Dallas Divorce Law Blog by The May Firm

TRIAL OR SETTLEMENT

Not all divorce cases go to trial. First, after pretrial discovery is over, the spouses will probably be order to go into mediation. Mediation is a procedure where the parties and their attorneys meet with a neutral third-party (usually an experienced family lawyer) to try and negotiate a settlement. The vast majority of all family law cases are settled prior to trial.

If settlement is not possible, the case will go to a judge or jury. Either party has the right to request a jury trial.

Texas is the only state that continues to allow jury trials to determine child custody. A jury trial may also be held on other issues like character and value of marital property. If a jury is not requested or allowed, then the judge decides the contested issues.

Divorce Procedure… the Discovery Process

 The next step in the divorce process is discovery. This procedure allows both sides to determine the size of the community estate and to learn the position the other party will take on certain issues. Discovery can be written or oral.

Written Discovery During Divorce 

Request for Disclosure: These are standard questions that are asked in every civil suit. Parties are required to identify persons with information relevant to the case, identify expert witnesses, detail the legal contentions and specify any economic damages.

Interrogatories: One of the most useful pretrial discovery methods, interrogatories are a set of written questions sent to the opposing party that require responses about relevant issues, such as the location of bank accounts, balances in those accounts and signatory privileges on the accounts. Although almost anything relevant to the case can be asked, the total number of questions is limited to 25.

Request for Production of Documents: This discovery tool allows a party to request copies of documents relevant to the issues in the case. Just about any document can be requested. The most frequently requested items are records reflecting bank accounts, 401(k) plans, stock options, income, gifts to people other than the spouse, safe deposit boxes, telephone records and insurance plans.

Request for Admission: These are statements that the opposing party must either admit or deny. If they refuse, they must state a reason why the statements can neither be admitted nor denied. The person answering these requests will be stuck with the answers, and failure to answer them will result in all of the requests being deemed admitted.

Sworn Inventory and Appraisement: This type of discovery is unique to divorce cases. It requires the answering party to list every asset he or she knows about. It also requires the party to characterize the assets as either separate property or community property and to place a value on it. This document is signed under oath, so a party who deliberately hides assets and keeps them off of the inventory will be subject to punitive remedies from the court.

Oral Discovery During Divorce

Oral discovery is in the form of depositions. These are pretrial witness examinations taken under oath in front of a court reporter. Any witness with information that will affect the case can be deposed. Under Texas law, the deposition testimony can be presented to the court as if the witness were testifying in person before the court.

The deposition is an incredibly useful tool because it locks the witness into the testimony he or she will give. The witness cannot come back later and change his or her story regarding a certain event. If they do this, then the deposition can be used to challenge their truthfulness as a witness.

There are four basic steps to a divorce proceeding:  filing the petition, the discovery process, resolution (trial or settlement), and finalizing the divorce decree and other closing documents.

FILING A DIVORCE PETITION

Any divorce, even one on friendly terms, must begin with the filing of an “original petition for divorce” in a state district court.

Some counties, such as Dallas and Tarrant counties, have specialized courts that deal only with family law matters like divorce. Other counties send divorces through the same general district courts used for all types of civil and criminal matters.

In order to file for divorce in Texas, one of the spouses must have been a resident of the state for the six months prior to filing the petition and a resident of the county where the suit is filed for 90 days.

Most petitions include a request for a two-week temporary restraining order (TRO). This freezes things as they are and prevents one spouse from taking any action that harms the other.

The TRO prevents spouses from hiding money or spending money in abnormal ways. It also prevents the interference of the use of the marital residence. The restraining order cannot order that the party be excluded from the home without special circumstances, and it prevents the changing of locks or any other type of exclusionary action.

Before the TRO expires, a judge will schedule a temporary orders hearing to determine if the TRO needs to be made permanent while the divorce goes forward. The judge will also make provisions for temporary spousal support, temporary custody and possession arrangements, temporary child support, temporary use of property and payment of debts, and payment of interim attorney’s fees.

In Dallas County, Collin County, Denton County and Rockwall County divorces, the Courts have imposed a Standing Order which replaces the TRO, standardizes the process, and applies to every family law case filed.  In these counties, no longer are standard TROs accepted; a TRO is only granted in extraordinary circumstances.

Whether or not the couple has children, the legal procedure for a divorce is similar to the procedure for other lawsuits.

The first step should be to hire an attorney. Although, it is possible to get a divorce without the assistance of an attorney, the process will be incredibly difficult, and it will be virtually impossible to know if your rights are being protected. An attorney will be able to guide you and make sure you have full knowledge about the applicable statutes. But, perhaps most importantly, an attorney will be able to approach the issues objectively, without succumbing to the emotion of the divorce.

Like many states, Texas has a no-fault divorce system, which simplifies the divorce procedure. Under a no-fault system, the spouse seeking the divorce merely files a petition with the court saying that the marriage has failed due to conflict of personalities, with no reasonable expectation of reconciliation. Under a no-fault system, a divorce can be granted without either spouse being forced to prove that the other was at fault in breaking up the marriage.  Under a no-fault divorce, usually the property and debts gathered during the marriage will be split evenly (50/50).

That does not mean that fault is never considered in a Texas divorce.

A spouse may still note in the petition for divorce that the other person was at fault in breaking up the marriage. If a court agrees that one spouse’s actions created fault, a bigger share of the property may be awarded to the spouse who is not at fault. Under Texas law, “fault” is defined as (1) adultery, (2) cruelty, (3) conviction of a felony and/or (4) abandonment.

The effect of claiming fault in the break-up of the marriage depends in large part of which county your case is filed in and which Judge will hear your case.  Some judges apply less “penalty” for fault to the division of property than others.  For example,  some judges feel very strongly against adultery and will penalize a party heavily if he or she has engaged in extramarital activities.  Other judges believe that an affair doesn’t break up a marriage — it was probably broken before the affair — so they don’t change the percentage of the division of property very much based on adultery.

No matter the fault in the break-up of the marriage, there is rarely a case where a spouse is so much at fault that one spouse will “get everything” and the other spouse will get nothing.

Tarrant County Family Lawyer Dick Price raised a good issue on his Blog this morning — What Happens After Mediation.  Many clients think once the case settles in mediation and they walk out with the signed settlement agreement, the case is almost finished.  They often don’t realize how much is involved in finalizing the case once the case is settled.  Here’s Dick’s list of what happens after mediation:

“Mediation is one of the best ways to settle divorces or other family law issues, assuming that Collaborative Law is not utilized. With significant effort by both sides, mediation is very successful, resolving around 90% of the cases, at least in my experience. Even those that don’t settle at mediation become more likely to eventually settle short of trial.

“Mediation can be very emotionally draining and often leaves the parties exhausted, but generally pleased to have the matter resolved. After all the time and energy has gone into preparing for mediation and then working through the negotiations, the post-agreement steps are not really discussed much. So, what goes on after mediation?

• The parties normally leave the mediation site with a written and signed mediation agreement that spells everything out in great detail, although not in formal language. The first step, post mediation, is to have the formal agreement/court order drawn up. The attorneys will make sure that appropriate language is included to make the agreement clear and enforceable.
• The agreement/order is then reviewed by the parties and their attorneys. Once everyone approves the language, they sign it. The signed agreement/order is then submitted to the court. Sometimes, the order can be signed by a judge without a formal prove-up; other times, at least one party and his/her attorney will have to appear in court and have a brief prove-up hearing.
• Some additional paperwork often must be filed with the court to comply with local and state rules. Vital statistics forms are used and sometimes a child support form will be required.
• There may also be some brief, related court orders, such as a wage assignment, a medical support order or a qualified domestic relations order (also known as a QDRO), which may need to be signed by the judge. The wage assignment sets up a mechanism to automatically withhold funds from a parent’s paycheck and then send the funds to the other parent. The medical support order similarly provides for payment for medical expenses and insurance provisions. The QDRO divides a retirement plan so that whenever payments are paid out from a plan, they are automatically divided between the two parties.
• There may be some real estate documents, possibly including a deed, deed of trust and a note for payment of a share of the equity. There can be assignments of mineral interests, utility deposits and other interests. Utility services may need to transferred.
• Car titles may need to be signed, or a power of attorney, limited to transferring a car title, may be used.
• Additionally, the parties will need to change their health, home, life and auto insurance.
• Sometimes, the parties will still need to separate their credit cards, although that is often done during a divorce.
• Parties also need to revise their wills and plan executors and beneficiaries.
• Furniture and belongings may still need to be separated and a specific date and time should be set to do that.
• The family photos and videos may need to be copied, scanned or otherwise divided between the parties.

“As you can see, there’s a lot that goes on before the fat lady sings. After the main court order is completed, the work is not too difficult. There’s just a lot of loose ends to take care of. Hopefully, the list above will help you think about what needs to be done in your case after mediation.”

Here’s a couple more testimonials from happy clients:

“Ladies,  I appreciate both of you very much and you have truly helped me through a lot both legally and otherwise.”  M.M.

 ”I would like to take this moment to let you and your team know how great you were to me.  This was the biggest and scariest thing I have ever done, and you helped me get through it.  You did a tremendous job keeping my wishes first and your team communicated with me so well that I felt that you were more than just my attorney… you were my friend.  Thanks so much for everything you did!”  Z.M.

A new testimonial from a lawyer/client who hired me to help on a case of his:

“Simply put, Michelle is a brilliant attorney. She is extremely professional and tenacious, a rarity in today’s legal world. No one can out-think or out-prepare her. That’s why she has been and will be the only family law appellate attorney we call on.” M.R.W.

For a FREE Divorce Guide offered to you by the Dallas divorce attorneys at The May Firm, click here.

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The current economic crisis may be putting a strain on some couples.  According to the American Psychological Association, 83% of women and 78% of men are currently stressed out about money.  But what happens when one spouse lies to the other about money.  Take, for example, the Muniz couple interviewed on Good Morning America this morning.  When the wife was pregnant and due with their child, the husband changed insurance, resulting in no coverage for the wife and child at birth.  This caused the couple to incur significant medical bills for the hospital stay and some complications.

What is financial infidelity?  It is a subtle form of cheating — disloyalty to your spouse.  Many people think it is benign because you just leave out some information — like you bought a new dress and told your husband it was on sale when it really wasn’t.  Or, your spouse gets a credit card that you don’t know anything about and hides it, with the purchases, from you.  But, any lie can be damaging to the trust relationship in a marriage and can cause cracks in the foundation.

As a Dallas divorce lawyer, I see many couples who have issues of infidelity or lying about finances.  It is too common to see a wife who has zero information about the finances.  This causes such disparity in the divorce process.  The divorce lawyer for one spouse cannot get vital information from that spouse, so the information must come, unreliably, from the other spouse.  That can also raise the expense of the divorce because the other spouse may not be forthcoming in turning over the information.  This can leave the spouse without the information, usually the wife, in a vulnerable position, subject to the dictatorial demands in negotiations of the other spouse, usually the husband.

So, if you are married, encourage your spouse to be forthcoming about the finances.  If you find out that your spouse is withholding information or lying about the finances, carefully examine the relationship for other cracks in the foundation. 

If you are contemplating divorce in Dallas, Collin, Tarrant, or Denton Counties in Tx or anywhere else for that matter, gather information about your finances and educate yourself on your marital estate before you get taken advantage of!