The family relationship often involves some of the most intense and emotional situations that people will experience throughout their lives. When addressing custody concerns or resolving property issues, these situations can often be highly contested, and require thorough preparation and skilled advocacy to get the right results. Even after successfully completing a divorce or suit affecting the parent-child relationship (SAPCR), there can be additional issues that need to be addressed in effectuating the property division awarded in the final decree, enforcing possession and access or support for a child, or material and substantial changes that have arisen which require the existing custody orders to be modified. Whatever the issue, family law cases can be emotionally draining and scary. But, with the Law Office of Ian Michael Kuecker, PLLC by your side, you have our expertise and know-how to assist you in this time of uncertainty.
If you are in the process of getting a divorce, SAPCR order, or modifying an existing SAPCR order, there are a number of moving parts that all moving in all different directions at once while the suit is pending. In order to create some stability, oftentimes a party will request a hearing for temporary orders. Temporary orders are just what they sound like; they are temporary. They are orders put in place by the court in order to create some rules that the parties must abide by while the suit is pending until a final resolution to the case is made. For a divorce, these temporary orders may include a temporary award to exclusive use of some specified marital property or an order to temporary spousal support payments. For a SAPCR (child custody/child support), these temporary orders may include temporary conservatorship appointments (temporary joint-managing conservators or a temporary sole managing conservator and temporary possessory conservator), a possession and access schedule for the child(ren) (such as a Standard Possession Order), and temporary child support (monthly support obligation, providing health insurance, and providing dental insurance). Temporary Orders are also available in Suits to Modify the Parent-Child Relationship.
Additionally, temporary orders can be used to obtain injunctive relief prohibiting specified conduct by one or even all parties involved in the suit - such as a prohibition against consuming alcohol while in possession of a child of the parties or a prohibition against allowing a paramour from staying overnight while a party is in possession of a child of the parties.
The purpose of discovery is to allow the parties to obtain full knowledge of the issues and facts of the lawsuit before going to trial. An experienced family law attorney will use discovery to help you identify the various strengths and weaknesses of each side of the case. Well done, thorough discovery is a key aspect of trial preparation. Keep in mind, when conducting discovery, the primary goals are pretty straight forward: Discovery is used to learn what information the other side intends to provide at trial, to learn the opposing party's position on contested factual issues of the lawsuit, to obtain information in the other party's control that might be helpful to your case, to attempt to obtain useful admissions from the opposing party that can be used at trial, and to obtain information from the opposing party that can be used to impeach that party's credibility (and the credibility of that party's witnesses).
Discovery, when used properly and effectively, can also be used to uncover hidden assets the opposing party wishes to remain unknown. It can help you learn the true size of the community estate. The purpose and objective of the Texas discovery rules are to protect you from being surprised or taken advantage of in court. It can help to level the playing field and make sure that you are informed of any major aspects of the case that you may not have known before the lawsuit process was started. This is very beneficial in situations such as in a marriage where one spouse handled all the financials and the other spouse had little to no knowledge of the income and expenses of the family unit. The scope of discovery is generally limited to any matter that is not privileged and is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party or may lead to the discovery of admissible evidence.
Different forms of Discovery
The most common forms of discovery in Texas family law courts include, but are not limited to:
- Mandatory Initial Disclosures
- Requests for Production and Inspection of Documents
- Interrogatories to a Party
- Requests for Admission
- Oral or Written Depositions
- Motions for Mental or Physical Examinations
- Subpoenas served on third parties
Each form of discovery is used for a different purpose and follows its own set of rules as lined out in the Texas Rules of Civil Procedure. A request for disclosure is a request for basic information regarding the parties and the lawsuit that they are involved in. A request for production and inspection is a request for documents and other tangible items related to the case for review by the party making the request. A request for admissions is a request for the other side to admit or deny certain facts related to the case.
Depositions are oral (via telephone or in-person) or written interviews conducted between the parties or by one party to witnesses who have knowledge about certain aspects of the case. Discovery follows a very specific timeline and it is imperative to stick to it. Not following the rules and guidelines outlined in the Texas Rules of Civil Procedure regarding discovery could result in sanctions from the court. It is very important to consult with your attorney and make sure you are providing them with the documents and information requested related to discovery. Communication between you and your attorney is key, especially during the discovery process. If you are open, honest, and upfront with your attorney they will be able to best help you request and answer discovery as you prepare for trial together.
Some cases may need all the forms of discovery mentioned above while other cases may only need to use a few forms of discovery to achieve their goal. This is where it would be beneficial for you to have an expert on your side guiding you through the process of preparing for trial. A skilled attorney can look at your case and draft discovery documents tailor-made for you and your desired outcome. Discovery is a very effective tool when used properly.
Mediation has many benefits for those who chose mediation to resolve conflict in divorce and family law cases. Some people have concerns about feeling limited by the mediation process. Whether mediation is ordered by your judge or you find value in attempting to use mediation to resolve many or all the unresolved conflict in your family law case.
Expense – Compared to the full traditional divorce and family litigation process, including hearings and trials with experts and extensive preparation, divorce mediation can save money that can be better allocated for the benefit of the family. When everyone prepares for mediation and knows what they really want to achieve, it can be easier to reach an agreement outside of court.
Anxiety – The anticipation of litigation and the time it can take to reach a final resolution may lead some people to try to resolve their contested claims and allegations in divorce mediation. With less time to worry about your divorce, you may be better off writing the next chapter in your book of life.
Goodwill – When you are going to be a co-parent, parallel parent or whatever brand of good parent you want to be, being polite and amicable during divorce mediation can help assure your soon to be former spouse that you care about your role as a parent and you will do everything in the best interests of the children.
Encouragement – When you walk away from signing a mediated settlement agreement after successful divorce mediation you are more likely to feel a sense of accomplishment and responsibility. Especially moving forward when children are involved, you may understand that they watch how their parents react to challenges and being successful in mediation can show a good example to children.
Concerns About Mediation
Negotiation Incongruity – When everyone comes to the mediation table they should be ready to negotiate and first find out where you agree and where there might be a deeper conflict. This works well when both spouses are evenly positioned communicators, willing to express themselves. When there is an imbalance in power or negotiating, for whatever reason, the disadvantaged spouse may prefer traditional litigation, so they do not feel disadvantaged.
Family Violence Victims – Like people with negotiation disadvantages, a victim of domestic violence may not be comfortable in a direct communication and negotiation setting. It might be better to avoid divorce mediation if this is the case.
Failure to Reach Agreement – When people ask whether divorce mediation will work for them, the answer depends on how willing they are to reach a mediated settlement agreement. All you can do is give mediation your best attention. If you reach an absolute impasse on certain issues in the divorce you can have a hearing or trial on those remaining issues.
Jury trials are only available in limited circumstances in family law. Jury findings regarding property characterization as community or separate, as well as the value of certain assets are binding on the court. However, the jury cannot decide how the assets and debts of the parties will be divided. That is left for the judge.
A party is entitled to a jury verdict on the issues of who should be appointed a managing conservator or a possessory conservator. The jury can also decide if there will be a geographical restriction of the primary residence. However, a jury cannot decide what periods of possession a party will have with the children or what rights and duties that conservator will have to make child-rearing decisions.
Be aware of the court's docket. Each court maintains a unique docket, meaning that each judge may reserve only one week a month or two weeks a month for jury trials. Requesting a jury trial may allow you more time to prepare for a trial, depending on that court's docket, but you will also have far more moving parts and increased costs trying a jury trial as compared to a trial before the court.
Every case is unique and has a multitude of scenarios and resolutions. There may be any number of reasons a jury trial may not be right for you. The cost of a bench trial (including expert fees, attorney fees, and general costs) are multiplied when factored for a jury trial and may be overwhelming and outside of your financial resources. A jury trial usually takes longer to prepare so the family case can end up dragging on even longer than if you just presented your case to the trial court for determination.
Additionally, on extremely complex property issues or child custody matters, it can be advantageous to have the case tried to a judge who deals with these scenarios on a daily basis and has a clear understanding of the issues. Frequently, a temporary order hearing has already been held in front of the judge, therefore the judge is familiar with your case and some of the facts involved, so the “education” process is less. Most often it is economically more feasible to have a judge listen to your case and make the decisions that need to be made. Judges hear family law cases on a regular basis and are quite familiar with the Texas Family Code and statutes surrounding divorce and child custody rights.
The bottom line is that if the parties cannot reach an agreement on how to resolve all of the issues of their case, then they will ultimately go to trial or their case will get dismissed.
Not every family case has to be result in litigation. Sometimes, parties are able to reach agreements on how to resolve their case, and they are able to resolve their legal matter in an uncontested manner (by agreement on all issues). This approach can be less emotionally draining and cumbersome for both the parties, and it can allow each party to get back to their respective lives in a more timely fashion. However, even with an uncontested case, you are still dealing with complicated legal matters and procedural requirements which need to be addressed properly. Since this suit will impact your life moving forward, post-divorce/separation, it is important to get it done right. Contact Law Office of Ian Michael Kuecker, PLLC for assistance so that we can get your agreement done properly.