In this podcast episode, Brian Walters meets with our associate attorney, Priyanka Bins, to discuss the benefits and cost of being the first to file for a divorce in Texas. Furthermore, they discuss the scenarios they have experienced with clients regarding who should file first, when, and where, including some of the most frequently asked questions they receive on this topic. Brian and Priyanka also discuss the more complicated scenarios and what to do in those situations.
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Your hosts have earned a reputation as fierce and effective advocates inside and outside of the courtroom. Both partners are experienced trial attorneys who have been board certified in family law by the Texas Board of Legal Specialization.
Brian Walters:I am Brian Walters here, and today I’m joined by one of our associate attorneys from our Houston office, Priyanka Bins, to discuss a common question we get asked on the benefits and cost of being the first to file for a divorce for a family law case. Priyanka, welcome.
Priyanka Bins: Thank you.
Brian Walters: Thank you for joining us.
Priyanka Bins: Yeah, I’m happy to be here.
Brian Walters: And I appreciate it. I do a lot of our consults and this is a question I almost always get asked if litigation is imminent and I think some most decisions in life, there’s benefits and there’s cost, there’s upsides and downsides. I would say first that sometimes you have little or no choice, that maybe there’s a category of that where there’s not really much to think about, and then maybe we’ll get into some of these grayer areas. But those categories, to me, a couple that come to mind and please let me know if you’ve got some more, is that if somebody’s, for example, withholding a child from you, you’re married and your spouse is hiding out somewhere in Wyoming with your children, I mean, I don’t know what reasons there would be not to file, right? Someone has not given you a choice. Let’s say you had a hundred thousand dollars in your bank account and they took all of it and now you don’t have money to pay rent or your mortgage or groceries. I mean, again, it’s sort of a situation where you don’t have a lot of choice.
There are also some quirks in the law related to the jurisdiction, which is which court or which state or which county would handle cases depending on some timelines, most frequently with children, but also otherwise. For example, if you split up with your spouse, and again, let’s say they moved to Wyoming, but let’s say you know where they are and you guys have been kind of coexisting back and forth for five and a half months, the child being in Wyoming most of the time, when you hit the six-month mark, at that point, Wyoming can essentially take the case involving your child, where Texas would’ve if you filed before the six-month point.
So that’s, again, a time that you might be, even if you’re on relatively decent terms, that might be the case. Sort of similar situation with the choice of which county in Texas that would handle your divorce. That has to do with where you’re residing. There’s some other quirks. So talk to your lawyer that you’re consulting with about those things. So any others that come to your mind that you just kind of don’t have a choice really if you need to file or else there’s going to be some really bad consequences and there’s really very little upside to waiting. Anything come to mind on you or did I cover all those?
Priyanka Bins: Yeah, well, and I mean, I think in general just kind of bad blood in the house or in the relationship. Sometimes people just can’t wait and they’ve got to get out and I think that’s one reason to file first. But like you were saying, with interstate and inter county cases, you can add a lot to your bill if you don’t file in the county that’s convenient for you. So it’s definitely beneficial to consider those things before filing, especially if your spouse is not near where you are.
Brian Walters: And if you’re in another state or if the child’s in another state and the case may end up there and you’re going to have a conflict, now both of you are hiring two sets of lawyers in two states and that gets real expensive real quick. And there’s quirks in the law again where you could legitimately have the child part of the case in Wyoming and the divorce part of the case in Texas. And so even if you’ve eventually resolved where each one of those are going to be, you’re still going to have to go through it twice. So that’s not good.
And I think you kind of hit it on the other one, which is if there’s a threat of violence or something really bad in the house, or even just the children being around a really contentious situation. Sometimes you just really don’t have a choice. You need to get out and obviously get yourself safe first and your kids safe, but the next step is probably to file. But I think most of the people that we talk to are in less dramatic situations. Nobody’s moving out of state and there’s not the direct threat of violence, nobody’s run off with all the money or something like that. So do you want to give us a sense of what a category of reasons to file first, we’ll get into the reasons not to later, and maybe discuss that a bit.
Priyanka Bins:Yeah, so I think most of the time people want to file first because they want to present their case to the court first. And so I think if you know that you’re going to be in a situation where you will have to have a hearing and it’s not likely that you’re going to reach an agreement with your spouse, then it’s probably wise to get your petition on file, let the court know what the issues are, and then when you eventually have a hearing on temporary orders early on in the case, you’ll get to present your case and your facts first.
Now, that doesn’t always benefit people because sometimes a spouse will present all of their facts and then the other side gets to come in and kind of dismantle that. So it can be beneficial. It just depends on the situation. But I remember when I had just started out, e-filing was not really that common and so you would actually see lawyers rushing to the courthouse and trying to cut in front of each other to pull numbers so that they could get into the district clerk’s office and file first. And so it just depends on the facts of the case and what you’re trying to prove to the court, particularly early on in the case.
Brian Walters: Yeah, I agree, and this kind of goes back to a little bit of what we talked about earlier. But I once got a case in Texas where my client was instead of Arizona because we filed an hour earlier than the other side did. It was back in the non e-filing days and there was a tornado watch. And so I had to fax what we needed filed to a friend of mine who was near the courthouse in different county and they walked it across the street and filed it. And when we had a hearing two or three weeks later, that’s why we won is because we had filed it an hour earlier than they did in Arizona. So it can certainly make a difference.
And I think you’re right about going first. Judges are taught to listen to both sides, and by the way, both sides will get the same amount of time in court typically, listen to the end and all that. But there is something to be said for, especially if you have the facts to support it, going first, setting the narrative and putting the other side on the defensive. There is some value to that. I think if someone overstates a case and says, “Oh, Judge, we’re going to show you all these things, things, things,” and then they don’t really show them and then you come up at the end and you dismantle, like you said, there are arguments that probably is backfiring on the person who went first, but that’s just because they over promised and under delivered, and that’s not generally a good situation.
I guess technically one other thing is that Texas does keep track of your date of separation, which is not the same as the date you filed, but it often is, and it’s not a very important legal concept as it is in other states. It’s not as important I should say. But it is an issue. And so if you’re eager to get this, if you said, “Look, this relationship or marriage is over,” and you’re eager to get that over with and the sooner you file, the sooner that’s going to start.
And for example, in a divorce, you have to wait 60 days after you file, not after you’re separated, to get divorced. And so for example, if the two of you are in agreement, like, “Hey, we’re going to get divorced, we’ve worked it all out,” you still need to start that 60-day clock running. The only way to do it’s to actually file. And I think that’s probably a good example too because a lot of times those agreements are a little shaky and the quicker you can get them put into writing and formalized and finalized, less chance they are that someone changes their mind down the road a little bit.
Priyanka Bins: Well, and I think one of the biggest misconceptions about family litigation is that you’re going to get to court and have two or three days of temporary orders hearings and every witness you want to testify will come in and testify, and that’s just not how it works. And so you have to pack in as much as possible in a limited amount of time, often one or two hours tops. And so when you’re on the defensive and you’re spending time trying to disprove what the person who filed first is saying about you, you’re not getting a whole lot of time to prove your own side of the case. So that’s another benefit to getting in front of the judge before the other side.
Brian Walters:Yeah, it’s startling. I mean, not only do all 50 states have very different rules about divorce and particular in the way properties divided and alimony and those kind of things, but all 254 Texas counties have different rules about presenting things. It’s quite interesting. Collin County, which is a large county just north of Dallas and Plano and those places, gives you 20 minutes each to present your case on temporary orders. In other words, basically what the future of your children in custody is going to be decided in 20 minutes. That’s not much time because a lot of that 20 minutes is kind of tied up in stuff that isn’t that important, I think.
Versus Travis County, for example, that’s Austin. You can walk in and say, “I want three or four days for a temporary orders hearing,” and they’ll say, “All right, come on down.” It really does make a difference. But many more are closer to the Collin County world where it’s very limited in time, exactly as you said. And that of course can go to which county do you want it to be filed in, which can be a first file issue, so that we keep coming back to that if controlling where the case is can often be important.
I mean, I’ll stop and say before we get into the negatives, filing for divorce or a custody battle if you’re not married or modifying an underlying custody battle years after the original order was in place, those are very serious things and you should do them with caution. You shouldn’t rush into litigation. It’s very expensive, it’s uncertain. All the bad things people associate with our court system, there’s a lot of truth to those things and that’s a reason not to file first is that maybe a breathing space will either let you guys come to an agreement before someone files or maybe someone will think better of it.
That’s why we have this 60-day rule, for example, in Texas. Even if you file for divorce, you can’t get divorced three days later even if you both go down there and say, “We want to get divorced, we haven’t lived together in 20 years, we can’t stand each other.” They’re not going to grant your divorce because they want you to wait that 60 days to cool off, think about it. It’s a life-changing event and you should consider that. So related to that, are there timing issues with filing first that could also be advantages or issues to think about?
Priyanka Bins: Yeah, so I think once you file, there are certain timelines that get kicked into place. So after filing you’re going to have that person served, you’re going to have your spouse served. And at the time of service, they’re going to essentially receive your petition for divorce along with the citation, which is basically, it’s a legal document that gives them certain instructions, and those instructions include that they will have 20 days to respond. It’s actually the Monday at 10:00 AM following after 20 days of service.
And so once they file their answer, you’re really kind of kicked into high gear. You’re going to want to start thinking about mediation, if you are going to need a hearing. The court’s going to probably require it in most cases. There are a few courts in Texas that don’t. But for the most part, a lot of our courts like to weed out cases that will be able to settle in mediation. So that’ll be the first step. And then if mediation fails, which sometimes it does, then you go to court and you have your hearing. So you really, after you have your spouse served, you have that kind of 20-day timeframe or less. Sometimes people like to get their answer filed immediately. They hire a lawyer right away and things get started. So it just depends on your spouse and how quickly you can have them served. But essentially within a month you’re going to start to see things pick up.
Brian Walters: That sounds very accurate. So, now, there are obviously disadvantages, like we started off saying. There’s disadvantage to everything and we kind of out of order, just in general, starting litigation is a big decision that should be taken carefully and not rushed into. And again, unless you don’t have a choice where someone’s just acted on the other side and has given you no choice. So what are some disadvantages that come to mind besides those issues that we just talked about from filing first?
Priyanka Bins: So obviously cost is a concern for most people. And I think when you jump into things quickly, like you were saying, to starting litigation is something you should consider carefully, you should be prepared for it, particularly financially, but of course also emotionally. And so I always tell my clients, if you’re in a position where you can talk to your spouse and there’s no family violence, there’s no verbal, mental or physical abuse, then you might consider sitting them down and saying, “I’m considering filing for divorce and why don’t we talk about the ins and outs of that and cost.” All of the money that you have in your marriage most of the time is going to be considered community. Obviously there are people who have prenuptial agreements and other types of agreements, but for the most part, many of the people that we see don’t have those. And they’re in situations where they’re taking money from the same community pot.
So it might be wise to discuss that with your spouse. I’ve seen all too often people want to be really, really aggressive upfront and they want to file first and they want to have a hearing right away and they don’t want to mediate. And then a month in and they’ve spent so much energy on fighting and they’re exhausted that they just want to reach an agreement. And so you want to kind of think of this as a marathon, especially if there’s a custody fight in place or you’re fighting over a great deal of property. It’s going to be a little bit of a road ahead of you and you need to consider that.
Brian Walters: Yeah, I agree. It’s just not an easy thing. That’s what we do for a living. I mean, we do this upfront and personal every day and there’s just certainly times you just don’t have a choice or that litigation is the right choice rather than agreement. All of those things can be true, but it’s a serious undertaking for sure. So let’s answer a couple common questions that we get. So if I file first, am I more likely to win? And you kind of covered that a little bit about going first in court. You and I both think that’s an advantage in certain situations. So how would you answer that question? I mean, it’s more of a custody question in this case. You want to add a little bit to that if anything comes to mind.
Priyanka Bins: So whether or not you file first is never going to determine the outcome of the case. Every case is fact specific and got to remember that our judges are human and so they see things every day that may affect them one way or another. But for the most part, you really want to kind of inform your lawyer about everything that you can so that your lawyer knows every single fact that could benefit you. And when you get to court, you’re going to present whatever is most beneficial to you. And it just kind of depends on the facts of the case. But I would say a flat out filing first or second does not determine the outcome of your case. I certainly don’t think so. There are obviously other factors that can help, but that’s not a determinative factor.
Brian Walters: And then another question is, I think this is more confusion, is can both spouses file for divorce? I think what people are meaning is that when you file, can you file for both of you? And the answer is no. You just would file for yourself because it’s actually litigation and your opponent in the litigation is your spouse. And that doesn’t mean it has to be contested or difficult. It just means that either your spouse will have to file a response of their own. They usually file two things. A response called an answer that just says, “I’m here, I’ve been served. I don’t want anything to happen without my knowledge or consent.” Most of the time, 95% of the time, the other spouse also files a counter petition for divorce, which that is them saying, “Hey, my spouse wants a divorce. I’ve been served with the papers and I want one too. I agree. We both agree we should get divorced.”
A couple of percent, maybe 5% or less of folks, especially in divorces will say, “Look, I don’t want to be divorced yet and I’m not going to ask the court for a divorce.” And then about almost in all cases, by the end of the case they decide they do want to get divorced. But in Texas and every other state, it only takes one side, one spouse asking for a divorce for that to actually occur as long as they stick with it. There’s no way to stop a divorce just because you don’t want to be divorced. If your spouse is done with the marriage, then it’s going to be done. I think those are the big issues. Anything else that comes to mind on this topic?
Priyanka Bins: I would just say when you’re considering filing for divorce, it’s always good to speak with a lawyer. We have plenty of talented lawyers at Walters Gilbreath who can help you through the process and explain what those first few weeks look like because those are going to be the most pivotable. So it’s something to kind of consider before taking that step, because like Brian said, it’s a huge step and so you want to be prepared.
Brian Walters:Okay, well, great, and I think we’ll link in the show notes too. I think we have a specific podcast where you talk about yourself and how you ended up in law and all that other kind of stuff. Of course, on our website too, we have information about you and we’ll go from there. All right, well, that’s all we have for today. If you like what you’ve heard, do us a favor and leave a review. We appreciate all your feedback, especially since it helps us better the podcast. If you have any follow up questions to this episode or would like to talk to any of us directly about your situation, reach out to us at firstname.lastname@example.org, or just contact us directly through our website, which is waltersgilbreath.com. I’m Brian Walters here with Priyanka Bins, and thanks for listening.
For information about the topics covered in today’s episode and more, you can visit our website at waltersgilbreath.com. Thanks for tuning in to today’s episode of For Better, Worse, or Divorce, where we post new episodes every first and third Wednesday. Do you have a topic you want discussed or a question for our hosts? Email us at email@example.com. Thanks for listening. Until next time.