Divorce / Custody: Explaining the Process (And Costs!) of a Family Law Case in Texas
My name is Anne E. Kennedy. I have been practicing law for 10 years, and I handle many divorce and custody cases in and around Houston, Texas.
I give my clients high-quality, aggressive representation. But I also work with each client to try to keep the costs low. I have found that it really helps for a client to have a really good understanding of the process of a family case. Unfortunately, a family case IS a process. There is a lot of work involved in the ending of a marriage or in a dispute over children.
Legal fees and costs are incurred along the way. The more people fight, the more expensive a case can be. 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:
Step 1. Original Petition / Filing.
This is the first step, when a lawsuit is filed. It is the step that gets the ball rolling. The person who files the petition is called the Petitioner. The other person, who will have to file a response, is called the Respondent.
In terms of fees / costs, a lawyer will spend at least a few hours 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 varies with the type of case and jurisdiction. It can be $200.00 or more.
Step 2. TRO (Temporary Restraining Order).
The next step in the process is getting a temporary restraining order (TRO). It is an immediate order from the Judge, issued without notice to the Respondent. It is good for 14 days and can be extended for another 14 days.
A TRO is not always needed. I will usually save my clients the cost of getting one if the parties are not fighting bitterly. But if the Respondent is doing things like cutting up credit cards, opening credit cards, hiding the children, hiding or selling assets, dropping someone from health insurance, etc., then it is needed and a client should be aware of additional legal fees being incurred for it.
Step 3. Service of Process.
This step is a VERY important step. Service of Process means giving the Respondent official notice of the proceedings. It 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 in person. It can also be done via certified mail.
Sometimes, a Respondent may intentionally avoid receiving the papers or refuse to accept service. If that is happening, you will definitely need to talk to a lawyer.
Steps 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, the Respondent has until the Monday following 20 days to file a response in Texas. The response is called the Answer.
Often, in that 20 day period, the Respondent will consult with a lawyer of their own, who will file an Answer (answering the Petition) and also file a Counter-Petition. A Counter-Petition is an independent lawsuit filed by the Respondent. It is not necessary, but if there is a fight over custody or property, then the Respondent would want to file their own lawsuit setting forth what they want on those issues.
Step 6. Mediation.
Mediation is required at least once during a family case. It usually lasts a half day or a whole day, and it is a time when the parties (and their lawyers) get together in one location and try to see what agreements. if any, that they can come up with. A neutral person, called a "mediator" goes back and forth between the parties to help facilitate discussion and see if an agreement can be made on any issue or resolving the entire case.
Mediation is usually much less expensive than having a trial. It 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.
It also does get the parties talking to each other in some way. In family cases, communications can break down, but if there are children involved, the parties will still have to speak to each other and work together raising their children after the divorce.
For these reasons, mediation is usually ordered by the Judge at least once in a lawsuit in Texas. Some courts in Houston even require the parties to go twice- once before TEMPORARY orders, and another time before FINAL orders.
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 can be a place where the costs in a family case vary. 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 a house... 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 just make permanent what the judge ordered on a temporary basis rather than things.
In terms of costs, temporary orders can be expensive. If the parties are in agreement, the temporary orders should be much less expensive than if the parties are fighting. In that case, there would only be a few hours for mediation and drafting the orders. If, however, there is a fight, then the parties will have a hearing before the Judge. 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, resulting in several hours of legal work and fees.
Step 8. Discovery.
Discovery is the period in a family case where the parties exchange information. For example, if a divorcing couple owns a house, then each party might have an appraisal done on the house and give it to the other side in order to decide whether to sell the house or whether one or the other spouse wants it. In making a property division, 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.
Discovery can be very, very expensive, resulting in thousands of dollars. One way to minimize costs is to try to come to an agreement and save time on discovery. Nevertheless, 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 to do in many cases, but it is also where a lot of legal fees can be incurred and a client should be aware of that. A good general rule is: the bigger the estate, or the more that parties have to fight about, the more expensive discovery will be. You should speak with a competent attorney about your specific case to give you an idea of how much the cost could be if discovery is necessary.
Step 9. 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" in a family case. It will be held before the Judge on a date assigned by the Court.
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, and the matter finalized that day.
If the parties have not come to an agreement, or if they are fighting about matters, then a trial is held. The trial is like any other case. It requires evidence and witnesses. It can be very expensive. It can take several hours, even days, of lawyer time. If is important to talk with your attorney about proper preparation for trial and the costs associated with that.
Step 10. 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, meaning that they are fighting, then the Judge will listen to all of the evidence and witnesses and make a decision at the final hearing. The Judge will usually tell one of the lawyers to draft a final order reflecting the Judge's decisions, and the Judge will ask the parties to come back on another day to enter the final papers. The day they come back and finalize things is known as an "entry" hearing.
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 this guide has been helpful to you about the process. Please keep in mind that it is an overview and that you should talk to your attorney to get information specifically about your case.