If you think that you are going to be stuck with a cranky judge issuing a ruling in your divorce it’s time to think again. The vast majority of Texas divorces end not in the courtroom but in a mediator’s office. This may come as a surprise to any of you who have had to endure stories from friends and relatives about their own divorce nightmares- stories that likely climaxed in a heated courtroom drama.
Obviously, your case may be the exception that proves the rule that most cases do not go all the way to a trial. However, the likelihood is that your case will settle and you will avoid talking to a judge at all in your case. Getting to that point, and avoiding mistakes and problems, is the key to this discussion. Hiring the right attorney for you and your family takes research and knowledge of what your goals are and what is best for you. A family law attorney who is experienced in working with clients like you can be the best investment that you ever make.
One of the characteristics that your attorney should embody is a certain degree of experience in helping to select a mediator for their clients. Just what a mediator does and how this person will impact your case is the subject of today’s blog post from the Law Office of Bryan Fagan, PLLC.
As we just touched on, most divorce cases in Texas settle rather than go to a trial. Most settlements occur in mediation. Whether it is by court order or by mutual agreement, you and your spouse would hire a third party attorney/mediation to intercede into your case to help you all reach a settlement. The mediator can also be selected by the judge if you and your spouse cannot agree on a person.
A mediator is an attorney, and usually, one who is experienced in family law cases. In certain circumstances, your attorney may suggest an ex-judge who heard cases in family law courts. The mediator may have a relationship with your attorney but he or she will not favor you or your spouse. They are neutral and independent. Their role is to help you and your spouse negotiate and settle any outstanding issues in your case. A mediator’s experience trying cases in front of your judge will be important because he or she will be able to give you a neutral opinion on what a judge is likely to do given any individual scenario in your case.
Mediation sessions for most divorces typically last approximately four hours. A full day session will not be likely but can be done if your case has a particularly large amount of issues. The costs of mediation are split between you and your spouse and are not (usually) included in your attorney’s fees. You will be paying your attorney to be present with you at mediation and will pay the mediator as well. This may seem like a lot of costs, but keep in mind that the alternative is the weeks-long preparation for a trial that could last more than one day.
What the mediator cannot do
The mediator is not there to weigh the strength of your argument and that of your spouse on a particular issue and then make a decision in favor of one of you. The mediator is not an arbitrator, in other words. The mediator is independent and has no force or legitimacy within your case in anything other than helping you and your spouse reach a settlement. Their fees do not go up or down depending on whether or not your case settles.
What the mediator does do is be honest with you about the relative strength of your positions. As in, you can expect a mediator to tell you if your argument regarding dividing up the marital assets will either do well or go down in flames with the judge. Before that, the mediator will get a sense of who you are, what your goals are and what you believe that the mediator needs to know. He or she will then leave the room where you and your attorney are seated and go to the room where your spouse and their attorney are and do the same with them.
Acting like a ping-pong ball, the mediator bounces back and forth between the rooms to communicate settlement offers and help you all problem solve your issues. Unless you give the mediator permission to, he or she cannot disclose anything you say in your room to your spouse. For instance, a mediator cannot be called as a witness to tell the judge anything that you or your spouse told him or her during the mediation session.
Where cases go if they don’t settle- trial
For every ten divorce cases that are filed in Texas, I would say between one and two of them end up going all the way to a trial. The reasons why your divorce may not settle can vary. The circumstances themselves may make it very difficult. You or your spouse (or both of you) may have a mindset that a settlement is not possible. In which case your likelihood of going to trial skyrocket.
What you have seen on television and in the movies suggests to you that a trial is a situation where anything goes, mud will be slung and problems only get worse. That is not the reality of the situation. The reality is that a trial is rarely observed by anyone beyond you and your spouse. Galleries full of people whispering and gasping at the various turns of events are quite rare. A friend or family member may sit in the gallery and watch the proceedings but even this does not occur with all that great amount of frequency.
Your attorney and you likely would have spent a great deal of time preparing for your trial. You and your spouse will testify about issues related to property and your children. There may be other witnesses who will testify for and against you. Evidence will be offered by each attorney and whatever evidence makes it into the record will be available for the judge to weigh when he or she arrives at their decision(s).
At the end of your trial, the judge will issue his or her rulings on all of the issues submitted to the court. Once this happens either your attorney or your spouse will take those orders and put them into a final order called a Final Decree of Divorce. This is an important step because you will want to make sure that everything put into the mediated settlement agreement (MSA) comes out in the Final Decree. If something happens years from now and requires your return to court in order to hold your spouse responsible for violating the order you will need the relevant order to be clear and otherwise able to be followed.
Prove Up Hearing
Most courts in Texas require that you or your spouse attorney a brief, uncontested hearing known as a prove-up hearing with your attorney in front of the judge.
Basically, the judge needs to make sure that you understand what you signed your name to. Your attorney will ask you a series of yes/no questions where you will answer each of them “yes.” Once the judge is satisfied that your children are taken care of and all property is divided that needs to be he or she will grant your divorce.
Questions on divorce? Contact the Law Office of Bryan Fagan, PLLC today
If you have any questions about your own divorce, then please contact the Law Office of Bryan Fagan, PLLC. We offer free of charge consultations six days a week with one of our licensed family law attorneys. We take a great deal of pride in representing the people who live in our community achieve whatever goals they may have. It would be an honor to help you and your family do the same. We hope that the past few blog posts on divorce have been interesting and have taught you a thing or two in the process.
If you want to know more about what you can do, CLICK the button below to get your FREE E-book: “16 Steps to Help You Plan & Prepare for Your Texas Divorce”
If you want to know more about how to prepare, CLICK the button below to get your FREE E-book: “13 Dirty Tricks to Watch Out For in Your Texas Divorce, and How to Counter Them" Today!”
Other Articles you may be interested on regarding Houston Court Local Rules:
- Texas Family Law Courts: Mediation and Divorce Essentials
- Texas Family Law Courts: What to Expect
- Harris County, Texas Family Law Court - 245TH Judicial District Local Rules
- 247TH Judicial District Local Rules
- 246TH Judicial District Local Rules
- Harris County, Texas Family Law Court - 308TH Judicial District Local Rules
- Harris County, Texas Family Law Court - 257TH Judicial District Local Rules
- Why is Separate Property Important and How to Keep it Separate in a Texas Divorce?
- What Wikipedia Can’t Tell you About Texas Divorce and Marital Property Division
- Texas Divorce Property Division Enforcement
- Separate Property in a Texas Divorce?
- Does it Matter Whose Name is on Title or Deed of Property in a Divorce in Texas?
- Is Social Security Considered Separate Property in a Texas Divorce
Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers
The Law Office of Bryan Fagan, PLLC routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.