Whether you are involved in child custody or a divorce case you need to be aware of what you are going to face. Fathers especially, from my experiences, do not know what to anticipate and how important each step in the process is. The reasons for this are probably many, but the bottom line is that I want all parents- fathers notably- to be able to see what happens in a family law case as it approaches a trial.
What you will learn very quickly if you become involved in a family case is that there is a lot of downtimes. You will be aware of the few dates that anything actually happens (trial, temporary orders hearings, discovery deadlines, etc.) but for the most part, your case is a range of dates that will impact your life for a long time to come. Think of it like a baseball game: the intense moments can be intense, but for the most part the game is made up of pretty routine occurrences.
A trial in your divorce case, for instance, can be heated depending upon the circumstances of your case. However, there are numerous steps that you will encounter before you get to that final step that is much more anti-climatic than some courtroom drama that you may see on television. While those moments aren’t exciting enough to write a television show about, they are crucially important to your case. This is what I want to write about today- those steps that may not be overly interesting but can make or break your case.
Settlement negotiations do not just occur in mediation
If you are at all familiar with the blog posts that we have written here on our website, then you know that our attorneys are huge fans of mediation. Mediation is a process where you and your attorney meet with your spouse and their attorney at a neutral attorney’s office in an effort to negotiate and settle your divorce. You all will be in different rooms and will not have to interact directly with one another. The mediator will act like a ping pong ball, bouncing back and forth between your rooms to facilitate a settlement.
Sort of a last ditch effort to settle your case will occur in a setting called a pre-trial conference. A pre-trial conference is mandatory and will require that you attend along with your spouse. The purpose of the conference is to bring you and your spouse together one more time to see if there is any chance that you all could settle your case rather than to have to proceed to a contested trial. The judge will be prepared to hear the arguments in your trial but understands that you and your spouse are in a better position to come up with an equitable solution to your case that he or she is.
What the pre-trial settlement also does is force your attorney and that of your spouse to discuss the main issues in your case prior to a trial. Sometimes in a highly contested case, we can get lost in the details and lose sight of the ways that we can lead clients to settlements. Forcing the attorneys to come together one time prior to trial is a good way to "force" settlement talks even when all other efforts to do so have failed.
The length of your trial, the sort of evidence that will be presented and any topics that may end up being at issue will be discussed. Pre-trial conferences can also cause both sides to come to a full understanding that a trial’s outcome is unknown and the costs of proceeding to that step can be significant. Your attorney can lead you towards a settlement but ultimately only you and your spouse can make decisions about whether or not to settle.
Know your judge before making any decision to go to trial
One thing that your attorney should be counseling you on in your lead up to a trial is that many judges will state their opinions on your case without much hesitation. You and your attorney need to take note of what your judge has to say about your case. Many judges are extremely formulaic and will approach your case from a pretty rigid mindset and perspective. Your attorney and that of your spouse will go over the facts of your case with the judge and then the judge will likely tell you their tentative position on each of those circumstances.
This courtroom is not one that you should worry about having your case delayed at the last minute, but you should be concerned if you can achieve a just result. If there are warning signs coming up that you need to re-consider an aggressive stance as far as going to trial you should heed those warning signs, rather than to proceed into a situation that you are unsure about. It may be wiser for you to attempt to settle your case with your spouse.
Custody disputes mean that you are likely headed for a trial
It is my opinion that spouses can settle any issue in their case, up until the day of the trial, but if yours is a case where custody of your kids is an issue then you have little chance at a settlement. I have seen many, reasonable parents dig in their heels when it comes to child custody. This can be for good reason in some cases, but at the very least you need to understand that if this is an issue in your case you should prepare early for a trial.
If you are a father who wants primary custody of your kids you should also know that your wife is not likely to allow you to settle the case with your being named as primary conservator. Mothers typically have a perspective that they have an advantage, and sometimes even a right to be named primary conservator of the kids. Many times they are right. However, if you are an active and involved father you have just as much of a right as your wife to ask for primary custody. It just may take a trial to get it, though.
Family law trials in southeast Texas
Here we are. The past few days on our blog have been spent walking you through every conceivable issue in your family cases that could come before a trial occurs. Now we will get to what many of you have probably been waiting for- a discussion of what can occur in a family law trial in Texas.
I will let you know that if your case makes it all the way to a trial it is one of the exceptions to the general rule that most family cases in Texas settle before a trial is reached. You will be provided with many opportunities to sit down with your spouse or opposing party in order to reach a settlement. With that said, some cases just cannot settle in time to avoid a trial. We have already discussed that in situations where you cannot agree with your spouse on who will be named as the primary conservator of your kids then that is a fairly obvious situation that will lead to a trial.
Trials that center around child custody issues
Child custody issues within the context of divorce almost surely will lead to a trial if a settlement cannot be reached in mediation. These are not financial numbers that can be exchanged and negotiated for a long period of time. There are no small, incremental shifts that take a case from "headed to trial" to "settled." If you want to be named as the primary conservator of your children then there really is no middle ground available to you.
Keep in mind that ultimately you are trying to persuade a judge that you offer a home environment that is superior to that of your spouse. Living in your environment primarily would be in the best interests of your child, essentially. The judge need only make a decision that falls somewhat in line with the Texas Family Code in order to have their decision held up on appeal.
This gives judges a great deal of latitude to make decisions and to assess your situation
Many times fathers pursue primary custody out of a sense that they truly offer a better environment for their children. Mothers will typically have the same feeling. However, I have also seen many mothers push hard to become the primary conservator due to concerns that people will view her differently if the kids don’t go to live with her on a full-time basis.
At the end of the day, if you are aiming to be named primary conservator of your kids you need to be able to speak to your attorney early on about your chances of success. The last thing you want to do is push for a trial you won’t win.
Financial issues that come up in trial settings
Your trial could end up including issues that go beyond child custody, such as the finances of you and your spouse. Texas is a community property state which means that most of the property that you own will be subject to division in your divorce, assuming that you and your spouse have been married for an extended period of time. Child support, spousal maintenance, and division of community property are likely the biggest three areas that deal with your finances that will become relevant in your divorce.
Child support follows a pretty straightforward method for calculation in Texas. The number that you ultimately end up owing will be a factor of how many children you have before the court and how much net income you earn on a monthly basis. There are formulas and guidelines that are found in the Texas Family Code that can guide you in greater detail. However, unless your family faces exceptional circumstances there is less likely to be disputes regarding child support than many other subjects in family law.
Spousal maintenance is what is commonly referred to as spousal alimony or spousal support. Your marriage must have lasted longer than ten years in order for your wife to be eligible to request spousal maintenance unless there is a recent history of family violence in the home. Otherwise, the length of your marriage and the disparity in future income potential will determine how much spousal maintenance you may be in line to pay.
For example, if you were married for over twenty years and your spouse is not going to be able to provide for her minimal needs after your divorce then spousal maintenance may be awarded. Keep in mind, however, that if your spouse is getting a substantial amount of community property in the divorce then there may be less of a need for spousal maintenance. Texas judges do not readily award spousal maintenance except in situations that truly merit it.
In tomorrow’s blog post we will discuss how long your divorce or child custody trial could last and the factors that will impact the length of your trial.
Questions about family law in Texas? Contact the Law Office of Bryan Fagan
If you have any questions about the material that we discussed in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys work on behalf of clients across southeast Texas and do so with a great deal of pride. A consultation with our attorneys is free of charge and can go a long way towards helping you resolve whatever problem you have in your life.
Our attorneys and staff pledge that we will work tirelessly to help you achieve your goals in regard to your family law case. We understand how complex, emotional and difficult the subject matter is in family cases and we want to do whatever we can to help our clients through their tough times.