Would you go on a trip to Florida without knowing how to get there? Imagine jumping in the car for a long road trip and having no idea what roads to take how long the journey is going to last. That doesn’t make a whole lot of sense. However, this is what many people do when they begin a divorce case. These folks have a destination in mind, namely that they want to get divorced, but they are not aware of any important detail about the path they must take to get to that destination.
Starting off this way brings about a number of challenges, not the least of which is that these folks typically get frustrated, angry and resistant to advice. All around it is a bad plan to not have any plan at all. You’re going to spend too much time, money and emotional output on your divorce case to not really know what you’re doing or where you need to get to. If your destination isn’t well thought out then the whole divorce could have been a wasted opportunity to set you and your family up for success in your next phase of life.
In yesterday’s blog from the Law Office of Bryan Fagan, we discussed the first of a few different paths that your divorce could travel down. So much of a divorce is based on your specific circumstances that I always hesitate to go into the nitty-gritty details of a case in these blog posts. With that said, if you have some unique circumstances that you want answers and feedback in relation to, please give us a call at the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultation six days a week here in our office.
Now that we have an introduction out of the way, let’s finish where we started yesterday by sharing the final paths that your Texas divorce could travel down.
Negotiate the divorce first, File the divorce second
Usually the process goes like this: one spouse files the divorce, the other spouse responds with an Answer, and then the rest of the case is spent negotiating for final orders (with a little drama tossed in here and there). At the end of the day it is a path that will get you divorced but the question that you need to ask yourself is whether or not it is the best path for you and your family to utilize.
I have worked with clients that have employed the file later, negotiate now method. These folks are usually amicable with one another. That is to say that they get along fine and can actually stand the sight and sound of another person. If you are so upset with your spouse that just thinking of him or her gets your blood boiling then I would not recommend going this route. In those circumstances you need to hire an attorney and then file your divorce with protections, defenses against counterclaims and offensive measures to press your case ready to go.
On the other hand, if you are able to hold off on filing until you have a settlement in your case ready that is not a bad thing either. Think about it this way: if you don’t have kids, or your kids are so young that they are not in school, or you already have everything figured out with custody/possession/visitation/child support then you may want to get the framework of an agreement in place before filing for divorce. This way you can minimize the amount of paperwork that has to be filed and shorten the length of your case dramatically.
Both you and your spouse can hire attorneys to do the negotiation for you. It makes sense to hire an attorney before you file the case because the attorneys will know what has to be and what does not have to in place for your case to settle. You and your spouse are welcome to come up with a settlement before hiring attorneys, but this can lead you to problems. Reason being is that if you have neglected to include something that has to be included in your divorce it frustrating to have to go back and re-negotiate. This can dig up additional problems and hurt your ability to settle your case.
Working on a settlement before a case is filed can be a double-edged sword, however, in terms of time. On the plus side, since no lawsuit has been filed you and your spouse will not have any formal pressure weighing down on you that forces settlement negotiations to occur. You can take your time, consider your options and theoretically arrive at better thought out and more considerate positions on the issues of your case.
On the other hand, deadlines spur action. The fact that you know you have a trial date on Monday means that you and your spouse may negotiate with your minds more open to a settlement on the Friday leading up to the trial. Thinking that you have all the time in the world to work out a settlement can mean that you lollygag and putz around instead of getting on the ball and getting a settlement done. While the issues of your case are important and often times are complex, very few cases need a year to complete.
So, if you and your spouse can act civilly to one another, are not keen on fighting in court and have hammered out basic agreements to many if not all of the areas of your case, then it may make sense for you to wait to file and instead use the time early in the divorce process to work on a settlement. Remember- without a clock ticking you need to be able to stay on task. If no settlement comes after a few weeks of negotiation it may be time to go ahead and file for divorce first.
Tried and true: file for divorce and then negotiate
This is the most typical way that parties in a divorce begin their case. If you hire an attorney and file the petition for divorce in your case, your spouse will be served and then he or she will need to file an Answer. Once these first few steps are accomplished you can negotiate a settlement through negotiation. The vast majority (probably 80-90%) of Texas divorce cases are completed in this manner.
Times when you should consider filing for divorce immediately include if you have a child that you need temporary child support to help care for him or her or if you need temporary spousal support to help pay bills after your spouse left the home. Situations that unfortunately include family violence, problems with the other parent attempting to pull your child out of school without your permission would necessitate the filing of a divorce lawsuit.
What a divorce lawsuit does is keep both you and your spouse in the corners of the boxing ring instead of in the middle duking it out. You will find that you can reach better settlements when your hands are holding olive branches rather than boxing gloves. Even if you and your spouse do not see eye to eye, you can file for divorce and then attempt to sort the details out later.
For instance, part of filing for divorce is that in most cases a temporary restraining order (TRO) will be filed as well. The judge will review that TRO and decide which requests will be made into temporary orders that will be in effect for 14 days. The idea behind the 14 day limit is that this is how long most divorce cases take to get a temporary orders hearing or mediation. A TRO can be extended for an additional fourteen days after the initial TRO has expired.
In other situations, you and your child may need protection against your spouse in the form of a restraining order or protective order. By filing for divorce you are making the court address these important safety issues up front. What this means is that you need to do a careful and honest assessment of your divorce before deciding what to do. Don’t just make a decision listening to your gut.
Litigation that ends in settlement
Many divorces start of contentiously. Either you or your spouse has committed some wrongful act against your spouse that requires immediate intervention by the judge, or there are a lot of problems associated with raising your children together that require courtroom intervention. Either way, if you need to see the judge early in the case, need to have a social study done (in the event that both parents are pushing for primary custody) or any contested property or child issue in between, you are looking at a more expensive and more time consuming case.
However, it is not impossible to imagine that even the most contentious divorce case at the beginning could end up coming to an end before a trial. Hot headed spouses sometimes lose their cool over the months of a divorce. This may be because you and your spouse begin to realize that the divorce is really just a means to an end and not an opportunity to mark territory and assert dominance over the other person.
As a result, you may be able to work with the other side on settling your case rather than pushing forward into a contested trial. With any luck, you can work together for the first time and years and set yourselves up to be able to co-parent your child effectively. The tough early months of your case could set the stage for more agreeable middle and late months.
The other key factor in cases that start off hot and end with a cool front is that people can start to run out of money. Filing motions, having your lawyer call his lawyer and going to temporary orders hearings costs time and money. Often times if your budget is being squeezed due to the divorce, it may end up making sense to let cooler heads prevail and move towards a settlement. You may not get everything that you want but ultimately you will save your time and sanity. That’s something that you cannot put a dollar value to.
Litigation that ends in…litigation
Unfortunately, not every divorce case can settle before a trial. Sometimes you find a divorce that, for a variety of reasons, simply cannot settle. There may be such a degree of bad blood between you and your spouse that you emotionally cannot bring yourself to stop fighting. Or you may have some circumstance that is relevant to your case the necessitates a great deal of negotiation that is not easily solved.
I had a case a few years ago where roughly twenty different properties were in play during the divorce. Our client and the opposing party could not determine how to value the properties, how to divide up the income those properties generated or even how to pay off debts associated with fixing those properties. Because of it, we had to go see the judge and he had to take on the responsibility of splitting up the real estate and the income that real estate generated. This isn’t the worst thing in the world, not even close, but it does speak to how difficult it can be to settle a divorce.
Questions about divorce in Texas? Contact the Law Office of Bryan Fagan
I hope that these blog posts have been helpful. Many clients that I have worked with don’t really understand how divorce works and have no real plan in mind when their divorce starts. That’s ok- we’re here to help you develop a plan and develop goals. However, you will be better off knowing what to expect and knowing what you want to accomplish in your divorce, before your case even begins.
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 here in our office. These consultations are a great opportunity for you to learn more about the divorce process and to receive direct feedback regarding your specific quesitosns.