Boyd-Veigel

Brandon Young Bell


Contact Brandon Young Bell for a Consultation
Phone: (972) 668-1462
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Address: P.O. Box 6372, McKinney, Texas 75071

Litigation Generally


Please keep in mind that, as with all of the material on this website, this summary is simply a general outline of the rules as it pertains to family law suits. While this commentary is not all-inclusive and it draws on the experiences and research of one attorney it should provide a good basis of knowledge for the non-attorney wishing to understand what (hopefully) their retained attorney is doing during a lawsuit. It should not be relied on for any reason nor should it be taken as legal advice. Competent legal counsel should be sought prior to undertaking any legal action and in most cases before planning any legal action.

While Divorce suits and Suits Affecting the Parent-Child Relationship are litigated under the rules laid out by the Texas Family Code, these suits are civil litigation and are also governed by the Texas Rules of Civil Procedure. Of course, some exceptions may apply. As concerning family law suits, some of the more relevant points of civil procedure are discussed.

Jurisdiction

A suit involving the family is generally under the exclusive jurisdiction of a District Trial Court. This is not always the case. Some courts are legislatively created to handle the special needs of counties. Therefore, a divorce may sometimes be tried in what is called a County Court at Law or a Family District Court.

Pleadings

A suit is begun by filing an original petition. The original petition gives fair notice to the parties (the other side of the suit) of the facts and legal theories. It also has the effect of letting the court know that a suit is now on its docket and should be delt with accordingly.

Notice

The respondent (sometimes called the defendant) is a party other than the party filing the suit and, therefore, must be notified of the pending suit against him or her. The rules of civil procedure say that the court cannot render judgment without: (1) an appearance (usually an answer); (2) waiver of citation; or (3) valid service. These rules protect a respondent from not having notice that a suit is pending against him or her and give the respondent time to take appropriate action to protect his or her legal rights. In other words, the rules were set up to give the respondent the "heads up" that a lawsuit is pending against them. This is not to say that a final order can never be had without "actual notice" of the pending action. Under the rules, if a respondent cannot be found, then alternative means of "serving" the respondent may include actions that are calculated to give adequate notice. Citation by publication is one example of this. The rules covering these alternative means of service are beyond the scope of this website and a lawyer should be consulted prior to attempting these actions.

Answer

After being served with a lawsuit, the Respondent should seek legal counsel as soon as possible for help with filing an answer. A deadline does exist for answering the lawsuit. Failure to answer the lawsuit within the deadline may result in the Petitioner moving for a default judgment. In other words, the Petitioner can get what they are asking for if the Respondent simply does nothing.

Discovery

As discussed elsewhere in this website, a divorce suit or other suit under the Family Code will likely (but not necessarily) enter what is called the discovery phase. The courts expect it and will monitor this phase either on their own or on a motion by one of the parties. Discovery affords the parties a method to obtain information from other parties and sometimes nonparties. Although discovery will add to the expenses associated with litigation, the proper use of discovery will limit the number of surprises during litigation and can encourage settlement. Discovery is an area of litigation that can be a great cause of annoyance to clients. However, responding to the questions asked by the adverse party is important because ignoring the discovery can cause the court to presume the answer would have been negative and also cause the court to disallow important evidence the non-responding party would otherwise use at trial. Again, a thorough analysis of the rules and strategy associated with discovery is beyond the scope here. It is important to know that discovery may be a part of any lawsuit.

The primary methods of discovery are:

1) Request for disclosure: These are specific     questions or requested material served on the     opposing party as described under rule 194 of     the Texas Rules of Civil Procedure
2) Request for production of documents and things:     This is a request for tangible items and     documents. Parties to a divorce suit generally     request documents indicating ownership of     property, or evidence of income.
3) Interrogatories: Interrogatories are written     questions to another party in the suit.
4) Request for Admissions: These are written     requests that the other party admit the truth     of any matter within the scope of discovery (i.e.     relevant facts).
5) Oral Depositions: Oral depositions are a face to     face encounter where the attorney usually asks     the opposing party or other witness a series of     questions while the party or witness is under     oath. The deposition is usually taken with a court     reporter present. An oral deposition is as close to     being under trial conditions facing an attorney as     any other means of discovery. Many attorneys     are masters at this setting, and the experience     can sometimes be stressful in a family law suit (or     in any suit).


After the discovery phase, settlement or trial comes next. While these two phases of litigation are probably the most important phases, an appropriate explanation would require vast detail and many have a good idea from television about how a trial generally works. However, television cannot prepare a witness for an actual courtroom experience and neither can a website. Therefore, the importance of a competent and experienced lawyer in the area of divorce and family law cannot be underemphasized.

Brandon Young Bell

Areas of Practice
  • Family Law