Divorce is not going to be easy and this will likely be the hardest time in your life. It is regarded as one of the most stressful things you can go through. Having an attorney who doesn’t understand what can happen or doesn’t know how to get ready for trial only makes it worse.
Divorce in essence is a three step process:
- File your petition;
- Make the other person aware of the suit; and
- Finalize in either trial or agreement.
In reality, divorces are never this simple and usually require a litany of motions and litigation. You must choose an attorney that you feel has the right strategy for you.
Every step of the divorce process has options and consequences that you should be aware of before deciding. The fact that you CAN file certain motions doesn’t always mean you should. The same way that certain laws while written plainly may seem straightforward have a very different view in the actual practice of law and in the Court or County in which you are being divorced.
Suit Affecting Parent Child Relationship (SAPCR)
Suits affecting the parent child relationship (SAPCRs) as they are legally known are more commonly known as custody suits. These come in two forms of SAPCRs:
- Original SAPCRs which are original suits for custody of children with parents that are not married and
- Modifications which are suits to change the current or ongoing ordered suits regarding custody and possession.
While the suits may seem similar, they have incredibly different burdens of proof and are governed by different parts of the Texas Family Code. It is important that you understand the different burden of proof that must be met in order to obtain the best result either through trial or negotiation.
The most common question that I get asked is “how do I win FULL custody?” First, there is no such thing as full custody unless you get another parent’s rights terminated. What most people mean when they say “full custody” is that they want to have primary custody over their children. This is a concept that is becoming less and less common as more counties and courts are granting equal possession schedules between parents. If you are designated as the parent with the exclusive right to designate the primary residence of the child then the most common schedule will be the Texas Family Code Standard Possession Order. It is a schedule that allows both parents significant time with the children and accommodates a typical “working parent.”
Local Rules in Travis County require mediation in most family law cases and several other counties have the same unwritten rule. Mediation is also completely binding upon the parties and anyone who tells you they think they can get you out of mediation is not telling you the truth. There are very limited methods to repudiate a mediated settlement agreement as follows:
- Fraud: Simply put, if it is a material misrepresentation by one of the two parties then the mediation can be subject to rescission or repudiation. Can is not definitive and the material has to affect the division in a drastic way. See Boyd v. Boyd, 67 S.W.3d 398 (Tex App. – Fort Worth 2002, no pet)
- Failure to Disclose: This also hold within it the idea of coercion or duress. It is that the agreement is subject to review for dishonest actions. See Boyd v. Boyd, 67 S.W.3d 398 (Tex App. – Fort Worth 2002, no pet)
- Duress: This includes coercion and is defined as, “the result of threats which render persons incapable of exercising their free agency and which destroy the power to withhold consent.” See Sudan v. Sudan, 199 S.W.3d 291 (Tex. 2006). Not only do you need the above but additionally you need proof that the, “compulsion must be actual and imminent.”, and not merely feigned or imagined. See Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006)
- Illegal/Void: You can’t mediate to do something illegal. No simpler way to understand that. You can’t include something that would otherwise be illegal in a mediated settlement agreement such as murder, destruction of evidence, criminal actions or the like. Easy example is when a couple tried to mediate the destruction of evidence in violation of wiretap laws. See In re Kasschau, 11 S.W.3d 305, 314 (Tex. App. – Houston 1999, orig. proceeding). The Court said that wasn’t very cool of them and set aside the entire mediated settlement agreement.
Mediation can be an extremely effective way for both parties to come in and resolve every issue in their case. Both parties need to come in ready to make concessions, because mediation only works when both parties understand that there is room for movement. To be able to make an educated decision at mediation, you need to weigh the possible outcomes at trial with the proposed settlement agreements you are receiving.
AS A MEDIATOR
I mediate in limited circumstances. I offer to mediate in person and via Zoom. I mediate in English, Spanish, and Russian, and translate relevant documents in the process of mediating, saving parties the cost of having to hire a translator. My rate for mediation is $300/hour, $1,200 for half a day (4 hours) and $2,400 for a full day (8 hours). This rate is split among the parties, meaning that each party would pay $600 for half day or $1,100 for a full day. Any hours past the 8-hour full day rate are billed at my hourly rate.