A lawsuit has a predictable progression. Knowing this progression can help you know what to expect. A Family Lawsuit will generally include all or some of the following:
Filing a petition is the first step in a lawsuit. In a Family Law case, the person who files the petition is usually called the “Petitioner.” The person who is sued is the “Respondent.” The petition identifies the parties and children. The petition describes in legal terms what the filing party is requesting.
Some courts, such as Dallas, Denton, and Collin counties, require that a Standing Order be attached to the Petition. The Standing Orders try to maintain the status quo until there can be a temporary orders hearing. See sample Standing Orders below.
As part of the petition, the Petitioner may request a temporary restraining order (“TRO”). A request for a TRO usually states that there is a danger to a child or a risk of loss to property, and action needs to be taken before a hearing can be held. An affidavit is usually attached to the TRO, which explains the emergency. Because a TRO is granted ex parte (meaning without the Respondent having the chance to attend) the TRO will set a hearing within 14 days of the date the Judge signs the order, so that both sides can be presented. A TRO may be extended as needed.
Temporary orders hearings are a common part of a Family Law case. Once entered, a Temporary Order will last until there is another court order that changes it, or until the Court enters a final order. Like a TRO, the purpose of temporary orders is to preserve and protect the parties and children, the property and to keep the peace while the case is pending.
In a divorce, a Court may make temporary orders for temporary possession of the property and temporary payment of debts. If one party does not have sufficient control of the community assets for their minimum reasonable needs, the Court may award temporary spousal support. The Court may also order the sale of property, such as the parties’ house.
If the parties have children, the Court may also make orders for paternity testing and temporary orders for custody, child support, visitation, passport control, health insurance, domicile restriction, a custody evaluation, counseling, and/or the appointment of a parenting facilitator or coordinator. For more information about custody, please view the “Custody” page of this website.
In the period between filing the petition and the final trial, the parties frequently engage in discovery. The purpose of discovery is to exchange information and documents so the parties can more accurately assess their settlement positions and prepare for trial. The rules surrounding discovery are technical.
Paper discovery generally takes four forms:
- Requests for production, which are requests for documents. TRCP Rule 196.
- Interrogatory requests, which requests narrative responses. TRCP Rule 197.
- Requests for admissions, which request admit or deny responses. TRCP Rule 198.
- Mandatory initial disclosure responses which disclose witness information and general contentions and documents are automatically due thirty days after the Respondent Answers and pre-trial disclosures are automatically due thirty days before trial. See TRCP Rule 194.
The parties may take one another’s depositions and the depositions of third parties. See TRCP Rule 199. A deposition allows a party to schedule a time to question a witness under oath in the presence of a court reporter who, in turn, makes a transcript of the questions and answers. The sworn deposition transcript can then be used in the case and is not considered hearsay.
Mediation is a common tool ordered by Courts to settle cases. In mediation, a neutral mediator helps the parties and their attorneys resolve their case. The parties do not have to reach an agreement which settles the case, but if they do, they sign a mediated settlement agreement (“MSA”) and file it with the Court. The MSA will be turned into a final order, and that resolves the case. Most cases resolve by agreement in mediation or otherwise.
If the case is not resolved by agreement, it goes to trial, and a Judge or Jury decides your case. It can take a year or more for a case to get to trial. A trial in front of a Judge alone is called a bench trial. For a jury trial, you must pay a jury fee in advance. It usually costs more in attorney's fees to have a jury trial. This is because of the extra attorney work in selecting the jury, advising them of the law, and preparing jury questions on which the jury will render their verdict.