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  • Writer's pictureEric Beal

The Family Law Advantage

I got a call a couple of days ago. It was from an old client. I represented him years ago, and I’ve only talked to him a few times since.

It’s always great to hear from him because it causes me to have some great memories. The memories are caused by the fact that I had one of the most complete victories I’ve ever had in his case.

In Family Law – Divorce and Custody work – it’s often hard to have a clear winner and loser. In his case, though, we did.

It’s hard for me to be objective, once I’m in the case, because I will always fight for my client, but I think he was in the right. He was the one wronged, but more importantly, he was the one that needed to be in charge of his young son’s life. Fortunately, we won and won big on every issue.

To get what we got, though, we had to go to trial. The case did not settle.

Going down memory lane with the old client allowed me to reflect on how we got what we got. There is no question in my mind that we were fortunate in many ways. We tried the case in front of a great Judge.

Most importantly, we tried the case in front of a Judge that we were pretty sure was on our side before the final trial.

That’s the Family Law Advantage.

All law can be broken down into Civil Law or Criminal Law. Family Law is one type of civil law.

In most civil cases, you don’t get to have evidentiary hearings on issues that are basically the same issues that will be decided at the end of the matter in advance. In Family Law, you do.

That’s a huge advantage.

If you are in a car wreck, you don’t get to go to the Judge and say, “Please make the Defendant pay me some money to live on, while my case is pending.” There is no mechanism for that.

In Divorce cases, there is. You can go to the Court for Temporary Orders and ask the Judge to “pre-divide” the property (it’s not really called that) and make Temporary Support orders.

More importantly, in Custody matters, you can ask the Court to make orders regarding all aspects of custody months or possibly years before you get to the final trial.

Does “winning” in the Temporary Phase mean that you will win at the final trial? Absolutely not.

Seeing how your case plays out in the Temporary Phase can give you a huge advantage that you wouldn’t get without that aspect of Family Law.

You get to get a sense of how your Judge feels about your case before you get to your final trial.

But, keep in mind, that is not always the case. Three things can keep you from getting a preview of what could be the ultimate outcome.

1. If you settle your Temporary Orders issues

A settlement is often good. Nothing here should be taken as discouraging settlement if you can get what you want or even get within a reasonable settlement range. But, failure to have an evidentiary hearing on the issues in front of the Judge means you don’t get a sense of what the Judge thinks about your facts.

One way around this is to have another reason to go to Court. You could settle the Temporary Issues but go to Court on some Discovery matter or some other motion that would allow you to get the facts before the Judge in advance.

2. If you’re in a County with Associate Judges

Some Counties use Associate Judges, some don’t. Some do sometimes, but not all the time.

Additionally, there can be exceptions to the rules. The day you go to Court, you may find that your Associate Judge is out sick or at a conference or overbooked – it happens more than you think.

Years ago, I was in a court that typically used Associate Judges. But, the District Judge would hear any matter you wanted, if you just explained that no matter what the Associate did, it would be appealed to him anyway.

Nevertheless, if your Court has an Associate Judge, and you have a full-blown hearing in front of that Associate, you may or may not be able to get a feel for what the “Big Judge” will do on the day of the final trial.

3. If the final trial ends up being a Jury Trial

Now we’ve come full circle back to where we started. In the case in which I got such a complete victory, the writing was on the wall.

We had had so many evidentiary hearings in that case before the final trial, that we had a real good sense of how the Judge saw the issues.

The smart move for the other side, in that case, would have been to request a Jury Trial. But they didn’t.

Texas is one of the few – possibly the only – states in which certain family law issues can be brought in front of a Jury.

If you know a Judge does not agree with your position in a case, you need to consider a request for a Jury Trial. Yes, they are much more expensive, but it may be the only chance you have.

Understanding advantages is part of strategizing. And I genuinely believe that strategy is the most crucial thing in any complex, hotly contested case.

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