Divorce: How are stock options and restricted stock handled?

According to Texas law, at the time of divorce, all community property is divisible. Moreover, all property owned by the parties in a divorce is presumed community until and unless proven to be separate property.

The court has no jurisdiction to divest either party of his or her separate property. Jurisdiction means power. Divest means take. So the court has no power to take anyone’s separate property from them.

Employer Provided Stock Options and Employer Provided Restricted Stock that are owned at the time of divorce are divisible, just like any other property. The community portion is divisible, the separate portion is not.

So, in order to determine how much of the Options or Stock is divisible, you must first determine how much of it is separate and how much of it is community.

The Texas Family Code explains how to perform the calculations to find out what is separate and what is community.

Pursuant to Section 3.007 of the Code:

A spouse who is a participant in an employer-provided stock option plan or an employer-provided restricted stock plan has a separate property interest in the options or restricted stock granted to the spouse under the plan as follows:

if the option or stock was granted to the spouse before marriage but required continued employment during marriage before the grant could be exercised or the restriction removed, the spouse’s separate property interest is equal to the fraction of the option or restricted stock in which:

the numerator is the sum of

the period from the date the option or stock was granted until the date of marriage; and

if the option or stock also required continued employment following the date of dissolution of the marriage before the grant could be exercised or the restriction removed, the period from the date of dissolution of the marriage until the date the grant could be exercised or the restriction removed;


the denominator is the period from the date the option or stock was granted until the date the grant could be exercised or the restriction removed; and

if the option or stock was granted to the spouse during the marriage but required continued employment following the date of dissolution of the marriage before the grant could be exercised or the restriction removed, the spouse’s separate property interest is equal to the fraction of the option or restricted stock in which

the numerator is the period from the date of dissolution of the marriage until the date the grant could be exercised or the restriction removed; and

the denominator is the period from the date the option or stock was granted until the date the grant could be exercised or the restriction removed.

The Code also provides that the computation must be done separately “for each component of the benefit requiring varying periods of employment before the grant could be exercised or the restriction removed.”

So basically, the value of the Options or Stock that is attributable to the period before marriage or after marriage is separate property. The amount attributable to the time that a person is married is community. These concepts are completely consistent with the analysis done for all property to determine whether its character is separate or community.

If you would like to discuss your situation with the attorneys at the Beal Law Firm, please call us at 817.261.4333 or 214.414.0418 or write us at lawyers@dfwdivorce.com. You can find us on the web at www.dfwdivorce.com.

Five Simple Things You Can Do to Save Money in Divorce

Divorces can be expensive. Some get to be very expensive. There are things that happen in a divorce that you can’t control, and others that you can.

Listed below are five things that you should be able to control that should save you some money as you go through a divorce. All of these are based upon one simple idea — time is money. When paying an attorney by the hour, the more attorney time you can save, the more money you will save yourself.

1. Respond to your attorney.

Your attorney is going to ask you for a great many things. Sometimes it’s as simple as “are you available for a hearing two weeks from Thursday,” and sometimes it’s for more complicated things, such as “I need copies of all of your bank statements for the last few years.” Whichever it is, ignoring the request will lead to your attorney possibly having to have several more conversations or send several more emails. He or she may have to let the opposing counsel and the court know about the status of whatever it is that he or she is seeking. He or she may have to file a motion or seek an agreed extension of some deadline. All of that takes time, and will ultimately cost you money. Responding quickly and completely will help your attorney help you and save you money in the long run.

2. Don’t fight over silly things.

Some things are worth fighting over — like are your children going to live near enough to you that you can have a meaningful relationship — and some aren’t — like who is going to get the new TV and who is going to take the old one. Fighting can mean that your attorney has to write emails or make calls repeatedly with both opposing counsel and the court, as well as you. Very quickly, the cost of fighting over something that is not worth fighting over can get to be very high.  The smart thing to do, when possible, is make a business decision. Determine in advance how much various things are worth, then do the math on whether it’s worth fighting over them.

3. Organize your evidence.

This one involves a rule of reason. If you bring in all of your bank statements, mixed with all of your receipts, mixed with all of your emails, all in one big box, someone is going to have to spend an enormous amount of time sorting those documents out. If you do it, you save attorney or legal assistant time. If not, you will end up paying your lawyer or his staff. But, the rule of reason part is this: Don’t be so “organized” that you have all of your documents in individual sheet protectors inside of three ring binders. In all probability, your attorney will need to number and copy your documents. The time that it takes to get the documents ready for the copy machine can get expensive, if you’ve overdone it with the “organizing.”

4. Don’t violate court orders.

If you are under Standing Orders, a Temporary Restraining Order, Temporary Orders, or a Protective Order, read the document or documents carefully. Know what you can do and what you can’t. If you violate the orders, you can cause your attorney to have to have multiple conversations with opposing counsel and the court, even if you never end up in a contempt hearing or enforcement hearing.

5. Recognize the realities of the system you are in.

Courts each have their own ways of doing things. Some courts only allow 20 minutes per side for Temporary Orders hearings. Some allow all day. Some allow multiple days. Most courts don’t like repetitive evidence — in fact it’s objectionable. One way that some people cost themselves an enormous amount of money is by not realizing that there are limits to the presentation of evidence. Your attorney will probably want to know if you have witnesses that can support your side of the case. When asked, give as many names as the attorney needs, and prioritize your witnesses, from most important to least. But, what you don’t want to do is give the lawyer 25 names, when he only wants 3-4, and then insist that he “use” all of them. Often there is no way to use as much evidence as the client would like. Let your attorney advise you on the realities of the situation, then adjust to that. Don’t expect reality to adjust to your desires, or you will cost yourself unnecessary legal fees.

There you have it. Do these five simple things and you will almost certainly save yourself some money.

If you’d like to read other posts on this topic click here and here.

To discuss a legal issue that you are concerned about with the attorneys at Beal Law Firm, please write us at lawyers@dfwdivorce.com or call us at 817.261.4333 or 214.414.0418. You can find us on the web at www.dfwdivorce.com.

Divorce | Custody | Support: What do I have to do if I get served?

Many divorce and custody cases begin amicably. Some stay that way.

Even some of those that begin amicably have one party or the other served with papers at the beginning of the case. Sometimes it’s a strategy move, sometimes it’s a miscommunication between the attorney and the client, and sometimes it’s a mistake.

Most of the time it’s none of those. Most of the time the service is done because the filing party does not want the case to be amicable or is not sure that it can be.

Service of Process means service of the Petition that has been filed along with a Citation from the court. The Petition plus the Citation equals Process.

In Texas State Court, if you are served with Process, you have a certain amount of time in which to answer the suit. That amount of time is until “10:00 a.m. on the Monday next after the expiration of 20 days from the date of service.”

This time period is different for cases filed outside of Texas, and for Federal Cases. Virtually everything in family law – divorces, custody cases, child support cases, grandparent cases, etc. – is done in State Court.

So, if you get served with a Texas divorce or custody petition, even if you are outside of Texas, your deadline to answer is 10:00 a.m. on the “Monday next after the expiration of 20 days from the date of service.” Failure to answer by that time can put you in default.

If you are in default, you are subject to a default judgment. A default judgment is like losing by forfeiture in a sporting event.

In sports, if you are scheduled to play and you don’t show up, you lose by forfeit. In law, if you have been served and you do not answer, you can lose by default.

If you lose by default, it means that only the opposing party is presenting evidence to the court. In a divorce, a person in default could end up with little or none of the assets of the marriage – including his or her own 401K or pension. In a custody case, including a custody case within a divorce, a defaulted party may end up with little time with the children, higher than ordinary child support, and few rights.

It doesn’t take much to not get defaulted. If you have been served, all you have to do is answer the suit. An answer is basically any filing with the court that puts the court on notice that you do not want to have a default judgement taken against you.

If an answer is filed, it must be filed with the court in which the case is pending, and should be served on any other parties to the case or their attorneys. To serve it on the other party, if he or she has an attorney, all you have to do is fax it to them. Keep your proof that you sent the document by fax.

But, there are times when you don’t want to file an answer. There are times that you want to file more than an answer. And there are times that you need to file something prior to your answer and then an answer. It can get confusing.

If you need to discuss your situation with an attorney, contact the Beal Law Firm, PLLC at lawyers@dfwdivorce.com or call 817.261.4333 or 214.414.0418. You can find us on the web at www.dfwdivorce.com.

Divorce: Breaking it down to its parts

A divorce is a lawsuit. It is a strange kind of lawsuit, but it’s a lawsuit. Every divorce, whether labeled Uncontested, Contested, Amicable, Collaborative, Mediated or other must go through the court system.

Divorces can be broken up into a number of parts. There are procedural parts and substantive parts. This post is to discuss the procedural parts.

Every divorce must have at least three parts:

1. Petition

This is the beginning document that is filed with the court. It can be aggressive, nonaggressive, or somewhere in between. This is the document that begins the minimum 60 day waiting period for all cases other than those few that have an exception.

2. Decree

This is the ending document in every case. A few decades ago, Texas divorce decrees were relatively short. In many states they still are. In Texas, if the parties have children together and any significant property, the decree is likely to be 50-65 pages or more.

3. Proof of Notice to the Spouse

In theory, with rare exceptions, no one should be divorced without knowing about it. Typically, this notice takes place with either service of the petition on the spouse by a process server or with the spouse signing a Waiver of Service.

As long as the case has these three parts, it has everything that it is required to have. A “simple” divorce may have no more than these three parts. A complicated or contentious divorce is likely to have many more pieces.

A complicated or contentious divorce can have all of the parts that any other complicated or contentious civil lawsuit has, plus it can have a number of parts that few other cases have. So, in a very real sense, a complicated or contentious divorce may be one of the most procedurally complex types of civil litigation that our system has.

A complex divorce can have:

1. A Temporary Retraining Order

A Temporary Restraining Order (“TRO”) is not the same thing as a protective order. It does not criminalize conduct. In a divorce, it is much easier to get a TRO than in other civil cases, so they are much more common. A TRO is a court order that typically does not order anyone to do anything, but rather sets forth rules for what cannot be done. There are, however, TROs with “Extraordinary Relief” that do order parties to do things.

2. Temporary Orders

Temporary Orders are what a Temporary Injunction is called in Family Law. These orders are court orders that typically include all of the rules that were in the TRO, plus a number of rules requiring affirmative action, such as Temporary Child Support or Temporary Spousal Support. Additionally, the Temporary Orders are typically where one party or the other will be ordered to leave the home, if that happens.

3. Written Discovery

Written discovery typically includes Interrogatories, Requests for Disclosure, Requests for Admission, and Requests for Production. Think of it as a lot of homework that both parties can compel the other to complete.

4. Oral Depositions

A deposition is where a party is required to show up and answer questions under oath. The only right to remain silent is on questions involving criminal conduct. So, if asked a question about anything that does not arise to the level of a crime, for example adultery, the party must answer. Refusing to answer can lead to a jail sentence, and lying can lead to a charge of perjury — which can also lead to jail.

5. Multiple Motions for Additional Temporary Orders

Most civil cases do not have Temporary Injunctions (or Temporary Orders). In divorce, not only are Temporary Orders common, but Motions for Additional Temporary Orders happen routinely. That means that the fighting is not over just because a favorable result was obtained at the initial Temporary Orders hearing. Either side can ask the court again and again and again for new orders.

6. Multiple Other Motions

A divorce can have many other types of motions, in addition to the above. Some are typical of civil litigation — for example, Motions to Compel Discovery — and some are fairly unique to divorce — such as an order for Appointment of Receiver to Sell the Home.

Divorces can be complex. Attempting to handle a contested or complicated divorce alone may be a recipe for disaster.

To discuss any of this with the attorneys at the Beal Law Firm, please write us at lawyers@dfwdivorce.com or call 817.261.4333 or 214.414.0418. Our web address is www.dfwdivorce.com.

Child Support: Additional factors for the court to consider

As discussed in a previous blog post, courts generally calculate child support based upon the Guidelines found in the Texas Family Code.

There is, however, a section of the family code that allows a court to determine if it would be “unjust or inappropriate under the circumstances” to apply the Guidelines.

Texas Family Code Section 154.123 provides “Additional Factors for Court to Consider” when determining the appropriate amount of child support.

Per the Family Code, the following are the factors that a court “shall consider evidence of”:

(1)  the age and needs of the child;

(2)  the ability of the parents to contribute to the support of the child;

(3)  any financial resources available for the support of the child;

(4)  the amount of time of possession of and access to a child;

(5)  the amount of the obligee’s net resources, including the earning potential of the obligee if the actual income of the obligee is significantly less than what the obligee could earn because the obligee is intentionally unemployed or underemployed and including an increase or decrease in the income of the obligee or income that may be attributed to the property and assets of the obligee;

(6)  child care expenses incurred by either party in order to maintain gainful employment;

(7)  whether either party has the managing conservatorship or actual physical custody of another child;

(8)  the amount of alimony or spousal maintenance actually and currently being paid or received by a party;

(9)  the expenses for a son or daughter for education beyond secondary school;

(10)  whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity;

(11)  the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties;

(12)  provision for health care insurance and payment of uninsured medical expenses;

(13)  special or extraordinary educational, health care, or other expenses of the parties or of the child;

(14)  the cost of travel in order to exercise possession of and access to a child;

(15)  positive or negative cash flow from any real and personal property and assets, including a business and investments;

(16)  debts or debt service assumed by either party;  and

(17)  any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents.

As illustrated by number 17, this list is non-exhaustive. Per the Texas Family Code, all evidence on the subject is to be considered. In reality, however, whether the court will allow you to introduce evidence of any of these factors depends upon the judge before whom the case is tried, subject to review by an appellate court.

To discuss child support with any of the attorneys at the Beal Law Firm, call us at 817.261.4333 or 214.414.0418, or write us at lawyers@dfwdivorce.com. Our web address is www.dfwdivorce.com.

Guideline Child Support: How does it work?

The Texas Family Code is an amazing legislative work. It covers divorce, annulment, how to divide stock options, rules regarding whom you can marry and when, provisions for child custody, grandparent rights, and more. There may not be any part of the Family Code, however, that causes as much heartache as child support.

For those getting child support, it is often either not enough or far more than necessary. For those paying it, the amount is almost always more than desired.

Texas courts typically award child support using the Guidelines for Child Support found in Chapter 154 of the Texas Family Code.

The use of the Guidelines is “rebuttably presumed in best interest of child.” That means that a court can use the guidelines and will virtually never be reversed by an appellate court for having done so. (For a discussion of Best Interest, see this previous blog post.)

The basics of the Guidelines are this:

  1. Determine the number of children for which support is being considered.

The amount of guideline support varies based upon the number of children in the case being considered. For one child, the starting percentage is 20%. For two, it’s 25%. And it continues to go up by 5% for each child, up to five children. For six or more children, the guideline amount is to be “not less than” it would be for five.

  1. Determine how many total children the obligor is responsible for.

The person paying the child support is known as the obligor. The next step to determine the guideline amount is to determine how many children the obligor has a legal duty to support. That number includes the children in the case for which support is being calculated, and any others that he or she is legally obligated to support, whether the support is currently order or being paid. The number does not include step-children. The percentage determined in step 1, gets reduced if there are additional children for whom support is ordered.

  1. Determine the Net Resources of the Obligor.

In Texas, for Guideline support, only the income or other resources of the obligor are considered. That means that even if the obligee – the one getting the support – is a multi-millionaire and the obligor is making minimum wage, the obligor must still pay. “Net Resources” basically includes all income of the obligor, regardless of the source of the income. There is often a misunderstanding about how “net” resources, as opposed to “gross” resources are determined. In short, the net amount is the amount that the Attorney General’s chart says should be the net, not what the net is in reality.

  1. Apply the appropriate percentage to the amount of the net resources to which guidelines apply.

There is not a maximum amount of child support – a court can order a person making $5,000.00 per month to pay $4,000.00 per month in child support. But, there is a “presumptive max” of child support, and that is the percentage obtained in 1 and 2 applied to maximum amount specified in the Family Code. The maximum number is designed to go up over time.

There are provisions in the code for the court to disregard the guidelines, and for the court to award more or less than what the calculation detailed above would lead to. Additionally, as with virtually everything in family law, this just covers the basics. There is a lot more to it.

To discuss any of this with the attorneys of the Beal Law Firm, call us at 817.261.4333 or 214.414.0418. You can write us anytime at lawyers@dfwdivorce.com or find us on the web at www.dfwdivorce.com.

Child Custody: What is a Standard Possession Schedule?

A key part of any custody order is the possession schedule. Understanding it is the key to understanding when you have the right to have possession of your children and when you don’t.

In Texas, Family Code Section 153.312 specifies what the Standard Possession Schedule is.

By law, the Standard Possession Schedule (also known as the SPO) sets out the minimum amount of time that is presumed to be reasonable for a fit parent to have with his or her children. Meaning that unless evidence is introduced proving why it would not be in the Best Interest of the Children to spend at least that much time with a parent, a judge must give a parent at least that much time. For a discussion of the Best Interest standard, see this previous blog post.

At the outset of virtually any possession schedule, whether it is an SPO, Modified SPO, or something else, you will find a statement that “the parties may have possession of the child at times mutually agreed to in advance by the parties.”

If the parties don’t agree on something different, then the terms of the possession schedule in the order control. The basics of the Standard Possession Schedule for the non-primary parent – when the parties live within 100 miles of each other – are this:

  1. First, Third, and Fifth Weekends.

In an SPO, the non-primary parent has the right to have possession of the children on each of the 1st, 3rd, and 5th weekends, from 6:00 p.m. on Friday until 6:00 p.m. on Sunday. The number of the weekend in a month is determined by the Friday. So the 1st Friday of the month starts the 1st weekend of the month. There are usually only four 5th Weekends per year, and often two of them get “trumped” by holiday or summer schedules.

  1. Every Thursday evening, during the school year.

It is critical to note that the Thursdays are only during the school year, even if the child does not attend school. In that case, the calendar of the school in which the child primarily resides is used for the dates of the beginning and ending of the Thursday night possessions. In the SPO, the times for the Thursday evening are 6:00 p.m. to 8:00 p.m.

  1. Every other Thanksgiving and Spring Break.

The parents alternate the Thanksgiving Breaks and the Spring Breaks each year. In the past, some schools only allowed Wednesday, Thursday, and Friday off for Thanksgiving, but now most schools appear to take off an entire week. Regardless of the length, the parent that has the children for Thanksgiving gets them for the entire time that they are out of school, per the SPO.

  1. Christmas Break alternates 1st part and 2nd part.

Under the SPO, Christmas break is divided into two parts. The first part is from the time school is out until noon on December 28th, and the second part is from noon on the 28th until school starts again. In years past, the SPO provided the dividing line on December 26th. Regardless, one parent gets the 1st part in even-numbered years, and the 2nd part in odd-numbered years and vice versa.

  1. Summer Break.

In the summer, the SPO provides that the non-primary parent keeps his or her weekends – subject to some other rules – loses their Thursdays, but gains an extra 30 days. The 30 days have to be exercised in no more than two groups of no less than seven days each. If the non-primary parent fails to give notice of what days he or she wants the children for the summer, there is a default provision, which is basically all of July.

Keep in mind that there is a lot more to it than this. And the terms talked about above do not include the Expanded or Extended provisions, which will be covered in a future blog post. Additionally, be aware that the Standard Possession Schedule only applies to children age three and over.

If you need to discuss any of this with an attorney, you can contact the Beal Law Firm attorneys at 817.261.4333 or 214.414.0418 or write us at lawyers@dfwdivorce.com. Our website can be found at www.dfwdivorce.com.

Collaborative Divorce: Fast Five Questions and Answers

There are lots of things about Collaborative Divorce that are misunderstood. These Five Questions and Answers should clear up some of the more common misconceptions:

1. Can my spouse and I do a Collaborative Divorce without lawyers?

No. The term Collaborative Divorce does not mean the same thing as Amicable Divorce, Agreed Divorce, or Uncontested Divorce. A Collaborative Divorce may in fact be amicable. If it ends with an Agreed Decree, then it is an agreed divorce. And a Collaborative Divorce may be more or less uncontested – for more on that see this earlier Blog post.

But, a Collaborative Divorce in Texas is by definition a case that is conducted pursuant to the Collaborative Family Law Act, which is Title 1A of the Texas Family Code. Section 15.052 of Title 1A states that a Collaborative Divorce is one “in which parties: (A) sign a collaborative family law participation agreement; and (B) are represented by collaborative family law lawyers.”

So, when a potential client comes to an attorney and says, “I have been doing a Collaborative Divorce with my husband/wife and his/her lawyer, but now I think I need to get a lawyer,” the potential client is at best mistaken as to what is going on, and at worst being defrauded.

2. Do we have to use Neutrals in our Collaborative law case?

The traditional Texas model for Collaborative Divorce is two lawyers, plus two neutrals – a Financial Professional and a Mental Health Professional.

The Financial Professional is tasked with gathering and assembling the financial information of the parties, helping the parties work on budgeting, and offering expertise on various financial matters.

The Mental Health Professional is not a part of the process to psychoanalyze the parties. His or her job is to help the parties develop a parenting plan, if there are children involved, conduct the meetings that are a part of the Collaborative Process, and offer suggestions for matters that will help meet the parties’ personal goals, e.g. closure with step-children.

But, there is no requirement that neutrals be used. Or that both neutrals be used. If the parties and the attorneys agree, a Collaborative Divorce can proceed without one or both of the traditional neutrals.

3. Do I have to use an attorney from the list that my spouse gave me?

No. Although many Collaborative Divorce attorneys are members of “Practice Groups,” not all are. Moreover, there is no requirement that a husband or wife choose a Collaborative attorney from the list provided by his or her spouse.

There is no requirement to choose an attorney from any Practice Group and the choice of an attorney is completely up to the party.

4. Will a Collaborative case be faster than a non-collaborative case?

There is no way of knowing. A collaborative divorce may be faster than a litigation case, but it may also take more time. A non-collaborative divorce must last for at least 60 days, unless a waiver is obtained based upon family violence. How much longer a case lasts depends upon whether the parties are able to settle and when. For more on the stages of a divorce, see this prior blog post.

It is unlikely that a Collaborative Divorce will take less than 60 days, but many Collaborative cases end far earlier than many hotly contested divorces.

5. Will a Collaborative Divorce be less expensive than a non-collaborative divorce?

Once again, there is no way of knowing. Collaborative Divorces involve a series of meetings with at least two attorneys, and probably two neutrals billing at hourly rates.

Prior to each meeting, there may be some telephone calls between the attorneys and their clients and between the Team of attorneys and neutrals – all billed at hourly rates. There may be pre-meetings of the Team before the Joint meetings of everyone, and there is typically a Team debriefing period after the meeting – all billed at hourly rates.

Given that it is unlikely that a Collaborative Divorce would be wrapped up without at least three or four lengthy meetings, it’s not hard to see that there may be considerable cost to a Collaborative Case.

But, given that a non-collaborative case can involve lengthy hearings with a considerable number of hours spent in preparation by both sides, and can sometimes involve both parties hiring financial and/or mental health experts, it’s easy to see that in some cases Collaborative Divorce is much less expensive than non-collaborative divorce.

Bonus Question:

6. Is Collaborative Divorce only appropriate if there is no conflict?

No. Collaborative cases can have much of the same angst that traditional cases have – sometimes more. A Collaborative Divorce has many benefits that traditional cases do not, and they can be successfully completed even where the parties have serious disagreements and issues.

To discuss your case and whether it would be a good candidate to handle in the Collaborative Model, call us at 817.261.4333 or 214.414.0418. You can also write us at lawyers@dfwdivorce.com or find us on our website www.dfwdivorce.com. We are Beal Law Firm, PLLC.

Stages of a Divorce, Custody, or other Family Law Case

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:

  1. 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.

  1. 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.

  1. Discovery.

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.

  1. Mediation.

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.

  1. 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.

  1. Trial.

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.

To discuss your case with the lawyers at the Beal Law Firm, call us at 817.261.4333 or 214.414.0418 or write us at lawyers@dfwdivorce.com.

Divorce, Custody, and Family Law: How long will my case last

Trying to guess how long a case will last is very difficult for attorneys. The answer depends so much on what the parties do. It also depends, to some extent on what the court does.

Most clients’ cases could be over with very quickly, but the client may not like the outcome. That’s because almost any case can be settled in a matter of days or less, if one side is willing to give the other everything he or she wants.

Although there are many uncertainties, there are a few things we know. In Texas, unless a waiver is obtained based upon Family Violence, a divorce must be on file for at least 60 days before the court can sign the final decree. The 60 day clock begins on the date of filing, not on the date of service or the date that the other party knows about the case.

While the 60 day waiting period is important, there is a great deal of misunderstanding about it.

The 60th day only matters if the parties have reached an agreement on all issues. If not, the 60th day just comes and goes and the court does not even pay attention to it.

In a Suit Affecting Parent-Child Relationship (a SAPCR), there is no waiting period. So for an original action between two parents that have never been married or a modification of custody or child support, the case can be filed and finalized in the same day, if the parties agree.

Every divorce and every SAPCR is a lawsuit. It may be the friendliest lawsuit in the world, or it may be the most acrimonious. Either way, it is going to end in only one of two ways: Settlement or Trial.

Some people say, “There’s no way we can settle.” And then, when asked about trial strategy, they say, “Oh, I don’t want a trial.” Unfortunately, those are the only two choices – Settlement or Trial.

If the case settles, whether it settles by negotiation, mediation, or some other way, it will end whenever the two sides come to an agreement. If the parties can’t settle, and the case goes to trial, it will end when the court is ready for it to.

Twenty or thirty years ago, in Texas’ big cities, it was fairly common for cases to last for years – sometimes four years, sometimes five, and sometimes longer than that.

Now, in 2016, cases tend to get resolved sooner. But to most people, still not in a fashion that they would consider fast. In smaller counties, sometimes the courts can set a case for trial more quickly than in larger counties. Sometimes, however, that’s not true, because the courts in the smaller counties are often handling family, criminal, and civil-non-family matters, while courts in the larger counties may only be handling family law matters.

In their “Rules of Judicial Administration – Updated With Amendments Effective March 22, 2016,” the Texas Supreme Court sets forth fairly short periods of time in which case should be resolved, “so far as reasonably possible.” The Court states, however, that “It is recognized that in especially complex cases or special circumstances it may not be possible to adhere to these standards.”

In reality, if not settled, a party to a family law case needs to count on the case lasting one to two years – maybe a little less, maybe more. Simply put, there are many things that can slow a case down, but very few that can speed it up…short of settlement.

If you would like to discuss the complexities or circumstances of your case with the attorneys of the Beal Law Firm, you can call us at 817.261.4333 or 214.414.0418 anytime, or write us at lawyers@dfwdivorce.com. We are on the web at www.dfwdivorce.com.

%d bloggers like this: