Dallas Divorce Lawyer Blog

What steps will my lawyer take to file for divorce, annulment, or to declare my marriage void?

First, the attorney will need to file a petition for divorce to the court. When filing a petition for divorce, the attorney will not have to be specific with the facts, unless the parties are seeking specific property rights. If children will be involved in the divorce, a SAPCR (suit affecting the parent-child relationship) must also be included. The attorney will make sure that all the relief that is sought is filed in this initial pleading. The pleading can be changed as the case goes on. In Texas, the petition will need to meet the fair notice requirement, requiring the party to provide a short statement to give fair notice of the party’s claims. This will give the other opposing party an idea of what the controversy will be about. If you are representing yourself you must sign the pleading, or if an attorney represents you the attorney will sign it.

Jurisdiction

When the judge signs your divorce decree you and your ex must abide by the terms of the decree from that moment. If you or your ex does not comply with the terms you can be held in Constructive Contempt. Constructive Contempt is a type of contempt that is used to enforce the court’s order making the party perform an act that he or she has failed to do. Contempt is either civil contempt or criminal contempt and the court can either impose a fine, imprisonment, or both in any case. For civil contempt, the court will try to persuade your ex to abide by the order, for criminal, the court is invoking punishment for an act your ex may have completed that offended the court.

Once your ex has failed to comply with the divorce decree or custody order, you and your lawyer will need to make sure and do several things before the court will seek compliance from your ex.

Plead a proper contempt

A trial court has plenary jurisdiction (complete control) over a case for 30 days after the judge signs the final judgment in a divorce decree. During those 30 days, one of the parties may file a motion for a new trial or a motion to modify, correct, or reform a judgment. That is, either party can file a motion to have the divorce re-tried before a court or if a party is not satisfied with the final judgment given by the court, then the party can file to have it changed. But, each party only has 30 days from when the judge signs the final divorce decree to do so. Rule 329b(c) requires that these motions be in writing and signed by the court for them to be enforceable. Parties cannot give their consent to allow the court to have more control than what it specified in the rule.

Take, for example, the Dallas Fifth District Court of Appeals Case, In the Interest of M.A.C. and M.T.C. Here a Final Decree of Divorce was rendered on August 28, 2013. The Mother filed motions for a new trial and a motion to modify, reform, and correct the judgment on September 6, 2013, well within the 30 days set out in the rule, but the record did not contain a written and signed order from the trial court on either motion. Because there was no written and signed order, both motions were overruled by law on November 11, 2013. But, the record in the case contained a “First Amended Decree of Divorce” signed on January 22, 2014. Thus, the father here filed a motion for a new trial January 27, 2014 were he argued that the trial court’s plenary power had already expired when the First Amended Decree was signed.

The two motions the mother filed were overruled by law November 11, 2013, seventy-five days after the final divorce decree was signed. When she filed the motions, the court retained control over the matter for 30 days after the law overruled the motions. Therefore, the court here had control over this case until December 11, 2013, one hundred and five days after the Final Divorce Decree judgment was signed. The First Amended Decree signed on January 22, 2014 was void because the court no longer had jurisdiction or plenary power over the matter.

Discovery Explained

In a nutshell, discovery is a procedure in which information is exchanged between two parties. This is a general description to be used for civil cases only (as opposed to criminal cases). The term “discovery” is very broad. It covers a wide variety of requests that one party makes to another in order to obtain information.

There are several reasons why providing one party with information regarding litigation is important, but under the American system, no other reason is more important than the concept of fairness and a fair trial. If one party withholds potentially powerful evidence or information from the other party, because that information is damning to their case, then that is not fair to other party, especially in a criminal setting, but almost as much in a civil trial. If a party has information helpful to their case withheld from them on the basis that the other party was in control of it and they knew it was harmful to their case, without discovery rules, the other party almost certainly would not be able to present their case fairly before a judge or jury.

The purpose of the discovery rules in Texas is to facilitate a cost-efficient transfer of information between opposing parties in a lawsuit. The rules seek to accomplish this goal by providing parties with notice of how discovery should be conducted, explaining what may be requested, and the proper form of how to request it.

 What is Discovery?

Discovery is the transfer of information from one party to another party or multiple other parties. It is an immensely important function in litigation because in all likelihood the information you need to win your case will come, at least in part, from the other side during discovery.

What is a Discovery Control Plan? 

Three levels of “Discovery Plans” are found under Texas Rules of Civil Procedure Rules 190.2-190.4. Each section has its own requirements for who falls under what level and how discovery will be organized and completed. In order to get a better understanding of what a “Discovery Control Plan” is, we will discuss three pertinent questions about them: (1) What are they?; (2) Why?, and; (3) How do they work?

What Are Discovery Control Plans?

Rule 11 agreements are terms that a party can agree on and have the same affect as a court order. So long as the agreement satisfies the requirements of Texas Civil Procedure 11, these agreements are enforceable.

Can I get out of a Rule 11 agreement that I entered into by mistake?

There are certain situations where these agreements can be considered void; one way to make the agreement void is by showing the agreement was made by mistake. In the Dallas 5th District Court of Appeals case, In the Interest of A.B. & D.Y, a mother wanted to void a Rule 11 agreement that she had made because she claimed the agreement was made by mistake. In this case, the court explained, “mutual mistake is an affirmative defense, that states when the parties to an agreement have contracted under a misconception or ignorance of a material fact, the agreement will be avoided.” When someone wants to void a Rule 11 agreement based on a mistake, it is up to that person to prove to the court that the agreement should be voided.

What if I don’t like how the court divided the property in my divorce? Can I appeal it?

 You can try and appeal the courts division of your property in a divorce settlement but the appeals court will have a certain standard that they will use when reviewing the trial court’s decision. The appellate court is going to review the court’s decision by using an abuse of discretion standard. What this means is that the appellate court will review the case and make sure there was sufficient evidence for the trial court to base its division of property on. Then, based on that evidence, the appellate court will decide if the trial court’s division was reasonable. If the trial court can show that its decision is based on meaningful and firm evidence, then the appellate court will not overrule the trial court’s division of property.

In my divorce, the court did not divide the property equally, is this fair?

When someone decides to become a lawyer he or she must go through a rigorous process before becoming certified to practice law. It is required that he or she complete law school, which can take anywhere from to three or four years, and pass an extensive exam. During the course of study, prospective lawyers will learn civil procedure, criminal procedure, evidence, legal writing, and various other courses that will prepare them to sufficiently represent a client in the courtroom. Years of preparation and thousands of hours are spent for a person to prepare to be able to adequately represent another person. With all the criteria that must be met for a lawyer to represent another person in court, it would be unreasonable to expect people, without adequate education, to be successful in representing themselves in a courtroom. But, some people try to represent themselves in the courtroom with no legal assistance. This is what the legal field refers to as “pro se”, the Latin phrase meaning “for oneself”. Unfortunately, in some cases, people do so to no avail and Mr. Lares, in his appeal to the Fourth Court of Appeals Court, Lares v. Flores, found out just how difficult the process can be.

Why did Lares’ attempt to represent himself fail?

When a decision is made on a case a person can attempt to appeal the decision by claiming the original court made an error. When making an appeal there are certain rules of procedure that must be sufficiently followed for the court to consider your appeal. Lares had several issues that he wanted to appeal from the trial court. He claimed the trial court erred by failing to provide him notice of the hearing, denying his motion for continuance, refusing to hold his ex wife, Flores, in contempt, and believing his ex wife’s testimony over his because he was incarcerated at the time. Lares needed to prepare an adequate brief of these issues that followed the Texas Rules of Appellate Procedure. Lawyers are trained to know these rules and expected to follow them when they are submitting a brief to the court. If the brief is not adequate, the court will wave the complaints made and the appeal will not be considered.

Usually, it is in the best interest of a child to live with their parent. This is not always the case though, and there are times that a court may need to terminate the rights of a parent. The court will terminate a parent-child relationship if it finds it to be in the best interest of the child and if the parent committed one or more of the statutory acts set out in Texas Family Code 161.001. Abuse and neglect will not always be the only reasons that a parent’s rights have been terminated. Instead, each case that is brought before the court will be determined on a fact based analysis considered by several factors.

How does the court determine the best interest of the child?

In 1976 the court came up with several factors that determine the best interest of the child in Holley v. Adams, and are now termed the Holley factors. These factors include 1) the desires of the child; 2) the emotional and physical needs of the child now and in the future; 3) the emotional and physical danger to the child now and in the future; 4) the parental abilities of the person seeking custody; 5) the programs available to assist the person seeking custody in promoting the best interest of the child; 6) plans for the child by the person seeking custody; 7) the stability of the home or proposed placement; 8) the acts or omissions of the parent that may indicate the parent-child relationship is not a proper one; and 9) any excuse for the acts or omissions of the parent. Not all of the factors listed above will apply to each case brought before the court. The court will use the factors on a case-by-case basis to decide if termination of the parent’s rights is in the child’s best interest.