In most courts in Collin, Denton and Dallas counties, mediation is required before you can have a final trial in a family law matter.  In some of the courts it isn’t required but is “strongly encouraged.”  In my opinion, almost every case is appropriate for mediation before you have a final trial.

Mediation is a confidential process that takes place outside of the courthouse.  The parties hire a neutral, third party mediator to help try and get the case settled.    Although some mediations occasionally involve an opening session with all parties, I have not seen that happen in a family law mediation in many years.  Each party sits in a separate room with his or her own attorney.  The mediator goes back and forth between the rooms to help the parties reach a settlement.  The parties usually won’t even see each other, unless they happen to cross paths walking to the restroom or the parking lot.

Mediation can be a very slow process.  Most divorces involving child custody issues will take a full, eight hour day.  Sometimes they can last well beyond eight hours if there are a lot of issues in dispute.  Cases involving only property issues can take less time unless there are significant property issues to address.  Although many mediators offer half day (four hour) mediations, it is extremely rare for a family law case to settle in that short of a time.

Although mediation can get expensive when you add up the mediator’s fees and attorney’s fees on both sides, it is usually a lot less expensive than going to trial.  Further, it is a great way to help get cases settled in creative ways.   Judges are limited in what they can order in a trial, but the parties can agree to all kinds of arrangements at mediation.

The vast majority of my clients are convinced that their cases  have no hope of settling at mediation, but the vast majority of those cases do actually settle at mediation.  Parties tend to think that if they cannot settle the dispute on their own, why would it settle at mediation?  But the reality is that mediators have jobs for a reason.  Their help can be critical to getting cases settled.

gavel

0

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.

Areas of Practice pic

0

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

0

Under the Texas Family Code, there is a mandatory sixty-day waiting period between when you file for divorce and the earliest possible day a divorce can be granted.  The only exception to this rule is if there is a protective order or a conviction related to family violence.

Even though day 61 is technically the first day you can finalize a divorce (without the family violence exception), the vast majority of cases take much longer. The only cases that are complete on day 61 are those that settle very quickly and usually involve relatively few issues.  For cases that involve disputes over property, debts or the children, cases can take a year or even longer to complete.

In general, cases that do not involve minor children tend to take less time than those involving children, but that is not always the case.  In cases that do not involve minor children, the length of time involved with the case is based largely on the amount of discovery that is needed to determine the property and debts at issue.  Can the parties exchange an inventory and appraisement and negotiate or mediate?  Do one party need to conduct extensive discovery into assets that the other party controlled during the marriage?  Does one party have a business that needs to be valued?   Is one party seeking an uneven distribution of the estate that requires evidence of fault grounds?  All these factors determine the length of discovery and when the parties can reasonably attempt to settle or try the case.

Child custody disputes often increase the length of time a divorce is pending.  Many counties in North Texas, such as Dallas County and Kaufman County, require a social study in a contested custody case.  (Of note, Collin County does not currently require a social study in custody disputes.)  Social studies can take anywhere from 3-9 months, depending on the agency conducting the social study.  It often takes a couple of months before the parties even reach the point of realizing that a social study will be required for their case.

After discovery is completed, if the parties are unable to reach an informal settlement, most courts require the parties to attend mediation.  Mediation is successful in a large percentage of cases.

If a case settles, it can still take a few months to wrap up the case.  One attorney (usually the attorney for the petitioner) will draft a final decree of divorce.  His or her client must then review and approve the decree.  The attorney then sends it to the attorney for the other side, who reviews it with his or her client and requests changes, if needed.  Decrees can be quite long in cases involving children (40+ pages is common), so it is a time consuming process for both sides to review and revise the decree.  Once the decree is finished, one party (usually the petitioner) will attend a prove up hearing with his or her attorney to finalize the case.  The divorce will be over that day.

When a case does not settle, the parties must have a trial.  The trial can be either a bench trial (before the judge) or a jury trial.  In my experience, a jury trial is very rarely justified in a family law case.   They are expensive, take additional time, and you really roll the dice with a jury.  How long the parties have to wait for a final trial depends on when someone requests a trial setting and how backed up the court’s docket is.

Divorce

0

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.

Areas of Practice pic

0

The first step in the divorce process in Texas is filing the Original Petition for Divorce.   One party (the Petitioner) files the petition and serves the other party (the Respondent).  If you expect the case to be relatively amicable, then I recommend using a waiver instead of serving the Respondent.  (Serving someone involves having the constable or a private process server find them and personally deliver the papers.)  With a waiver, you hand your spouse the petition along with a document called Waiver of Service.  The waiver basically says that the person acknowledges receiving a copy of the petition and does not want to be served.  Your spouse signs the waiver before a notary, and it is filed with the court.  (Our office usually handles that when the spouse of our client signs a waiver.)

When there are no children involved, the issues that need to be resolved are the division of property and the division of debts.  If the parties have already agreed to terms on these issues (or if there is no property or debt to be divided), then the next step is to prepare an Agreed Final Decree of Divorce.   Once the decree is prepared, both parties (and their attorneys, if applicable) will sign the decree.  Once the sixty-day waiting period has passed, one party (usually the Petitioner) will “prove up” the divorce in court.  In Collin County, you can show up any day at almost any time and prove up a divorce in the Auxiliary Court.  In Dallas County, different courts have different days and times when they do prove up hearings.  You just show up at the most convenient time for the hearing during the prove up times.  (Of note, if you are handling a divorce without an attorney (“pro se”), Dallas County courts may have specific time slots for pro se litigants.)

If there are disputes about property or debt, discovery will be conducted.  Discovery can be done informally (where the attorneys simply ask each other for certain information or documents and hand it over) or formally (with written Interrogatories, Requests for Production, Requests for Admissions, depositions, etc.)  Some courts will order each side to prepare a sworn inventory and appraisement of property to help clarify the situation.  There may also be discovery if one side is seeking a disproportionate share of the estate for any reason or if one party is seeking reimbursement.

Once the parties have completed discovery, the case will usually proceed to mediation if it cannot be settled informally.  At mediation, a neutral mediator goes back and forth between the parties to try and reach a settlement.  If the case does not settle at mediation, the case will proceed to trial.

The vast majority of cases settle, whether it be informally or at mediation.  Occasionally, a case will settle after mediation but before trial.

Divorce

0

Child custody disputes can take place in or out of the divorce context.  Regardless of whether or not the parents were ever married, the process and rules involved with a child custody dispute are basically the same.

When a child custody case is not part of a divorce, the initial suit is filed as a Suit Affecting the Parent-Child Relationship or a Suit to Adjudicate Parentage (if paternity has not been legally established).  Unlike a divorce, which has a sixty-day waiting period before it can be finalized, there is no waiting period for a pure child custody matter.  If the parties have reached an agreement, a final order can be entered almost immediately after filing the suit.

In more amicable cases, the Petitioner (the party who files the suit) will present the Respondent (the person being sued) with the suit and ask him or her to sign a Waiver of Service.  The Waiver of Service simply tells the court that the Respondent received the suit and is agreeing not to be formally served.  (Most people do not want to be served, so this is the friendlier and cheaper option.  I always recommend trying for a waiver first unless the situation is hostile or unless a quick hearing is needed that requires notice.)

Some contested cases need court intervention quickly in the form of a temporary orders hearing.  This hearing can often occur within a couple of weeks of filing, and it is sort of a mini-trial.  At a temporary orders hearing, the court will determine custody arrangements for while the case is pending and order temporary child support, if appropriate.  The court may also order a social study or mediation.

If the case does not settle quickly, discovery will be needed.  Discovery can include obtaining records, sending formal written discovery to the other party (Requests for Production of Documents, Requests for Admissions, or Interrogatories), or depositions.  In contested custody cases, a social study is often required.  Before a final trial, most courts will order the parties to mediate the case.  If a settlement is not reached, then the parties will proceed to a final trial.

In my experience, most contested custody disputes last about a year.  A settlement can be reached at any time, and the vast majority of cases do settle before a final trial.

child custody pic

0