In a divorce case, a trial tends to garner the most attention. In movies and television shows the trial scene tends to be the climax. We see angry and upset spouses exchanging glances across the courtroom. Attorneys are busy objecting and responding to objections. The judge bangs their gavel with reckless abandon. This is the stuff that drama and comedy alike are made of.
The reality of a divorce case is much less climactic than this, however. Divorce cases rarely go to trial. As we are about to find out there are several checkpoints in a divorce that would ordinarily end the prospect of having a trial. That said, it would make logical sense that pre-trial matters are of great importance. This is the subject matter of today’s blog post from the Law Office of Bryan Fagan.
Starting the case off right: Drafting your pleadings
To start with, the proper drafting of pleadings is crucial to a successful divorce. This is true whether you are the petitioner or respondent in your divorce case. The petitioner is the party who files for divorce. You are initiating the divorce process as the petitioner. This is done by doing two things. The first is filing the divorce petition, request for temporary orders (if any), and discovery requests. Secondly, you must then serve your spouse with notice of the divorce.
On the other hand, if you are the responding spouse then you are known as the respondent. The respondent answers the petition with a pleading known as the Answer. An Answer must be filed within twenty days (approximately) of having been served with the petition. If not, then you risk having a default judgment issued against you. A counterpetition may also be filed which allows you to allege your fault as grounds for divorce.
A crucial aspect of this discussion includes the ability to ask the court for certain types of relief within the petition. As the petitioner, it would behoove you to think clearly through what you are asking the court for. Talk to an attorney if you do not know what to ask for in your petition. A division of community property and attorney’s fees are a good starting point. For the respondent, filing a counterpetition allows you to ask for relief of your own in the divorce.
Deciding whether to file discovery requests
Knowledge is power. Having a certain amount of knowledge relating to the divorce is important. This is true both in terms of the law and the circumstances of your case. Unfortunately, not all divorces start from this standpoint. Rather, in many divorces, one spouse holds more knowledge than the other. This is where discovery comes into play. Discovery allows you and your spouse to request and exchange pertinent information about the case. This information comes in the form of documents, physical objects, and responses to questions.
Discovery is not an opportunity for unregulated “fishing” expeditions, however. There are limits to discovery in a divorce. Depending upon the discovery control plan you are limited to the types of questions you may ask, the number of questions, and how long you have to respond. Additionally, there are opportunities to respond with objections to questions either formed poorly or requesting information outside the scope of allowable questions.
When it comes to discovery there is a certain art to both answering and requesting information. It is unrealistic that a non-family law attorney would be able to master this art on their first try in a case. Therefore, working with an experienced family law attorney is of the utmost importance. We recommend contacting the Law Office of Bryan Fagan to learn more about this process.
Temporary orders
The first opportunity you must establish ground rules for the divorce is in temporary orders. Temporary orders are exactly what they sound like- orders that are not permanent. Rather, these temporary orders will govern the case until final orders are established. Temporary orders tend to relate to subjects like the use of the family home, payment of bills, temporary spousal support, and child custody. These are important subjects within the divorce case.
You can request that a court establish temporary orders at the same time you are filing your original divorce petition. Same for a counterpetition. There are basic temporary orders that can be requested. Examples of which are plentiful online. Additionally, you may choose to include proposed temporary orders based on your specific needs. A judge would review those orders and cross out or modify any that he chooses. From there, those orders are in place until a hearing is held.
However, before a hearing can be held on temporary orders it is customary to attend mediation. Mediation for temporary orders introduces you and your spouse to a more collaborative environment. Before we go any further in today’s blog post let’s spend some time discussing what temporary orders mediation is.
Mediation for temporary orders
Temporary order mediation brings to the table all the relevant issues in your divorce. If you have minor children, topics like child support, visitation, possession, and conservatorship rights are discussed. The mediator helps you and your spouse by conveying settlement offers and often fine-tuning them. A mediator is frequently a practicing family law attorney so you can gain from that person’s experience. He or she can provide an opinion on the viability of a strategy or negotiating tactic.
Community property matters are usually not discussed in temporary orders mediation. The division of your marital estate is more customarily a topic for final orders mediation. However, that does not mean that financial matters are not relevant in temporary orders mediation. A plan needs to be created on how to pay bills- including the home mortgage. Who will stay in the family home? What are the responsibilities for removing the property of the spouse who is leaving? Getting these details nailed down now will pay dividends as you head into the middle of your divorce.
Finally, temporary order mediation is an opportunity to begin developing a negotiating relationship with your co-parent. Many times, parents in a divorce case find themselves unable to work together. For spouses going through a divorce, it isn’t as if the relationship is coming to an end. That relationship, in marriage, is ending. However, the relationship between parents continues. If anything, the relationship becomes even more important now that you two are living apart.
Organizing your case for mediation
Do not assume that the details of a case will just fall right into place because of mediation. Showing up to mediation with an expectation of a settlement is ok if you have prepared. Doing no preparation yet showing up with that expectation is a recipe for frustration. Frustration from you because you did not accomplish what you wanted to. Also, frustration from your spouse because he prepared with his attorney for mediation and you did not. That sets a certain tone for the remainder of the case.
Organizing yourself for mediation is not a solo endeavor. Rather, it can be something that you do as a team with your attorney. An attorney understands how to plan mediation. He has been in a mediation before whereas you have not. By working with an attorney, you gain that experience. Showing up with the information you all need to prepare is your responsibility. Start to collect the paperwork that you need to succeed in this process. What sort of paperwork might that be?
For one, temporary orders focus on the reality of your day-to-day life. So, include documents showing what your household bills are. Organize them so that a mediator sees a clear picture of what your monthly responsibilities are. He or she will not be able to make recommendations or properly convey your settlement offers without understanding your monthly finances. Don’t assume people will see things that are not readily apparent. Additionally, do not make people hunt to see your point. Make things obvious by preparing diligently.
Temporary orders hearings
Technically, a temporary orders hearing is a pre-trial matter. In some ways, a temporary order hearing is the most important pre-trial matter. Your temporary orders hearing is like looking into the future to see what a trial is like. Don’t let the name fool you. Temporary order hearings are not just regular hearings where one or two issues are determined. Rather, temporary order hearings determine, potentially, all your temporary orders in a case. This is a significant day in the history of your case, therefore.
Additionally, what is decided in temporary orders tends to be what is decided in a trial, as well. Whatever is established in temporary orders will be what you and your spouse follow through on during the case. Especially when it comes to things like child custody issues, courts are not going to be overly excited to change the status quo. This impacts how both you and your co-parent will negotiate.
There are many issues in a divorce case that are determined during a temporary order hearing. This includes the issues related to your household bills and expenses. Do not expect that your spouse will come less prepared than you. You must have a plan and be ready to advocate for yourself. Failing to do this means that you are not fully taking advantage of what a temporary orders hearing has to offer.
Living under temporary orders
The longest phase of a divorce, as far as time is concerned, is the temporary orders phase. Temporary orders are important from a pretrial perspective because they allow you and your spouse to learn more about what is most important in your lives. You can think about the temporary orders phase of your case as a period where both of you are transitioning into life as divorced adults. This may come as a major change depending upon the length of your marriage. Getting a divorce can mean fundamental changes to how you raise your children and live your life on a day-to-day basis.
Helping your child develop a certain degree of cohesion and stability after a divorce is difficult. The temporary orders phase of your case helps you in doing this. Shared parenting across two households is not an easy position to be in. However, in a shared parenting situation, you and your spouse will learn how to pick up and drop off your children as well as communicate with one another about issues. Accomplishing this sort of cohesion with your child takes time. The temporary orders phase of your divorce presents you with an opportunity to learn those skills.
Next, on a practical level temporary orders put you in your spouse in a position where you can begin to live as single adults from a financial perspective. Even in marriages where finances were kept separate from one another you and your spouse likely benefited from the other’s income. You need look no further than your family home. Most people have a home that is based upon a mortgage payment where you and your spouse contribute. Now you may be in a position where that family home is no longer in your price range as a single adult.
Making decisions about the family home
Your family home likely represents your largest financial asset. An asset is a type of property that is worth more than you owe on it. Assets can be exchanged for other property depending upon the wishes of the owner. In the case of your family home, it becomes necessary to start thinking about whether you would like to remain in the home or sell it. When it comes to the family house your options are somewhat limited. It isn’t as if there is a never-ending supply of options on what to do.
If your wish is to sell the home, then this may be something you have to negotiate with your spouse. Anyone who has sold a home understands that there are several different considerations when it comes to that process. Listing the house with the realtor, preparing the house, and making repairs are just a handful of the steps necessary. All of this takes time. Meanwhile, you and your spouse are still going through a difficult divorce. Coordination with one another is critical when selling the family home.
On the other hand, if your wish is to remain in the home then you have a different kind of analysis to pursue. Namely, you must determine that you have the financial resources necessary to continue living in your home. Again, most families have a mortgage payment that reflects the income of both spouses. Going from two incomes to one income means that you’re resources available to pay the home mortgage decrease. It would be a stretch for most families for just one spouse to pay the mortgage. However, you should consider your finances and the best interests of your children when deciding about selling the home.
Mediation for final orders
Your experience in temporary orders mediation will inform your experience in final orders mediation. The type of preparation that went into temporary orders mediation should be mimicked in final orders mediation. Child custody issues can be extended beyond your divorce. That means anything agreed to in temporary orders radiation can be extended now for final orders. Hopefully, you have been paying attention to what has worked and what has not worked for your family when it comes to custody. Making changes based on your experience is critical in mediation.
Negotiation for the division of your marital estate occurs in final orders mediation. This is a major change from the temporary orders mediation you’ve already attended. Planning to divide retirement accounts, personal property, real estate, and other assets means putting in the effort and preparing diligently. Also, don’t forget about debt. Debts must be divided in a divorce. Think about your liabilities and your assets during final orders mediation.
Deadlines spur action. This is the reality of final orders mediation. Spouses know that if they do not settle their case in final order mediation then it is likely that a trial will be necessary. As such, this puts added emphasis on the importance of negotiation with one another. Do not take for granted the opportunity to settle your case in mediation. The alternative can be an expensive and time-consuming divorce. At the end of a trial, it is not you and your spouse who make decisions about the future of your family. Rather, that responsibility falls to a judge. However, you and your spouse have the power to do something about it and to make decisions that are geared towards the best interests of your children and yourselves.
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.
Evan Hochschild was raised in Houston, TX and graduated from Cypress Creek High School. He went on to graduate from Southwestern University in Georgetown, TX with an undergraduate degree in Political Science. While in college, Evan was a four-year letterman on the Cross Country team.
Following in the footsteps of his grandfather and uncle before him, Evan attended law school after he completed in his undergraduate studies. He graduated from St. Mary’s University School of Law and has practiced in a variety of areas in the law- including family law.
Mr. Hochschild is guided by principles which place the interests of clients first. Additionally, Evan seeks to provide information and support for his clients with the heart of a teacher.
Evan and his wife have four small children together. He enjoys afternoons out and about with his family, teaching Sunday school at his church and exercising. A veteran attorney of fourteen years, Mr. Hochschild excels in communicating complex ideas in family law simply and directly.
