Ending a marriage is never an easy step, and when children are involved it's even more difficult. Many people find legal proceedings bewildering and intimidating. One of the biggest concerns divorcing parents often have is how to spare the children from having to go to court. A good family law attorney can really help by explaining the choices available to make the process as bearable as possible for everyone in the family.
Can a Family Law Attorney Help Settle a Child Custody Dispute Out of Court?
Generally speaking, Texas courts prefer and encourage parties to resolve as many issues as possible by agreement. In family law, courts prioritize the best interests of minor children. The good news is that divorcing parents have options under Texas law.
The Traditional Approach: Contested Litigation
This is what comes to mind when most people visualize divorce proceedings. Each of the divorcing spouses is represented by his or her own attorney. They go through an adversarial process in a courtroom in front of a judge, each offering documents and witness testimony as evidence.
What's Wrong With Going to Trial?
It's frequently contentious and unpleasant for all the parties, and for the witnesses too. Additionally, in a court case, almost everything becomes part of the public record. This includes documents, pleadings, and motions filed with the court as well as a record of all witness testimony and other court proceedings.
Besides being an unpleasant, confrontational experience in a public forum, a contested court case is also by far the most expensive path to divorce. Each spouse's lawyer and staff will have to put in more time and energy, which will result in higher attorney fees. Each attorney will also have to incur substantially greater expenses to make sure evidence is legally admissible. These expenses will also be billed to the client.
Why Does Anyone Go to Trial?
Sometimes a court trial is unavoidable. If the divorcing couple finds it impossible to agree on anything, then the whole family will have to do it all the hard way.
And often, in cases involving violence, abuse, criminal conduct, or incapacity, the court may have to take a more active role by appointing additional attorneys or other professionals to make sure a child's or children's interests are adequately protected. Absent such compelling circumstances, though, divorcing spouses can decide to spare themselves and their children the worst parts of such an ordeal.
Mediation is a form of alternative dispute resolution that is specifically authorized under Texas law. In mediation, the parties attend an informal, confidential settlement conference that is overseen by a specially-trained, neutral third party. The mediator works to understand everything about the parties' dispute and attempts to help the parties resolve as much as possible by voluntary agreement.
What Happens at a Mediation?
A mediator will usually begin the session by meeting with all parties at once and hearing each party's position. Following this opening session, the mediator may have each party relocate to a private room and then spend the rest of the day going from room to room and meeting privately with each side. The mediator will try to help each party understand the strengths and weaknesses in their respective cases and suggest ways they might reach an agreement.
Many mediations begin and end on the same day. If the parties resolve all disputes, the mediator will help them draft a settlement agreement, and all parties will sign it before leaving. If the parties reach an agreement on some, but not all, of the disputed issues, the mediator will draft the paperwork accordingly. If the mediator determines the parties are unlikely to make any progress, he or she will end the session.
Why Is Mediation Better Than a Court Trial?
A mediator has no power to decide any disputes or impose any agreements on the parties against their will. By law, the mediator must keep everything about the session confidential and cannot be called as a witness by any party. Each side can have his or her attorney participate in the mediation, but it's not required.
Courts favor mediations, and they routinely order litigants to attend a mediation session before they will schedule a case for a trial date. Parties can go to mediation at any point, though, even before anyone files for divorce.
Collaborative Family Law
Collaborative family law is a more recent innovation. It's quickly become a popular choice for divorcing couples.
What Is Collaborative Family Law?
Like mediation, the collaborative family law process takes place in a private office rather than in a public courtroom. What's different is that each party is represented by an attorney who has had specialized training in the collaborative process, and the attorneys conduct the proceedings instead of a mediator.
Many family law attorneys in Houston TX and elsewhere are trained collaborative divorce lawyers, so they're not too hard to find.
Why Is Collaborative Family Law Better Than a Court Trial?
Like mediation, collaborative family law is more constructive and solution-oriented than a traditional adversarial courtroom trial. Collaborative divorce lawyers don't spend time and money trying to find ways to make the other spouse look bad or cast doubt on their claims. Instead, they focus on finding creative ways to help each side get what's most important to them. The process is centered around solving problems in a threat-free environment.
Collaborative divorce is much less expensive than traditional litigation. And the parties keep control over their and their children's lives rather than leaving it up to a judge, who may impose a decision that nobody likes.
In most cases, tempers are running pretty hot when spouses first begin a divorce. People at such a distraught point in their lives often react with hostility, and their thoughts may turn to ways to tear the other down. This is precisely when they, and their children, have the most to gain from finding a less destructive way to conclude their marriage. Finding ways to settle child custody out of court is cheaper, less traumatic, and almost always better for everyone than living through a bitter courtroom trial.