Many clients have questions about mediation. They have heard the term but are not sure what it means or why it is advantageous when they have a list of demands and are pretty sure the other party will not agree to all of them.

Mediation is a very productive tool in family law cases. It is more of a collaborative approach to resolving a family law case and far less adversarial than going to trial and airing everyone’s dirty laundry on the record. Both parties are represented by counsel in mediation and are typically in separate rooms. A neutral third-party (the mediator) works with the parties and their respective attorneys in an attempt to reach a final agreement in the case. Many courts require mediation. Denton and Collin Counties both require mediation before final trial.

While each party to a divorce or child custody matter comes into the case with his or her own unique perspective and list of demands, if children are involved it’s important that they can each focus on the best interests of the child. Each party’s attorney will work to prepare them for mediation. They will give them the lay of the land and work on a proposed settlement offer prior to the day of mediation. It is important that the parties have completed and provided any necessary documents such as inventory and appraisements, proof of income and proposed possession schedules to their attorneys, if requested. This helps save valuable time in mediation.

Mediators can help parties and attorneys think outside of the box and get very creative with language to include in a final order. Further, the parties can agree to things in mediation that a judge could never order in a trial.  Examples include possession schedules for pets, creative ways to allocate community assets that are not yet liquid, and unique possession schedules for the children that are personally tailored to a particular family’s lives. Often, while each party has their list of demands, each tends to have different priorities.  By focusing on priorities, we can encourage a settlement that both are reasonably happy with.

Once an agreement is reached and the mediated settlement agreement signed, both parties know exactly what the key terms of the final order will contain. There is no guessing what a judge or jury will do. The parties don’t have to leave mediation discouraged only to find that the attorney needs to conduct more discovery, file more motions and prepare for a full day (or longer) trial in his or her case.

Best of all, after a successful mediation, parents can simply focus on moving forward with their lives and  their children without the worry of litigation looming. After mediation, attorneys will work to draft an order based on the agreements reached that will be signed by all parties and attorneys. That order will then be entered, signed by the judge and the case closed.  The order is usually significantly longer than the mediated settlement agreement, but the terms will all be the same. (Blog post by Soheyla Dixon)

The Draper Firm

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It is important to meet with an attorney to determine whether temporary orders are necessary in your family law case. Depending on your county, you may have Standing Orders that govern the conduct of the parties while the case is pending. Standing Orders are binding on the parties immediately and continue until the case is finalized unless specifically modified by the court.

Temporary orders can be very helpful in setting the tone for the case and making sure certain issues are presented and ruled on early on. Temporary Orders are not effective immediately and must be requested by a party. Hearing dates will be set according to the court’s docket and how full the calendar is.

Temporary orders can be entered in any family law case to govern what will happen with various aspects of the case while it is pending.  Temporary orders can relate to child(ren), property and financial matters, including bank accounts.

Typical temporary orders related to children in either a divorce or child custody case include: (1) designation of conservators as either temporary joint managing conservators or temporary sole managing conservator / possessory conservator; (2) what the possession schedule will be for the child with each of the parents; and (3) whether child support will be paid and, if so, how much.

Examples of additional financial matters to consider for temporary orders in a divorce case are: (1) who will get primary use of the marital residence; (2) how community bills are going to be paid during a pending divorce; (3) whether or not one party will pay temporary spousal maintenance to the other; and (4) who will get primary use of any vehicle(s).

Temporary orders can also govern how the parties treat each other while the case is pending and what is said or done in front of the children if the county’s standing orders do not already do so.  Temporary orders can either be reached by agreement, or they can be ordered by a court after a hearing.  Temporary orders hearings are like mini trials.  In Collin County, temporary orders hearings are limited to twenty minutes per side, which can really limit what you can do.  In Denton County, temporary orders hearings are typically limited to thirty minutes a side. In other counties, such as Dallas County, you are often given significantly more time for a temporary orders hearing.  (Post by Soheyla Dixon)

Divorce

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Most, if not all, of the courts in Collin County, Dallas County and Denton County require the parties to mediate before going to trial.  Even when mediation is not required, I almost always recommend to clients that they attend mediation.  Mediation allows you to come up with creative solutions that a judge could never order.  It also allows you to have control over the final result, which a trial does not give you.

Probably 90-95% of my clients are sure that mediation is pointless going in, as they know that neither party is going to compromise enough to reach a settlement.  Yet somehow 90-95% of the cases that I take to mediation end up settling.  There is a reason that mediators have jobs.  If the parties and attorneys could settle cases on their own, mediation would not be necessary.

Typically at mediation, my client and I sit in one room and the opposing party and his or her attorney sit in another room.  At most mediations, we never even see the other side.  The mediator (who may or may not be an attorney) goes back and forth between the rooms to try and help the parties reach a settlement.  By definition, the mediator is neutral.  If the mediator takes sides, he or she will almost certainly lose the ability to negotiate with the other side.  The mediator will often play devil’s advocate in both rooms.

In my experience, the best family law mediators are attorneys with extensive family law experience who know the judges and who know what the most likely outcome at trial is going to be.  They also have a very good grasp of the Texas Family Code to be able to guide the parties when they want something they would never get in court.

Mediation is a slow process.  Although some mediations can be done in half a day, I have been in mediations lasting anywhere from 8-13 hours for family law cases.  The mediators generally provide snacks and lunch.

Occasionally I hear from people who are interested in mediating without lawyers.  Although this may sound like a good idea in theory, it can be a dangerous proposition.  Mediators cannot give legal advice, even when they are attorneys.  This can really cause a party to be blind in the negotiating process, as he or she will have no clue what the law is or what he or she is really entitled to.

Overall, I think mediation is a wonderful process and very helpful in reaching amicable resolutions in family law cases.

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Temporary orders can be entered in any family law case to govern what will happen with various different aspects of the case while it is pending.  Temporary orders can relate to both the child(ren) and other financial matters.

Typical temporary orders related to children in either a divorce or custody case include: (1) designation of conservators as either temporary joint managing conservators or temporary sole managing conservator / possessory conservator; (2) the possession schedule be for the child with each of the parents; and (3) whether child support will be paid and, if so, how much.

Examples of additional financial matters to consider for temporary orders in a divorce case are: (1) who will get primary use of the marital residence; (2) how community bills are going to be paid during a pending divorce; (3) whether or not one party will pay temporary spousal maintenance to the other; and (4) who will get primary use of any vehicle(s).

Temporary orders can also govern how the parties treat each other while the case is pending and what is said or done in front of the children.  Temporary orders can either be reached by agreement, or they can be ordered by a court after a hearing.  Temporary orders hearings are like mini trials.  In Collin County, temporary orders hearings are limited to twenty minutes per side, which can really limit what you can do.  In other counties, such as Dallas County and Denton County, you are often given significantly more time for a temporary orders hearing.

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Texas courts favor residency restrictions in child custody orders as long as both parents have shown the ability to parent the child.    In general, if a non-custodial parent asks for a residency restriction, the court is almost certain to restrict the custodial parent’s residence to the county of the court plus the contiguous counties.  However, the residency restriction would state that if the non-custodial parent moves outside of the zone, the residency restriction no longer applies.  For example, if Mom and Dad get divorced in Collin County and Mom is awarded primary custody, Dad can request that Mom (and the children)’s residence be restricted to Collin County and the contiguous counties (the counties touching Collin County).  If Dad chooses to move to California or Houston or even Tarrant County (which is not contiguous to Collin County), the residency restriction would no longer apply and Mom would be able to move anywhere she wanted with the child absent a new court order.  (If Dad in this scenario were moving to Tarrant County, he could likely get a new residency restriction in place to avoid Mom moving far away.  That would require a modification proceeding and a new order.)

If parents are awarded a 50/50 custody schedule, then a residency restriction will be placed on the children. The restriction would require both parents to live within a certain zone, which could be the county and contiguous counties, or it could be smaller.  With a 50/50 schedule, the zone is often smaller because both parents need to be conveniently located to the children’s schools.

Residency restrictions are extremely hard to get around if the other parent wants to be involved in the child’s life.  If both parties agree, you can have an order entered without a residency restriction.  However, if the parties do not agree, the custodial parent is almost certainly going to be stuck in or near the county where the court case takes place.

CPS

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Most (if not all) of the courts in Collin County require mediation before a trial in family law cases, including divorce and child custody cases.  Most courts in Dallas County and Denton County have similar rules in place.  Because I feel that in most cases a settlement is preferable to a trial, I almost always advise my clients to mediate, even if there is not a court order to do so.  When the parties cannot settle the case informally, mediation is a great tool to help reach a settlement prior to trial.  This saves the parties the financial and emotional costs of a trial.  In addition, the parties can agree to a variety of creative options in mediation that a judge could never order.

If your case is headed to mediation, your attorney should prepare a mediation statement for the mediator.  I always send mediators a letter explaining the issues in the case and where my client stands on those issues.  I set forth my client’s priorities and goals in the case and let the mediator know of any problems that I think could arise from the other side during mediation.  I also send the mediator the most recent offers made by each side, if offers have been made.  This helps the mediator jump right in at mediation without wasting time coming up to speed.

Mediation is generally a long and slow process.  You and your attorney will sit on one room and the other party and his or her attorney will sit in another room.  A neutral mediator will go back and forth between the parties to help facilitate a settlement.  Sometimes the mediator is in a room for fifteen minutes, and sometimes the mediator is in a room for hours.  Many mediations last a full day in family law cases.  Divorce cases with minor children usually take the longest because there are both property and custody issues that most be addressed.

The vast majority of the time my client is sure that the case has no hope of settling at mediation, and the vast majority of the time those same cases do settle.  Once a settlement is reached, the mediator will prepare a Mediated Settlement Agreement (MSA) for both parties and their attorneys to sign.  The settlement can dispose of all or some of the issues in a case.  The MSA is binding, and neither side will be able to change their mind later about the terms and back out.  After the mediation, one attorney (usually the petitioner’s attorney) will prepare a final order based on the MSA (if a full settlement was reached).  Depending on the type of case, one party may have to appear in court to prove up and finalize the final order.

Divorce

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In Texas, an agreed divorce must be finalized with a prove-up hearing.  This is the very last step in the divorce process.  Once the parties have agreed to terms, one side will prepare the final decree of divorce.  Both parties will sign the decree, and one side (usually the petitioner) will attend the prove-up hearing.  It is not necessary for the other party to attend, and it is extremely rare for that to happen.

The prove-up hearing lasts only a few minutes.  First, the attorney will present the proposed decree to the judge, and the judge will swear the client in.  The attorney will then ask a standard list of questions to the client in front of the judge.  These questions are almost all “yes” or “no” questions such as “Were you married on or about July 20, 2009 and did you cease to live together as husband and wife on or about January 15, 2014?” and “Have you agreed as to a division of your property and debts?”.  Cases involving children or a name change have additional questions beyond the standard divorce questions.

After the attorney completes the list of questions, the judge will grant the divorce and sign the decree and another other necessary documents, such as an income withholding order for child support.  The divorce is now final.

In Dallas County, each court has specific days and times each week when prove-up hearings are held.  You do not need to prove up your case in the same court where your case was filed.  Any Dallas County district judge can hear the prove-up.  In Collin County, prove-ups usually happen in the Auxiliary Court.  You can show up at any time during regular hours for a prove up in the Auxiliary Court.  (If you are attempting to handle your divorce without an attorney, you may need to do prove-ups on a more specific schedule.)

Divorce

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Many Texas counties have “standing orders” that apply in every family law case filed in that county.  Dallas County, Collin County, Denton County and Kaufman County all have standing orders.  Tarrant County for some reason does not have a standing order in family cases as of the date of this post.

Standing orders set forth the ground rules while the case is pending.  In divorce cases, they prohibit parties from altering or selling property, or for spending money for anything beyond normal living expenses and legal fees.  In custody cases, standing orders can include provisions prohibiting you from moving the child’s school or prohibiting you from having an unrelated paramour spend the night while the case is pending.

When suit is filed, the standing orders must be attached to the original petition.  Although each county’s standing orders are similar, they do have their unique differences.  Therefore, it is very important to read the standing orders for your county.  For example, at the time of this post, Denton County’s standing orders require parents in a divorce to complete a parenting class within 60 days of the filing of the divorce petition.  Collin County used to have a similar requirement, but it no longer does.

Standing orders can eliminate the need for a temporary orders hearing in many cases because the court already provides many of the orders you would be seeking.  However, if you wish to do something against the standing orders, you need either the agreement of the other side or a court order allowing you to do so.

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Almost every contested family law matter – divorce, child custody, CPS, termination of parental rights, paternity – ends up in mediation before a final trial.  Most, if not all, courts in Dallas County and Collin County require mediation before a final trial.

Mediation involves a neutral mediator – often an attorney but it does not have to be – who tries to help facilitate a settlement.  Normally, one party and her attorney are in one room and the other party and his attorney are in another.  The mediator goes back and forth between the rooms to try and reach a settlement.  Most of the time, I never even see the opposing party or that party’s attorney at the mediation.

Before I attend mediation with a client, I always prepare a confidential mediation statement that sets forth our side of the story for the mediator.  This helps save time at mediation.  Often times, I have found that the other side does not prepare a mediation statement.  I feel this gives my client a great advantage, as the mediator is starting the case with just our side of the story.

The vast majority of cases settle at mediation.   I have taken many cases to mediation that I thought could not be settled, and they have settled the majority of the time.  Even if a final settlement does not get reached, the parties can settle some of the issues to narrow down the issues for trial.

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Residency restrictions are extremely common in any order involving child custody in Texas, whether in a divorce decree or in a suit affecting the parent-child relationship.  In Collin County, orders typically say the residence of the child is restricted to Collin County and the contiguous (surrounding) counties.  Similarly, Dallas County orders often restrict the residence of the child to Dallas County and the contiguous counties.  Occasionally, the parties will agree to a more specific residency restriction, such as one or two counties, a particular city, or even a particular school zone.

If one parent has been given the right to designate the primary residence, the residency restriction keeps that parent (and the child) within the boundaries of the order as long as the non-custodial parent is living within that area.  However, if the non-custodial parent moves from within those boundaries, the residency restriction is automatically lifted (under most orders) and the custodial parent is free to move anywhere with the child.

If neither parent has been given the right to designate the primary residence, a residency restriction will keep everyone within the designated boundaries.  In a split custody arrangement, the residency restriction is often more narrowly tailored so that both parents are close to the child’s school.

Residency restrictions are designed to keep both parents actively involved in the child’s life.  Generally, if one parent asks for a residency restriction, the court will grant it unless there is a very compelling reason not to.  Once the parties have a residency restriction, it can be very difficult to have it lifted unless the parties are in agreement.

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