Litigated Family Law begins with the premise that because of the personalities of one or both parties or the issues involved, a family law matter may need to have the option of resorting to the courts for its power to enforce discovery or court orders or to make final, binding decisions.
Pursuing a family law matter in the traditional litigated process does not mean that a client wants the case to go to trial or that a case must go to trial; it simply means that the courthouse and the power of the Court are available if desired or needed.
What is the Framework for the Litigated Family Law Process?
Determining whether extraordinary relief is needed ....
Before a case is filed, it may be apparent that one party will need the assistance of the Court to protect a party, the children, and/or the marital property. The attorney and client will coordinate filing the initial pleading and requesting extraordinary relief.
Obtaining Temporary Orders ....
Within a few weeks of filing the initial pleading, Temporary Orders will be in place. If the parties cannot agree on Temporary Orders, a judge will decide such things as who resides in the marital residence and who must move, how bills will be paid, and how the parents will spend time with the children.
Gathering information ....
After Temporary Orders are in place, a date is scheduled for the parties to exchange Sworn Inventories and Appraisements. In addition, formal discovery is served on the opposing party at this time.
Scheduling deadlines ....
After formal discovery has been served on the opposing party, and after some factual information has been gathered and analyzed, the attorneys may begin scheduling some dates in the case that operate as deadlines for everyone. Examples of deadlines are the discovery due date (30 days after service),a mediation date, and a trial date. Also, other forms of discovery, like depositions, may be scheduled. Most dates are scheduled by the agreement of the attorneys. If a previously scheduled date does not work for a party, then the Court may grant permission to move a date if the date cannot be rescheduled by agreement of the attorneys.
Mediation ....
In most counties, the parties must attempt mediation prior to trial of their case. Mediation usually is conducted after most of the discovery (information gathering) has been completed.
Trial ....
If the parties cannot reach an agreement either through negotiations between attorneys or through the mediation process, then a trial may be necessary. Depending on the personalities of the parties, the numbers of witnesses, and the complexity of the issues involved, a final trial on the merits may last from half a day to several days. Most family law matters are tried in front of a judge only; in rare instances, a matter may be tried to a jury.
Initiation of lawsuit and pursuit of Temporary Orders ....
When an individual decides to proceed with a traditional Litigated Family Law divorce, a Divorce Petition is filed by one party and the other party generally files an Answer and Counter-Petition for Divorce. If a family law matter other than a divorce is filed, similar pleadings are filed. Before a case is filed, the attorney and client must assess whether the assistance of the Court is required to protect a party, the children, and/or the marital property.
Once a family law suit is initiated, the opposing party must be informed of the lawsuit. “Service” of notice of the lawsuit may be accomplished informally (i.e., by mail) or formally (i.e., by sheriff, constable, or process server). In some instances, there may be an advantage to filing and serving notice without giving advance notice to the opposing party. In the event extraordinary relief is requested, in most instances, the opposing party will have to be served personally with notice of the lawsuit.
Temporary Orders ....
A Petition or responsive pleading may request immediate relief in the form of Temporary Orders. When people cannot agree on who lives in the marital residence, how the bills will be paid, where the children will live, or, if one spouse fears mental or physical reprisals or actions that would harm or dissipate the property and assets of the marriage, then requests for Temporary Orders may be appropriate. Requests for extraordinary relief may require additional attorney time and additional fees.
Gathering information ....
In order to evaluate the case and advise a client of available options, the client and attorney must begin collecting information related to the issues in the divorce case. In the traditional process, information often is gathered both informally (by agreement, voluntarily) and formally (pursuant to the Texas Rules of Civil Procedure).
Examples of the tools used for information gathering include Sworn Inventory and Appraisements; interrogatories; requests for production of documents; request for disclosure; and depositions.
Another discovery tool is the use of expert witnesses to evaluate the case, or to give a professional opinion on matters relevant to the case. Expert witnesses are hired to appraise real estate, give tax advice, evaluate professional practices, appraise small businesses or closely-held corporations, and value pension or profit-sharing plans. These experts also may be called to testify at trial. The opposing party often hires experts too.
Negotiating ....
Most communicating and negotiating take place in writing between the parties’ attorneys. A client authorizes and approves any offer made on the client’s behalf. Any offers made by the opposing party are discussed with the client. Whether to accept or reject any particular offer is the decision of the client.
If negotiating as described above does not resolve the issues in the divorce, the parties likely will attend mediation.
Finalizing the divorce ....
A family law suit concludes either by agreement of the parties or by the court’s ruling after trial.
Agreed divorces result when the parties reach an agreement on all issues either through negotiations or by means of an alternative dispute resolution process (“ADR” process). The most often used ADR process is mediation. Generally, both parties and their attorneys agree on a mediator and a mediation date. In Travis, Williamson, and Hays Counties, the courts require the parties to attempt mediation prior to trial.
If an agreement is reached, then a Divorce Decree and other closing documents will be prepared, exchanged, approved and signed. One party and his/her lawyer appear in front of a judge, obtain the divorce, and obtain the judge’s signature on the Divorce Decree.
If an agreement is not reached or the divorce case is not moving toward a conclusion, then the attorneys rely on deadlines that will require the opposing party to move forward with the divorce case. The ultimate deadline that can be established in a divorce or modification suit is a trial date.
A divorce case can settle any day prior to the date of trial. However, if the case is scheduled for trial, certain deadlines are imposed by the Court. For example, Pre-Trial Forms must be filed approximately two weeks before trial. These forms set out a client’s “trial position” on all of the issues related to the divorce or family law matter.
At trial, a judge will hear all of the evidence and make a decision on all issues presented to the Court. After the trial, a Divorce Decree is submitted to the Court for signature, and other closing documents are prepared and executed.
What Distinguishes Litigated Family Law from Collaborative Family Law?
Litigated Family Law and Collaborative Family Law have some significant differences. For a side-by-side comparison of the Litigated Family Law Process and the Collaborative Family Law Process, please review the checklist titled Litigation Process vs. Collaborative Process Comparisons.
Individuals attracted to the traditional litigation process tend to be people who are concerned about their physical safety or the safety of their children, who are concerned that the opposing party will dissipate or destroy marital assets upon learning of the divorce, who believe the opposing party is fundamentally dishonest, and who are dealing with a spouse’s active substance abuse problems or untreated mental health issues.
Also, there are instances where one spouse is more comfortable having deadlines in the case imposed by court order, laws, or rules of procedure.
What are the Key Benefits of Proceeding By Way of Litigation?
Process ....
The Litigated Family Law process provides a structure of court-imposed or rule-mandated deadlines that may provide comfort to a person who wishes to be divorced and who believes that the spouse will attempt to delay finalization as long as possible.
In addition, in the traditional process, the courts are available to resolve discovery disputes, to enforce court orders, and to make decisions in the event the parties cannot agree on an issue or issues.
Thomas L. Ausley Named in "The Best Lawyers in America, Family Law Section" since 1987; board certified Family Law (1980) and Civil Trial Law (1982) by Texas Board of Legal Specialization.
Kristen A. Algert Helping couples maximize their options and maintain their dignity during divorce; board certified Family Law (1997) by Texas Board of Legal Specialization.
Eric Robertson Named in "The Best Lawyers in America Family Law Section"; board certified Family Law (1997) by Texas Board of Legal Specialization.
Kelly Ausley-Flores Assisting her clients through the difficult process of divorce by putting the clients’ needs first; board certified Family Law (2000) by Texas Board of Legal Specialization.
JoAl Cannon Sheridan Combining legal experience with a sensitivity to often emotionally difficult family law matters is essential to providing the best representation for her clients.
Kelly Caperton Member of the State Bar of Texas (2006), the American Bar Association, the Family Law Section of the State Bar of Texas, the Austin Bar Association (Family Law Section), and the Collaborative Law Institute of Texas.
