Originally published by The Law Office of Bryan Fagan, PLLC Blog.
The most prominent concern that most people have in regard to their
divorce is the length of the process. How long is this going to take? Getting
a divorce can be like going to the dentist…everyday, for six months
straight. Now, it doesn’t have to be this way and truthfully it
very rarely is. But there are those cases and those people who have to
go through a really tough divorce in order to move on with the rest of
their lives.
The ironic thing about divorce case length is that in many cases one side
or the other will not be fully prepared for a trial. Most of the time
this after an unsuccessful attempt at mediation or other informal settlement
attempts. Because both sides are now having to focus on a trial rather
than on a settlement a few extra weeks are being requested to prepare
their cases and perhaps make a last ditch effort to settle the case.
Let’s dig into what parties in an active lawsuit do when one of them
isn’t ready to go when the bell rings on trial day. In the legal
profession this is what is known as seeking a
continuance from your judge.
Asking for a continuance- convincing the client and then the judge
You may be like most clients and not be the most excited person in the
world when the concept of a continuance is first brought up. This is understandable.
You’ve spent the better part of a year on a divorce case where your
life is being torn in two and are paying for the privilege of allowing
this to happen. While you are going through all of this your attorney
is supposed to be preparing your case and you for a settlement or trial,
come what may. When he or she comes to you weeks before trial to try and
talk you into a delay in your case it may not strike you as the best idea
in the world.
Motions for continuance are often an unavoidable reality for attorneys,
independent of your specific case. Often times an attorney (through no
fault of their own) will have multiple trial settings in a given week
and the oldest case will be given preference to go first. These are the
sorts of information that you would not expect to learn from your attorney
during an initial consultation because they do not necessarily need to
be discussed at that juncture. As your case progresses and the likelihood
of a trial increases you will confront these sort of issues along with
your attorney.
How is a trial date set for your divorce?
Fairly soon after your divorce is filed, the court your case has been assigned
to will place it on a schedule and mail the scheduled (called a docket
control order) to all parties in your case. This way everyone can anticipate
these future dates and make plans accordingly. The most important of these
dates is the trial date. Everyone knows from early on just how long both
sides have to strike a deal and eliminate the need to prepare for a trial.
The date that your trial is set for is not something magical or mystical.
The court will likely just look at its own calendar and spot when it has
open dates in the future- it could be six months or nine months from now.
The situation above that I described wherein the date your court provides
conflicts with another trail setting your attorney has happens with some
regularity. Family law attorneys spend a great deal of time in court.
A motion for continuance can actually be beneficial to you and your case
in the long run, despite misgivings that you have with the concept. Let’s
get into why that may be.
What good can come about from a Motion for Continuance?
Preparation is key to a divorce trial. We have all heard the maxim: “Those
who fail to prepare should be prepared to fail.” Well, that saying
applies doubly to divorce cases. Does your case need an expert witness
to testify regarding an important issue regarding whether or not your
home is community property? What about getting a last minute appraisal
on your home to determine its value prior to a sale that could be brought
about by your judge? Finally, do you and your attorney have a surefire
plan of attack as you approach your initial trial date? If not, then a
continuance could be exactly what you need.
Most importantly, a continuance can allow you and your spouse to attempt
a last-ditch mediation in order to avoid a trial altogether. A lot of
times in contested and complicated divorces, a judge will order that parties
attend at least one final mediation session prior to engaging in a trial.
This is due to the fact that judges know just as well as attorneys that
you and your spouse are better equipped to negotiate the terms of your
divorce than are the judge is.
In the final months of your case you may be so brow-beaten that a settlement
is the farthest thing from your mind. While a settlement may not seem
like something that you can achieve at this juncture it should be noted
that mediation is on the whole very effective at settling divorce cases
in Texas. While mediation does cost money (and you are not refunded for
mediation attempts that do not result in settlement) the costs of a half
or full day of mediating a case pale in comparison to the costs associated
with preparing for a contested trial.
You can also utilize mediation during this time period as a means to collect
information from your spouse regarding their case. Take a look at the
settlement offers and facts presented in mediation to you by your spouse.
The odds are high that his or her perspective in trial will be similar
to what was projected in mediation.
What bad can come from a Motion for Continuance?
With all of that said, a continuance can harm your case as well. Many issues
determined in a trial are time sensitive. Where your child will be attending
classes in the fall semester, who will be responsible for making payments
on the vehicle that you are already fall behind on come to find regarding
this subject.
One way to counteract some of the negative impacts of a motion for continuance
is to request that your attorney’s fees be paid by your spouse if
it was he or she who requested the continuance. This is especially true
if the continuance was sought for anything less than a life or death reason.
Motion for Continuances: A reality in the world of family law
Whether you are lukewarm on the idea of continuances or are steadfastly
against them, the fact of the matter is that your case will likely be
affected by continuance in some form or fashion. Your lawyer’s job
will be to explain the circumstances of your case to you in order to help
you understand better as to why a continuance may be necessary and why
you may want to be the party to request the continuance.
Your main goal, in my opinion, when it comes to attempting to hire a family
law attorney, is to do your research and attempt to find an attorney who
will be diligent in their representation of you and who will seek out
every opportunity to further your interests in a fair and effective manner.
Questions about divorce? Contact the Law Office of Bryan Fagan, PLLC
If you have any questions about divorce cases in Texas please do not hesitate to
contact theLaw Office of Bryan Fagan, PLLC today. Our attorneys offer free of charge consultations six days a week
where we can answer your questions and address your concerns in a comfortable,
pressure free environment.
Our office represents people just like you from around our community and
do so with a great deal of pride. It would be our honor to meet with you
and to go over just how we can be a positive force for good in your life
and your family’s.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
from Texas Bar Today http://bit.ly/2Zf1KcH
via Abogado Aly Website
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