Final Trials in Divorce and Child Custody: What to Expect
Final Trials in Divorce and Child Custody: A Mark L. Scroggins Video Podcast
In this Scroggins Law Group production, we take a closer look at final trials in divorce and child custody cases in Texas. Ideally, you and your Frisco divorce lawyer can settle your divorce and child custody issues outside of court and without going to a final trial. In fact, most of the important decisions about who is going to live where, with whom, and pay for what, are all determined at the beginning of the suit at a Temporary Orders Hearing. But when things change during the course of the suit, and when the evidence and reports about property and children’s issues bring more to light, a final trial becomes necessary.
In this video podcast program, Mark L. Scroggins, founder and principal attorney at Scroggins Law Group, walks us through the common issues that bring cases to final trials and what we can reasonably expect. In high-conflict and high-stakes divorce and child custody law in Texas, there can be many moving parts to a suit and this program provides a helpful overview of what one might anticipate.
Mark L. Scroggins is Board-Certified in Family Law in Texas by the Texas Board of Legal Specialization. He is the principal and founder of Scroggins Law Group, a team of experienced divorce and child custody lawyers with offices in Frisco, Dallas, and Plano, representing families in Dallas, Denton, and Collin Counties.
We hope you find this content helpful in learning more about final trials in divorce and child custody cases. If you need to learn your rights and options for divorce and child custody, please call Scroggins Law Group to schedule a consultation. Our main number for all our offices is (214) 469-3100.
What Can I Expect if I’m Going to Final Trial on a Divorce or Child Custody Matter?
Mark leads this program noting that only five to 10 percent of Texas divorce and child custody cases actually go to a final trial. While many people are prepared for trial, their best lawyers work diligently at settling contested issues when possible. That said, there are plenty of times in high-stakes divorce and custody cases where the parties are not able to reach an agreement.
Agreements through mediation and other out of court negotiation can be impossible when both parents present good arguments about why the children should live with them as the primary parent. Attorneys working on potential custody solutions may see if the parties can agree to compromise. One parent might want a 50/50 possession schedule but it might not really be viable.
Among all the issues that are contested, the parties are usually ordered to go to mediation and to try to settle, and there are times when you can reach an agreement on certain issues but not others. An example is in mediation you are able to resolve property issues but you cannot resolve parenting issues and who will have the children living with them as the primary parent, as Mark explains.
Bench Trial or Jury Trial, What Are My Options for Final Trials in Texas Divorce and Custody Cases?
In Texas, we are unique because we have jury trials. We have limited jury trials on certain issues. For example, you can have a jury trial on the characterization of property as separate from community property. In custody, a jury can make a decision about conservatorship and the rights and duties of each parent as conservators. For example, one of the conservators may be appointed as the parent with the right to determine where the child will live.
A jury trial or a bench trial are options in child custody trials and the manner and type and cost of bench and jury trials are very different. A two-day bench trial over the same issues may be a week-long trial when you have a jury.
Jury request and pay a fee if you are going to have a jury trial. If you have been having several hearings and things are not going your way and the judge does not seem to be on your side, you might want to take the option of requesting a jury trial.
Some courts give 50/50 possession schedules easily and others stick with the Standard Possession Schedules. And some courts are neutral with regard to gender when assigning one parent as the primary, and other courts rarely give fathers primary possession. You and your divorce lawyer can discuss strategy and decide the best course of action.
What Experts May be Called to Testify at a Final Trial?
What are the issues at the final trial? Was there a child custody evaluation that did not come out your way or the amicus attorney appointed on the case did not see things the way you wanted? Child custody, modifications, SAPCR, and all kinds of cases and issues can involve experts who may testify at a final trial. For example, the therapist for the child, psych evaluations of parties, of the kids, and many other mental health experts can be part of the final trial witness lineup.
Educational experts may also be involved when there is a dispute over what is best for the children in their pursuit to get into the best college. In the podcast, Mark talks about his own daughter getting into the University of Texas and how much more competitive it was compared to when he applied at her age. At the end of the day, there are certain school districts that better prepare kids for college. To get into the best schools, you may need an educational expert to testify as to where the child should be enrolled.
Mental health expert can testify as to the development of the children and how different options match up with the goals of the children. If one mental health expert is involved and writes a report, there can be issues with the report such as how current that report is at the point of the final trial. If the case is going to a final trial and the mental health expert’s report is stale, you might bring in another expert to counter or otherwise address those issues.
If you have psychological evaluations done, the narcissist diagnosis might come into play. The issues to review include the process through which the psychological evaluation and diagnosis come about.
Property issues can also be disputed at a final trial. For example, there may be a business owned by one or both of the parties and a business valuation expert might need to be used at a final trial. Issues of community and separate property and the co-mingling of the property may be present and a forensic accountant is needed to trace monies.
Disappearing text messages and emails can require a computer-forensic expert who takes images of devices and can testify as to data recovered and data missing and the timing of erasing. If someone destroys evidence in anticipation of litigation that is an issue.
Intellectual property asset valuations also require an expert. Oil and gas, commercial, multi-family, single-family, and rental properties may require expert valuations.
Mark reminds us that there is a cost-benefit analysis required when looking at the resources necessary to go to a final trial by judge or jury, with involved experts. Board-Certification is important because the level of experience required for that designation can assure you that your divorce lawyer is the best able to create an aggressive strategy to win.
What Happens After the Court Has Rendered its Final Decision?
The drafting of the final decree is usually done by the petitioner, or it can be drafted by the respondent if they are the party receiving more of what they sought in their original divorce or child custody lawsuit, especially when an amicus attorney was involved and finds more in favor of your opponent.
The court usually issues a memorandum of order with the court’s ruling as to the issues contested in the case and decided after the final trial. The attorney drafting the final decree follows the memorandum of order. The final decree can be extensive and require many pages of content to address all the legal rights and duties of the parents. If it occurs that the attorneys cannot agree on everything included in the draft of the final decree it may be necessary to ask the court to clarify its ruling on certain points and provisions.
Mark explains in the video podcast that it usually takes two weeks to draft the final decree, and the other attorney usually has another ten days to review the draft of the decree. Once there is an agreement on the final decree it can be motioned up to be entered into the court and made permanent.
There may be other additional closing documents that need to be drafted in order to accomplish some of the terms of the final decree. For example, you might need a Qualified Domestic Relations Order (QDRO) to split pension accounts. In another example, one of the parties might need to sign over deeds to properties and take other measures to affect the transfer of accounts and properties.