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Pre-Trial matters in a Texas divorce case

When it comes time to begin a divorce case in Texas, you will likely have several issues on your mind. Foremost among them is the need to begin to prepare yourself for what could be a rather long experience within the divorce case itself. Many people anticipate that a divorce will be over with rather quickly, especially if you believe that you and your spouse are on the same page as far as negotiating through issues regarding child custody and Community property. However, you may find that you and your spouse are not in agreement on a number of these issues and rather will require time to be with you to negotiate with one another.

Contrary to popular belief, most Texas divorces do not end up in a trial scenario. In my estimation, upwards of 90% of divorces do not go to trial for even one issue in the divorce. Rather, a Texas divorce offers you and your spouse the opportunity to work through your issues both in informal settlement negotiation and in mediation. Especially with mediation, you will be allowed to speak to your spouse through an experienced mediator to resolve any outstanding issues in your marriage. Once that settlement is achieved, you can avoid having to go to a divorce trial.

The benefits of mediation

Mediation is a process whereby you and your attorney, your spouse, and their attorney and an experienced mediator will get together for an extended period to see if you can work through any outstanding issues in your case. Usually, mediation occurs at the office of your mediator, but in these times of pandemic, virtual mediations are becoming more popular. The mediator will place you and your attorney in one room and your spouse and attorney in another. From there, the mediator acts as an intermediary to help both sides work through any outstanding issues in your case.

This isn't to say that you and your spouse cannot negotiate with one another in the weeks and months leading up to mediation. In most divorces, there are typically two mediation sessions that are held. The first mediation session is held before temporary orders, and the second is held before a final trial. The issues decided in your temporary orders mediation can help you sort through and avoid the trial, given that final orders tend to look a lot like the agreed-upon temporary orders.

It is entirely possible to settle your divorce without going to mediation. Trust me when I say that there is ample time for divorce for you and your spouse to negotiate either directly with one another or through your attorneys. People get the impression that divorce is spent with busy days throughout the case. The reality of a divorce case is that most of the time, there are open or idle days, or nothing, in particular, is going on. In these instances, you and your spouse can fully negotiate with one another and use that time proactively and productively.

Unfortunately, my experience is that most people do not fully take advantage of this time. Rather than take advantage of the time they are afforded, many people will assume that they will be given more time than having to work through their issues together. Think of this as procrastination but applied to a divorce case. Why do today what you will have time to do tomorrow or the next day? Without a firm deadline, many parties and their attorneys will avoid conflict in difficult conversations in hopes of situations resolving themselves, essentially.

However, there will be a deadline given to you and your spouse when it comes to your case at a certain point. A trial date will be presented to you as a deadline for attempting to settle your case without judicial intervention. This is the first hard and fast deadline for you to consider in your case. Although continuance can be requested and is typically granted the first time around, some courts may not be willing to consider multiple continuance requests by the same party. This is especially true as we were coming out of a pandemic period where much of the court's time will be spent hearing matters that could not be adequately heard during the meat of this pandemic.

Deadlines, as they say, spur action. We should utilize your time and any deadline presented to you as an opportunity to work proactively towards solutions for yourself and your family. Mediation offers you and your spouse uninterrupted periods in which to engage one another in settlement negotiations. All the while, your mediator will allow you to see the other person's perspective and also help you to gain insight into what a family court judge would likely rule regarding your case in the subjects contained therein.

It is beneficial for you as someone going through a divorce to understand what a family court judge would view as favorable or not favorable circumstances for you as an individual. You and your attorney may view something completely different than the mediator in the mediator may be able to help you play devil's advocate and learn about what a court would be likely to rule on or you to go before a judge in your current state.

Overall, the attorneys with the Law Office of Bryan Fagan are big fans of mediation. We go out of our way to prepare and possibly for mediation to allow our clients to have the best day possible in that setting. While a quick and easy divorce is not always possible, it is always possible to be prepared on important dates in your case. Mediation, other than a trial, is perhaps the most important date in your entire case.

What exactly is a divorce trial?

I'm sure that most of you reading this blog post know what a trial is or at least have a good idea I want a trial is. However, I would like to go into some deals to make sure that everyone is clear on what a trial is and not. When you and your spouse are going through a divorce and cannot come to a settlement on even one or two issues in your case, you would be able to step in and play a tiebreaker on these outstanding issues. The idea of a trial is pretty ubiquitous with American Society: we've all seen movies and television shows where two attorneys present their cases in front of a judge, make objections, and present witnesses to have testimony go on the record.

What an attorney says in court is not evidence. I have had more than a handful of clients ask me in anticipation of a temporary orders hearing or a trial whether they or I will give the judge's testimony. While an attorney may speak more than you do in your trial, the reality is that what an attorney says does not go into the evidence that can be considered. Rather, an attorney's job is to make statements about what they believe the evidence will show, state the sort of relief their client is asking for from the judge. Present evidence and witnesses are to provide evidence for a judge to decide on. Once all evidence has been submitted, including testimony, the judge will deliberate and make decisions on any issue that could not have been settled before the trial.

What sort of evidence is submitted in a trial? How evidence is submitted and what kind of evidence is relevant are the keys to any divorce trial. Your attorney should be working with you closely to learn as much as possible about your case so that they can determine how best to present the evidence available in a succinct manner to a judge. Many people going through a divorce imagine that divorce is essentially an opportunity to take all of your dirty laundries, air it out before the judge and then have the judge decide on your case then and there. While this may be simpler and a lot more fulfilling in some ways, the reality is that most divorce trials do not involve anything like this.

For example, the division of Community property in a divorce is typically much less about he said; she said arguments and more about producing documents, title paperwork, and other financial instruments to show the nature of the property and how it came into being. While arguments based on emotion may be more relevant for jury trials in front of a judge are more typically based on factual information in documents. It is my experience that the most charismatic witness will not sway a judge as much as a good paper trail or proof of ownership in a home or other item.

The family court judge will view your case based on the totality of the circumstances and not On emotional pleas. For example, you may be in a position where you need financial support after your divorce. You may feel justified in requesting spousal maintenance after your divorce based on how your marriage ended, and you're having not worked in the economy for many years.

However, a family court judge would need to look to the circumstances of your case to determine whether or not your spouse can afford to pay you special maintenance. Even if you are in a tough position financially after the divorce, a judge cannot order your spouse to pay something they do not have the money for. You would need to show the judge that not only do you need spousal maintenance but that your spouse can pay special maintenance once your divorce is over.

When child custody issues are being discussed in a divorce, then a judge will look closely at the prior relationship of both you and your spouse with your children. While I think it is Noble for a parent to want to become the primary conservator of the children after a divorce and take on that responsibility, the reality is that a judge will not consider your case as strongly if you have never taken on that responsibility with the children previously. If you wish to pursue primary conservatorships in your divorce trial, you had better be sure that you have the facts and circumstances to back up that request. To spend money on a divorce trial without a chance of winning would not be a good decision, no matter how noble your intent is.

I will make a final point regarding divorce trials that much of what you think might be relevant is not. Unless you are arguing for fault grounds to be the basis of your divorce, then your spouse's infidelity likely is not as relevant to the case as you might think. In our minds and perhaps even based on television and movies, we seem to think that infidelity or adultery is the make-or-break circumstance in a divorce. This isn't just to say that adultery is right or that your religious leanings are incorrect or not based on anything substantive. Still, I can tell you that infidelity in a divorce is not looked upon seriously by many courts as you might think.

Two exceptions to this rule would be if the infidelity somehow cost your family money or if the infidelity was made known to your children. For example, if you were bringing your significant other around the house when your children were there, then that would be a major problem to most family judges, in my opinion. Additionally, if you started spending large sums of money on your significant other that was Community property, then that too would be an issue to be explored in a bench trial period; otherwise, while infidelity and adultery may not be morally right or just the reality is that family court judges may not look upon these axes harshly as you might anticipate.

Getting ready for a trial, when potential clients of our law office ask us about how much I think their case will cost from beginning to end, I will oftentimes ask them whether or not they believe a trial will be necessary. This is an important consideration given that so much time and money goes into preparing for and trying a divorce case. This process begins long before a trial during the discovery phase of a case. You will be asked, in all likelihood, to turn over financial documents and respond with answers to questions posed by the opposing attorney and your spouse.

Responding to and sending out requests for discovery takes a period; as a result, we can view this stage of a case as the first step towards preparing for a trial. After mediation, if you have not successfully settled every issue in your case, there will be a trial. At that stage, all the preparation during discovery and mediation can be translated into preparation for the trial. Reviewing your pleadings to ensure that you are requesting everything that you want in the trial, figuring out a strategy on how best to present witnesses and evidence, and organizing those pieces of evidence into exhibits are just a few of the steps your attorney will go through to prepare for your trial.

This is over, and above the time your attorney must spend with you to help you prepare for the trial. Even if your testimony will represent even just a small percentage of the trial, the key is being prepared to withstand cross-examination by an opposing attorney. I like to think of this process as helping your lawyer score points for your team by answering questions well and preventing the other side from scoring points by giving as little information as possible during cross-examination. Some witnesses are better equipped than others to do so, and we'll find out where you stand when the preparation for your trial begins.

Finally, you and your spouse will need to learn how to conduct yourself from a physical perspective inside the courtroom. Again, some people are more prepared than others to display appropriate behavior in a courtroom and do so in a way that is favorable to how the judge will view their case. You need to be willing to listen to the advice of your attorney in this regard; even if it is a little uncomfortable, I may even annoy you to an extent. That's the part of a divorce case in trial people don't tell you about: you tend to learn a lot about yourself during the process, and not all of it will make you smile.

Questions about the material presented in today's blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material 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 in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas family law and how your family's circumstances may be impacted by the filing of divorce more child custody cases.

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