In a perfect world, your family law case will have settled long before you reach the trial stage of your case. It is probable that you will have attended at least one session of mediation prior to trial. If you were unable to negotiate a settlement on whatever issues are relevant to your case the next step would be to attend a trial. While trials do not occur all that often it is worth discussing them due to how important they are. Today’s blog post from the Law Office of Bryan Fagan will detail the steps involved in that process.
Preparation is key to achieving a successful result in your family law trial
Like most things in life, it is the preparation that goes into the trial that is the most important aspect for you and your attorney. If you also attended a temporary orders hearing you know a little of what to expect when it comes to a trial. The format is essentially the same. However, the issues that you will be considered in a trial are expanded if you are comparing the two.
Once you have received the discovery responses from your opposing party you and your lawyer should sit down together and review what was turned in to you. The arguments that he or she will make in a trial, the evidence that they intend to submit as well as the relative strengths/weaknesses of your case can be ascertained by taking a detailed look at those discovery responses. From a tactical standpoint, your attorney can begin to gauge what he or she must do to help you overcome the arguments of your opposing party and to prepare your own case.
What evidence will be available to use in a trial?
One thing that is important to note at this point is that not every document, text message, email or social media post that you find regarding your opposing party will be able to be utilized in a trial. Much of the evidence that you submit to your attorney will be inadmissible for various reasons. Your attorney will talk to you about that ahead of time. Even in a trial, if your attorney attempts to admit evidence the other lawyer may voice an objection that prevents the evidence from being admitted. Unadmitted evidence cannot be considered by the judge in helping him or she makes a decision in your trial.
This is one of the trickiest and most important parts of a trial. What evidence “gets in” and what evidence is not admitted can swing a case one direction or another. For example, you may have heard the word “hearsay” utilized in courtroom television shows and movies. Well, hearsay is a concept in the law that prevents certain evidence from being admitted into the record. Hearsay is an out of court statement that is offered in court to prove the truth of the matter asserted. Basically, a witness (including you) can only testify about things that you have personally seen or experienced. Testifying that someone told you that your spouse hit your child is not allowed because that would be considered hearsay testimony.
How will a judge view your family law case in a trial setting?
In Harris or any of the larger counties of southeast Texas, it is likely that your case will be heard by an associate judge. This associate judge is chosen by the district court judge who was elected to their position. These judges will issue decisions regarding your trial, but those decisions can be appealed to the district court judge within three days of the original decision having been made.
In the event that you have served your spouse or opposing party with a copy of your lawsuit but that person makes a decision not to file an Answer or otherwise respond to the lawsuit there are consequences for failing to do so. Many people ask me if a divorce can still move forward under these circumstances. The answer is, yes, it is possible to move forward with the divorce even if your spouse doesn’t want to participate.
Custody orders, possession orders, property division, and divorce in full can be achieved under these circumstances via a default judgment. Basically, all you must do in this situation is show the judge that your opposing party was properly served, the proof of service has been on record in the court for more than ten days and that your opposing party is not currently an active duty member of the United States military.
If you are able to show the judge all of these things then the judge can sign the final orders that you and your attorney has drafted. Keep in mind, that if your opposing party becomes aware of the order having been signed within thirty days of you going to court all he must do is file a motion for a new trial and one will very likely be granted. Your ex-spouse would need to tell the judge that he never had notice of the case having been filed or that there were legitimate circumstances in place as to why no response was given.
Everything you need to know about property issues (mostly everything, that is)
When it comes to spousal maintenance and property division, the laws in Texas can differ significantly from those in other states. As such, it is important for you to know just how your case could end up looking in the event that there is a significant amount of property to divide or if spousal maintenance is necessary to be paid.
Let’s take spousal maintenance on before we discuss dividing up property. It is entirely possible that you and your spouse earn very different amounts of money that you contribute to your household. If you find yourself in the position of the spouse who does not earn as much money, you may need a certain sum of money on a monthly basis in order to keep your household afloat once you are relying only on your income.
Say, for instance, that your spouse is a high-powered attorney and you are a stay at home mother. However, you have a college degree and was carving out a fairly successful career for yourself in the business world when you stepped away from doing so in order to raise your children and maintain the home. All the while your spouse was out earning big bucks in the law.
Consider how you would react if you had to re-enter the workforce after two decades of being outside of it. Would you need to work two jobs? Would you need to go back to school? Would you need to re-learn a field of your past work in order to earn a certification? These are all reasonable possibilities for you to face as you finish up with your divorce.
The rule of the road in Texas, as far as post-divorce spousal maintenance is concerned, is that judges are not overly liberal in their handing out of spousal maintenance. The thinking behind this is that because community property laws are in effect in Texas, there is less of a need to hand out large spousal maintenance awards with any frequency. The fact that you as the lower-earning spouse are likely to walk away from the divorce with relatively more property to your name than you would have in most other states is a reason why spousal maintenance is so hard to come by here.
Exceptions to this rule include if family violence has been in the picture during recent years. Also, if you are unable to work due to a mental handicap or physical disability a court is much more likely to order that spousal maintenance be paid.
Are you eligible to be paid spousal maintenance?
Before we can consider how much spousal maintenance you could be paid in a divorce, you need to know how you are determined to be eligible to receive those payments. The first requirement that you need to show a court is that you are unable to meet your minimum basic needs taking solely your income into consideration.
Now we can move on to the aforementioned family violence requirement. Namely, you must be able to show a court that your spouse has been convicted of or has received deferred adjudication for an act of family violence against you or your child. The conviction must have stemmed from an act of family violence that has either taken place during the during or in the two year period occurring immediately prior to the filing of your divorce.
Furthermore, you can be awarded spousal maintenance in your divorce case if you have a physical or mental impairment that prevents you from earning enough to provide for your minimal basic needs. Or, you can show that you were married to your spouse for more than ten years and that you do not have the ability to earn sufficient income to provide for your minimal basic needs on your own. Lastly, if you cannot work because you are caring for a child who requires around the clock attention due to a physical or mental impairment.
Make no mistake, although there are a handful of scenarios that could lead to your being paid spousal maintenance, the odds are stacked against you overall. The court’s default setting is that you do not need spousal maintenance so the burden is on you and your attorney to show that you need to be paid spousal maintenance.
How long can an award of spousal maintenance last?
If the shoe is on the other foot as far as this discussion is concerned, and you expect to be the spouse who will be paying out spousal maintenance you may be concerned with how long you may be on the hook for paying this type of award.
In general, unless your ex-spouse is disabled or is caring for a disabled child then the court will seek to award him or her with spousal maintenance that is the shortest length possible. The longer you and your spouse were married, the longer that the spousal maintenance can be paid. Marriages of ten to twenty years result in spousal maintenance that lasts for at the most five years. 20 to 30-year marriages can see spousal maintenance extended to last seven years in duration. Thirty-year or longer marriages can result in spousal maintenance awards that last for ten years.
How much money can be paid in spousal maintenance on a monthly basis?
There is a cap that exists in Texas as far as how much spousal maintenance can be paid. Specifically, $5000 or 20% of your spouse’s gross monthly income can be paid in maintenance, whichever of those numbers is smaller.
Tomorrow’s blog post will begin by discussing the enforcement of spousal maintenance orders
One thing about spousal maintenance orders that you need to keep in mind is that the order is only as good as the person who has to pay you. If you cannot expect that money to be paid on a month to month basis, then the order itself is not worth anything of value to you. Enforcement lawsuits concerning spousal maintenance will be our blog post topic tomorrow.
In the meantime, if you have any questions about the material that we shared with you today 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 to learn more about your case and our office in a comfortable, pressure-free environment.
It is our great privilege to represent the people of our community in courts across southeast Texas. While no two cases are the same, the level of experience and the number of attorneys we employ are unmatched in our area. We are a short drive from most any part of the Houston area and we look forward to the opportunity to serve you and your family.