It’s that time again — the time when the Lege meets and changes “everything”, then we all have to run around and figure out how to adjust. Today, SB 445 was voted favorably out of the Senate Jurisprudence Committee. This bill, if made law, would require the Texas Supreme Court to promulgate rules that would allow jurors to ask questions of a witness or to the court and take notes during civil trials. Can you imagine being in the middle of a trial, presenting your evidence, when all of a sudden a juror raises his hand and asks a question? [Lawyers shudder across the state... thinking how do you object to an inappropriate question by a juror!] But, on the other hand, it would give insight to what jurors are interested in and help frame the issues for the trial. Wow!
Archive for the ‘Court Procedure’ Category
The Dallas Family Law section of the Dallas Bar Association held their annual conference last Friday at the Dallas Trade Mart. This is the opportunity every year for Dallas divorce lawyers to discuss recent trends in family law litigation in Dallas, Texas. Each year the Dallas family court judges give presentations on their preferences and local rules. One new local rule that the judges announced was that temporary orders must be presented within 14-days of the date of the ruling and final decree must be presented within 30-days of the hearing. The consequence for failing to abide by this rule is to risk dismissal of the case.
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.
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.