Creative legal strategies to resolve complex family law issues.
Until recently, litigation was the only way for parties to obtain a divorce, and still is the most common method of dissolving a marriage. Spouses may be unable to agree on issues such as property division, child support, and custody. Immediate court intervention may be necessary regarding possession of the children. In some cases, alcohol or drug issues, severe mental health problems, or even disparities in bargaining power between the parties can make negotiated agreements impossible. A party who chooses the litigation process does not always intend that the case will go to trial; however, that choice does preserve litigation as an option.
About the Litigation Process
In any litigation matter, the attorneys for each side develop their positions and present them before a judge. Attorneys may present evidence through witnesses, the testimony of experts, and legal arguments. After reviewing the cases of each side, the judge then will make a ruling on the matter. A drawback to litigation is that once your attorney presents your case, the Judge has the ultimate decision over matters impacting your family. No attorney has a crystal ball that can predict the outcome of your case with absolute certainty.
Prior to the hearing in front of a judge, the attorneys from each side typically will engage in a formal “discovery” process, where they solicit relevant information from the other party, perform investigational work, and obtain information from various experts. The information each side obtains during the discovery process will be used to help support that party’s case.
When may litigation be necessary?
Under certain circumstances, a party may need immediate Court intervention to protect the family or assets. For instance, if family violence has occurred, immediate court intervention may be necessary to obtain a Protective Order. The litigation process may be desired when one spouse has control over all the community assets, and the other party has very little knowledge or access to the assets that were accumulated during the marriage and wants the ability to conduct formal discovery.
Litigation and Initial Temporary Orders
In a divorce context, Temporary Orders may be sought when the parties cannot agree on who will have primary custody of the children. Temporary Orders are very important in a family law matter due to the precedent that is set. Other issues that may be litigated at a Temporary Orders hearing include how much temporary support one spouse may receive from the other spouse or how the bills will be paid.
Mediation in a Family Law Matter
In Travis, Williamson, and Hays Counties, mediation is required before a judge will hear a final hearing in a divorce. During mediation, a trained third party mediator assists the parties, typically with the attorneys present, in resolving their case. The mediator acts as a facilitator of settlement discussions. Typically, each client and his/her attorney will be in a room separate from the other party. The mediator will present settlement proposals to each party and will go back and forth with proposals and counter-proposals during the day. In the majority of cases, a contested matter is usually settled through the mediation process. Mediators do not have any authority to decide issues in a case or to give legal advice.
When may a Final Hearing Become Necessary?
A final hearing may become necessary if the parties have been unable to resolve their issues through negotiations between the parties and attorneys and after mediation has occurred, but the parties failed to resolve their disputes. If a final hearing occurs, the parties will present their case to the judge and the judge will decide issues such as child custody, property division, child support, the terms for conservatorship of the children, and characterization of property as community property or separate property.
At the Law Office of Amy K. Gehm, L.L.C., Austin divorce attorney, we make every effort to resolve your case without a hearing – and minimize the financial and emotional costs of dissolving your marriage. We are committed to the highest standards of moral and ethical conduct in vigorously and effectively representing our client’s best interests. We bring an air of stability and calm to our clients in situations that are oftentimes emotionally unsettling and stressful. We are fully able to negotiate, mediate, and litigate in meeting our clients’ needs. When litigation is warranted, Amy Gehm’s experience, preparation, and dedication assure you have an effective advocate for your family.