AREAS OF PRACTICE

At the Default hearing, your spouse will oftentimes receive anything and everything they request in Court. What you have in your hand is a packet that will usually include: 1 the complaint for divorce filed by your spouse and a summons; 2 a blank financial statement; 3 a tracking assignment this document tells you who your judge will be : and 4 information about the automatic restraining order on assets which prohibits you and your spouse from selling or transferring certain marital assets during the pendency of the divorce proceedings. The packet may also contain a Motion for Temporary Orders, along with information about when and where the Motion will be heard.

You and your spouse may agree to certain orders or, if no agreement is possible, the judge will decide. At this point, I think it is a good idea to stress the importance of contacting a Texas divorce lawyer. Not only are you now required to file your answer and any counterclaims, as discussed below, but you need to deal with the temporary orders and the issues they raise.

Divorce Process

Once an order is in place, it will typically stay in place for the duration of the divorce proceedings. Because these orders may deal with a range of issues, including legal and physical custody of the minor children, child support and spousal support, use of the marital home during the divorce and who pays the expenses, and who is responsible for certain medical and other costs related to the children, it is CRUCIAL that your interests be adequately represented at the hearing s. The opposite of a default divorce is a contested divorce. A contested divorce occurs when the parties cannot or will not come to an agreement about one or more of the issues in their case.

If this happens, your case will take much longer to resolve. Not all contested divorces end up in a trial but that is certainly likely unless an agreement is eventually reached between the parties. A contested case begins with the Respondent filing an answer to the petition.

The answer typically disagrees with some or all of the allegations contained in the petition and may contain additional allegations and requests for relief than the petition.

This places the case at issue which tells the parties, their attorneys and the court what the contested issues are. Typical contested issues may concern how community property should be divided, which parent should have custody of any minor children, which party should pay child or spousal support and any other matters which the parties do not agree on.

A contested divorce will take more time. Instead of cooperating and voluntarily exchanging information with each other, the parties and their attorneys may engage in a process known as discovery. Discovery is a legal process that is available to litigants to uncover important information that is not otherwise available to them. The tools of discovery have specific notice and deadline requirements often as long as 30 days. These notice and deadline periods will obviously add on days, weeks or even months of delay in your case.

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Discovery may take the form of interrogatories which are detailed written questions that are served upon the opposing party who must provide written answers under oath. These questions and answers not only become public records but are expensive and time consuming to both parties.

In some hotly contested cases additional discovery may occur such as depositions. A deposition is a legal proceeding usually held in the office of one of the attorneys. A court reporter is present who administers an oath to the person or witness to be questioned by the attorney who noticed or convened the deposition. The questions, answers and any objections are recorded verbatim by the court reporter who then prepares a written transcript of the proceedings which also consumes more time. Depositions often take a couple of hours or more to complete which will add to both parties cumulative legal fees and costs.

Court reporters and written transcripts are costly.

Filing and Serving Divorce Papers

Contested cases with complex issues may also require expert witnesses to analyze and render opinions about the value of certain assets. These experts may be accountants or asset evaluators who have special training and experience. Sometimes medical or psychological experts may be necessary to provide opinions about parental fitness or other relevant issues in your case.

A qualified expert is also expensive and using one will add more time to your case. If the parties cannot agree on using one expert for a particular issue, both sides may retain their own experts which could double the time and expense involved. Sometimes even a contested case can be resolved by agreement of the parties once discovery has been completed. In such a situation, your case may proceed to conclusion as a default case which follows the same procedure explained earlier. The two of you may also agree to binding or non-binding arbitration in lieu of a trial.

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If you agree to binding arbitration, the court must render an order consistent with the arbitrators findings. If the two of you still cannot reach an agreement, a good way to avoid going to trial is mediation. The use of mediators in Texas is well recognized and can even be ordered by a court an alternative method of resolving disputes in family law matters. A professional and experienced neutral mediator may be able to help you reach a consensus on all or most the remaining contested issues in your case.

A successful mediation can take as little as a half a day or as long as a couple of days. Unlike a trial which requires hours of preparation and planning, mediation is informal and non-binding unless the two of you agree to make it binding. The goal of a successful mediation is to obtain at least a written outline of the agreement which one or both of the attorneys can develop into a fully binding agreement that can be presented to the court in lieu of a trial. If an agreement is not reached, the next step is trial. By the time your case is assigned a trial date, it has probably been pending for at least several months or more.

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As previously mentioned, formal discovery will definitely increase the time spent on your case, usually upwards of at least a couple of months. It will also take time to evaluate and review the information obtained during discovery. Sometimes the need for additional discovery arises which continues to add time to your case.

A relatively low percentage of divorce cases end up in trial but when they do, it will typically take somewhere between a half a day up to several days to complete. Divorce trials of more than a couple of days are rare. Keep in mind that a lot of time is necessary to prepare for trial beforehand.

Your attorney will need a couple of days or more to organize the evidence and prepare a plan for presenting it to the court. If there are witnesses in addition to the parties they have to be prepared and rehearsed beforehand as well. By now, you should be clearly understanding the benefits of avoiding trial if at all possible. Just like any other trial, the Petitioner has the burden of proof which means they and their attorney have to present sufficient evidence to prove their position on the issues. After the Petitioner rests, the Respondent and their attorney present their case which typically is intended to attack and discredit the evidence presented by the Petitioner.

After both sides have finished presenting their evidence, the judge typically takes the case under submission which means he or she will review and consider all the evidence before eventually rendering a decision. Some judges may render a decision immediately after the presentation of evidence is completed but that is not likely to happen if there are complex and hotly contested positions concerning one or more issues in the case.

Even after a post trial judgment is rendered, your case may not be over yet. The appeal process is another whole legal proceeding unto itself which is very time consuming and costly. Once again, there are certain deadlines that must be met before the case is even accepted on appeal which is not often the case. Family law appeals are not very common but they do happen especially in cases involving unique or unusual issues that may not have been previously decided by an appellate court. The quickest divorce cases are those with relatively simple and few issues. When there are children from the marriage or there is a substantial amount of property to be evaluated and divided your case may likely take more time.

Cooperation and a willingness to compromise are key to a faster resolution of your divorce. Should I Respond or Settle? TRIAL By the time your case is assigned a trial date, it has probably been pending for at least several months or more.

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