Skip to content 
Going into a family law case you hopefully have some goals in your case. This takes some consideration and thought before you go into the case. If you could wave a magic wand and accomplish all those goals without having to lift a finger, odds are you would do that in a heartbeat. Even if that weren’t possible, accomplishing all your goals before seeing a judge would likely be acceptable, as well. How can this be possible? After all, don’t all family law cases proceed to a trial or at least protracted litigation?
If an efficient victory in your family law case appeals to you then stick around today. The Law Office of Bryan Fagan is going to share with you our thoughts on what it means to prepare for a summary judgment. There are ways to win your case based on the subject matter as well as more technical reasons. Nobody wants to spend more time in a family law case than is necessary. For purposes of today’s blog post, we are going to explore how to manage your case with minimal stress and maximum results.
What is jurisdiction and what does it have to do with summary judgments?
The first real chance you will have to win on a summary judgment motion in your case is when jurisdiction is raised. The subject matter and the parties involved are related to jurisdictional issues. If the court has no subject matter nor personal jurisdiction over you and your case then it cannot hear arguments. Nor can it issue rulings in the case itself. When you are a respondent to a divorce or child custody case it is sometimes effective to make jurisdictional arguments within your motion for summary judgment.
One way to do this is to make a special appearance in the case. A special appearance allows you to file and argue a motion for summary judgment without complying with jurisdiction. A special appearance, in other words, allows you to address whether a court can exercise jurisdiction over you. Typically, you can argue against personal jurisdiction in several ways. You not being a resident of Texas nor having minimum contacts with Texas are both common summary judgment arguments related to jurisdiction. A final method would be to argue that you have minimum contacts but to exercise jurisdiction would violate notions of fair play and substantial justice.
These are not simple arguments to make. Unfortunately, while it is relatively simple to file a divorce petition the same cannot be said when it comes to defending yourself from the jurisdiction of the court. A summary judgment motion is an effective means to do so. Having an experienced family law attorney from the Law Office of Bryan Fagan strengthens your ability to avoid a divorce in Texas. Talk to us about our successes in summary judgment situations for prior clients.
What are the two types of motions for summary judgment?
There are two types of motions for summary judgment in Texas. A traditional motion for summary judgment is based on the evidence provided by you and your opposing party. In a no-evidence summary judgment, your motion is based on the lack of supportive evidence regarding a particular assertion made by the other party. You need to know which avenue to take to be successful in your case.
In a motion for no-evidence summary judgment, you are pointing out to the court that a central claim of your opposing party lacks evidence. You are shifting the burden of the case back to your opposing party to show that there is evidentiary support for the allegations being made. You are forcing him or her to show you what evidence they have for making the various assertions in their petition. It’s a great way to learn about their case even if you do not win on your motion for summary judgment.
The other type of motion for summary judgment in Texas is a traditional motion. This is a two-sided coin where you must show that you and your opposing party do not have cases that are in opposition to one another. If your opposing party does not have a dispute when your rendition of the facts of your case then you can win here, as well. However, no-evidence summary judgments are much more common in family law cases.
Where to go from here? Filing a motion for summary judgment
Put yourself in the following position. Your co-parent has filed a child custody case in Texas which you believe lacks merit. She makes several assertions in her petition which are without evidence and false. As a result, you would like to do something about it. You do not want to proceed with the case without trying to nip it in the bud now. So, you contact the Law Office of Bryan Fagan to see what our attorneys have to say about the situation.
What you are trying to do is put the burden of proof onto your co-parent. In truth, that’s where it always is given that she is the petitioner. That means she is the one who is asking the court to grant her relief and has filed the lawsuit. However, many times that burden does not ever get thrust upon her. She files a child custody case you answer it and then you settle via negotiations. There is nothing wrong with this in some situations. However, if you believe her case to be without merit then you need to make decisions about where to go from here.
How discovery can help you maximize your case’s potential in a summary judgment
You may have an inkling that your co-parent’s case is without merit but need to verify those feelings somehow. This is where discovery comes into play. The first step in this process is to try and determine what sort of evidence your co-parent has up their sleeve. In a family law case, the best way to do this is to file discovery requests upon your co-parent. These discovery requests force your co-parent to answer your requests. These answers may be written responses or documentary. In any event, you can learn more about her case.
Depending upon her responses you can gauge the strength of her case. A weak case may deserve to have a motion for summary judgment filed against it. On the other hand, your co-parent may have evidence at their disposal that you were previously unaware of. Either way, by filing a motion for summary judgment you can learn more about her case and determine how much evidence she has to back up the bold assertions she is making.
What if a motion for summary judgment does not work
Suppose that you tried to end the case early with a motion for summary judgment. However, your big punch early on did not land. Unfortunately, you swung and missed. The judge dismissed your motion and the case will proceed. Now you are left with a more traditional family law case. You can either inquire about a settlement through negotiation or go to trial.
Most everyone reading this blog post would prefer to settle their case. You and your co-parent are experts in the case even if the two of you do not get along. Otherwise, a judge must intercede and make decisions for the two of you. That is an unappealing situation, to say the least. Rather than undergo that type of outcome why not try and negotiate with your co-parent? Negotiation allows you to fast-track your case, potentially, by helping the two of you identify those areas where a settlement may be possible.
Then, you can take your focus and shift it onto those areas where you were otherwise struggling. If you know that child support is a major sticking point for both of you in your case why not spend most of your time discussing that issue? Visitation and conservatorship may be already settled, albeit informally. This way you can quickly identify those areas of your case where a settlement may need some work. It is all about productivity in this regard. Make sure that all your hard work and negotiation have a chance to pay off for your family.
Going to mediation after a motion for summary judgment fails
When your motion for summary judgment falls flat do not fear. All the work you did in preparing and arguing your motion may still pay dividends. This can be seen in mediation. Mediation involves you and your opposing party choosing a neutral, third-party mediator to help you all settle your case. This is done through prioritizing negotiation. A mediator hosts you and your opposing party for a half or full day of formalized settlement negotiations.
One of the problems that some people run into in mediation is trying to decide where the two of you should start. However, when you have a history of a summary judgment hearing that may not be necessary. Rather, you and your opposing party know where you need to begin the negotiation process. The summary judgment case allowed you to better focus your attention on a specific area of need. This should save you both time and money.
No evidence summary judgments in Texas child custody modification cases
When your co-parent wants to modify a court order regarding custody or visitation that means two things. He or she needs to produce evidence that a material or substantial change in circumstances has occurred for a parent or child since the last time you were in court. Next, the requested modification would need to be in the best interests of your child. If your co-parent can show evidence sufficient to prove both these points then you a modification may be won.
In a modification case, when you file a motion for summary judgment it needs to be specific as to what claims of your co-parent are without sufficient evidence. When you do this you allow your co-parent to address the issues raised by producing evidence. If your co-parent can produce enough evidence to “raise a genuine issue of material fact” then your motion for summary judgment will fail.
In a modification case, your co-parent would need to show what the situation was like for your family at the time of your prior court order. As in what was going on in your lives at that time. Then, he would need to show that a material or substantial change has now occurred in your life since that time. Sometimes issues arise that could not have been foreseen. Problems occur in the classroom all the time that you would not have been able to anticipate.
Divorce issues which can be solved by a motion for summary judgment
One of the ways that a motion for summary judgment may be helpful is regarding property division. In Texas, community property is subject to division in a divorce. This division may occur either by agreement or order by a judge. It helps to know your spouse’s opinions about certain properties before a trial. Hopefully, you and your spouse will have exchanged discovery and at least have had an opportunity to learn more about the other person’s case.
Suppose that you inherited real estate from your deceased mother during your marriage. Inherited property is counted as separate property in Texas even if that property was inherited during your marriage. Your spouse may argue that the property is community property based on when you acquired it. In return, you file a motion for summary judgment. Your evidence of the property separately owned by you would be the nature of the transaction wherein you acquired the property. You may even provide a copy of your mother’s will to show the court that you are correct.
Once you provide this evidence then a judge can quickly see that there is no material issue of fact surrounding the evidence. Your spouse may have misunderstood how you acquired the property. However, with this in mind, you could summary judgment that argument out of your divorce. Now you can respond to other issues that are more important or pressing.
When would a motion for summary judgment likely not work
A motion for summary judgment is a great tool when there is an obvious issue that is either unsupported by the facts or is undisputed by the parties. In either of these scenarios, there would be reason to file a motion for summary judgment. However, in more complex situations it may be that a motion for summary judgment would be less successful.
One type of issue in family law cases where motions for summary judgment are less likely to be successful is in child custody circumstances. Cases where you and your co-parent are both asking to become the primary conservator of your child frequently involve dueling sets of facts. Having a great deal of evidence to prove your point and genuine issues regarding material elements of your case leads a judge to believe that a motion for summary judgment would be inappropriate.
Undisputed facts and straightforward circumstances make it more likely that a motion for summary judgment will be granted. These are “obvious” situations that arise from time to time in family law cases. However, as you can imagine the facts matter a great deal in a family law case. When you have favorable facts and your spouse does, as well, that makes a motion for summary judgment less attractive.
Final thoughts on motions for summary judgment
There is no telling just how your divorce will turn out. Many people worry excessively about things they cannot control in a divorce. What makes this especially difficult is that your family must go through a great deal of stress during various points of a divorce. By worrying about things you cannot control you may harm yourself and your case. Instead, place your focus on those areas that need your attention.
Motions for summary judgment are effective tools for family court parties. However, they do not come without their challenges. Knowing how and when to deploy a motion for summary judgment is critical. Additionally, being able to appropriately respond to and overcome a motion for summary judgment is just as important. How can you learn where to begin and how to best proceed?
Meeting with an experienced family law attorney with the Law Office of Bryan Fagan is a great way for your family to survey the landscape of your case. Our attorneys not only have walked beside many people in family law cases but we have also succeeded in summary judgment cases. Whether you are bringing a motion for summary judgment or defending against one, we are equipped to help you. The Law Office of Bryan Fagan thanks you for choosing to spend part of your day with us here on our blog.
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.
