One of the great misconceptions about Texas divorce cases is there if you are getting divorced then there is a high likelihood that your case will big be completed inside of a courtroom. In truth, many people believe that this is the case due to watching television shows or movies about divorces. In these programs, you typically will see intense drama in a courtroom or hilarious and unrealistic courtroom events that take place surrounding the divorce. However, these movies and television shows are purely fictional and do not necessarily reflect the quality of what you could come to expect in your divorce. You and I should be less concerned with fiction than we are with reality.
The reality is that some divorce cases end up going to a courtroom for a trial after the case. However, these cases are the exception rather than the rule. List divorces in Texas settle rather than go to a contested trial. For most people, This is a good thing. To begin today’s blog post from the Law Office of Bryan Fagan I would like to share with you why I believe most people stand to benefit from settling their divorce rather than going through a trial. While in some cases it is inevitable or unavoidable that they will need to go to a trial for their divorce case for most of you reading this blog post that is not the case.
The downsides of completing your divorce inside the courtroom
As we have just covered I think most of you reading this probably believe that your divorce is very likely to wind up inside hey courtroom to be done and over with. However, that is not how most of your divorces will come to an end. Before we get into the most likely outcomes for your divorce case in Texas I wanted to talk some to you about what it means to go to a trial. Even though the percentages do not say that a trial is likely in your case it is still a possibility. With that said we need to at least contemplate what it would mean to go to a trial, the preparation involved, and the potential downsides of having to do so.
What does it mean to finish your divorce in court?
Go into court to finish off your divorce he’s not ideal, in my opinion. There are numerous downsides to a trial for your case not the least of which is the time commitment required of a trial. To be sure, we can see that there is a good deal of preparation in time that needs to go into a trial period your attorney will spend time preparing a trial notebook, exhibits to prepare for your evidence, and are their aspects of trial preparation such as getting ready to testify potentially. Not only will you have to spend some time preparing for a trial but your attorney will have to engage in quite a bit of preparation themselves.
When your attorney is preparing for a trial that means you will be responsible for paying him or her the fees required. your attorney is a coin-operated machine where he or she can only move around when you pay him or her to do so. This means that you will have needed to have paid your attorney a retainer at the beginning of the case to retain his or her services. after that, your attorney will charge an hourly rate which must be paid every so often to ensure that there is money in your account for the attorney to be able to continue to work on your case. This is especially important as you approach a trial as a great deal of preparation time needs to go into the trial both from your attorney and their staff.
As I mentioned a moment ago, a big part of the discussion surrounding a trial is preparing exhibits for your evidence. Any trial is not possible for you to simply drop a document off at the opposing attorney’s table and in front of the judge and expect that it be admitted into evidence automatically. Rather, he will need 2 offer the evidence into the record by keeping it as an exhibit at the beginning of your case. You will take any documentary evidence you have and wish to offer it into the record.
Not only should this show the amount of work that has to go into pretrial preparation but also the importance of having an experienced family law attorney during this stage of your case. Submitting evidence into the record means saying the right words, the possibility of responding to the opposing counsel’s objections, and then moving on to whether or not the judge allows the exhibited items to be added to the record. Law students take an entire course (at least one) on how to do this in a courtroom. Lawyers are constantly trying to improve their ability to do this. Without evidence like this, your case is limited to your testimony or any other witnesses’ testimony.
With that said, we can see that a trial is an extremely involved process that takes a great deal of time to complete and also prepare for. Without a doubt, this is the most stressful portion of divorce for most people. Being in the courtroom is an unfamiliar environment for you. Many attorneys who do not frequently practice inside of the courtroom are also uncomfortable going to court. It is like trying to sleep in the middle of someone else’s living room period you just aren’t comfortable. The way you act in a courtroom, talk in a courtroom and address other people in a courtroom is completely different than you would do at your home. As a result, the experience in and of itself can be quite stressful for many people.
The last topic related to going to court that I think is important for you to be aware of is that the outcomes of a trial R are frequently up in the air given that you do not know necessarily how a judge will react to your facts and circumstances. Attorneys do their best to try to predict how a judge will approach their case specifically. However, it is the case that judges oftentimes make decisions based on criteria that you may consider to be unimportant. However, while a judge must make decisions in a case based on the law they are also given the ability to make decisions based in large part on their experience and own opinions.
This is an uneasy position for you to be in given that the judge can make decisions about your case from a perspective of not being especially tied to a specific set of circumstances but rather making a decision based on something that you consider to be rather unimportant. Allowing a judge to decide the rest of your life based on something that is beyond your control is a tough position to be in. Rather than looking at your case as a whole, a judge could potentially make a decision based on something that was a relatively minor part of your case.
Additionally, even after a two or three-day trial, a judge will never know your family as well as you and your spouse dude. Even though you and your spouse are not on the best of terms most likely during a family law trial the fact is that you will are much better educated on the finer points of your family life than a judge could be. This is a nerve-racking situation and one that neither you nor your spouse benefits from particularly. The judge will do their best to learn more about you and your family but bear in mind that there are limitations to this process. Do not expect the family court judge to learn as much as you what time are heard too by the end of your case.
Finally, thinking as I do as a parent I would not want the reality of my situation to be that another person gets to have total say-so over the future of my relationship with my children. Even if it meant negotiating with a spouse that I was not particularly happy with this would be a better way to go rather than submitting to the authority of a judge who does not know me or my family all that well. I think that family court judges have the best of intentions but make decisions that are intended to be fair rather than equitable. Just what do I mean by this?
Family court judges are more apt to award custody arrangements that are based on a standard possession order. This is because most families adhere to a standard possession order when it comes to dividing possession and access to the children. However, this type of every other weekend visitation plan for the nonprimary parent may not work well for your family. Your children may need a more involved possession schedule or you may work a job that makes weekend visitation difficult.
You would not be able to receive any kind of specialized treatment from a family court judge in all likelihood. More likely is a judge making orders based on what the Texas family code says in very little on what the specific circumstances of your case are. The judge just would not likely be comfortable going out onto a ledge when it comes to assigning more flexible parenting rights, duties, or things of that nature.
If you find yourself in a scenario where specialized orders based on your particular circumstances are important then you are best off trying to settle your case with your spouse. The question remains what is the most effective inefficient way to try to settle your divorce. From my perspective, the best way for you to try and settle your divorce would be to attend mediation with your spouse. Fortunately for both of you, mediation is much more common than it used to be and can allow you to arrive at decisions with your spouse that are much more equitable and based on the circumstances that involve you and your family every day.
What is mediation?
Mediation is a process whereby you and your spouse mutually agree to name a mediator as an uninterested third party who can help facilitate a settlement between the two of you. There are so many aspects to a divorce case. Within the child custody and property division, there are so many sub-issues that we would be here all day if we tried to list out all of them. Therefore, a mediator can be brought into a case to help facilitate settlement negotiations between you and your spouse. Many times, the mediator will be a practicing family law attorney him or herself. Therefore he or she will probably be familiar with the judge that you stand to go before in a trial if a settlement can not be reached. You may even be in a situation where you can select and former judge to act as a mediator in your case. This is always an interesting proposition given that the judge can call back on their experience and help you see exactly what a judge will be thinking in these circumstances.
Mediation typically occurs at the office of the mediator. You and your attorney will go into one room while your spouse and their attorney will go into another period the mediator will then act like a ping pong ball bouncing back and forth in between your rooms to help facilitate an agreement. Bear in mind that in the age of COVID-19 online or remote mediations have become more popular. However, I still find that in-person mediations work better and are logistically more simple. True, you do have to get into your vehicle and drive but being present in a person with the mediator and your opposing party can help to make this a similar issue than it may be otherwise.
Mediation is highly successful at helping parties settle their cases. It is my experience that upwards of 80 to 90% of Texas divorce cases that are office works settle in mediation. Mediation is much more informal and allows you and your spouse to become comfortable enough to think critically about the issues affecting yourselves and your family to avoid having to go to court. This is an atmosphere that is much more conducive to settlement than a courtroom. Bear in mind that it is not guaranteed that your case will settle in mediation but I believe this process gives you the best opportunity to do so rather than go to court.
To answer the question posed by the title of today’s blog post, no, mediation is not mandatory in a Texas divorce. There is nothing in the Texas family code that mandates you and your spouse to attend mediation before being able to complete your divorce case. However, the reality is that the vast majority of divorces do involve mediation. Many divorce cases involve more than one session of mediation.
Mediation typically occurs before a temporary order hearing as well as a trial. Many judges require mediation while others do not. I have even encountered judges who have ordered mediation to occur multiple times before he or she will be willing to hold a temporary orders hearing or trial. Even still, I have been a part of a temporary order hearing where the judge paused the hearing and asked that the opposing attorney, opposing party, myself, and our client meet in a conference room next to the courtroom to see if we could again try to resolve these issues in our case. Without getting into the nitty-gritty details these issues were very fact-specific and involved several sensitive topics.
Getting back to what I was talking about earlier, the judge understood that we could have a two-day temporary order hearing and she still wouldn’t be able to accurately assess every relevant circumstance of the case. While it was difficult to negotiate through these issues I give the judge a great deal of credit period she immediately assessed that she wouldn’t be able to provide as good of and the answer to our problems as the husband and wife here could have. Ultimately we were able to work out these issues through negotiation and then attended a mediation before final orders while never having to step foot in a courtroom again for the case.
Questions about the material contained in the taste blog post? Contact the Law Office of Bryan Fagan
If you have any questions about the materials contained 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 to learn more about the world of Texas family law as well as about how your family circumstances may be impacted by the filing of a divorce or child custody case.