I have assisted countess clients through difficult family law disputes, and that experience has taught me that, when it comes to conflict regarding the family, fear of the unknown is the single greatest stressor in a client’s life. I have found that the more a client knows about the legal process, the better equipped the client is to deal with the toll the process brings. Even if one does not know what the outcome of a case will be, individuals who are familiar with the different stages of a lawsuit are usually better equipped to manage the emotional strain during the pendency of the process.
Contemplation—For at least one of the parties to the suit, every family law dispute involves a period of contemplating whether to take action, and many factors will go into deciding whether to pursue a legal remedy. Some of the factors may be:
- Whether the other side or you, for that matter, can change so as to eliminate the need to file suit;
- Whether you can ever get over whatever it is that got you to contemplating in the first place;
- Emotional impact on the children;
- Financial cost of bringing suit versus potential benefit; and
- Whether your life depends on it, in the case of violent relationships.
Investigation—Once you have decided that you are going to file suit, or, if the other side has decided for you by filing first, it is helpful to gather as much relevant information as you can as early as you can. Before a lawsuit intensifies, the other party’s defenses are more likely to be down, which sometimes makes this period the most fruitful for gathering financial records, gathering electronic data, recording conversations, or collecting other pieces of probative evidence. Keep in mind that not all methods of gathering evidence (particularly electronic evidence) are exactly legal. If the evidence you gather is illegally obtained, it may very well be inadmissible, and worse, you could face criminal prosecution and/or significant civil penalties.
Filing—All lawsuits are initiated with the filing of what is known as an “Original Petition.” This document tells the court who you are and what you want. For example, if you are seeking a divorce, the petition will identify the names of the parties and any minor children, and it will state, in general terms, what relief you are seeking. In the divorce context, the petition will say that you want a divorce, it will identify the grounds on which you want to be divorced, and it will request that the court make orders as to child custody, spousal support, division of your marital assets, or whatever may be applicable in your particular circumstances. The person who files first is known as the petitioner, and the other party is known as the respondent. Usually, the petition is personally served upon the respondent, but there are instances in which service can be waived. The respondent can respond to the lawsuit with the filing of an “Original Answer” and a “Counterpetition,” if appropriate. The answer is filed in order to dispute the allegations set forth in the Original Petition, and the Counterpetition is used to assert any affirmative requests that the respondent may have.
Temporary Restraining Orders/ Standing Orders—Historically, once a lawsuit was filed, it was not uncommon for the petitioner to seek a temporary restraining order against the other party as a precaution to prevent emptying of bank accounts, hiding children, disconnecting utilities, disposing of assets, and the like. A vanilla temporary restraining order is usually not as nasty as it sounds. However, Dallas, Collin, Denton, Ellis and Rockwall Counties (among many others) have all but eliminated the need for temporary restraining orders by promulgating what are known as “standing orders.” The standing orders apply to both parties in all cases filed in those counties, and the orders contain the basic terms of a typical temporary restraining order. However, some counties have not issued standing orders, and some parties have issues that are not covered by the standing orders. In those cases, a temporary restraining order may be necessary to prevent imminent injury. Temporary Restraining Orders are effective for up to fourteen days, at most. As such, the Court will require that a hearing be held on or before the fourteenth day from issuance. At the hearing, the Court will determine whether to render a temporary injunction, which prohibits the same behavior as the restraining order, but it lasts until further order of the court.
Temporary Orders—Once a petition has been filed as described above, parties may need orders in place to govern child custody, child support, visitation, temporary use of property, spousal support, attorney’s fees, or a number of other issues. Either party may request temporary orders, and a temporary orders hearing is usually held within a few weeks of the filing of the original petition. As circumstances can change during the pendency of the suit, it is sometimes necessary to have multiple temporary orders hearings throughout the pendency of the case. This hearing is usually conducted as if it is a trial, but it is usually much shorter than a full-length trial.
Discovery—Discovery is the formal process of gathering information from the other side and third parties through the use of various requests to which the other side or appropriate third party must respond. The forms of discovery can include written questions, requests for documents, depositions, among others. The discovery process can be tedious, time-consuming, and expensive. Whether to seek and the extent to which one seeks formal discovery depends on the issues involved and will be determined on a case by case basis.
Settlement—Cases are ultimately resolved in one of two ways—either the parties agree on the terms and settle the case, or the case goes to trial. The majority of cases ultimately settle without the necessity of trial. Once each has investigated the case, understands the issues, and knows the strengths and weaknesses of both sides of the case, each side will begin to negotiate a final settlement. If successful and the parties strike a deal, the terms of the agreement will be incorporated into an agreed order and the case will be finalized on those terms. Some settlements are reached through a process known as mediation. Mediations are simply settlement conferences aided by a neutral mediator whose job it is to help the parties see the dispute more objectively, and approximately eighty-five percent of all cases that go to mediation are settled in mediation. Regardless of whether you wish to mediate your particular case, most courts will order the case to mediation at some point.
Trial—If your case does not settle, it will be set for trial before a judge or jury. Most cases are tried before judges, but in some cases, it may be beneficial to submit certain issues to a jury. If a trial is necessary, our attorneys are experienced trial lawyers, and we take our duty to zealously represent our clients very seriously. However, even when we are standing outside the courtroom doors, we frequently admonish our clients to make a last ditch effort to settle the case without the necessity of trial. When you settle a case, you maintain some level of control, and you decide what you are willing to concede. When a case goes to trial, two parties tell a story to a judge or jury, all of whom are strangers, and that judge or jury makes a decision that will have a profound effect on your life. It is critical to have a solid understanding of what can be gained or lost before choosing to let strangers make decisions that affect your family and future.
Final Decree—Regardless of whether your case settles or goes to trial, the court will sign a final decree or order. This may be in the form of a final decree of divorce, an order changing custody, an order changing child support, or one of many other types of orders. It is imperative that the terms of the final decree accurately represent the terms of your settlement or the court’s judgment, because this order will define your rights and duties for years to come, if not forever. The signing of the final order is, technically, the end of the case unless a party files a post-trial motion or pursues an appeal. The outcome of the entire case will be encapsulated in the decree.
Tying Up Loose Ends—In many cases, there are a number of orders to be signed that are ancillary to the final decree. These orders may serve to divide retirement benefits or to withhold child or spousal support from the payor’s wages. Additionally, there are a number of closing documents that the parties may have to sign such as deeds to real estate, letters of instruction to financial institutions, or title documents for motor vehicles. Often the signing of these documents is vital to secure the rights set forth in the final order.
Post-Trial Motions—In Texas, both parties have thirty days after the signing of a final order to file certain post-trial motions. These motions usually come in the form of a motion for new trial or a motion to correct or reform the final decree. Sometimes, such motions are a precursor to an appeal.
Appeal—After the final order has been signed, both parties have the right to appeal the terms of the final order. This is usually done after the case has been disposed of by a trial. The purpose of the appeal is to instruct the court of appeals that the trial court erred in some way that either requires a reversal of the trial court’s decision or a remand for a new trial.
Enforcement—When a court signs an order, occasionally, a litigant will not adhere to the directives in the order. In such cases, the other party’s remedy is to file a motion to enforce the decree. The most effective tool the courts have to enforce their orders is contempt. Most courts take their orders very seriously and are willing to enforce its orders with jail time for the offending party, if necessary.
Modification—If your case involves minor children, your family law disputes may not be over. A court will retain jurisdiction until the children are eighteen and out of high school. As such, issues such as custody, visitation, and child support are frequently litigated numerous times until such time that all children of the suit reach the age of majority.