All family law cases with opposing parties are lawsuits. That applies to divorces, custody battles, child support cases, grandparent rights cases, child support cases, modifications, and others. It doesn’t really apply to uncontested matters like an adult name change or adult adoption.
All lawsuits end one of two ways, either a settlement or trial. If the parties can agree on all issues, the case can settle. If the parties cannot agree on all issues, the only way to get to the finish line is to go to trial. There is no way to make the other side agree with you, if he or she doesn’t want to.
Most cases settle, and some settle quickly. Some settle immediately, some settle after a couple of weeks, some don’t settle until the parties are right outside the courthouse door waiting to go in for trial, but almost all cases settle.
The closer that the parties get to trial, the more the case has cost, almost invariably. The further down the litigation highway the parties have traveled, the further their attorneys have traveled as well. Getting down that highway takes work, and attorney work takes attorney time. Attorney time is paid for with client money. So going to trial, or even getting close to it can be expensive.
One thing that can help a case settle is for the parties to understand how a case progresses. If the parties know what is next, if they don’t settle at the stage they’re in, it may help them decide to go ahead and resolve their differences. So, here are the typical stages of a family law case:
- Negotiation between the parties.
This is sometimes known as a “kitchen-table” settlement, e.g. a “kitchen-table divorce.” The parties simply come to an agreement on all issues and have an attorney write up the paperwork to make sure that their thoughts get translated into reality by using the correct legal language.
- Negotiation between the attorneys.
If the parties are unable to resolve the case themselves, they will typically authorize their attorneys to negotiate on their behalf. The attorneys may negotiate via letter, email, or telephone. Sometimes, the attorneys prefer to send “bullet-pointed” offers back and forth. Sometimes they send entire orders or decrees back and forth in an attempt to reach an agreement. Sending a proposed full agreement is good sometimes, but not always, as discussed in this prior blog post. If the attorneys can reach an agreement, they may enter into a “Rule 11” agreement or a Non-revocable Settlement Agreement. It is important to know the revocability of those, prior to relying on them.
If the parties cannot reach an agreement after some period of time, one side, the other, or both may decide that it’s time to engage in formal discovery. Discovery can be written or oral, and it can be addressed to the parties and other witnesses. Settlement talks may be taking place during the discovery stage. Discovery can become very expensive, but can also be almost invaluable in some cases.
In this day and age, almost all cases are ordered to Mediation prior to trial. Sometimes, the attorneys will agree to go to mediation, even without a court order. Sometimes, the parties will agree to go, then enter into an agreed order of mediation, to be sure that the other side does not back out at the last minute, and to be sure everyone is clear on the deadline and payment of the mediator. Mediation is not arbitration, and it is just one form of Alternative Dispute Resolution intended to help the parties settle.
- Post-mediation discovery.
If the parties are not able to settle in mediation, they will often engage in further discovery post-mediation. Sometimes, depositions are saved until after an attempt at mediation, since the cost of depositions of the parties can be extremely high in contentious cases. Often during this stage there will be Motions to Compel, meaning the parties will file motions alleging that the other has not fully answered the discovery questions, and asking for a court to order that they do. Sometimes parties will seek or the court will order another mediation after the first has failed.
If all efforts at settlement have failed, the parties end up in trial. In Texas, most family law cases are tried to the Judge alone – a bench trial – but some are tried to juries. Family law trials can take anywhere from 1 hour to weeks to try. The length of the trial depends upon the issues and the court. Even during trial the case can settle, and what is surprising to some people is that a case can even settle after trial, based upon the threat of a Motion for New Trial or appeal.
That’s right, even if your case makes it all the way to trial, it may not be over. Although rare, cases can be set aside and ordered to a New Trial or appealed, which can sometimes lead to an order to go back and retry some or all of the case.