Saturday, January 14, 2012
What Should I Expect as I Start a Divorce?
There are some fairly standardized process steps that can be expected in a contested Tarrant County, Texas divorce case. The steps vary, depending upon whether you are in the litigation process or you are using Collaborative Law. Keep in mind that each case is a little different from all others. It is not unusual for cases to veer off course and attorneys will sometimes try different tactics in different cases. In general, here are some common steps that follow the initial attorney-client meeting.
1. The attorney will prepare and file a petition for divorce. Sometimes, there's a restraining order with the petition. The petition (and TRO, if there is one) must be served on the other spouse unless a waiver of service is signed and returned by the spouse, or the spouse simply files an answer -- which happens sometimes when there is some degree of communication and cooperation between the parties at the outset.
2. A temporary hearing may be scheduled. When the divorce is filed, it is very common for the attorney to get an order setting a temporary hearing to settle basic issues temporarily -- not a final disposition. The issues often include: use of the residence and vehicles, support, responsibility to pay bills, child support, terms for sharing time with the children, control over some financial matters and possibly other issues. While a "hearing" is scheduled, there's rarely a real hearing in Tarrant County. Most of the time, the attorneys are able to work out agreements, sometimes after a conference with the judge. Some judges will have an informal hearing, but most decisions don't result from a process that remotely resembles what is portrayed on TV.
3. The parties operate under temporary orders. The TO's will last until the divorce is finalized, but they are sometimes modified. That could be done by agreement, but it's more common to go back to court for additional temporary orders. There can also be motions for enforcement of the TO's if one party believes the other has violated the orders. In contentious cases, there are often multiple hearings before there's a final hearing.
4. Discovery takes place. This is the stage of the process where information is requested and provided by both sides. Very broad and comprehensive requests are usually sent out. Depositions can be taken of the parties and other witnesses. Sometimes, there are objections to the requests or complaints about the information furnished or not furnished. There can be multiple hearings on those disputes. The gathering, review and organization of the information is very time consuming in most cases.
5. Experts are appointed or hired sometimes. The experts may be used to value real estate or a business or some other asset. Other experts may do psychological evaluations or custody investigations. Drug testing or paternity testing can also be ordered. Sometimes the court will appoint one neutral expert (with each party paying half the cost), and sometimes each party will hire his or her own competing expert.
6. Negotiations occur. In most cases, the parties negotiate. There is usually some effort for negotiations between attorneys, but most often cases get settled in mediation. Almost every time, a family court judge in Tarrant County will order the parties to go to mediation before they can appear for trial. The reason is that about 90-95% of cases settle in mediation and that frees up court time for more difficult cases.
7. There's a trial, if there's no agreement. The trial will normally be 6 to 9 to 12 months, or more, after the case was originally filed. Another option is to request arbitration, which can be a little expedited, if both parties agree, but it is rarely used.
8. Final orders are prepared after a trial or an agreement is reached. The final orders include a decree of divorce and sometimes an agreement incident to divorce (AID). In addition, there may qualified domestic relations orders (QDROs) if there are retirement benefits to divide. There can be a substantial number of deeds and other documents as well to implement the terms of the decree.
Assuming that both parties want to use Collaborative Law and that they each have hired trained Collaborative Law attorneys, here are the usual steps that are followed in Texas Collaborative cases. Note: the parties agree to not go to court for contested hearings and don't do formal discovery.
1. Initial meeting. At the first joint meeting, the attorneys and parties review the participation agreement and sign it. The agreement outlines the commitments of everyone to the process and explains how the process works. It also contains a temporary agreement that is usually signed that maintains the status quo regarding financial matters. Sometimes goals of the parties are reviewed at the first meeting; other times, the goals are discussed at the second meeting.
2. Gathering information. The parties begin immediately to gather information. Various specific financial documents are produced and shared. Normally, the financial professional directs and works with the parties to efficiently identify financial concerns and gather information about them. On children's issues, the child specialist or the mental health professional, whichever is handling those issues, will direct the parties in gathering information. Sometimes, joint neutral experts are hired to value a business or real estate or other assets. It usually takes several meetings to gather and review the information. Much of the preliminary work is done by the parties with the respective professionals, but without the attorneys, until there is a joint meeting to review information.
3. Option development. This step takes place after the information gathering. The parties, with their attorneys and the other professionals, brainstorm to create options that address the goals of each party.
4. Negotiations. After coming up with multiple options, the parties take time to review and evaluate their options. In the discussions of the options, new options are often created by modifying other ideas. As a result, the parties usually are able to come up with creative and beneficial solutions to meet their goals.
5. Final paperwork. Once the parties have reached agreement, the final papers are prepared, just like in litigated divorces. The decree and AID are signed by the parties and attorneys and then the judge. Any additional paperwork is prepared as needed to implement the agreements.
Most Collaborative cases can be resolved in a few months, but the process easily allows a longer time period for especially difficult cases.
Caution: "Your mileage may vary" -- Check with a local attorney for information about the cost and timing for a divorce considering the unique facts of your case. For more information about Collaborative Law, check out my Texas Collaborative Law blog.