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

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If you find yourself in a child custody dispute – whether it is in the divorce context or not – you may end up needing a social study.  In Dallas County, every family court requires a social study in a contested custody case.  Other jurisdictions may or may not have the same requirement.

A social study involves a neutral, outside party investigating the circumstances of the case.  The social study is conducted by someone with a social work background.  They meet with both parties, interview references, and meet with the child.  They watch both parties interact with the child.  They also conduct home visits at both parties’ homes.

The preparer also may request access to certain records, such as medical records or school records, that could help provide insight into what is in the best interest of the child.  For example if one parent contends a child has missed school on a regular basis while in the care of the other parent, the social study preparer may want to review records from the school.  Or, if a parent has concerns over the mental health of the other parent, the social study preparer may want to review medical records of the parent.

In Dallas County, social studies are generally conducted by an in-house department called Family Court Services (“FCS”).  FCS has offices in the courthouse, and initial interviews take place in those offices.  The fees for social studies conducted by FCS vary and are based on the parties’ income.  The judge calculates the fee based on a percentage of income.

In other counties, such as Collin County, social studies are done by private individuals or companies.  There are a few low cost options in the range of $500-$1,000 per side, but some private social studies can cost thousands of dollars.

In general, I think social studies are a wonderful tool in custody cases.  They provide an unbiased opinion on the case and usually help facilitate an appropriate settlement.

child custody pic

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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

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