Summary Judgments in Family Law Cases

01 May 2006 Publication

Texas Bar Journal

These are examples of issues that may be resolved through summary judgment disposition. Although most family law cases are fact driven, summary judgment can be an effective way to partially or fully resolve some family law matters. This article offers guidance on when to move for summary judgment in a family law case.

Summary Judgment Standards

Regardless of the area of law, there are two types of summary judgments: traditional and no evidence. Understanding the distinction is key to presenting an effective summary judgment — or opposing one. To prevail on a traditional motion for summary judgment, the movant must establish that no material fact exists and that his or her claim or affirmative defense is established as a matter of law. To prevail on a no-evidence summary judgment motion, a movant must allege that there is no evidence of an essential element of the adverse party’s claim.

Traditional Summary Judgment

A party with the burden of proof maymove for summary judgment by proving as a matter of law entitlement to judgment by establishing each element of his or her own claim or affirmative defense as a matter of law. Therefore, almost all traditional summary judgments must be supported by competent summary judgment evidence. Once the movant has established his or her right to summary judgment as a matter of law, the burden shifts to the non-movant to present evidence that raises a genuine issue of material fact thereby precluding summary judgment.

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