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When you are married, you and your spouse accumulate debts together.  Most likely, those debts are either in one or both of your names.  From a divorce attorney’s perspective, it is always best if the debt is in your name or your spouse’s name and it is associated with an asset that you are receiving.  For instance, if you are awarded the car but there is still a note on the car—as long as the note is in your name alone, awarding you the car and the debt associated with it does not create an issue for your spouse.  But, if the debt is in both of your names then the other spouse either wants you to refinance OR sell the asset.  Reason being, if your spouse is ordered to pay a debt that is in both of your names but fails to do so then it affects your credit and the creditor can still come after you for repayment of that debt.

In some instances, people rely upon indemnification provisions within divorce decrees in order to protect them when a debt is in both parties’ names but only one spouse is ordered to pay the debt.  An indemnification provision looks like this:

“Each party represents and warrants that he or she has not incurred any outstanding debt, obligation, or other liability on which the other party is or may be liable, other than those described in this decree.  Each party agrees and IT IS ORDERED that if any claim, action, or proceeding is hereafter initiated seeking to hold the party not assuming a debt, an obligation, a liability, an act, or an omission of the other party liable for such debt, obligation, liability, act or omission of the other party, that other party will, at his or her sole expense, defend the party not assuming the debt, obligation, liability, act, or omission of the other party against any such claim or demand, whether or not well founded, and will indemnify the party not assuming the debt, obligation, liability, act, or omission of the other party and hold him or her harmless from all damages resulting from the claim or demand.

Damages, as used in this provision, includes any reasonable loss, cost, expense, penalty, and other damage, including without limitation attorney’s fees and other costs and expenses reasonably and necessarily incurred in enforcing this indemnity.

IT IS ORDERED that the indemnifying party will reimburse the indemnified party, on demand, for any payment made by the indemnified party at any time after the entry of the divorce decree to satisfy any judgment of any court of competent jurisdiction or in accordance with a bona fide compromise or settlement of claims, demands, or actions for any damages to which this indemnity relates.

The parties agree and IT IS ORDERED that each party will give the other party prompt written notice of any litigation threatened or instituted against either party that might constitute the basis of a claim for indemnity under this decree.”

When reading a provision like this, it does seem pretty solid.  The key thing to keep in mind is that it is an indemnification from liability, not damages.  The Tenth Court of Appeals addresses this issue in Jason Stubbs v. Julianne Stubbs.  In that case, the husband was awarded business entities and the liability associated with those entities in the divorce.  Shortly after the divorce, the wife was sued by a credit card company for credit given to one of the business entities.  The wife had to hire a debt defense attorney and incurred attorney’s fees as a result.  The wife then sued the husband to enforce the indemnification provision in their divorce decree (identical to the one above). The trial court granted the wife her attorney’s fees that she incurred in the debt defense suit and for the installment payments that the husband failed to pay for the credit card.  The husband appealed.

The Court of Appeals noted that a claim under an indemnification provision is associated with the liability and the liability for the party seeking damages has to be “fixed and certain” before the indemnification provision arises.  Therefore, the Court of Appeals upheld the trial court’s decision because they stated that the language within the decree stated that the husband would hold the wife harmless for any claim that arose and would indemnify her from all damages that arose from said claim.  In this instance, the wife’s damages were fixed because of the attorney’s fees she had to pay in defending against the debt collection suit.

This gives hope to many people who have been affected by their spouses failing to pay a debt.  There are two obstacles though—the key seems to be that you do have to defend yourself in a debt suit and accrue “fixed damages” before you can sue your spouse under the indemnification provision; the second key is that what you will get from the suit is a judgment.  You have a right to enforce that judgment, but you incur more attorneys’ fees to do so and you incur more attorneys’ fees to sue them.  So, if you know that your spouse has the money to cover all of those damages then you should sue them. If anything, you have a judgment to hang over their head and for a significant amount of money it is worth it.  These are the types of cases that you have to weigh your pros and cons.  If you would like to discuss this further, call today to schedule a consultation.

 

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I have answered this question time and time again for people and the answer is always the same—nothing good would come of you representing yourself.  While law school does not prepare us for everything the legal world has to throw our way, it definitely prepares us to analyze legal issues on your behalf.  There are numerous examples out there in the appellate cases as to why you should never represent yourself.  But, most people try to rationalize and say that it is not a big deal and that they will ultimately be okay.   My thought process is if you can pay an attorney to even review the documents you are about to sign that is always better than just outright signing something.  Reason being, when it turns out to be something that you did not ultimately want the likely result will be that you will just have to get over it.

The most recent example of why you should never go this alone is out of a bill of review from the 422nd Judicial District Court of Kaufman County.  The case is entitled Laurie Faye Walker v. Brad Vincent Walker and in that case the wife filed a bill of review in the 422nd Judicial District Court, the same court that signed off on her decree, asking the Court to basically review and reconsider her divorce.  The Court denied her bill of review and the wife subsequently filed an appeal.  The Fifth District Court of Appeals upheld the 422nd Court’s denial of the bill of review for numerous reasons.  A bill of review carries a high burden and you have to exhaust all other remedies before filing it.  Thus, the bill of review has to be your last resort that you seek when you do not have any other remedy and the Court of Appeals found that the wife did have a remedy when she was mailed the decree within a week of it being filed.  At that point, she could have filed an appeal but she did not.  She waited four years later and filed a bill of review.  Also, she stated that she signed the decree out of duress but the Court clearly found that she could not be believed when she was in a different state and her husband was not even around her when she signed.  Finally, she claimed that she did not have notice of the final hearing but the Court found that she had signed off on all of the documents and she did have hearing that those documents were approved by the trial court within a week of being filed.  Therefore, the Court held that this was sufficient notice and based on all of these reasons agreed with the trial court.

Do not let this happen to you—hire an attorney to assist you in your divorce.  You always want to hire someone (no matter what stage you are at in your divorce) as opposed to not hiring and then facing the consequences of representing yourself.

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Many parents worry about paying for the children’s medical expenses after divorce. If you have a final decree or custody order there should be provisions that detail how the children’s medical expenses will be split among the parents. Typically, one parent is ordered to maintain or obtain health insurance coverage for the children, the other parent might be ordered to pay all or half of the premium (depending upon the custody and visitation arrangement) and then the parties are ordered to pay 50/50 of the unreimbursed or uninsured medical expenses. Most likely, the parent who receives the bill of the medical expenses is ordered to send the actual bill to the other parent within 30 days of receiving the bill. Then, that parent has 30 days from receipt to reimburse the paying parent for their 50% of the expense. The problem arises in that most parties either do not realize or do not comply with the time limitations in the orders. So, what does that mean? If you have received a medical bill and failed to send it to the other parent within 30 days, does that mean that you have to count your losses on the medical expenses?

The Dallas Fifth District Court of Appeals answered this issue recently on an appeal from a Collin County case in In the Interest of I.O.K., J.C.K., and M.O.K., Children. In that case, the parties were divorced and subsequent to that, the mother filed an enforcement seeking reimbursement of medical expenses on the children’s psychology bills. The father failed to pay. The parties’ agreed decree stated, in part, that the party receiving the medical bill must send “all forms, including explanation of benefits (EOB), receipts, bills, and statements reflecting the uninsured portion of the health-care expenses within 30 days after” the party receives them. The father argued that mother never did this and so he should not have to pay. This is despite the fact that he knew the children were attending sessions with the psychologist and had received the bills in the discovery that the parties completed. The father was even receiving the bills from the insurance company with the EOBs. However, at the final hearing the mother admitted that she never sent the bills directly to father within 30 days of receiving them.

Based upon these facts and the reviewed testimony, the Court of Appeals agreed with father that his obligation to reimburse mother his portion of the unreimbursed medical expenses does not arise until mother complies with the terms of the decree and sends the bills to father within 30 days of receiving them. Mother even admitted this in her testimony. Therefore, the Court of Appeals held that you cannot hold the father responsible for the unreimbursed medical expenses when mother did not comply with her obligation under the decree. Therefore, they reversed the trial court’s ruling and ordered that mother take nothing.

The moral of the story? Always, always read your orders and ensure that you know exactly what is expected of you. You cannot point the finger at the other party for violating the orders if you yourself have not complied. You must send the medical bills in compliance with your orders and only then, if the party fails to do their part, can you proceed forward in an enforcement suit for those unreimbursed medical expenses. If you feel as if you are owed medical expenses and you have complied with the orders, then you need to meet with an attorney regarding filing an enforcement action. Schedule a consult with Guest & Gray today.

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The most common adoption that we encounter is that of a stepparent.  In many cases, the stepparent has substituted for years as the child’s biological parent that has been absent from their life.  That is, the stepparent cares for the child, provides for the child, consoles the child, and does anything that a “normal” parent would do for their child.  Thus, it is understandable when so many couples come into our office and want to make it official.

To begin this type of proceeding, the parent who is married to the stepparent would petition the court for the termination and adoption and the stepparent would join in that petition.  The child must have lived with the parties for at least 6 months before you can file.  You must have the biological parent whom you are seeking termination on served.  In many cases, the biological parent wants to voluntarily relinquish their rights.  If this is the case, they would sign an affidavit voluntarily relinquishing their rights and consenting to the stepparent adopting the child.  The affidavit would be filed with the court and then the case would basically proceed without that party.  This is, as you can imagine, the easiest way to accomplish the stepparent adoption.

If the other side is not in agreement, then you must seek an involuntary termination which can be very difficult.  The grounds for an involuntary termination are contained in Texas Family Code Chapter 161 and this is a complete list.  Meaning, if it is not on the list, then it is not grounds for involuntary termination.  So, if you have an order and the other parent is not exercising their ordered visitation or not paying child support as ordered, most likely this will not be enough.  While these are arguably contained in the list, you still have a court order that you could enforce rather than say, “Okay, they are not doing what they should and so their chance is over.”  In fact, many courts would wonder why you would not seek enforcement rather than a termination.  Most courts if presented with this type of situation would give the other parent a chance to have involvement in the child’s life.  Also, as in all family law cases, even if the parent has done one or more of the things on the list, it must still be in the best interest of the child that the court terminates that parent’s rights to the child.

Despite voluntary or involuntary relinquishment, there are additional requirements in these types of cases.  For instance, the Court will appoint an attorney ad litem for the child to ensure that the termination and the adoption are in the best interest of the child.  As well, the Texas Family Code requires that a preadoptive social study be completed.  A court appointed social worker will come into the home of the petitioning couple and will investigate the couple’s background, living arrangements, as well as interview the child.  If the parent on whom you are seeking a termination contests the case, the social worker will also investigate that parent and their home.  Once completed, the social worker will report back to the Court in writing on whether he or she feels that this adoption would be in the best interest of the child.  Also, the stepparent will have to complete the criminal history report—he or she will get a fingerprint card for the purposes of the adoption and will have to send to the Texas Department of Public Safety.  Texas Department of Public Safety will then directly send the criminal history report to the court in which the case is filed.

Contact your family law attorney at Guest & Gray, P.C. to discuss any additional questions you might have regarding your termination and adoption.

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As a general rule in Texas, all property that you acquire during marriage is community property.  There are some exceptions in which property can be deemed one spouse’s separate property.  These are pretty basic concepts but the issues arise when property is commingled or wasted by another spouse and how does a court compensate the other spouse for that?  For instance, most people may realize that if you buy a home prior to marriage then that home should be your separate property.  However, if there was still a mortgage on the home and your spouse contributed to the mortgage then the contributing spouse now has a reimbursement claim.  Also, reimbursement arises when one spouse “wastes” or spends money from a community property account.  For example, if the parties have a savings account and one spouse spends money from that account and cannot prove it is for necessary living expenses then the other spouse may be able to recover their portion of the funds.  Equitable reimbursement can be a tricky concept that family lawyers have to deal with because it is not as cut and dry as people think and sometimes, even though the law may seem clear.

The important thing is to know the law and understand whether or not you qualify for an equitable reimbursement claim.   If you are making a claim for reimbursement, then you bear the burden of proving that expenditures were made and that you have a right to be reimbursed for those expenditures.  So the two issues to focus on are (a) either funds of one estate were used to enhance another estate without receiving any benefit (separate property money used to pay off a debt that arose during that marriage; separate money used to put towards the purchase of a community asset) OR (b) the other spouse “wasted” the funds of the community estate.  The latter is proved by stating that the “wasting spouse” has committed constructive fraud—they spent your portion of the estate without your knowledge or consent.  This is not to be confused with actual fraud which requires malice intent.  If you prove this, then your spouse must defend themselves and prove that it was “fair” spending on such things as necessary living expenses.   The spouse defending themselves can always have a claim for an offset which is where they state that they are owed some deduction in the claimant spouse’s total reimbursement because they may have done some other form of reimbursement.  For example, you may have a claim for reimbursement of $50,000.00 but your spouse can claim an offset if they purchased something for you with a portion of those funds (i.e. a car or paid off some debt).

We have several cases involving claims of reimbursement in Kaufman County.  It is a normal occurrence in divorces, especially if people have separate property coming into the marriage or inherit something during the marriage.  If you feel that you are eligible in any way for an equitable reimbursement claim or have questions regarding property division in a divorce in general, please contact Guest & Gray and schedule a consultation.

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I frequently see parties involved in litigation who are furious at the other side for the things they have asked for in their paperwork. Most often this comes up in family law cases when children are involved and one side is asking the court to exclude one party from seeing the child or to severely limit access to the child in some other way like supervised possession. But it happens in more tame situations as well. A request for spousal maintenance or a reimbursement claim can set people off. It can also happen in non-family cases. In civil cases, people are often outraged at the amount of money the other party is claiming they are owed. A request for attorney’s fees in any type of case can be upsetting.

It’s the law’s fault.

The problem is that the law requires a party to a suit to list everything it wants in its pleadings filed with the court. To put it simply, if you don’t ask for it, you can’t get it. Rule 47 of the Texas Rules of Civil Procedure outlines what must be pled for in a civil suit, and section 102.008 of the Texas Family Code does the same for a family law suit. If you want something, or even if you think you might want something depending on information obtained during the lawsuit, you have to ask the court for it in the pleadings.

Asking for the moon.

Because of this requirement to put all claims for relief in your pleadings to the court, attorneys often just include anything they could possibly want. In addition to this being a legal requirement, it’s also just a negotiation tool. You can ask for the moon but know full well that you’ll settle for less than that. If you start out by asking for the baseline that you would settle for, it leaves you no room to negotiate.

Unfortunately, this practice of pleading for everything imaginable can cause animosity. Parties involved in litigation naturally assume the other party wants to take everything from them, and then the paperwork filed with the court often confirms that natural instinct. Though asking for the moon is a good negotiation tactic, it can negatively affect negotiation and the possibility of a settlement in this way.

Keep calm and call us.

If you have been served with a lawsuit, don’t jump to conclusions about the worst possible scenario. Keep in mind that an attorney drafted the paperwork you were served with, not the party suing you. The attorney representing the other party may have taken the facts given to them by their client, and applied them to the law by taking the opportunity to ask the court for any relief even remotely related to the facts of the case. That attorney is doing that a) because the law essentially requires them to do so, and b) to set the case up as favorably as possible for their client when the negotiation phase of litigation is reached.

If you have been served with a lawsuit, whether it makes you angry or not, give our family and civil attorneys at Guest & Gray a call at (972) 564-4644. We would be happy to meet with you for a free, initial consultation to review your paperwork and your case. We can often tell you what the motivations of the other party might be and the options available to you.

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If you have a current pending divorce or suit affecting the parent-child relationship then you most likely have temporary orders in place.  If not, in most family law cases you do want to ensure that you have temporary orders granted by the Court so that you know what you should and should not be doing while the case is pending.  That is, temporary orders set the status quo of your case and instruct the parties as to their rights and duties with respect to their children, property, debts, and other issues in the case.  For instance, you may have been granted exclusive use of the marital residence, your vehicle, and primary possession of the children.  These are all essential things to establish in a case without delay, unless you and the other party are working amicably towards a final resolution.

Enforcement of Violated Temporary Orders

Once the Court has granted the temporary orders, they are enforceable against both parties.  If any portion of those orders is violated by either party, there are options.   The other party may have been ordered to pay child support and they may not be doing that and you may need that support in order to survive.  Or, the other party may have been ordered to participate in counseling or drug testing and they not be doing so.  It might even be that the other party will not stay away from the property or give you the car you were awarded temporarily.  All of these issues are concerning and when you are not getting the results from the provisions the Court put into place it can be very frustrating.  But, you do have recourse.  Typically, you can file an enforcement action of temporary orders asking that the wrong be corrected and asking for attorney’s fees for having to go back to Court and ask the judge to tell someone to do what they were already ordered to do.  If it is a failure to pay child support, the violating party also faces possible jail time.  You will have to be able to prove that the temporary orders were put in place, prove the violations, and then the burden becomes the other party’s to state why they did all of those things.  Depending upon those reasons, the Court may be a little lenient upon the person.  It is always a hope that the Court would at least grant your attorney’s fees for your attorney’s time to draft the enforcement and have the hearing.

What Should You Do?

If you are in a situation where the other party has violated the temporary orders in any way, do not delay in consulting with an attorney regarding this issue.  You will want to address it as soon as possible to correct the issue at the outset.  It might be that you file your enforcement and then the other party realizes you are serious and they will either start doing what they are supposed to be doing, refrain from what they were not supposed to be doing, or pay what they were ordered to pay.  If that occurs, then you have saved a lot of money in just filing the enforcement and not having to proceed forward with the hearing.  However, this occurs in a very small number of cases and unfortunately you typically have to proceed forward with the hearing and have the judge sort out the issue.  Contact a family law attorney at Guest & Gray today to consult regarding your present circumstances.  Guest & Gray takes cases all over the Dallas/Fort Worth area and has offices in Forney and Rockwall.  We are here to help and look forward to representing you.

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You have been served with a Petition for Divorce or any family law petition by either a private process server or constable and you wonder what to do at this point.  You have never been through something like this before and you do not know when or if you even need to respond.  But, if you were served with anything you must file a response.  You cannot allow the case to proceed forward without your response because if you do, you will be setting yourself up for failure.   In not filing a response, the other party can secure what is called a “default judgment” against you.  If they do this, that means that the judge can entertain and sign any order that the other party presents to the court without further notice to you.  You definitely do not want this to happen in a family law case because unfortunately there will not be anything to reverse that awful one-sided order once it is entered because you had ample notice to participate once you were served.

So, to avoid that catastrophe it is important that you, at the very least, file what is called a “general denial” or what some people call an “answer.”  This puts the court on notice that you have received the petition (though they will also see that in the return of service filed after your service by the process server and constable) and that you are contesting the case.   Therefore, if any additional actions are taken in the case like a hearing or order presented to the court you will be entitled to notice before any of that can occur.

Deadline to Respond – 10 AM on the Monday after 20 Days

The important issue in this situation is your deadline to file an answer in a family law case.  That is correct, you not only have to get an answer on file but you also have to make sure it is timely.  Texas Rules of Civil Procedure Rule 99(b) and (c) state that you must “file a written answer to the plaintiff’s petition on or before 10:00 am   on the Monday next after the expiration of twenty days after the date of service thereof.”  So, that means that you look at the date you were served and then you county twenty days and if the twenty days expires in the middle of the week (for instance, on a Tuesday-Wednesday) then you have until the following Monday by 10:00 am to file your answer.   The good news is the citation that you are served with (attached to the petition) contains this information on it.  It will also state your date of service so that the Court also knows when to start counting from.

When you meet with your attorney, always take a copy of the petition and citation that you were served with so that they can review it and determine when your answer should be filed.  As discussed, you never want to miss that deadline.  Be sure to contact Guest & Gray if you are ever served in a family law matter to schedule a free consultation.  Our family law team is ready to help you.

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What is the law in Texas on marriage fraud?

The first step in determining whether or not you qualify for an annulment based upon fraud is to ensure that you fit within the parameters of the law on this issue.  Specifically, Texas Family Code Section 6.107 states that, “a trial court may grant an annulment of marriage to a party to the marriage if (1) the other party used fraud, duress, or force to induce the petitioner to enter into the marriage; and (2) the petitioner has not voluntarily cohabitated with the other party since learning of the fraud or being released from the duress or force.”  Therefore, if someone used fraud to get you to marry them and you stopped living with them after you learned of the fraud, you qualify so far.  The next question becomes, what constitutes as fraud?  Many Texas Appellate Courts have addressed this issue and have come up with a standard as follows, “Fraudulent inducement is established by proving that a false material representation was made that (1) was known to be false when it was made; (2) was intended to be acted upon; (3) was relied upon; and (4) caused injury.”  See Desta v. Anyaoha, 371 S.W.3d 596, 600 (Tex. App.—Dallas 2012, no pet.); Zhang v. Zhang, not reported.  Therefore, if your spouse says something to you prior to marriage that is false and you depend upon that false statement to marry them and then you find out and it has caused you injury in any way you might have a strong legal argument for an annulment.

What is an example?

Because this issue in the law can be quite confusing, it helps to review it in context.  In Zhang v. Zhang, the Dallas 5th District Court of Appeals had to determine whether or not the trial court was correct in granting an annulment based upon fraud.  In that particular case, the spouses had first dated and had a child together and then subsequently married.  Prior to marriage, the husband did not have his U.S. Citizenship and he told his soon-to-be bride that he loved her very much and wanted to be married to her.  Any woman would think that this is legitimate, especially since they already had a child together.  However, after they got married the husband then proceeded to tell his wife that he actually did not love her and had cheated on her prior to their marriage.  The wife did not live with the husband again after these statements were made by the husband.  The trial court heard all of the testimony and determined that the husband had made false statements prior to marriage, knowing that they were false statements at the time that they were made, and that if those statements had not been made then the wife would not have followed through with the marriage.  The trial court also determined that the husband had received a legal benefit (citizenship) by marrying the wife.  Therefore, the trial court annulled the marriage based upon fraud.  The Dallas Court of Appeals reviewed the evidence and determined that the trial court was correct in its ruling.

What should I do?

Often times I have consults with people who believe that they might be eligible for an annulment because they find out things about their spouse post-marriage that they did not otherwise know prior to marriage.  For example, you might learn after your marriage that your spouse has a criminal history.  Unfortunately, unless your spouse told you “I do not have a criminal history and you have nothing to worry about” and those statements caused you marry that person, you do not qualify.  Also, many people miss the whole “you cannot cohabitate after you find out” part about the law.  Therefore, if your spouse told you something prior to marriage and you married that person relying upon those statements and they turned out to be false it is important that you cease living with your spouse and consult with an attorney regarding your rights.  Contact Guest & Gray as we offer free family consultations and are ready and able to assist in your legal needs.

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One of the most common questions I receive in family law consults is “How long is a case like this going to take” and the answer that I have to give every client is that it just depends.   Unfortunately, this is the nature of family law cases in that the length of your case depends upon everyone’s calendars (yours, the other party’s, the attorneys’ and the court’s calendar), the facts, the issues, and the steps that may arise in your case.   This is one of highest concerns among my family law clients because they do not want to have their case drag on for months or even years.   I completely understand wanting the case to be finalized as quickly as possible, but it is just not something that is doable due to the circumstances that these fact-driven cases present.  Many people also do not realize there is not a way that we can speed up a case at all and if there is a way, it is very costly.  Therefore, once in the trenches, people typically opt to go with the flow so that they can hopefully achieve the results they are seeking to achieve.

One of the most prominent reasons that a case involving child custody can last long is because the Court or one of the parties requests a social study.  A social study is where a social worker investigates both parties, their respective homes and backgrounds, does reference checks, etc. in order to render an expert opinion for the court as which parent the child should primarily reside with and the visitation the other parent should receive.  I have had several cases where a social study took up to 9 months to complete.  Also, once a social study is completed and if new evidence arises after the social study is completed, a party can request a supplemental social study to be completed.

Even if you do not have a case involving child custody issues, in general, family law cases contain several steps that parties must complete before a case can be finalized.  Typically, you have an interim temporary orders hearing to set the status quo of the case and then other steps can be ordered at that time such as counseling, appraisal for property, drug tests, psychological examinations, mediations, pretrial conferences, depositions, etc.  Also, both parties will want to complete discovery in order to learn about each other’s cases and gather information/evidence as to the issues.  All of this can be very time consuming.  Also, and quite common, the other party may be doing everything within their power to drag out the case and it may all be within the limits to where sanctions cannot be requested.  We have had several instances of people just not wanting a divorce and so there are several temporary orders hearings scheduled and many different steps that must occur before a final trial can be scheduled.

Therefore, while it can be frustrating it is important to understand that you are not alone in this and many people experience a long process in their cases.  So, while it may seem as though your case should not be taking as long as it is understand that it is not typically the attorney’s fault.  At Guest & Gray, we work to ensure efficiency however sometimes some things cannot be avoided.  If you are facing a family law dilemma, contact our firm today to schedule your free consultation.