Divorce & Custody Cases: Process and Cost of a Family Law Case
Learn about the process of a typical family law case such as a divorce or child custody case.
In my ten years of practicing family law, I have found that it really helps for a client to have a really good understanding of the process of a family case. It IS a process, unfortunately. There is a lot of work involved in the ending of a marriage or in a dispute involving children. There are costs incurred along the way. The more people fight, the more expensive a case can be.
I am a "visual learner." If I can see something drawn out, I understand it better. So, over the years, I have prepared the below chart to help explain the process of a family case. In the article below, I discuss each of the steps and where they are likely to incur costs. I also discuss what can be done to minimize costs. Please note, however, that the chart and discusssion below is only general advice. Each particular case may be different, or involve different steps, depending on the issues in that case.
The basic process of a family case in Texas is as follows (click the image for a large version):
Step 1. Original Petition / Filing
This is the first step. It is where a lawsuit is filed. It is the step that gets the ball rolling. There will be time spent to draft the initial petition and to review the case for the particular issues present. There is also going to be a filing fee, which is usually separate from a legal fee, that is charged by the county clerk in order to open a new file. The cost of this fee can be $200.00 or more.
The person who files the petition is called the Petitioner. The other person, who will have to file a response, is called the Respondent.
Step 2. TRO (Temporary Restraining Order)
This step involves getting a temporary restraining order. That is an immediate order from the judge. It is issued without notice to the Respondent. It is not always needed, but it stops the parties from doing things like cutting up credit cards, opening credit cards, hiding the children, hiding or selling assets, etc.
Step 3. Service of Process
This step is a very important step. It involves giving the Respondent official notice of the proceedings. Service of Process can be done a few ways in Texas. It can be via personal service, where a neutral person (a "process server" or the sherriff or constable) delivers a copy of the papers to the Respondent. It can also be done via certified mail. Sometimes, a Respondent may avoid receiving the papers. If that is happening, you will definitely need to talk to a lawyer.
Step 4 & 5. The Answer and Counter-Petition
These steps, I have combined because they often happen at the same time. Once the Respondent is "served" with a copy of the papers, i.e., given official notice, they have until the Monday following 20 days to file a response (an answer) in Texas. Often, in that period, the Respondent will consult with a lawyer who will file both an (answer) as well as their own counter-petition. For example, if there is a fight over custody or property, the Respondent would want to file their own lawsuit seeking those things.
Step 6. Mediation
Mediation is required at least once during a family case. It is usually lasts a half day or a whole day, and it is a time when the parties (and their lawyers) are in one location and try to see what agreements (if any) they can come up with. A neutral person, called a "mediator" goes back and forth between the parties or helps facilitate discussion.
Mediation is usually required at least once in a lawsuit in Texas. Some courts in Houston, however, require the parties to go twice- before TEMPORARY orders, and before FINAL orders, so I have put 2 places into the diagram. Also, in terms of costs, mediation can be a great way to save money. There will be fees incurred for lawyer time, and the mediator will usually charge a flat fee for their time, but if the case settles at mediation, a client can save several thousands of dollars.
Step 7. Temporary Orders / Temporary Orders Hearing
This is a very big step in a family case. Temporary orders are just what they sound like: temporary orders that are entered before a final order. Temporary Orders are entered by the court immediately to address the needs of children and to protect property. Temporary orders set up things like visitation, child custody, child support, who gets the house, who gets the car, etc.
Temporary orders are very important. Sometimes, a couple is in agreement, and there is no need for a lengthy (expensive) temporary orders hearing. However, if there is a fight over custody or visitation and who should be able to stay in the house... then it is very important to try to win the fight on a temporary basis. It is much easier to argue, at final trial, that the Judge should keep what they did rather than change what they did.
If the parties are in agreement, the temporary orders should be much less expensive than if the parties are fighting. If there is a fight, then a temporary orders hearing can require a lot of work for a lawyer. It is usually a "mini-trial," and it will require evidence and witnesses.
Step 8. Discovery
Discovery is the period in a family case where the parties exchange information. For example, if a divorcing couple is trying to divide up a house, then each party might have an appraisal done on the house and give it to the other side. The parties may request to see each other's bank statements or credit card statements or tax returns or information relating to retirement accounts. They may also want to see the children's education or health records. Those sorts of things.
The Discovery Period begins after an answer is filed and it usually runs until 1 month before a final trial. It can be very important in some cases, but it is also where a lot of legal fees can be incurred. The bigger the estate, or the more that parties have to fight about, the more expensive this step can be. You should speak with a competent attorney about your specific case to give you an idea of how much the cost could be.
Step 9. Mediation
Mediation is discussed above. Sometimes, parties have to mediate twice. For example, if there is a custody dispute or fight over a house, then the parties might go to mediation to try to work out a temporary agreement to go into effect immediately. The parties may engage in some discovery, and once the information is exchanged, come back to try to discuss a final agreement.
Step 10. Final Hearing / Trial
The biggest step in a family case, like any case, is trial. In Texas, this is called a "final hearing" or "trial." It will be held before a judge. If the parties have come to an agreement- either on their own or via mediation, then the agreements would be put into a final order. It would be presented to the judge in court. If the parties have not come to an agreement, or if they do have anything that they are fighting about, then a trial is held. It is like any other case, and usually requires evidence and witnesses. It can be very expensive. If is important to talk with your attorney about proper preparation for trial and the costs associated with that.
Step 11. Entry
The last step in a family case is usually the entry of a final order. This is where the case is finalized and the official court files show the parties divorced or custody proceedings resolved.
If the parties have a "contested" final hearing, where the parties are fighting, then the Judge will listen to all of the evidence and witnesses and make a decision. The Judge will tell one of the lawyers to draft a final order reflecting the decisions, and the Judge will ask the parties to come back on another day to enter the final papers. If the parties have come to an agreement, then a final hearing may not be needed. Instead, an entry date will be scheduled by the court. Many courts in Houston, for example, allow the parties to come to court any day of the week, before normal court at 9AM, to enter agreed final orders and finalize a case.
I hope that this has been a helpful read and given some insight into the process of a family case. I encourage you to speak with a good lawyer to discuss the process that might be involved in your specific case and the potential costs. If you are in Houston or the surround areas, please call me at 713-862-8110 with further questions or comments!