Timing Your Case – When Should I file?
Updated: Dec 5, 2021
The question often comes up, “When should I file my case so that my kids can start school in their new school?” Or, “If I start my Divorce now, will it be done by the end of this school year?”
The question is really, “How do I know when to file my case in order for it to be over by the time I want it over with?”
In a sense, that’s a really easy question, but the answer is not very satisfying.
You don’t. And more importantly, you can’t.
I’ve been a lawyer now for over 31 years. I’ve practiced in virtually every type of court in the State of Texas. Additionally, I’ve read more cases than I could possibly go back and figure out and have been around at least hundreds, if not thousands, more.
Other than certain types of cases with strict deadlines – like Mental Health Commitment hearings – there is no way of knowing how long a case will take from initiation to conclusion.
I have had a contested custody case take as little as a month to get from filing to conclusion – including the trial. I have had other family law cases that last years. How many years? I’m not sure of the longest I’ve been a part of, but I can recall for sure helping get one to a conclusion that had been on file for over four years before I was hired as the next attorney – the client had already had at least two others.
So, what things do we know for certain with respect to timing a case? Here are a few things that we think we know, but keep in mind that sometimes things happen that the rules say can’t happen.
1. Minimum Length of a Divorce.
By Texas law, a divorce must be on file for at least 60 days from filing to conclusion, unless one side or the other alleges that family violence has occurred and the Court grants the divorce earlier.
But, keep in mind that most of the time the only way to have a 60 day divorce is if the case settles. If the case does not settle, then it is going to trial. And although I referenced above a case that went to trial within the first month, that was partially because everyone agreed to it.
Why must a trial almost certainly take more than sixty days to reach? See the next rule.
2. Trial Setting.
Both parties are entitled to at least 45 days’ notice of the first trial setting. Since it generally takes more than 15 days to receive an answer to a suit, when you add those two time limits up, you get more than sixty days.
In larger Counties or busier courts, though, the main reason that it takes more than 60 days to get to trial is that the Court’s docket (schedule) is so busy that they don’t have time for you until much further in the future than that.
I’ve been in courts that cannot get a first setting scheduled for well over a year, and I’ve been in others that say, “Go see the Court Coordinator. You’ll be settled or in trial in 90 days” – keep in mind that that was decades ago, and that County has grown tremendously since then.
3. Answer Day.
The main reason that it generally takes longer than 15 days to get an answer to a suit is because that’s how long the Respondent has to answer.
In Texas, an Answer is due at “10:00 a.m. on the Monday Next after Twenty Days from the Date of Service.”
If you file your Divorce on a Monday, it may be Tuesday before you can even get the Citation – which is part of what has to be served on the other party, if you’re going to have the other party officially served.
Once the Citation is in the hands of the Process Server or Constable or Sheriff, it may take them a day or two (or more – sometimes much more) to get your spouse served.
From the date that service happens, the clock starts, and the NEXT day is Day One of the Twenty Days.
You then count twenty days, stop counting, and go the NEXT Monday. If the 20th day is a Tuesday, you go to the NEXT Monday. If the 20th day is a Sunday, you go to the NEXT Monday. If the 20th day is a Monday, you go to the NEXT Monday.
If the NEXT Monday is a holiday, you go to the next day that is not a holiday and that is Answer Day.
4. Temporary Orders.
It used to be that one of the few things that you could predict was when a Temporary Orders hearing would happen.
Prior to the proliferation of Standing Orders, Courts were essentially required to sign off on a Temporary Restraining Order (TRO) just for the asking. By law, TRO’s only last 14 days, and the court is “required” to have a hearing on the Temporary issues prior to the expiration of the TRO.
That was the way things used to work, and still do in some areas of Texas.
Now, it is common for a Court to have a Standing Order that is meant to maintain the Status Quo. Because of that, many Judges won’t or are reluctant to sign a TRO, because they know that it means they have to have a hearing within two weeks – and a great many courts simply don’t have time for all of the hearings that they would have to have if they signed TROs in every or even many cases.
What that means is that now, you may not be able to get a Temporary Orders hearing for months after a case is filed.
5. Everything Else.
With all of this, you can see why it is hard to predict the timing of cases. And this is just a tiny tip of the iceberg.
When a case will conclude depends on:
a. How it concludes – Settlement or Trial, Mediation or Informal Settlement Agreement, etc.
b. Discovery – Are you going to want to seek information from the other party or will they want to seek information from you? If so, the due date of the discovery tools is just the beginning of that story. After that, there are Motions to Compel, Objections, and a great deal more to consider.
c. The actions of the other party – Is the other side trying to drag things out or are they trying to get the case done as soon as possible? People drag out cases for various reasons, but sometimes it’s just out of spite.
d. The actions of the court – Some courts order Mediation in every case, some don’t. Some courts are happy to get you to trial as soon as they can, others you can hardly buy a court date in. The Judge gets to control their docket, and the litigants have very little say about it.
e. Is it really the end – Even when a case seems over, it may not be. All it takes to stop a case from moving forward is for the other side to file Bankruptcy. A Bankruptcy filing, by law, stays most Family Law cases immediately. Additionally, the other side may file post-trial motions or an appeal. Also, the Court may grant a New Trial for any one of a number of reasons.
Hopefully you see that trying to time the filing of a case in order to “be sure” that it will be over with by a certain time is a fool’s errand. There is just no way to do it.
It may seem like common sense to think, “I’ll file my Custody Modification case as soon as the school year ends, so that we will know where the kids are going to school next year before the school year starts,” in reality, waiting until then may almost guarantee that you will not know in time for the next school year.
I don’t encourage anyone to file anything. Deciding whether to file a Divorce or Custody case is a personal decision, not a legal one.
If you know that you are going to file a case, and you know that you have a time in the future that you really want your case completed by, and you ask me when to file your case to guarantee that you can meet your timetable, I will tell you two things generally:
1. You can’t guarantee it; and
2. The sooner you file, the better – but of course, there are exceptions to that rule, just like every other.
The most important and most correct thing I will tell you is this: Talk to a lawyer, get a meaningful consultation, and develop a detailed game plan for your case, given your unique facts.