. You have to be pushed into starting the divorce to finally see the case take shape. 

This is the backdrop that I would mention to you as something where you need an attorney to help keep your case on track and in the right direction. If you are unmotivated to start a divorce but know that it is necessary then there are worse ways for you to become a committed participant in your divorce than to hire an attorney. An attorney will be able to help you file all the necessary documents in your case. This attorney will also help you meet all the deadlines that come up in a divorce., Suppose that you have to file an Answer after your spouse has filed for divorce. Do you know how to draft an Answer? Do you know how quickly the Answer has to be filed? Do you know what the consequences are of your not filing the Answer on time? If not, then hiring an attorney would certainly seem to be a sensible decision for you and your family. 

Consider these reasons as being the foremost when it comes to why you need to hire an attorney for your divorce. There are a lot of individual reasons why you may want to hire an attorney, but these are general reasons why many people in our area choose to hire an attorney to represent them in their divorce. If you have specific questions about how an attorney can help you in your divorce, then please contact the Law Office of Bryan Fagan today. We can assist you with ins and outs of divorce on a personal level and discuss with you how we have been able to effectively represent thousands of families across southeast Texas.


Going to mediation is probably the most effective way to avoid a trial or hearing in your divorce case. Although many people are familiar with the term mediation there are still some misconceptions about what a mediation session is and how it can effectively help you in your divorce case. For starters, most family courts require that you attend mediation at least once before a final trial period this is due in part to the high likelihood that attending mediation will successfully settle your case. From personal experiences where our office has been able to represent clients and mediation, I can tell you that the chances of your being successful in a mediation setting as far as diddling your case is extremely high.

You and your attorney can work together to select a mediator that you would like to use. That mediator’s name will be provided to your spouse and their attorney to decide whether the mediator that you selected is more desirable. After that, you all could take into consideration whatever factors you needed and then ultimately select a mediator that you would like to use for your divorce. You all can meet up in the mediator’s office and negotiate the case. If any successful settlements are reached, then a mediated settlement agreement will be drafted by the mediating lawyer.

Prenuptial property agreements

the last option that I would like to discuss with you all today when it comes to avoiding litigation in divorce is to negotiate a premarital or marital property agreement. This is a situation where you and your spouse would negotiate many of the terms of your divorce before either getting married or even moving towards a divorce once you are married. By agreeing to a prenuptial or marital property agreement you can bypass many of the complex issues of divorce by having them decided earlier in your marriage period this way you can negotiate ahead of time with your spouse and avoid litigation altogether.

A prenuptial property agreement is something that you can hire an attorney for before being married. Your spouse would also be able to hire an attorney so that both of you can have access to the information and negotiating ability that is necessary to make a well-educated decision when it comes to agreeing to various points of order in your marital property agreement. If nothing else, it is better to negotiate with your spouse on property-related issues while you all are on good terms rather than to wait until the end of a marriage when you and your spouse are probably on terrible terms.

Questions about the material contained in today’s blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys 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 Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody lawsuit.

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