In yesterday's blog post from the Law Office of Bryan Fagan, we introduced a topic that I hope will be helpful to just about all of you. That is, I wanted to share some basic tips to improve your chances at a successful divorce that can immediately be implemented by you. These are not hints that will take a great deal of study or thought to build upon. Rather, they are basic pieces of wisdom that I have gathered from other people, clients, and my own experiences. You should not need to ponder these too deeply. Just read them and apply them to your own life and your divorce case.
Be willing to settle, but not at any cost to you
You will find that there are a few different types of attorneys that work in family law. One kind of attorney wants to avoid going to court at just about any cost. This is a problem because family law attorneys are in court by necessity more than just about any other kind of lawyer. If you have ever had a family law case before you can probably attest to calling your lawyer at 9:00 a.m. and never having the lawyer there to take your call. The reason being is that your lawyer was likely in court for another client on that day.
Your attorney should be willing and able to represent you and advocate for your rights in a courtroom if called upon to do so. The end goal should not be a courtroom showdown with your opposing party, but if it comes to that your attorney should be ready to go. This means preparing for trial or a temporary orders hearing at the beginning of your case but being willing to work towards a settlement of the issues before litigation is necessary.
To settle, the facts of your case must lend themselves to achieving a settlement. Meaning: if your wife takes your kids from Texas and travels to New Mexico, you are likely going to have to go through with that Temporary Orders hearing unless your spouse listens to your pleas to return your children. Some circumstances make it so that settling the case is impossible. Most often we see this in situations where you need the court to grant you some degree of relief that is over and above the norm for most Texas divorces.
Let's assume that you have a fairly standard divorce case. You have a wife, two children, a house with a mortgage and some retirement accounts. What do you need to do to best help yourself avoid the uncertainty of a temporary orders hearing or trial? First, you need to identify your goals. If you start your divorce without knowing your goals or where you want your case to go then you are at a distinct disadvantage compared to your spouse. Talk to your attorney about your goals and he or she can direct you further.
What I will tell clients at the beginning of the divorce is you need to figure out what issues in your case are the most important to you. When you sit back and think about what you want to get done in this case what images come to mind? Take those three or four issues and set those aside. They are ones that you are not willing to bend on. Hopefully, you have just a few of those because what you will quickly learn in your divorce is that negotiation is all part of the process.
The remaining issues are ones that you are more than willing to negotiate with your spouse about. Go over both lists with your attorney and see what he or she thinks as far as the lists and what you will likely be able to negotiate for. All divorces are unique and your attorney will probably not be able to predict exactly how your case is going to be decided. However, he or she can tell you what most cases come down to in terms of negotiating a settlement.
Why settling a case is so important as opposed to going to trial
You may be wondering why I’m so adamant about being able to work with your spouse on settling your divorce. After all- what did your home county build that pretty courthouse for, if not to house judges who will sit and listen to arguments related to divorce? While it is true that the judge in your case is available to listen to your arguments and those of your spouse, you should not go into your divorce with a desire to litigate rather than negotiate.
The simple truth is that your divorce is complicated. More complicated than you give it credit for and more complicated than a judge is likely to understand over a couple of days (or less) of a trial. As much as you hope that the judge in your case understands the facts and circumstances, it is unlikely that he or she will know as much about your case as would be needed to come to a fair and accurate decision.
This is why attorneys like me encourage clients to pursue settlements whenever possible. To settle your case, you will invariably move closer to the "middle" on many issues that are important to you. Some of the issues that we discussed at the outset of today's blog post that was at one time "non-negotiable" may by the end of your case be open for debate. Give yourself a chance to save time, money and sanity by settling your case rather than pursuing litigation at all costs. You will find that in the years after your divorce that you were happy that you did, in all likelihood.
Start to write things down
Have you ever had a good idea come to you in the middle of the night or the car, only to find that when you tried to recall that thought a few hours later that you were unable to? In the fast-paced world of your divorce, it is easy to envision a scenario like this playing out. If your spouse were to tell you something that could be used as evidence, or you suddenly remembered where you may be able to find a financial document that is important to your case, you need to get in the habit of writing things like that down.
Don’t assume that you will remember everything that you think of or that you’ll get to a pen later on in the day. Using the notes application on your cell-phone is not a bad way to start to take simple notes. You can even email thoughts to your attorney if you believe that they are essential to your case. I am not recommending that you email your attorney every thought of yours related to your divorce. This will become burdensome for your attorney and costly for you, as your attorney will likely bill you each time he or she reads one of your emails.
Also, I recommend to clients that you chronicle issues related to custody, possession, and visitation of your children as well. If your spouse is habitually late for picking your children up on the weekends, then you should take note of this. Likewise, if your spouse is late in paying your child support then you should keep track of those missed dates yourself and not just rely on the Office of the Attorney General to do so. Stay involved with your case and you will find that you are better off for having done so.
Your attorney can utilize this calendar or journal of dates when building a case for trial or for preparing to negotiate at mediation. These present-sense memories of important events are a lot more trustworthy than your recollections that occurred months or years after the fact. Do not rely on your memory to build a divorce case. Make the effort to document, journal and calendar important events and then move on from there.
What’s the fight going to cost you?
Is the juice worth the squeeze? In other words, was it all worth it? Ultimately you are paying money to get a divorce. There are emotional aspects to divorce but there are also financial aspects. Every issue that you fight on with your spouse is going to end up costing you in attorney's fees. I am not here to tell you that you shouldn't fight for the issues that are important to you or that you should just lay down in your divorce whenever you are challenged by your spouse.
However, some things just don't make sense from you to fight over about. When it comes to financial issues you need to make sure that there is enough in the way of margins to justify what you are fighting about. If you believe that a chair in your living room is your separate property then you need to address that with your attorney. However, your attorney will let you know that unless you have the evidence necessary to prove that it is your separate property then you may not want to spend the money in attorney's fees trying to argue this point.
Likewise, if you are a parent you may be willing to push yourself to fight for primary custody of your children. Your basis for wanting this may be reasonable and you can always point to being willing to do whatever it takes for your kids, but sometimes your chances of success are so low that you would not be justified in wanting to push for being named primary managing conservator. This is especially true if you are a parent who has not played an active role in raising your child. There is no judgment in my message when I tell you that unless you have the facts to back up your push for primary conservatorship you should not attempt to do so.
What should you avoid doing in your divorce to best position yourself for success
Divorce is as much about not doing things that can injure your case as it is about doing things that can actively benefit your case. There is ample opportunity for you to avoid mistakes and focus on aspects of your case that will allow you to succeed. Hiring the right attorney, understanding when you have negotiated yourself into a strong position and abiding by court orders are just a handful of the ways that you can avoid problems that can undermine an otherwise strong family law case.
These are the sort of topics that we will be discussing in tomorrow’s blog post from the Law Office of Bryan Fagan. I want to mention topics like these because it is a focus of our law office to share with you all information that can impact your case, both negatively and positively. At our core, our attorneys will look for every opportunity to teach you about the law so that you are better able to make decisions about your case and your life. Thank you for your time and consideration today and we hope that you will join us again on our blog tomorrow.
Questions about divorce or family law? Contact the Law Office of Bryan Fagan
If you have any questions about the material that was presented 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 receive direct feedback about your specific circumstances and to have your questions answered.
Our attorneys will work to ensure that your interests are being advocated for and are first and foremost in everything that our office works to do on your behalf. We work in the family courts of southeast Texas and are proud of the results we have achieved for our clients.