When parties to a divorce or custody case cannot resolve their case by agreement, a judge or jury will need to resolve the case for them. Going through a trial, or “litigation,” is adversarial by nature. The courthouse is a setting where each party and their attorney will advocate for their own separate interests. At NMSB, we have found that diligently preparing for litigation will often result in a satisfactory settlement agreement prior to a trial. However, if an agreement cannot be reached, these preparations will help us make your case to the judge or jury.
THE DIFFERENCE BETWEEN LITIGATION AND SETTLEMENT
Texas law does not require a party to declare that he or she wants a “litigated” divorce at the outset of the case. Cases that are litigated and cases that settle often go through the same process, including:
- Filing and serving a petition for divorce;
- Conducting discovery and/or informally exchanging financial information; and
- In some cases, obtaining temporary orders related to living arrangements, how money will be shared during the divorce proceeding, and arrangements for the support and possession of the children.
Please click here for more information on the steps in a divorce case.
In its most simple terms, the main distinction between a litigated case and a settled case is how the case is resolved. In a litigated case, a judge or jury decides the outcome. In a settled case, the parties have control over the outcome by reaching a settlement agreement.
THE FINANCIAL AND EMOTIONAL COST OF GOING TO TRIAL
Depending on the complexity of the case, a divorce trial can affect every aspect of a person’s life in the months and weeks before trial. There are deadlines the attorneys must meet leading up to a trial. This usually requires the attorney and client to be in constant communication to adequately prepare and submit required documents to the opposing attorney and the court. We find that this often takes time away from employment responsibilities, children, and other day-to-day obligations. Participating in a trial is emotionally and physically draining for both parties. In every trial, both sides present witnesses and testimony about why he or she should “win.” This testimony can include the most intimate and personal details of a marriage, as well as extreme criticism about parenting decisions and abilities. In our experience, it is very difficult to forget about the things heard in a courtroom and co-parent amicably with your spouse in the future. This emotional cost can be compounded for the parent or spouse who does not prevail in court.
Going to court can substantially increase the cost of a divorce, especially if one party requests a jury. Most attorneys charge by the hour for their work, and being in court for a day or more gets expensive quickly. There are additional costs associated with preparing for trial, including talking with witnesses, preparing exhibits, drafting direct and cross-examination questions, conducting legal research, drafting trial briefs, and meetings with the client and any expert witnesses to prepare for trial. In a divorce, both sides will be paying for an attorney, which can dramatically reduce the money left at the end of the trial to be divided between the spouses.
WHAT TO EXPECT IN A COURTROOM
The Judge Enforces the Rules. There are rules guiding the procedure in a courtroom. Rules guide the things the lawyers can say, when they can say them, and the questions they can ask. The rules guide the documents that will be admitted into evidence, and which party gets to tell their story first. It is the judge – not the lawyers – who enforces the rules. Judges are given wide discretion to enforce the rules according to the needs of the case and the issues before the court.
Each Party Tells Their Story. At the trial of the divorce case, each party presents evidence on the contested issues in the case. Whether property is separate or community property and what it is worth, how community property and liabilities should be divided, whether a prenup is enforceable, and whether parties are common-law married are some of the potential contested issues in a divorce case. If minor children are involved, the contested issues will include the rights and duties of each parent, who the child or children will primarily reside with, whether child support will be paid and the amount of child support, and the possession schedule for the children. All of these issues can be decided by a judge, but only a few of them can be decided by a jury. So, even if the trial involves a jury, the judge will ultimately decide how to divide community property and many of the issues related to the children.
At trial, each party testifies under oath about facts that are relevant to the contested issues. Each party may also call other witnesses to testify. Typically, documents relevant to one or more of the issues are offered into evidence. These can include financial records, appraisals, tax records, personal communications between the parties and communications between the parties and other people.
The Judge Makes a Decision. At the end of a trial, a jury will render its verdict (in a jury trial) or the judge will announce his or her decision on each of the disputed issues. The judge’s decisions may be announced on the final day of trial or at a later time – sometimes, in complicated property cases, even weeks after the trial.
The Parties Must Live with the Consequences. Except in the rare cases where a party successfully “appeals” to a higher court, the decision of the judge or jury will be the final decision in the case.
Because of the high financial and emotional cost, most divorces cases are settled without the need of the courtroom. However, if a case cannot be settled – for whatever reason – it is important to work diligently with your lawyer to be prepared for trial.
The Steps in the Litigation Process
Petition for Divorce
A Petition for Divorce must be filed in the county of your residence or that of your spouse. There must be a showing of domicile in Texas for at least 6 months and residency in the county of the suit for at least 90 days. A Petition may include a request for a Temporary Restraining Order and other orders as explained below.
Serving the Petition
The other party is served with the Petition and is required to file an Answer. The other party may also file a Counter-Petition.
Upon the filing of the petition, either party may request temporary orders that either permit or prohibit one or both parties from doing certain things, such as unnecessarily spending or interfering with the other party’s use of property. Temporary Orders establish “ground rules” for the conduct of the parties while the litigation case is pending.
There are two types of temporary orders. The first type is a Temporary Restraining Order (TRO). A TRO can be granted immediately upon request and without any type of court hearing and often without the knowledge or consent of the other party. A TRO is designed to control the conduct of the parties and preserve the property of the parties until a full hearing can be held within two weeks (14 days) after the TRO is granted and is conducted with both parties present. Because Travis County has an established Standing Order that applies to every family law case filed, TROs have become rare in Travis County.
The second type of temporary order is granted after a court hearing, or in many cases, after the parties reach an agreement as to the content of the Temporary Orders. Temporary Orders may include a variety of provisions not only to control the conduct of the parties but also to determine the temporary use of property, allocate available funds, and assign responsibility for payment of debts. If the parties have minor children, the temporary orders will determine temporary possession, child support, and spousal support.
Discovery is the process of documenting the facts pertinent to the case. During discovery, each provides information requested by the other party. This typically includes financial records from the past five years, such as income tax returns, bank statements, employment records, and life insurance policies. The parties also disclose the names of fact and expert witnesses who may testify at trial.
The parties also exchange sworn Inventory and Appraisement documents, which list all property owned by the parties whether separate or community and all liabilities owed by the parties.
While mediation can occur at any point in the litigation process, in most cases it follows the discovery phase. Mediation is required in Travis County if the final hearing will last more than three hours.
Depositions are a form of discovery in which the person being deposed answers questions, under oath, that an attorney asks. Each party may take the deposition of the other party and witnesses. The witnesses may include employers, doctors, counselors, neighbors, and family members. Depositions of the children’s counselors and teachers may also be required.
Final Preparation for Trial
About a month before trial, both parties submit pre-trial documents to the court which set out how they want the various issues, such as property division and child support, resolved by the court. The complexities of the issues usually determine how much time will be devoted to trial preparation. Much more time will be spent in trial preparation than in the actual trial. This preparation includes talking with witnesses, preparing exhibits, and drafting direct and cross-examination questions, as well as anticipating and preparing to meet the tactics and strategy of the opposition.
At the trial of the divorce case, each party presents evidence on the contested issues in the case. Determination of the separate property of a party, division of the community property and liabilities, and determine the validity and meaning of premarital and post-marital agreements are some of the most common contested issues in a divorce case. If minor children are involved, the contested issues will include the rights and duties of each parent, who the child or children will reside with, whether child support will be paid and the amount of child support, and the time-sharing schedule.
At trial, each party testifies under oath about facts that are relevant to the contested issues. Each party may also call witnesses to testify. Typically documents relevant to one or more of the issues are offered into evidence, the judge announces the decision on each of the disputed issues and pronounces the parties divorced.
After the trial, the attorney for one of the parties must prepare a Final Decree of Divorce which contains the decisions that were about the issues in the case. The judge signs the Final Decree of Divorce.
A party who is disappointed with the Court’s decision or who feels a mistake of law has been made may initiate the appeal process within 30 days after a Final Decree is signed by the Court.