Dallas high-net-worth divorce attorney, Mark Scroggins, talks about when a family law case should go to trial.
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Well I mean there can be a lot of different things. I mean one of the biggest that you see is if you don’t have an agreement on characterization of property, and when I say characterization I’m talking about is it separate or is it community? Okay. So let’s say that, you know, I’ve got an account that has a million dollars in it. Okay. And I’m saying that all of that is separate property. Well how do you determine separate property? Separate property is anything that you brought into the marriage, you know, prior to marriage. Anything that you received by gift or anything that you inherited, or if you were in a personal injury lawsuit and you got a load of money based on pain and suffering. That’s all separate property.
Anything else is community, and the presumption in Texas is that anything you’ve got is community. So the burden is on the person trying to establish that it’s separate property. Okay. So let’s say I’ve that account that’s got a million dollars in it. I’m saying it’s all separate property and I’ve tried to prove that to the other side, and they’re saying no we don’t think so. You’ve comingled separate and community funds, and so we think it’s hopelessly comingled. You can’t really establish that. I’m taking that to trial if the money is big enough.
Another place that you will see people go to trial every day is on disputed child custody issues. I really want my kids. My spouse really wants the kids. We can’t reach an agreement. Okay. We’re going to likely take that to trial. Now that’s going to fold into something else, where what experts are going to be involved? Was there a child custody evaluation performed? You know, that’s another situation. Let’s say that a child custody evaluation was performed and it comes out against you. And you’re thinking oh my God, I can’t believe that this came out against me. That’s ludicrous. It shouldn’t happen. My spouse should no more be taking care of those kids than I’d entrust them to the devil. Okay.
So how do you get around that? Well you’re going to take it to trial. Now the question you have, are you going to try that case to a judge, or are you going to try that to a jury? In Texas a jury can make a decision on conservatorship. They don’t make any decision related to possession and access, but they can make a decision on conservatorship. So depending on who the judge is, who that expert is, I might make a decision not only am I going to take this to trial, but I’m going to take it to a jury trial.
So there are a whole lot of things that factor into that decision and, you know, am I going to try it? And then am I going to try it to a judge, or am I going to try to a jury? And those are big decisions to make.