As soon as a Texas family law case begins, the first thing that every client wants to know is: How soon will this all be over. Everyone (including the attorney) is eager to get your case started and get it to a point where there will be a conclusion within arm’s reach. Nobody is going to tell you that a family law case is any fun, but it is important that you know what goes into a family law case settlement or final orders before your case begins. You may have a general understanding that your case involves issues related to your kids and related to your property/debts, but what exactly does a family law case look like at the end?
Today’s blog post from the Law Office of Bryan Fagan is going to spend some time going over just what the final orders of your case will contain. Ultimately your orders need to pass the inspection of a judge. That judge is going to be keeping an eye out for these elements to be a part of your final orders. The last thing that you want to see happen is for final orders to be drafted, you and your attorney to be at the courthouse early in the morning to present the order to the judge and the judge to tell you that you have to come back later because your final orders are missing something.
What is the physical custody arrangement going to be regarding your kids?
First things first, your final orders will need to contain provisions that will spell out the specifics of where your child is going to live primarily and how much visitation the other parent is going to have with the child. It is critical that exact language in regard to time, place, length of stays, transportation issues and anything else relevant to your case be detailed in all areas of your divorce decree, but especially in regard to physical custody issues.
The reason for this is that I can tell you from experience that the area where you and your future ex-spouse are most likely to run into issues is in regard to physical custody of your child. The time to drop off your son, the dates of summer vacation with your spouse, how long Christmas breaks last for each parent, these are the source of almost constant disagreement and arguing for some families.
From what I have seen, the reason why some families end up back in court on a regular basis in regard to custody issues is that their orders are deficient in some way. You do not want to put yourself in a position where you and your ex-spouse have differing views on what a part of your final orders mean. Ideally, your final orders should reflect the mediated settlement agreement or rendition from the judge after your trial. If you can have an order that uses specific language and is clear as to when that language applies there are far fewer opportunities for future disagreements.
Do not allow yourself to be put into a situation where the final orders are “wrong” but your spouse offers you a promise that she will abide by the spirit of the agreement rather than the letter of the law. That handshake agreement can and will be broken, and not in any way that would benefit you. Make sure your attorney reads each draft of the order closely so that your interests are protected. While there is an opportunity to go back to court to have the order enforced in the event that your spouse is in violation of it, it can be difficult to do so if your order is not clear on what the expectation is for either of you.
What rights and duties will you and your spouse share regarding your kids?
Once you have specified what the arrangement will be in relation to your kids for physical custody issues, you can then move on to conservatorship issues. Conservatorship refers to the rights and duties that you and your spouse hold for your kids. Some of those rights and duties will be held in tandem, some will be held independent of the other. In certain circumstances, those rights can be held solely by either you or your spouse.
What your rights and responsibilities are in regard to health care decisions, religious upbringing, educational issues and a host of other subjects will need to be specified in your final decree of divorce. Most of these rights will be held jointly with your ex-spouse, meaning that before you can make a decision regarding school, medical care or any other “important” subject it will need to be made with your ex-spouse.
This is where your relationship with your ex-spouse is very important. We have all heard the term "co-parenting" before. It describes this very relationship- the ability to work with someone you used to be married to in regard to raising a child together. Just because you and your spouse decided to no longer be married does not mean that you can afford to have breakdowns in communication with the other person on issues regarding your kids.
The same rule applies here in regard to the future enforceability of your orders as it when we spoke about custody issues. Your final decree of divorce needs to be specific enough for a judge to enforce the terms of the order. If the language that you use is fuzzy and does not clearly set forth the expectations for you and your spouse that puts you in a bad situation. In the immediate sense, neither of you will be able to know exactly what is expected of either of you in relation to raising your child. In the long term sense, you both will be unable to go back to court and have a judge enforce the order in the event that one of you violates some portion of it.
When is your final decree of divorce actually binding upon you and your spouse?
In reality, you are asking when you and your spouse are no longer married. Keep in mind that any oral agreements that you and your spouse reach that is not in mediation probably are not binding upon either of you. So, do not expect that an agreement reached informally with your spouse will go into effect immediately. This is one of the reasons why our office always recommends going to mediate your divorce even if you all have a settlement reached on 95% of your case. We want to ensure that your agreements turn into orders that can be enforced by a court in the future.
Your attorney will tell you that you should begin to follow the terms of your mediated settlement agreement as soon as it is reached. However, a court cannot enforce the terms of a mediated settlement agreement. As such, a final decree of divorce will need to be drafted that reflects the terms of that settlement agreement. The form of the order will need to be approved by a family court judge as will the language contained in the order.
The true final stage of a Texas divorce case comes in the prove-up hearing. A prove up hearing occurs when you and your attorney attend an uncontested hearing before your family court judge. An uncontested hearing means that your spouse and their attorney will not be present for the hearing. Once a final order has been drafted that satisfies all parties you will sign the document and file it with the court. When that document is filed you will attend your prove up hearing in front of the judge.
The prove up hearing is an opportunity for the judge to review your order and listen to your testimony about the order. Your attorney will ask you a series of yes/no questions, the answer to most of them will be "yes." Basically, the judge is checking to make sure that if you have children that your final orders contain language regarding custody and conservatorship. Likewise, the judge will want to make sure that your orders contain provisions regarding the division of community property and debts.
So long as the final orders have all the required language, your judge will approve the decree. At that moment you are divorced officially. The judge will either sign your order at that moment or will sign it later that day. I recommend that once the judge has signed the order you order a certified copy of that order for your records. You can refer to the order in the future if you have any disagreements with your ex-spouse or cannot remember a piece of information about any subject related to your case.
What is a motion in relation to your Texas divorce?
Part of your divorce case will be spent with your attorney asking the court to either do or not do certain things. These are called "motions." We have covered a lot of the big picture legal issues that will probably affect your divorce. Motions have more to do with the nitty-gritty, procedural issues apparent in a divorce. Your attorney will file motions on your behalf during the case when you need to ask the court to do something for you.
A motion will be filed with the court likely asking the court to set up a hearing for that motion to be argued. It is likely that your spouse will oppose the motion and will specify why he or she objects in their own document filed with the court. Both parties will submit orders that they want the court to sign upon the conclusion of the hearing.
A motion for a protective order
A motion for protective orders can be incorporated within your motion for temporary orders, but in some situations, you may need to file a protective order motion in the middle of your divorce case. Especially for women, this is something that is often requested at the outset of the divorce. It offers a huge advantage not only for their safety but for setting the case up as one where violence has occurred. This will impact how judges make decisions and how you and your spouse negotiate with one another.
If you are a man reading this blog post you need to be aware that if your wife is awarded a protective order it is probable that she will be awarded exclusive use of your home for the entire period of your divorce. Your children will only be able to have limited contact with you. It can be a very difficult burden to bear for men who find themselves in this position due to their bad actions previously. Protective orders can last from anywhere between 6 months to two years in duration.
More about motions in Texas divorce cases will be posted in tomorrow’s blog
Please join us again tomorrow as we continue to discuss motions that are related to Texas divorce cases. We hope that you have enjoyed the content in today’s blog post and we appreciate your having spent some time with us.
If you have any questions about the information we wrote about today please feel free to contact the Law Office of Bryan Fagan. We offer free of charge consultations six days a week with our licensed family law attorneys here in our office. These consultations are a great opportunity to ask questions and receive direct feedback about your case and your particular circumstances.
It’s the belief of our office and our attorneys that our clients deserve the utmost in terms of care and professionalism while we handle your case. There is no family law office that practices as frequently in the courts of southeast Texas as those with the Law Office of Bryan Fagan. Between our attorneys, paralegals, legal assistants and support staff we have a group that will place your interests first and will work tirelessly to help you achieve your goals.