Pretrial Motions: Before we go through with this divorce
When most cases go to trial, whether that case be criminal or even civil in nature, there is time allotted for what are called pretrial motions. Motions are essentially boundaries, arguments or rules set in advance of an upcoming trial so that everyone is on the same page.
A perfect example is in a criminal case. The prosecution and defense teams may come together to make arguments for or against certain testimony being used, or what evidence can or cannot be allowed into trial.
Well, the same rules apply in divorce proceedings.
Generally, most pretrial motions in a suit for divorce (examples include motions for pretrial conference, motions for continuance, and motions for sanctions) are the same as in other civil suits. But there are pretrial motions that are altered by the Texas Family Code or that are unique to suits for divorce.
Let’s discuss.
Counseling – Each spouse or even the court itself can make a motion that the parties undergo counseling before a trial begins. This may happen if one spouse believes the marriage can still work, or if the court believes there is a reasonable expectation of reconciliation.
If the court orders counseling, the order will name a person who must counsel the parties, and that counselor must submit a written report to the court before the final hearing that states whether there is a chance for reconciliation. If the parties have not reconciled by the end of the counseling period, the court must proceed with the suit for divorce.
Challenge judge – Believe it or not, but one pretrial motion afforded to each party is the ability to challenge the judge presiding over the divorce proceedings. By challenge, I mean that each party can object to a particular judge and request a different one take over based on any of the following reasons:
- The judge is subject to a statutory strike as an assigned judge
- The judge is constitutionally disqualified
- The judge is subject to disqualification under Supreme Court rules
Separate Trials – Please do not get this pretrial motion confused with the one below it (Severance). In this instance, a party can file a motion for separate trials – which is actually quite common because of the different roles judges and juries play in rendering binding verdicts on marital issues.
An example is that a jury can render a binding verdict on the issue of divorce, but cannot do the same on the division of the parties’ marital estate. That is actually the role of the judge. The goal is to separate the issues of marriage, divorce, and division of property. Other examples of separate issues can include postmarital agreements and validity of marriage.
Severance – Before trial, a party can file a motion to divide the case into two independent suits. A motion for severance is not meant to separate the issue of divorce from the division of property, but rather to separate a specific tort claim from the overall issue of divorce.
Our staff at Nelson Law Group, PC. is always available to answer any questions you or your family may have on this topic and any other. Give us a call today.
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Source: Nelson Law Group