The 5 Steps in Every Divorce & Custody Case

Every Texas family/divorce case follows the same 5 Steps. At each step, you have the chance to stop the litigation and settle your differences. If not, you move on to the next step, until you are finally done. Here is our video on the topic:

Every Texas divorce or custody case goes through the same 5 Steps:

Step 1 - File

Step 1 is the easiest and least expensive Step. This is just the beginning of the process but it does need to be done correctly. Here is our video on the subject:

You start by determining what you need to file. Are you married? Then an Original Petition for Divorce? Not married but have children? Then it is a Suit Affecting the Parent-Child Relationship. Want to change an existing custody order? Then you'll need to file a Petition to Modify the Parent-Child Relationship. There are many other types of filings.

Then you must decide where (what County) to file. Usually everyone involved live in the same County and it is a simple decision. If there is a Modification then you must usually file where the underlying order was filed. There are more complex rules involving multiple states (in the UCCJEA) as well as international cases. Here are more detailed rules:

  • For a Texas divorce, you may file in a court in the county where you have been residing for the past three months, as long as you have been a resident of Texas for the prior six months. Sometimes a couple has been living separately and live in 2 different counties. In this case, it is possible that a divorce action could be filed in either county. In this case, it becomes a race. The party that files first (in the proper court of their residence), establishes the court for the action. 
  • Family law cases not involving divorce (such as a child custody case between unmarried parents) have different rules for a court having power over the parties. They usually revolve around where the child has lived most recently (for the past 6 consecutive months). I have handled cases where there were 2 or more children that were divided between two households (i.e. a child lived with each parent) , which can cause there to be quite a bit of confusion over the proper county to file the suit. Again, the party that files first would have an advantage in this respect. 
  • On the other hand, modifications of existing family law orders usually have to be initially filed in the county where the existing order is. Sometimes the case can be moved after the initial filing to the new county where the kids reside, but this will require a specific motion and/or hearing. This can be a major tactical advantage or disadvantage for you in your case.

Step 2: Temporary Orders

Temporary Orders are the most heavily litigated part of a divorce or family law matter, because they occur at the beginning of a case, when emotions are at their highest and uncertainty is at its greatest. Also, the Temporary Orders tend to become permanent, so it is important that you receive the best outcome possible in your Temporary Orders. If not, you may face a huge hurdle if you later attempt change or remove any of those orders. Texas is one of the few states that lacks Legal Separation and Temporary Orders largely take the place of this.

The Temporary Orders Hearing

A Temporary Orders hearing can occur as quickly as 4 days after a  divorce or custody suit is filed.  Normally the hearings take place 2 to 4 weeks after the filing date. The hearing can last anywhere from 1 hour to 5 days, but most are 1 day or so. That means that if you were recently served with a notice of a hearing, you should consult an attorney quickly to give them time to prepare. Additionally, these hearings are like mini-trials. Many of the same rules of evidence and procedure apply, but there is much less preparation. Additionally, if your case involves children, you’ll likely need to attend mediation prior to the hearing.

This compressed schedule and the high stakes really puts a premium on the quality of your attorney. Surprises are common in Temporary Orders hearings, and much rarer at trial. This is because typically no discovery has been done yet at the time of your Temporary Orders hearing. Without discovery, oftentimes you have not been made aware of all of the evidence that will be used in trial.

A Temporary Orders hearing is like a mini-trial. There is a Judge (not a Jury as in a final trial) that hears evidence and makes rulings. Witnesses are called, anyone from the clients to friends/neighbors to teachers or mental health professionals. You will be thrown into a very difficult situation (being cross-examined by opposing counsel) in this hearing, so being prepared is really important.

It is also an option to agree to temporary orders. Sometimes parties are able to agree on temporary orders by working with each other and/or their attorneys. In other cases, parties are able to agree on temporary orders after attending mediation. Since the goal of the court is to encourage settlement, most courts will require that the parties attend mediation prior to allowing the parties to have a hearing. Nonetheless, if the parties agree on temporary orders, the parties will sign the Temporary Orders and the Judge will review the orders and sign the temporary orders. Additionally, if you would like to keep costs down, avoiding a hearing may be an option worth considering.

Remember that your Temporary Orders usually become permanent. Beware of making a short term agreement that is unfavorable. You may never get out of it. You are better off putting your foot down and getting fair Temporary Orders.

Step 3: Discovery

Discovery is the organized system in the Texas Rules of Civil Procedure for the exchange of information in a lawsuit. The purpose is to give everyone access to the same information, so that the case can settle with every party being fully aware of the extent of their estate. It is meant to create some transparency between the parties so that if they do in fact settle, each party can be sure that they have had all of the necessary material information to be able to settle in confidence.

Despite what you see on TV and in the movies, cases with good lawyers who have conducted adequate discovery, rarely have any surprises once they get to the final trial. It is pretty rare that there will be a surprise witness or evidence introduced for the first time at trial. There must be some extenuating circumstances such as the evidence had just come into that party's possession and the party had no  prior knowledge that such evidence existed before then. Even then, the judge will weigh the evidence's probative value against the prejudicial effect that it will have on the surprised party and decide whether or not such evidence can be used in court.

Cases can be won or lost in the Discovery phase of a case. Failure to conduct appropriate discovery can result in a surprise at trial that be fatal to your case. If the other side has a recording of you threatening your ex-spouse, trust me, you will want to know about it. Additionally, failure to obey the rules of Discovery can result in serious sanctions from the Court that can cripple or even destroy your case.

How Much Will Discovery Cost?

Details about the cost of Discovery can get to be expensive. In fact, it can cost many thousands of dollars to do proper discovery, and many people have given up on their cases so that they don't have to pay the cost of discovery. This is commonly referred to as "spending your opponent into submission" and more cases have probably been won this way than on merit alone.

Description Estimated Cost per Party

Deposition Transcripts & Court reporter : Approx. $500 to $2,000

Attorney Fees for Attendance : Typically 3 to 8 hours

Attorney Fees for Preparing to Take a Deposition : Typically 2 to 4 hours

Written Discovery $2,500 to $10,000
Litigation over Discovery $5,000+, if necessary

What is "Discoverable"?

Be prepared for a full and invasive exam of everything relevant in your life during your marriage or since the child's birth. There are plenty of things that could be relevant. Your bank statements, phone records, text messages, journals, title to your vehicles, copies of checks, social network accounts, even receipts for some of certain purchases could be relevant to the litigation. What is relevant will depend on the issues at hand and the accusations made by one, either, or both parties.

There really is not anything off-limits, except maybe a few private medical details (and most of those are fair game). This is largely true even in a non-divorce child custody matter. The other party may be entitled to get details and documentation regarding your :

  • Finances (tax returns, debts, business records, credit reports, bank statements, etc.);
  • Communication (emails, text messages, IM messages, phone records, social media accounts (i.e. Facebook posts), etc.));
  • Your Medical History (mental treatment & issues, substance abuse issues, anything that may impact custody of a child;
  • Sexual Behavior (Sexual Preferences, Unusual Practices, Affairs, Paramour(s));
  • Parenting Skills (anyone’s parenting skills that will be in physical possession or have access to a child; and even
  • Relationships (your family, friends, co-workers, neighbors, employers, etc.).

When considering the information that is discoverable, the list goes on. It can be pretty horrible: your grandmother may get deposed and the other lawyer may ask her some embarrassing or personal questions about you. Your work emails may be subpoenaed. Your next-door neighbor may be forced to testify about you in court. Your doctor may be forced to testify about your treatment for depression.

Moreover, modern technology has revolutionized Discovery. It is amazing what people will put in emails, texts and on their Facebook pages. People say things that they would have never said in the past, and it is recorded for all time (and the world to see). Think that you can erase it? You can be sure that the stupid email you sent 6 years ago can still be found. And that Facebook picture you took down after 24 hours - it is still out there...somewhere.

People do get away with lying and hiding things in Court, even with discovery being conducted. But, a good lawyer with a proper budget can usually minimize this. Even worse, if you are caught lying/hiding things during Discovery, the consequences are severe. Most people are better off just being open, and taking their lumps.

Step 4: Mediation

Mediation is assisted settlement negotiation. It is a process by which the parties attempt to settle some (or all) of the issues in the case without the necessity of intervention from the court. It is the most common method of settling more complex cases, although it can be used in all types of cases. It is now mandatory in most of the Texas Family Courts for parties to attend mediation prior to the court hearing a final trial.In many courts it is mandatory even before a court will decide on the merits of a Temporary Orders (Step 2) hearing, and is Step 4 in the 5 Steps of Every Case.

Where Does it Happen?

Mediation usually consists of the parties and their lawyers meeting in a neutral location with a Mediator. Sometimes one attorney or the other will host the Mediation at their office but the most common practice is to have mediation held at the mediator's office. Some mediators will also allow a party that is physically not present in the city or state at the time of mediation, attend the mediation via video conference or call. In cases such as these, the attorney still physically appears at the place for mediation and the party must get this approved from the mediator first.

Who is the Mediator?

The Mediator is also an attorney, or ex-judge who trained and certified to become a mediator. Normally the parties agree on a Mediator, but if they cannot agree, then the Court will appoint a mediator instead. In cases such as these, the Judge will attempt to pair the parties with a mediator with a high settlement rate.

How Much Does Mediation Cost?

Prices for each party in Mediation range from a $250 to $2,000. Typically, but not always, mediation is $500 for half of a day (4 hours). Prices depend on the length of mediation and the quality/credentials of the mediator. The quality varies greatly, and some Mediators are better than others for particular situations, types of clients, and can relate to certain parties. Some cases don't require great mediator skills because they are going to settle whether there is mediation or not. Other cases are impossible to settle without the intervention of the court. The great majority of cases will however settle under the right circumstances, and in these cases the quality of the mediator is essential.

What Happens on the Day of Mediation?

Mediations start with the parties in separate rooms, each party with their lawyers. Most of the time the parties never see or hear each other. Instead, the mediator acts as the mouth-piece relaying relevant information to the other party (and their attorney). The Mediator starts with the side that filed the suit (Petitioner) and gets to know their side of the story and gets a first offer from this side. The mediator will then float between rooms, exchanging offers and information to all of the parties.

The first set of offers are normally wildly apart and it‘ll look like the case will never settle. Then as the day wears on, the offers tend to be closer aligned with each other. Many mediations then reach a crisis moment, where one side says 'take it or leave it'. This is a key moment in the mediation. Usually it turns out that it is not really a 'take it or leave it' offer, but instead a signal that they are getting tired of giving up things that they want. A skilled Mediator knows how to tell the difference

How Do We Handle Mediation?

Our focus is on preparation for Mediation. Since most cases settle at Mediation, being prepared and effective at Mediation is often the single most important part of a case. We have the following guidelines for making Mediation work for my clients:

  • Choose the Best Mediator: I have an approved list of Mediators that I have experience with. This list is recorded and I select from the lost carefully and attempt to choose a mediator that will be best for that particular client.
  • Work Up the Case: The case needs to be prepared thoroughly in  Step 3 - Discovery, in order to be ready to Mediate it. All of the information relevant to the case needs to be collected: financial documents, witness interviews, documentary evidence, digital evidence, and more should be collected and exchanged. Then, the information needs to be organized in a way that is easy to understand.
  • Prepare the Client: Clients have no idea what to expect at Mediation and it is not fair to just have them show up without knowing what to expect. Prior to mediation, I try to meet with my clients in-person (at least a week before Mediation is scheduled). We talk about what to expect and what would be a fair settlement. Think of this as a planning session.
  • Fight Hard at Mediation: Everything is negotiable and just about anything is possible. If you get to a Trial, a Judge actually has far fewer options. I work with my clients to try to achieve a better outcome that they’d get if they’d gone to court instead.
  • Don't be Afraid of Trial (Step 5): Trial is the most difficult and stressful part of being a lawyer. Many lawyers shy away from it (although they won't admit that). I like being in the Courtroom, and often get better outcomes there than I would have at Mediation. You should be sure to hire an attorney that will thoroughly represent you and prepare for trial (jury or non-jury), if required.

Step 5: Trial

Trial happens when litigants cannot agree on the contested issues. Trial is a final hearing so that a Court can make those decisions. A settlement avoids Court, but may include terms that are unfair or unacceptable. Trial puts these decisions into the hands of a Judge or Jury.

Trials are the most difficult thing that lawyers do. Most lawyers in Texas spend their whole careers without being in trial. Many more face a few. It is really a select few who are experienced and excellent. The reason trial lawyering is so difficult is that there is no hiding mistakes. The stakes are high and it is immediately clear to everyone in the courtroom which lawyer is better. It is much easier to be the kind of lawyer that negotiates settlements, even if that is not in the best interests of your client.

Less than 10% of cases end up needing Final Trial to resolve them, because 90% of cases will settle before then. Trials are usually held in the cases with the most at stake - child custody and/or large amounts of money. Normally, rational people with good attorneys should be able to settle a case on their own. But, that is not always the case, and very frequently one party is not rational. Or one (or both) attorneys are not very good, or won't tell their clients what they don't want to hear. Or sometimes, there are issues that just cannot be settled, such as when one parent wants to move far away with the kids and the other outright objects.

Trials can be in front of a Judge or Jury. Jury trials are more expensive, and that can be a factor in choosing one. If one side is more able or willing to spend money on lawyers, they can ask for a Jury Trial in an attempt to wear out their opponent financially. This tactic can be quite successful whether that is fair or not.There is an enormous amount of theorizing about which is better. The answer is: it depends. See our Ultimate Guide to the Texas Jury Trial for more information. See why being a Board Certified attorney is such a distinction. Meet our Team of excellent attorneys and staff.

Trials are also the most expensive Step in the 5 Steps. Trials are expensive because they require so much preparation and attention to detail. The simplest 1-day trial over limited issues cost the least. Multi-week Jury Trials over complex issues cost hundreds of thousands of dollars. Because of this cost, and uncertainty, most cases will settle at Mediation. You can estimate the cost of your case with our cost estimator.