There are two ways to divorce in Texas: you can hire a San Antonio collaborative divorce attorney and avoid a nasty court fight or you can engage a San Antonio litigation attorney and endure an adversarial divorce at the court house.
In a collaborative divorce you control the outcome, the collaborative team helps you negotiate a settlement that meets your goals and interests, all information is shared openly, you avoid harm to your children, and save money compared with the average litigated divorce. In a litigated San Antonio divorce, the attorneys control the case, your goals and interests are often secondary, information is hidden, attorneys engage in extensive discovery fights and contested hearings, each side attempts to win, the children may be put in the middle, and litigation costs more on average than a collaborative divorce.
A Litigated Divorce
File and Serve a Petition
The first step in a San Antonio litigated divorce is to file an original petition stating the grounds for divorce (usually incompatibility) or alleging fault (abuse, adultery, abandonment, etc.). The petition is usually served on the spouse’s attorney. However, it there’s a serious dispute between the spouses, a sheriff may show up at one spouse’s work or home and embarrass him or her by publicly serving the divorce petition.
Response and Temporary Orders
The spouse who receives the divorce petition must file a response. Generally, he or she will file a general denial, but if there are specific allegations of fault contained in the divorce petition, the response should refute the facts of the petition or raise a defense to the charge(s). Next, the attorneys will schedule a temporary hearing in Bexar County Presiding Court and the case will be sent out to a San Antonio judge to decide where the children will live while the divorce is ongoing, establish a visitation schedule for them until final settlement or trial of the case, and determine how much temporary spousal support or child support will be paid by one spouse to the other until the final divorce decree is entered.
Following the hearing for temporary orders, San Antonio divorce attorneys exchange requests for discovery and may schedule oral depositions of witnesses and the parties. Discovery fights can consume substantial time and money. Often the attorneys must petition the court to intervene to settle discovery disputes that cannot be negotiated satisfactorily. These discovery fights waste time and money, generate animosity, and may not result in disclosure of all financial and personal information needed for an equitable resolution of the dispute.
Once discovery is complete, the attorneys may agree to discuss a settlement or the court will order the parties to mediation. About eighty percent of litigated cases settle after extensive discovery and trial preparation. If the parties disagree about custody, the court may order a social study to determine which parent should receive custody of the children.
If the parties can’t settle their dispute, the court will set the case for trial. At trial, both parties make opening statements, put on witnesses, introduce evidence, and make closing arguments. Then, the court or jury decides the issues, including who gets custody of the children, how the marital estate will be divided, the amount of child support to be paid, and what amount of spousal support, if any, is justified. Finally, the attorneys will draft the Divorce Decree and Agreement Incident to Divorce to reflect the orders of the court.
The Collaborative Process
The First Joint Meeting
During the first joint collaborative meeting, two San Antonio divorce attorneys, a financial professional, and a mental health professional explain the collaborative process, review expectations of conduct, discuss the collaborative family law participation agreement, and explore both spouse’s goals and interests. The parties sign a participation agreement and the financial professional lists the information needed to negotiate a settlement.
Second Collaborative Meeting
During the second collaborative meeting, the team and parties review the financial information collected, identify issues, create settlement options, and compare the expected outcomes of each option with the clients’ stated goals and interests. The San Antonio collaborative divorce attorneys and neutral professionals eliminate any option that doesn’t meet important goals and interests of both clients.
Negotiate a Settlement and Draft Closing Documents
During the next few joint collaborative meetings the team and parties negotiate an agreement and draft a collaborative settlement agreement that contains the terms of their bargain. Once the parties sign the collaborative settlement agreement, they can’t back out of it. Following settlement, the San Antonio divorce lawyers draft the Divorce Decree and Agreement Incident to Divorce. Once the closing documents are complete and signed, one attorney and his or her client will prove-up the divorce before a judge.
The advantages of a collaborative divorce are privacy, lower cost, flexibility of scheduling, client control of the process, custom settlement solutions, protection of the children, and better post-divorce parenting. The advantages of a litigated divorce are that discovery can be ordered by the court, protective orders are available in cases of family violence, and the court can order a resolution to the dispute if the parties can’t compromise.