Litigated Divorce

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:

1. Filing and serving a petition for divorce;
2. Conducting discovery and/or informally exchanging financial information; and
3. 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

There are cases that require a trial. These cases can involve genuine disputes for which there is little room for negotiation.  People are often very far apart in their expectations of what they are entitled to, and parents often cannot agree on what is best for the children.  Litigants have strong feelings about a divorce case, because it is so very personal. One or both parties may have mental health issues that make them unable to come to an agreement.  Cases may also end up in front of a judge or jury because one party is unreasonable or simply unwilling to accept that the divorce is going to happen, rendering them unable to make a decision about settlement.  At times, a case has to go to trial because one parent presents a substantial risk to the safety of a child and simply cannot or will not acknowledge that. Regardless of the reason, trials are expensive and take a financial and emotional toll on all parties.  While reaching a settlement gives both parties some ownership in the outcome, placing the case in the hands of a judge or jury does not.

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