I tell all my clients that family law litigation has very uncertain results. Certainly, there are factors we consider, and I strive to make sure clients understand all the possible outcomes.
Texas Family Code & Case Law
The first consideration to my analysis is the law. The law in the State of Texas is comprised of statutes contained in the Family Code, which are voted upon and passed by our legislature in Texas. Those laws change somewhat with each legislative session. The second element to family law is contained in cases that have been tried to the trial court, in the county where your case would be presented, then have been appealed to either the appropriate Appellate Court, depending on your region of Texas, or to the Supreme Court of Texas. When those cases are presented to the Appellate Courts or the Supreme Court, the opinions of those Courts are published monthly for the guidance of family law practitioners in advising their clients of how their case is likely to be determined. This is what every client wants to know. “How will my case be decided if we go to Court?”
The answer to that question is not just about the statutes or the cases. Every client brings in set of facts that are very personal, very close to the heart and, likely when the facts occurred, no one thought they would be playing them out in a courtroom to a judge or a jury. The synthesis of these facts to the statutes and cases is how we attempt to predict the likelihood of “winning” or “losing” at trial.
Winning & Losing
I really hate that terminology – winning or losing. I tell every client that no one wins in family law litigation. The stress of it alone is very difficult to manage. Having to testify in front of a courtroom full of people about the most intimate relationship in your life – whether the topics are related to marriage and the division of assets, children’s issues, geographic restrictions, enforcement or termination of the rights of parents – all of the facts that comprise these cases are very personal. And even after practicing for over twenty years, I cannot tell a client I am certain of the outcome. It’s a risk analysis that we conduct in my office prior to even filing the first pleading.
Alternate Dispute Resolution
I try to help clients navigate the system of litigation – and hopefully achieve their goals without a trial. Several methods of alternate dispute resolution can be utilized such as informal negotiation, informal settlement conferences with attorneys, collaborative negotiation which includes mental health professionals, financial advisors, and mediation. In the event no agreement can be reached by these methods, a trial presented to a judge or jury is the only other mechanism for dispute resolution.
I tell my clients that personally I enjoy the trial.
I like the role of the attorney. I like organizing the evidence and presenting it in a way I think the judge or jury will understand. I like the direct and cross examination of witnesses. I like the “argument” or persuasive speech given to the judge or jury at the beginning and ending of the case. However, at the end of the day, I have the luxury of going back to my home and my family who are insulated from the stress of the testimony and the fallout of the verdict.
For clients however, the process of the trial is very different. It is their life, their children, their assets, and their future. The analysis of whether they are able to convince the judge or jury that their opinion on which assets they receive, whether there is fault in the break- up of the marriage, whether they have better parenting skills than the other parent, what amount of child support they should pay, or whether they should be able to move with the children to another state, shapes their immediate future.
The risk analysis in family law is very important. I do not want clients to be surprised by the judge’s verdict in their case so we discuss those possibilities at length and consider all possible outcomes. We discuss it during mediation as each “offer” is made. Should they accept the offer or go to trial? Should they accept the “bird in the hand” or risk the outcome in the courtroom? Should they invest the time and additional financial burden of taking the case to trial? Navigating the family law litigation map is not an easy one and should be well thought out before going to trial. After you enter the courtroom and begin evidence, the outcome is no longer in your hands…it is in the hands of a judge or a jury.