Preparing For Divorce Litigation

In 1992, as a new lawyer, I practiced civil and family law. I tried civil cases of all types, from injuries to business disputes. I also handled divorces from the beginning of my career. Early on, I realized that divorce litigation is not a good place to end a marriage. The law tells two people who were once best friends, and thought they would spend their lives together, they are now instant litigants. The legal aspects of ending the relationship will be resolved in much the same way we deal with car wrecks and contracts, in litigation.

Divorce Litigation Is Not A Good Place To End A Marriage

Although the Family Code provides some unique rules, the Texas Rules of Civil Procedure and the Rules of Evidence apply. Those are the rules used in civil disputes, from large business litigation to injuries.

Civil litigants do not speak with each other regularly; have a history of sharing their lives, making decisions together and, often, raising children.

I believe only those with something akin to a psychological pathology can make the adjustment quickly and easily. It is unreasonable to expect a person to instantly put aside years of history, and treat the spouse as a litigant. But failure to do that can result in an unjust outcome.

Divorce is Civil Litigation

The law requires litigants to prepare for trial. Most courts will set a trial date and the parties are expected to be ready. The vast majority of divorces are resolved by agreement before trial. Lawyers can never predict which will result in an agreement. From the beginning, we must plan for trial while also maintaining a strategy for settlement discussion.

The tools available to acquire information are the same as in any civil proceeding, primarily discovery requests and subpoenas. “Discovery” refers to written questions that must be answered under oath, requests for documents, and depositions.

  • In a civil lawsuit, it is a good way to obtain information. In divorce, it works reasonably well unless the parties are discussing the answers in advance.
  • In a civil lawsuit, a plaintiff will not call the defendant to ask how to answer a question or what documents to produce. This happens occasionally in family law because people have not adjusted to being litigants.

In divorce, either spouse may request that the judge issues a temporary order. A temporary order governs the parties’ relationship while a divorce is pending. It can award temporary use of property, impose support obligations, and say when the children spend time with each parent. The hearing is evidentiary, meaning there are witnesses and evidence. It feels like a mini trial and is usually conducted within a few weeks of the divorce being filed.

A lawyer must rely on the client to provide material to prepare for the mini-trial. Litigants should not consult each other about trial preparation. Imagine the CEO of Samsung emailing Apple’s president about how to prepare for their trial. An injured person is not going to discuss the evidence with the defendant or an insurer. Even in a perpetually unhappy marriage, a person will talk with the spouse about a lawsuit. Although it is difficult, that should not happen in a divorce.

Preparing For Divorce Litigation

Seek Professional Counseling

Unless the spouses have an agreement from the beginning, each should individually find a professional counselor. Judges are busy and even the most patient has little time for a spouse working out issues on the witness stand. A good witness is one who can testify succinctly, coherently, and comprehensively. Tears are not likely to help. A momentary lapse of memory or concentration detracts from the testimony. A judge is not allowed to assume what a witness would have said. Working through issues with a therapist helps a person testify more effectively.


Mediation helps avoid trial and allows parties to reach an agreement. The mediator visits with each person separately, with their lawyer present, trying to reach an agreement. It is usually successful.

Direct Communication

Spouses sometimes reach an agreement by communicating directly. Because of the value of an agreement, direct communication is good as long as one is not disadvantaged by the other’s negotiation experience or financial knowledge. All of the issues about being married and becoming sudden litigants are compounded when spouses sit down to negotiate. Emotions must be controlled to allow concentration on the business of dividing the marital estate and agreeing what is best if children are involved.

Anyone who chooses to end a marriage will be in litigation with his or her spouse. Whether that is acrimonious depends on the personalities of both people. Each divorce is different. Usually, direct communication is beneficial. Sometimes it has the opposite effect. Whether a divorce is likely to be agreeable or contentious, you should consult a professional therapist to help with the transition. Even an agreeable divorce involves negotiating a deal that neither ever expected to make.

(c) Copyright Brian McNamara 2015. May be reproduced with credit to the author.

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