When you file for divorce in Texas your goal is the same as every other person who has ever done that: to get divorced. However, there is more than one path that you can take to get divorced. What you need to keep in mind is that while all the paths can lead to a divorce, your experience during the divorce, as well as the results of the case at its conclusion, can vary tremendously.
If you have been reading our blog posts for any length of time you probably are aware of most these methods of divorcing in Texas. However, we have never shared all of this information with you in one space in a "compare and contrast" type article. That will change today as I would like to go over with you some of the most important pieces of information that you could ever learn about divorce- the different ways that you can achieve that goal.
No two divorces are the same, so you may find that for your case one method will likely be what works best. In other cases, the circumstances will force your hand and put you into a situation where you have to go about getting your divorce in a certain way.
The two basic paths that your divorce can take: mediation or court
You could also break theses options down to mediate or litigate. Most divorces in Texas conclude not in a courtroom, but in a meditation room. Mediation is a process where you and your attorney as well as your spouse and their attorney will select an independent, third party family law attorney to help you all settle the issues of your case. Most of the time, you all will go to the mediator's office and will go to separate rooms with your attorneys. The mediator will act like a ping pong ball bouncing back and forth between your rooms to spur discussion and negotiation. A mediated settlement agreement will be the result of your mediation session if any settlements can be reached.
In Texas today, most family courts require mediation before a trial. Doing so not only allows you and your spouse to have more control over the outcome of your case but also keeps the judge's docket from busting at the seams. Courts are swamped with divorce and child custody cases and anything that the judge can do to keep his docket tidier, he or she will likely do. Don't be surprised to have your judge order you back to mediation even if you have already attended. If you are only a few issues away from a complete settlement all it may take to complete your case would be another crack at it in the mediation room.
A breakdown of the different methods of divorce in Texas
Now that you know generally how most divorces in Texas are finalized- either in court or in mediation- we can now get into the specific methods of completing a divorce that is available to you and your spouse.
Going it alone: the pro se divorce
The first would be the one that many people start with and then quickly live to regret. That would be representing yourself in a divorce. You and your spouse are legally able to not hire attorneys and would simply file the divorce paperwork yourselves and go about the case on your own. You would attempt to negotiate with one another to achieve a settlement and if none can be reached you would be able to attend a trial in front of the judge.
Let me take this opportunity to note that this is a method that people choose either because they do not want to spend money, their facts are simple (or so they think) or a combination of the two. I'd like to take some time with you to go over why it is rarely a good idea to file and go about your divorce on a "pro se" basis.
First of all, the money concerns that you have are legitimate. Nobody wants to spend money on something that you get no enjoyment out of. However, having an attorney is a lot like having insurance. The lawyer will not make you any money. The lawyer will force you to spend money. However, the attorney will act as insurance for you against what could happen to you in your divorce. If your attorney helps you to get out of your divorce in one piece, keeps your investments in place and makes it so you can continue to work at your current employer and earn a great salary it sounds like the lawyer made you money in the long run.
Here is another analogy I use with potential clients of the Law Office of Bryan Fagan who are interested in learning more about divorce but are not necessarily interested in hiring an attorney to represent him or her in a divorce. That’s fair, I’ll tell them. I will reinforce that there is no legal requirement that they hire an attorney. They are well within their rights to start to file divorce paperwork and get the process started on their own. But that is where the problems often start.
Number one, do you know how to file for divorce? You may not, but wait, Google does! All you have to do is jump on the computer and spend a few hours doing tedious legal research into filing for divorce. Once you have figured out how to file for divorce, you'll come to learn that all filings for most counties are done online. So, you'll need to pay for access to an online filing website that will allow you to file your divorce and then upload subsequent documents to the file. What's that? You're not great with computers? Well, there's never a better time to learn than right now!
Oh, yea! You will have to draft legal documents to represent yourself in a divorce. You've never filed for divorce before? You are not an attorney? Looking at legal documents makes your head hurt? Your kids need you to help with homework, feed the dog, and make dinner? All of a sudden the tremendous time commitment it takes to represent yourself in a divorce starts to become burdensome. Very few of us can work full time, attend to family responsibilities, have some time to relax and represent ourselves in a divorce. It's just not possible in most circumstances.
Finally, here is the real kicker. Most people who start a divorce representing themselves ultimately have to hire an attorney. It could be that you made a major mistake in filing your documents and need someone to go back and review them for changes to be made. Still, other people can file the divorce just fine but then never move forward with the case. Eventually, your case will be dismissed by the judge if it is inactive for long enough. All the costs to file the case and time you put into filing it would have been for naught.
If you want something done right, hire a professional. Do you fill your cavities, work on your car, perform your surgeries or cook your meals at a restaurant? No. Heck- I'm willing to bet many of don't even cut your yards. My point is that we defer to more experienced people to help us succeed in areas that we don't have a lot of success in.
Hiring an attorney is a temporary investment for a relatively small amount of money. Attorneys charge a wide variety of rates to represent you in a divorce. All you need to do is do some research, interview a handful and then make an informed decision.
Hiring an attorney and then going the mediation route
For most people going through a divorce, an attorney will be hired and your case will start on the right foot. Your case will be filed within a few days of hiring the lawyer, your spouse will be served with the paperwork and notified of the divorce and any court date. From there, he will file an Answer to your Divorce Petition. That is all that is technically needed to have your divorce officially begin.
Next, most courts in southeast Texas will require that you and your spouse attend mediation before attending a temporary orders hearing. Mediation during a divorce case means that issues surrounding temporary custody of your child, temporary child support, temporary spousal support, who gets to stay in the house (hint: probably whichever one of you gets primary custody of the kid) as well as who is going to pay what bills during the divorce. These issues are the big ones that will be determined in a temporary order hearing.
The mediation will allow you and your spouse to get your case off to a good start in terms of working together and being as civil and amicable as possible. If you learn early on that you can work together to settle issues, rather than having to resort to asking a judge to play tiebreaker then you are ahead of most people that go through divorces. Listen to your attorney and the mediator. Even if you don't see eye to eye with them on every issue you can learn a lot about your case and divorce cases in general from them. The better educated you are about the process, the better you will be able to think through the issues of your case.
Mediation can result in a what is called a Mediated Settlement Agreement (MSA) so long as you all settle a portion of your case. If you settle 100% of the issues or you just settle a few, the mediator will draft an MSA that reflects the settlements. Each side will have an opportunity to review the language to make sure that it reflects the nature of the settlement as close to perfect as possible. As long as it does, the mediator, your attorneys, and the spouses will sign the document.
From there, you cannot wake up the next morning and inform your attorney that you have made a huge mistake and want to go back and change something in that MSA. Once you sign the MSA, the issues contained in that agreement are done and over with. So, make sure that you think as clearly as possible during mediation and ask questions if you don't understand something. It happens from time to time that a client will call me the day after mediation and ask questions that probably should have been asked the day before. So, if you have a question to ask during meditation you are best off doing it then rather than waiting until the next day when nothing can be done.
The same process above will occur before the end of your divorce case. Mediation is mandatory before a trial, as well. The process will look the same as far as where you go and how you go about negotiating a case. The major difference is the issues that you are negotiating on will be for final orders. What you decide in mediation will impact your life after the divorce.
Stay tuned tomorrow as we discuss the other paths your Texas divorce can travel down
We are just getting started in discussing the different paths towards a completed divorce that your case can take. We hope that you can join us again tomorrow as we wrap up this topic and share with you some information that can be extremely helpful to you and your family.In the meantime, if you have any questions about the materials that we have shared with you, 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. These in-office consultations are a great way for you to receive direct feedback about your case based on the questions you ask. We pride ourselves on serving the people in our community and look forward to the opportunity to work with you and your family.