Tuesday, December 22, 2009

Recent Famly Law Change: No Written Designation by Child

The Texas Legislature made many revisions to the Texas Family Code during the 81st Legislative Session. Formerly, children age 12 and older could file a written designation stating which parent he or she would prefer to live with. While this preference was not binding on the court, the judge would consider it among other factors. Under the recent changes to the Family Code, if the child wishes to express a preference, the child must speak to the judge in chambers rather than submitting a written designation.

Friday, August 21, 2009

My Divorce Decree has been signed by the Judge, is there anything else I should be doing?

Yes. After the Divorce Decree is signed the Divorce is over, right? Not necessarily. Some of the most important things occur after the Decree is signed and the divorce has been granted. This is when real property transfers are made – such as a Special Warranty Deeds or Deeds of Trusts to Secure an Assumption. This is also when a Qualified Domestic Relations Order, Child Support Wage Withholding Order, and other collateral orders need to be prepared and signed by the Judge if these have not yet been completed. If you are the recipient of child support, you should also think about getting a file opened with the Texas Office of the Attorney General (OAG) in case your Obligor spouse falls behind in his or her child support. Sometimes it is necessary to think about the transfer of personal property, the payment of attorney’s fees, preparation of federal income taxes, the transfer of personal items, cash payments that may have been ordered, and the transfer of other items such as family photographs and other things of sentimental value that may need to be shared. Finally, this is also a good time to consider updating your wills and other estate planning documents.

Monday, April 20, 2009

Austin Divorce Lawyer Tip Regarding Separation, Community Property, and Divorce in Texas.

I am asked all the time whether there is a way to "legally" separate in Texas. The short answer to this question is no. There is no "Legal Separation," per se, in Texas. There are no Court proceedings to essentially put a marriage "on hold." To the contrary, even though the parties may be living in separate homes and doing everything separately, the community property presumption still applies to the marriage.

In Texas, all property (and liabilities) on hand at the time of Divorce are presumed to be those of the "community." The community property presumption exists irrespective of whether the parties are living together at the time they divorce, or whether they are separated.

Over the years, I have had several cases where the parties separated and then went on with their lives -- sometimes for many years -- accumulating properties (and debts). Sometimes, the assets, which included real estate, stocks, and mutual funds, appreciated substantially. These assets, just like all of the other property, are subject to being divided by the Court. This sometimes comes as a shock to the party that finds out that they have to share the property that they separately bought, paid for, and maintained.

As a result, when you separate and fail to follow through with a Divorce, all assets are subject to a "just and right" division by the divorce court. Likewise, despite a separation, the debts that are accumulated by either spouse will also be presumed to be community debt. For example, you and your husband separate. He goes out and charges a big screen TV on the joint credit card. Not only is the credit card company going to look to you for payment, the divorce court can order that you pay part of the debt (hopefully, the TV is still around and maybe you can get it).

One way around these problems, is to enter into a Property Agreement Between Spouses so as to eliminate community property (and community liabilities). With such an agreement, the Divorce court could treat all property owned at the time of Divorce as the separate property of one or the other spouse. Even accounts that are jointly owned are oftentimes treated under this type of an agreement (and, hence, by the Court) as being owned 50% by each spouse. Such an agreement could completely avoid the possibility of having the Judge (or worse, yet, a jury) decide what constitutes a "just and right" division of the property.

This type of agreement is a relatively simple document that can prevent the continued accumulation of community assets and liabilities, even during a period of separation. If you would like to set up a consultation with an Austin, Texas Divorce Lawyer, contact Erik E. Cary.

Sunday, April 19, 2009

Austin Divorce Lawyer Tips about Common Law Marriage.

Many people believe that they can become married by virtue of only living together. "I have lived with my boy/girl friend for the last 12 years, do we have to get a divorce?" Although the answer to this question is relatively simple, there are some complications that you should keep in mind.

A common law marriage (or "Informal Marriage" as it is called in Texas) can be established in two ways:

(1) By the actual signing of a "Declaration of Marriage" under Texas Family Code, Section 2.402 -- by signing the Declaration, the law will treat the parties as having been married for all purposes; or,

(2) By creating an Informal Marriage under Texas Family Code, Section 2.401 (a) (2).

Under the second scenario, the Informal Marriage is created by: (a) forming an agreement that the parties are to be married, (b) by living together (or "co-habitating"), and (c) by holding themselves out to the public as being married. It also bears noting that the parties must have been "unmarried" at the time of their agreement. If they were actually married, then the second marriage would be void under Texas Family Code, Section 6.202. Interestingly, you could overcome the impediment to marriage by actually ending the prior marriage(s) and then continue living together as husband and wife (and continue holding yourselves out as being married), then the marriage would be essentially ratified under Texas Family Code, Section 6.202(b). It is also important to note that in order to have the requisite consent to marriage, the persons forming the agreement to be married must be over the age of eighteen (18).

As a result, clearly you cannot become married only by living together. This is true, even if you have a child or children together. More is required. So, the answer the question: "Should we file for a Divorce if we have just lived together?" is probably "no." You should also be aware that Texas law provides for a cut-off period for establishing the common-law or informal marriage. After you have stopped living together, your "spouse" will have two years within which to "establish" the "Informal Marriage." Texas Family Code, Section 2.401(b). Significantly, this provision applies in other contexts other than just a Divorce -- perhaps, say a Probate or Administration of an Estate, too, for example.

Many people believe that after the two years is up, there is no need to get a divorce (even if they were common-law married). In my opinion, this is a bad idea. A rebuttable presumption is just that -- rebuttable. Let me give you an example that maybe you haven't thought about. You start living together with your boyfriend and at some point agree to be married, you (or he) start telling others that you are married. The law now treats you as being married. Let's take it a step further and say that you decide to separate and not get a Divorce. What happens if you have significant property? What happens if you die? You may have an incentive for the other person to file a divorce action, a challenge to your probate, or show up at an administration of your estate later on. The rebuttable presumption is nice, but this it not the same an an actual "adjudication," or court decision that is much more difficult to overcome later. To complicate matters, if you are deceased, you are not there to tell your version of events.

As a result, if you are common law married (or if there is, perhaps, any possible argument that you could be), and you decide to stop living together, it may be best to actually get a divorce. This is especially true if you either: (a) plan to get remarried -- you don't ever want to be accused of "Bigamy," under Texas Penal Code, Section 25.01, or (b) you have significant property, inheritance, life insurance, etc., and don't want to be a target for a vengeful former spouse.

Taking the law into your own hands can be very dangerous, if you have questions about how any of this works, you should seek the advice of an experienced divorce lawyer or Texas Family Law Attorney.

Wednesday, April 15, 2009

Geographical Restrictions and Relocation Issues in Austin and Travis County Texas

Geographical restrictions and relocation issues generally come up in three contexts: (1) at the time of a divorce or other Suit Affecting the Parent-Child Relationship (“SAP-CR”), (2) during a suit for modification when one parent seeks to move or “relocate” and there is a geographical restriction which does not permit this move, or (3) where there is no geographical restriction – or the restriction is insufficient – to prevent the proposed relocation, and the other parent wants to prevent the relocation – also usually with a suit for modification.

Because of our rapidly changing world regarding relatively inexpensive video-conferencing options, the constant connectivity of the internet, and relatively quick airline options, the attitudes of Judges and our law has been changing – although slowly. Here are some of the basics regarding Geographical Restrictions and Relocation Issues in Texas.

A. Texas Public Policy.

The Texas Family Code sets out that it is the public policy of the State of Texas to:

(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
(2) provide a safe, stable, and nonviolent environment for the child; and
(3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

Tex. Fam. Code § 153.001(a)(1). As a result, obviously, “frequent and continuing contact” between parent and child is more likely when the child lives nearby. This is the primary reason that Geographical Restrictions are imposed.

Also, on the subject of “frequent and continuing contact,” it should be noted that the Texas Family Code, Section 153.137, makes clear that the Standard Possession Schedule only constitutes a presumptive minimum amount of time that a parent should have with his / her child.

B. Best Interests of Child.

For decades the Legislature has made clear that Texas Courts should be primarily concerned in conservatorship and possession and access issues with what is in the “best interests of the child.” Tex. Fam. Code § 153.002. As a result, and because of the fact that there is sometimes a big debate between parents as to what is “best” for their children – especially when the parents reside in two different homes or come from differing cultures – there is much room for disagreement as to whether the Court should impose geographical restrictions, and whether a proposed move (or relocation) due to family, job opportunities, or other issues, will be deemed to be in the child’s best interest. However, we should keep in mind that this will ultimately be what the Courts are concerned about.

C. Who has the Right to Choose?

If a parent is appointed as the “Sole Managing Conservator,” or SMC, then this parent usually has the exclusive right to determine the primary residence of the child. Also, the individual who is appointed as the “primary” Joint Managing Conservator, or JMC, will also likely have the exclusive right to determine the primary residence.

It should also be noted that under the “Parenting Plan” provisions of the Family Code, the Final Decree granting conservatorship must either:

(1) establish a geographic area for the residence, or
(2) specify that the managing conservator may determine the residence without regard to geographic location.

Tex. Fam. Code §§ 153.133; 153.134.

D. Types of Geographical Restrictions.

The primary custodian is oftentimes restricted to a specific geographical region. Some of the more common restrictions are:

(1) mile limitation – say 100 miles;
(2) The County of the Suit;
(3) The County of Suit and “contiguous” or “adjoining” counties;
(4) The entire State of Texas; or,
(5) A specific city.

For example, in the Austin, Texas area, a common geographical restriction that courts might impose upon the primary conservator might be “Travis County or any county adjoining Travis County.” If this provision were part of your divorce decree it would mean that you could relocate to any home (house, apartment, condominium, etc.) within Travis County, or any county that abuts Travis County – these counties are: Blanco County, Burnet County, Caldwell County, Hays County, Lee County, and Williamson County.

E. Modification Lawsuits.

In the typical modification lawsuit, the Court is concerned with whether there has been a “material and substantial change in circumstances” in order to justify the change in terms. In suits for modification, it has been specifically held that a parent’s (or conservator’s) desire to move (or relocate) can be a material and substantial change in circumstances. Bates v. Tesar, 81 S.W.3d411, 430 (Tex. App. – El Paso 2002, no pet.). However, no every desired move will bring about a material change. Id. In determining whether the move is justified, and in addition to the “best interests” of the child as addressed above, the Court will look to:

(1) The distance of the proposed move;
(2) The proximity, availability and safety of travel arrangements.
(3) The quality of the relationship between the non-primary parent and child;
(4) The nature and quantity of the child’s contact with the non-primary conservator;
(5) The possibility that the relation would deprive the non-primary conservator of regular and meaningful access to the child;
(6) The impact of the move on the quantity and quality of the child’s future contact with the non-primary conservator;
(7) The motive for the proposed move (or opposing the move); and,
(8) The feasibility of preserving the relationship between the non-primary conservator and the child through suitable visitation arrangements.

F. Allocation of Relocation Expenses.

The Family Code allows for the court to allocate any increased expenses resulting from one conservator’s relocation. Tex. Fam. Code § 156.103. The allocation is to be made “on a fair and equitable basis, taking into account the cause of the increased expense and the best interest of the child.” Id. The statute creates a rebuttable presumption that any increased expenses should be paid by the relocating party.

G. Jury Issues.

It should be noted that not all issues arising in the context of a family law matter may be submitted to the jury; however, under Texas Family Code § 105.002, with regard to relocation, a party is entitled to a verdict by the jury and the court may not contravene a jury verdict on the issues of:

(1) the determination of which joint managing conservator has the exclusive right to designate the primary residence of the child;
(2) the determination of whether to impose a restriction on the geographic area in which a joint managing conservator may designate the child’s primary residence; and
(3) if a restriction is imposed, the determination of the geographic area in which a joint managing conservator must designate the child primary residence.

H. Remedies for Violation of a Geographical Restriction.

The Court can take action with respect to any parent who violates a geographical restriction. If the move is without the parent’s consent, the non-relocating parent could file a Habeas Corpus action commanding a peace officer or the conservator to produce the child to the Court. The Court can also use the geographical restriction violation to modify the Court’s order, including up to modifying conservatorship, or perhaps other potential modifications of the Order. Finally, the Court can issue a Show Cause Order, and hold a contempt hearing to determine whether punitive contempt (i.e. – incarceration or fine) is appropriate.

If issues relating to geographical restrictions are likely to come up in your Divorce or SAP-CR case, or if you expect to have issues concerning relocation matters, or a modification suit, you should hire an experienced family law attorney to help you with your case.

Wednesday, April 1, 2009

Austin Lawyer Tip: Retroactive Child Support.

In both Texas paternity cases and other Suits Affecting the Parent-Child Relationship “SAP-CR” cases (including Divorces), a Texas court may order so-called “retroactive” child support, or what is essentially back child support for periods of time in the past where child support was not ordered, but where there was a duty of support.

In a Texas paternity case, absent evidence that the prospective obligor knew about the obligation and “sought to avoid the establishment [of an Order],” the Court will presumptively limit the award of retroactive child support four years of support. Tex. Fam. Code § 154.131. In setting the amount of retroactive child support, the court shall consider the net resources of the obligor during the relevant time period and whether:

(1) Whether the mother of the child had made any previous attempts to notify the obligor of his paternity or probable paternity;

(2) Whether the obligor (Dad), had knowledge of his paternity or probable paternity;

(3) Whether the award of retroactive support will impose an undue hardship upon the obligor or his family, and

(4) Whether the obligor provided any actual support or other necessaries before the filing of the action.

In ordinary SAP-CR cases under Tex. Fam. Code § 154.009 (a), the Texas Courts can order a parent to pay retroactive child support if the parent:

(1) has not previously been ordered to pay support for the child; and

(2) was not a party to a suit in which support was ordered.

Notwithstanding Subsection (a), the court may order a parent subject to a previous child support order to pay retroactive child support if:

(1) the previous child support order terminated as a result of the marriage or remarriage of the child's parents;

(2) the child's parents separated after the marriage or remarriage; and

(3) a new child support order is sought after the date of the separation.

In these situations (as contrasted with paternity, above), the Court may order retroactive child support back to the date of the separation of the child's parents.

It is also significant to note that unless the Texas Office of the Attorney General was “a party to an agreement” which settles past, present, or future support obligations by prepayment or otherwise, an agreement between the parties does not reduce or terminate retroactive support when the Attorney General so requests.

Thursday, March 26, 2009

2009 Texas Legislative Session and the Conflict and Communication Skills Course

Representative Warren Chisum of Pampa, Texas has introduced a bill (HB 480) that would require the taking of a ten (10) hour course on “conflict management, communication skills and foregiveness skills,” to all parents seeking a divorce. The purpose of the course is to facilitate “marriage restoration.” Thus, the requirement only applies when the divorce is upon the “no fault” or “irreconcilable differences” portion of the statute, and not (for example) adultery or other grounds for divorce. Also, significantly, there is a provision which exempts alleged victims of domestic violence.

As I understand the bill, the person filing the divorce action (or “Petitioner”) would be required to show evidence of having completed the course at the time the Petition is filed (with a certificate attached to the Petition). If the course was not taken, then the divorce case would be dismissed. The non-filing spouse (or “Respondent”) would then have up to sixty (60) days within which to take the course. If the Respondent did not take the course, the Judge could then use this as a factor when awarding property, when ordering spousal maintenance (essentially alimony), when ordering child support payments, and/or when making orders with respect to child custody.

The obvious purpose of this bill is to make it a little more difficult to obtain a divorce, and to ensure that all reasonable avenues for reconciliation are encouraged. Although I don’t necessary think that this bill is a bad idea, I also think that in most of the divorce cases I have handled, the parties have already attended counseling and have tried many of these same strategies to no avail. As a result, I’m not sure that I’m in favor of the “foregiveness” skills portion of the course.
However, because of my opinion that most parents contemplating or going through a divorce do not adequately consider and deal with the very real emotional impact that the legal wrangling, divorce proceedings, and aftermath of the divorce have on the children. As a result, I think that the portions of the course that deal with the children are a good idea. In my opinion, parents who are going through a divorce should be required to learn strategies on how to minimize stress and disruption upon their children during and after the divorce.

Sunday, March 8, 2009

Representing yourself in a Divorce Case.

Personally, I would not attempt an engine overhaul in order to get my car back on the road. I might be able to read a book and get all the parts back together. I might be able to figure out how the valves, springs and all the other parts go back together, but it is likely that there will be mistakes. Sometimes reading the manual is not enough. There is a base of engine mechanics and theory that I am missing. So when it comes time to turn the key, will the engine turn over or will the car blow up?

Just as with the engine overhaul example, most pro se litigants (or those who choose to represent themselves) do not have a base of legal knowledge to know when something is missing, when something is incorrect, or when your rights are not protected. Rather than speaking in generalities or analogies, let me give you an example.

Part of the art of practicing law is to make something that appears to be innocuous but that is greatly slanted toward the attorney's client. Sometimes the danger is in what is not said, versus what is said. Here are two examples of things that can be left out of a Divorce Decree that can have a devastating effect on the rights of the unaware.

1) Most divorce decrees are drafted so as to foster a continued relationship between parent and child. As a result, attorneys will advocate for the placement of a geographical restriction in the Decree. Most judges will order a geographical restriction if there is a request as long as it is not unduly restrictive. A commonly used restriction, is that the custodial parent is restricted to their county of residence and "any county adjoining" that county. This type of restriction allows for reasonable movement, but prevents the custodial parent from leaving the State -- or even country -- with the child. As a result, even though it looks reasonable for the custodial parent to have the right to choose the primary residence, it would be view by most non-custodial parents as unreasonable for the custodial parent to move to the other side of the world. However, if there is no geographical restriction, this is just what could happen.

2) Most divorce decrees have a "Standard Visitation Schedule," or similar schedule. There is a reason for this. The Standard Visitation Schedule says that the schedule is what happens when the parents cannot "mutually agree in advance." This means that the schedule itself (i.e. - the first, third and fifth weekends) is only when the parents cannot agree. Sometimes an attorney (or a party) will omit the visitation schedule from the Divorce Decree in favor of a "feel-good" provision that the non-custodial parent will have visitation whenever the parties "mutually agree." Although this sounds good, this provision is basically worthless. So what happens when the parents disagree? Nothing happens. The visits only occur when the custodial parent wants them to happen. So if the custodial parent thinks the non-custodial parent does not need to visit, then no visit occurs.

As a result, if you are a non-custodial parent, and your Divorce Decree omits a possession schedule and has no geographical restriction, your spouse could move to any part of the world and completely deny you visitation. You would need to then sue to try to get the Court to order your spouse to move back. My point is this -- sometimes you read these legal documents and they appear to be fair; however, appearances can be deceiving. Get an experienced family law attorney and be sure.

Saturday, March 7, 2009

What if we can't afford to Divorce?

Many have heard about the statistics that divorces are down nationally. Obviously, when people are stressed out, their jobs have been lost, and their finances are in shambles, it is not likely that they are suddenly happier in their marriages. The most likely explanation is that people believe that they cannot afford to divorce right now.

First, lawyers are expensive. Many people do not want to spend money on divorce attorneys in this economic downturn. People are having a hard time buying groceries and hanging on to their houses -- the last thing they want to do is to spend money on lawyers. However, the truth is that this may be the best time to seek the assistance of professionals - including attorneys.

Second, with the plunging values of homes, people are not able to sell their homes. In many situations the present indebtedness on the marital residence exceeds the value. Only by paying money to the title company at closing will they be able to sell their houses.

Third, the costs of maintaining two households has not dropped appreciably, and usually one spouse (despite the anger and frustration) is not willing to throw the other out on the street.

As a result, many spouses have decided to stay together, despite the realization that they really need a divorce. Here are some ideas to consider if you are in this situation:

1) You should consider going to a see a marriage counselor to make things better, or perhaps more importantly, save your marriage. At one point you likely vowed to stay married "in good times and in bad," and for "richer or poorer," exploring the causes of your unhappiness -- aside from the financial conditions -- might be an excellent idea. If kids are involved, it should be a priority.

2) Consider a post-nuptial agreement (or agreement between spouses) and divide assets and liabilities while things are still amicable. In most states, including Texas, spouses can agree to turn marital property into separate property while they are still married by way of a partition agreement. This way, when times are better, there are less ties between the spouses.

3) If one or both spouses have lost their jobs, and bills or credit card debts have been amassed, consider a bankruptcy. With reduced income levels, you may be able to qualify for more advantageous treatment under the Bankruptcy Code, or this simply may allow you to reorganize your finances to allow one of the spouses to hang on to the house. If your decision is to let the house go, by filing a bankruptcy, you may be able to discharge the deficiency. By discharging debt, the harassing creditor calls and stresses might be relieved.

4) If Bankruptcy is not an option, consider going to a financial planner. Some financial planners specialize in planning in the context of a divorce, others are more generalized. Consulting an expert is a great idea and nearly always worth the money. Sometimes the consultation, can at least crystallize the options so that there is less arguing about what to do.

5) Schedule a meeting to talk to a divorce attorney. Many attorneys allow you to meet with them for free. This is a good way to sort through your options. Many times the realization that this is for real can really help to light a fire under one or both of the spouses to solve the problems that are plaguing the marriage. Even if you decide against divorce, you may be able to spend the time wisely to choose a lawyer that you trust.

Saturday, February 7, 2009

Standard Visitation in Texas Divorce and Family Law Cases.

As codified in the Texas Family Code, the Texas Legislature has set out what is essentially the "recommended" visitation schedule for parents (and other conservators) in a Divorce or other family law cases (such as a Modification case, Paternity Case, or other Suit Affecting the Parent Child Relationship "SAP-CR" matter). The "Standard" Visitation Schedule is presumed to be in the best interests of the children for all children who are three (3) years of age and older. In setting specific visitation schedules, it is the policy of the State of Texas to: (1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (2) provide a safe, stable, and nonviolent environment for the child; and (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or divorced. Tex. Fam. Code § 153.001.

It is important to note that the Standard Visitation Schedule is what is ordered when the parents cannot "mutually" agree to work out the schedule in advance. In other words, when the parents / conservators are unable to work out an agreement, Standard Visitation is what is ordered. Standard Visitation varies depending upon how far the children live from the parent who is exercising the visitation. The dividing line is 100 miles. If you have specific questions about the visitation schedule, you should look at the exact provisions that have been ordered in your case, because they might be different from the schedule as set forth below. However, current orders for Standard Visitation generally provide as follows:

_______________________________________________________

Parents or conservators who live 100 miles (or less) from the children:

Weekend Visits – On the first, third and fifth weekends of each month from either when school lets out or 6:00 p.m. on Friday to either when school begins on Monday morning or 6:00 p.m. on Sunday, at the election of the visiting parent or conservator.

Weekday Visits – On Thursday from either 6:00 p.m. to 8:00 p.m. or on Thursday from the time school lets out to Friday morning when school begins.

Christmas Vacation – In even-numbered years from 6:00 p.m. on the day school is recessed for the holiday to 12:00 noon on December 28. In odd-numbered years from 12:00 noon on December 28 to 6:00 p.m. on the day prior to the day school resumes.

Thanksgiving – In odd-numbered years from 6:00 p.m. on the day when school lets out to 6:00 p.m. on the Sunday after Thanksgiving. (Even-numbered years go to the conservator or parent who has the right to designate the primary residence of the child).

Spring Break – In even-numbered years from 6:00 p.m. on the day when school lets out to 6:00 p.m. on the Sunday before school begins. (odd-numbered years go to the conservator or parent who has the right to designate the primary residence of the child).

Each Child’s Birthday – On the child’s birthday from 6:00 p.m. to 8:00 p.m.

Father’s or Mother’s Day – On Father’s or Mother’s day from 6:00 p.m. on the Friday prior to Father’s Day or Mother’s Day (as applicable) to 6:00 p.m. on such day.

Extended Summer Visitation – If written notice is given by April 1 – possession of the child for a total of thirty (30) days, provided that such visit must end at least seven (7) days prior to the end of summer vacation. If without written notice by April 1, possession from 6:00 p.m. July 1 to 6:00 p.m. on July 31. It should be noted that the other parent can designate one (1) weekend for possession during the summer by giving notice of the date by April 15 or upon 14 days written notice.

Parents or conservators who live greater than 100 miles from the children:
Weekend Visits – Either as provided above, or by designating one weekend per month upon 7 day’s notice (either by written or telephone notice).

Christmas Vacation – In even-numbered years from 6:00 p.m. on the day school is recessed for the holiday to 12:00 noon on December 28. In odd-numbered years from 12:00 noon on December 28 to 6:00 p.m. on the day prior to the day school resumes.

Thanksgiving – In odd-numbered years from 6:00 p.m. on the day when school lets out to 6:00 p.m. on the Sunday after Thanksgiving. (Even-numbered years go to the conservator or parent who has the right to designate the primary residence of the child).

Spring Break – Every year from 6:00 p.m. on the day when school lets out to 6:00 p.m. on the Sunday before school begins.

Each Child’s Birthday – On the child’s birthday from 6:00 p.m. to 8:00 p.m.

Father’s or Mother’s Day – On Father’s or Mother’s day from 6:00 p.m. on the Friday prior to Father’s Day or Mother’s Day (as applicable) to 6:00 p.m. on such day.

Extended Summer Visitation – If written notice is given by April 1 – possession of the child for a total of thirty (42) days, provided that such visit must end at least seven (7) days prior to the end of summer vacation. If without written notice by April 1, possession from 6:00 p.m. June 15 to 6:00 p.m. on July 27. It should be noted that the other parent can designate either one (1) weekend for possession during the summer if the visit is thirty (30) days or less, or two (2) weekends if the visit is more than thirty (30) days by giving notice of the date by April 15.

________________________________________________________________

It should be noted that under Texas Family Code § 153.315, if a weekend period of possession coincides with a school holiday during the school year (or a federal, state, or local holiday during the summer months in which school is not in session), the weekend possession ends at 6:00 p.m. on the Monday holiday or school holiday or (if applicable) will begin at 6:00 p.m. Thursday for a Friday holiday or school holiday, as applicable.

The parent or conservator may also elect (in the order at the time the Order is signed by the Judge) to have to have their periods of possession so-extended by Holiday begin at the time the child is dismissed from school.

If you have specific questions about how your Order or Divorce Decree works in any given situation, you should contact the attorney that represented you or an experienced family law attorney.

Thursday, February 5, 2009

Mediation in a Texas Divorce or Family Law Case.

Mediation is a non-binding Alternative Dispute Resolution procedure for the settlement of disputes. "Non-binding" means that you control the outcome and are not required to settle your case. Although there is a trained mediator who "facilitates" the proceedings, there is no Judge (or Arbitrator) making a decision or imposing his or her will upon you. The mediator is neutral and will remain impartial in the proceedings, meaning that they do not "sides." You retain control as to whether, and, if so, under what terms, the case settles. The matters discussed at the mediation are confidential, so you cannot generally subpoena the mediator to testify and you cannot use what one party says (or doesn't say) at the mediation against them in Court. In a typical mediation, if the parties are not able to settle their case, then the parties still have the ability to go to the Judge for a decision.

Mediation has been a very successful method for resolving disputes in divorce and other family law cases (which could include paternity cases, modifications, enforcement actions, grandparent rights cases, and child custody cases). The only proviso is that the parties (and their attorneys) must genuinely intend to put forth a good-faith effort to settle their disputes. Most mediators also do not take mediation cases when there have been allegations of domestic violence during the relationship. In most divorce and family cases, the reality is that the parties know each other very well and -- despite what is commonly said during these highly charged cases -- have the ability to resolve their disputes peacefully and fairly. The legal proceedings are no different. Additionally, when there are children involved, the parties will have to deal with one another for many years after the legal case ends. Therefore, the amicable settlement of the dispute is very important.

Another realistic observation that can be made from sucessful mediations is that the parties are much more likely to comply with a settlement that is reached by agreement, than with a Court's order that is arbitrarily imposed upon a party.

Most of the time, the mediator will begin the proceedings in one room with all of the parties (although in some highly-contentious case, the parties stay apart the entire mediation). In the joint session, the mediator will lay out the ground rules and then allow each party (or their attorneys) to make a position statement. Although each mediator may handle things slightly differently, most attorney-based mediation models then separate the parties out into different "caucus" rooms. It is at this point that the mediator will meet with each side separately to learn more about the case from the perspective of each party. Once the mediator has a relatively good grasp of the case from each side, he or she will keep going from room to room in an effort to settle or "compromise" the case. A compromise is just that -- not the ideal outcome, but something that can be lived with in an effort to settle the dispute. If an agreement cannot be reached then at some point, the mediator may declare an "impasse."

If, however, an agreement is reached, then the Texas mediator will reduce all of the agreements to writing so that there is no confusion about what deal was struck. If all of the issues in the case are dealt with at the mediation, then usually the parties will be able to obtain Judgment based upon the written settlement agreement.

Monday, February 2, 2009

The 2009 Texas Attorney General Tax Chart.

The 2009 Attorney General Tax Chart is now available for the setting of child support in Texas. It is interesting to note that the Texas Minimum Wage will change from $6.55 to $7.25 on July 24, 2009. Therefore, the minumum wage presumption used for setting child support will increase on that day.

As a result, if child support is set using the minimum wage presumption (based upon a 40 hour work week), child support would be as follows:

From January 1, 2009 to July 23, 2009:

1 Child - $202.57
2 Children - $253.22
3 Children - $303.86
4 Children - $354.51
5 Children- $405.14
6+ Children- Not Less Than $405.14

From July 24, 2009 to December 31, 2009:

1 Child - $222.56
2 Children - $278.20
3 Children - $333.84
4 Children - $389.48
5 Children - $445.12
6+ Children- Not Less Than $445.12

These amounts do not include arguments that the Obligor might have for paying a reduced amount due to actual payments of union dues and/or health care insurance for the child(ren). Also, the amounts also do not adjust for any children that outside the household upon which the order is based, for whom the Obligor may also have a duty of support. For the reduced percentages, see Texas Family Code §154.129

Saturday, January 31, 2009

Texas Divorce Lawyer Tip: Dividing and Dealing with Joint Checking, Savings and Mutual Fund Accounts.

When you first start contemplating a divorce in Texas, you will have the ability to do things with financial accounts that you might not be able to do once the divorce begins. Once the divorce has been filed, you are not allowed to divert money, change designations, or the like. You should also be aware that your spouse will have access to the joint bank (checking, savings, or mutual fund) accounts just like you and when discussions about attorneys come up, it is not uncommon for one spouse to empty all of the money out of the joint bank account for these types of needs. Is there anything that you can do about this? Probably not. During a divorce, the spouses are generally permitted to make expenditures for: (1) reasonable living expenses (such as food, shelter, etc), and (2) attorney's fees. However, you should at least have your own contingency plan.

The only way to ensure that you will have access to funds is to open up your own bank account and start having your paycheck deposited to this account. It is not a bad idea to attempt to get both you and your spouse (by agreement) to open up separate checking / savings account and a separate credit card account. You can even agree (in writing or otherwise) that these accounts are the separate responsibility of the respective spouse. Close the joint account (or keep a nominal amount of money in it) so that there are less assets to ultimately divide by the Court.

If this can be done by agreement, then there will be less of an opportunity for a misunderstanding. If you change where your paycheck gets deposited without informing your spouse, understand that you might be starting a "war." You should be very careful about any actions like this that can backfire. However, if you can do this without inciting additional problems, then this is not a bad idea. In any event, you should at least open up a separate account and ensure that you have enough funds in that account to get by for a couple of months and to obtain an attorney if this becomes necessary. Otherwise, you may not be able to survive without help from family or friends, and you might end up having to sacrifice assets in order to make it for a couple of months. Another alternative is to have your attorney seek the disbursement of funds for living expenses and attorney's fees from other community assets. These types of motions, however, can end up being expensive.

If you expect your spouse to remain civil during the divorce, then this might not be a big deal, but understand that your spouse will have access to each of the joint accounts and during a highly contested divorce, it is not uncommon for one spouse to withdraw money from accounts (for legitimate attorney's fees or for other things) and they can then start hiding the cash. If you have questions about the preparation of specific agreements and other questions about how to deal with joint accounts, you should seek the advice of an experienced divorce attorney.

Austin Divorce Lawyer Tip: What should we do about the Safe Deposit Box during a Divorce?

First of all, safe-deposit boxes are not themselves assets -- it is the items inside the box that are assets. If the safe-deposit box has joint access by both spouses, then you should at least inventory the contents at the time of (or immediately prior to) the initiation of a divorce. It is not a bad idea to take photographs and to take notes on what is in the box so that you have proof. You should date the notes and make them as detailed as possible. It is not a bad idea to get a copy of the log sheet from the bank showing the date when you did the inventory. It is also very important to have a neutral third party go with you and act as a witness. The third party neutral can then initial the inventory and verify the contents. If you cannot find such a person (preferably not a relative or friend who could be accused of being "biased"), someone like a bank employee might even be a good person to use for this. By doing this, you will be able to prove the existence of items in the event of a dispute. If the items are very valuable, it might not be a bad idea to take an independent, third party appraiser with you so that you will have someone who can testify as to value in case the items "disappear." You can usually find someone like a local auctioneer who can perform these types of services.

As long as there is no temporary restraining order or temporary injunction in place, you could potentially take the items and put them into your own safe-deposit box or other safe location so as to limit access by your spouse. If the items are your separate property, (i.e. - the items were purchased prior to marriage, or obtained by gift or inheritance), these actions might not be view by the Judge to be unreasonable. However, if there is a temporary restraining order or a temporary injunction in place (or as we have in Austin / Travis County, Texas a Standing Temporary Order) then you should not and cannot take the items (hide or secrete them) without Court approval. You should keep in mind; however, that if you start taking and hiding assets of the marriage, your spouse might start doing the same and this would not be a good thing.

Austin Divorce Lawyer Tip: Post-Divorce Planning with Insurance and Retirement Benefits.

Oftentimes divorce attorneys are focused on getting all of the divorce issues handled and do not discuss estate planning issues with you. At the inception of any Divorce, it is recommended that you seek the advice of an experienced Estate Planning Attorney to update your will, living will, medical powers of attorney, and durable powers of attorney. Although Texas law provides that after a Divorce, beneficiary designations as to insurance proceeds and retirement benefits are treated as having been automatically revoked under Texas Family Code sections 9.301 and 9.302, you should not depend upon this. The insurance company or Plan Administrator will not be liable for paying in accordance with your instructions, unless they get prior notice of the claim of another before distributing the funds and then fail to interplead the funds into the registry of the court. Also, you may not have considered some of these issues:

What if a spouse should die during the pendency of the Divorce, will my spouse get all of my life insurance and retirement benefits?

What happens after we have settled our case (by mediation, negotiation, in a Rule 11 Agreement, or otherwise), but before the divorce is actually finalized?

Do you want your spouse making medical decisions if you should get seriously injured?

Do you want your spouse to have access to all of your assets, bank accounts, safe deposit box, and mutual funds in the event of your incapacity?

You should also be aware that once the Divorce case has been filed, you may not be permitted to change these designations due to a Temporary Restraining Order, Temporary Injunction, Local Rule, or as we have in Austin, Texas, the TRAVIS COUNTY STANDING ORDER REGARDING CHILDREN, PROPERTY AND CONDUCT OF THE PARTIES. As a result, you need to make these considerations prior to the time the Divorce is filed.

This is where divorce law intersects with estate planning and probate law. Anyone who may be planning on a divorce should think about these issues and consult their Divorce Attorney to come up with a plan to ensure that these matters are addressed.

Thursday, January 29, 2009

Insurance Coverage under COBRA after a Texas Divorce.

Pursuant to Federal statute (specifically, the Consolidated Omnibus Budget Reconciliation Act of 1985 or "COBRA"), you should keep in mind that a spouse (and dependent child) who is covered under the insurance policy of an employee may have the right to so-called COBRA "continuation coverage" after a Divorce is finalized. In order to qualify, the employee must: (1) work for an employer who has 20 or more employees, (2) file an application with the employer no later than sixty (60) days after the divorce is finalized, and (3) keep up the premium payments, which cannot be two percent (2%) more than the original premium payments.

COBRA coverage can become especially important for spouses with significant pre-existing conditions that might not be covered with a new insurance carrier. As a result, as long as the coverage elections are timely made, the former spouse cannot be required to take a physical exam or otherwise qualify for the continued coverage. The continuation coverage has the potential to last for three (3) years after the Divorce is finalized. After that, the former spouse still may be able to purchase "conversion coverage" under COBRA; however, with the conversion policy, the employer or insurance carrier can charge significantly higher rates.

These rights only apply in situations of qualifying employees (those policies purchased through work or an association) and not with an individual plan, or those that you purchase on your own. Individual plans are generally not subject to the COBRA provisions. As a result, once you lose that coverage, you won't be able to get an extension.

COBRA Insurance coverage generally ends when: (1) the last date of maximum coverage endes; (2) premiums are not paid on a timely basis; (3) the employer ceases to maintain any group health plan, (4) you obtain coverage through another employer group health plan that does not have any exclusions or limitations with respect to a pre-existing condition of a beneficiary; (5) you move outside the health plan coverage area; and, (5) a beneficiary is entitled to Medicare benefits.

Ten Ways to Help Your Children Get Through Your Divorce

1) Do not insult or talk bad about your (soon-to-be-ex) spouse in front of, to, or around your children. This is harmful and detrimental to your children. In extreme cases, it is sometimes referred to as "Parental Alienation Syndrome (PAS)." You should encourage your spouse to be the best parent that he or she can be, even if your spouse was not a particularly good husband or wife. Children need both parents; driving a wedge between your child and the other parent will do grave damage to both or may backfire and cause the child to resent you and defend the other parent. Sometimes the other parent simply withdraws from the relationship altogether; only in the rarest of circumstances is this good for your child. The majority of children charged with crimes in our juvenile justice system do not have the active involvement of both parents.

2) Do not involve your children in legal discussions. The financial and legal details of the divorce will only serve to upset and distress your children. Children should not be permitted to (over) hear your arguments and discussions about legal, financial, or emotional issues relating to the divorce. Children should not be informed about what is going on in court and generally should not be asked to make a decision to choose one parent over the other. Your children should not be encouraged to shuttle messages back and forth between their parents; instead, you should communicate directly, politely, and calmly with the other parent about any parenting issues (even if your spouse is rude or unresponsive with you). Never bring your children to Court without prior Court approval.

3) Do not dump your emotional baggage on your children. If you are angry with your spouse, have resentment toward your spouse, or are saddened by his or her actions, you should not discuss these extreme emotions with your children. Your child is not your friend, buddy, and certainly not your counselor or therapist. You are the parent and your children expect you to be in control at all times. If you are out of control, you cannot parent the way you should. Your children need you to be engaged most of all during this emotionally difficult time. If you need to discuss your feelings, hire a counselor or speak with a close friend or adult relative.

4) Reassure your children that both parents love them; tell them directly that the divorce is not their fault and that everything will be okay. In most cases, you should attempt to come up with a game plan (or "parenting plan") so that both parents can be actively involved in your children’s activities. Also, there are “parenting coordination classes” such as “Putting Kids First,” that can be taken to help you work with the other parent for the betterment of the children. Discuss any potential plans or agreements with your respective attorneys, and seek their input, but do not sign anything without talking to your lawyer first.

5) Try to maintain the status quo during the divorce as much as possible. The children have grown to expect such routines from you, and you will cause unnecessary stress if you decide to change all things that are familiar to them. If the divorce does not require moving them out of their house, changing schools, or moving to another city, it is not a good time to make these or other changes. If your children have friends they like to play with, family members that they want to see, or adults involved in their lives (that you approved of prior to the divorce), do not cut off those relationships simply because they may be "more friendly" with (or related to) your spouse. Your children should be encouraged to contact these people by telephone or email if they cannot visit in person. You must be the bigger person about these matters. Take the high road, rather than the low one that is so often traveled.

6) Never ever, ever introduce a new "significant other" into your children's lives during or even shortly after the divorce. This will confuse them, upset them, and will make them very angry and resentful. Take this time to concentrate on the children and building your relationship with them, rather than a new love interest.

7) Children should not be exposed to secondary smoke from tobacco. Children should not be present during the use or possession of illegal drugs. Parents must ensure that children are not transported in a motor vehicle by any person under the influence of alcohol or drugs. Your children deserve to be safe and secure.

8) Parents should discuss, agree, and then mutually enforce appropriate limitations concerning the use of cell phones, computers, video games, television, and similar electronic devices or modes of communication. You should include what ratings are acceptable for television, movies, and video games, as well as appropriate curfews or bedtimes.

9) Do not criticize the other parent. Do not permit, encourage, or allow your children to criticize the other parent. The other parent's failures in life (financial, psychological, relational, physical, emotional limitations, or legal problems) should not be discussed with the children, unless it is first brought up by the child, and only then after a discussion is had with the other parent about the nature and extent of the disclosures to be made to the children.

10) All children should have a place for their belongings in a room separate from their parents, at each parents' location. The children should be allowed to take a reasonable amount of belongings with them to the other parent’s home and they should always be permitted to return with those items that were originally in his or her possession, unless a prior agreement is made with the other parent in advance. The child must be permitted to have photographs, correspondence, and personal items from both parents in their personal space.

Wednesday, January 28, 2009

Parent Education and Family Stabilization Course for Texas Divorces

In 2005, the Texas Legislature added a provision relating to the taking of a Parent Education and Family Stabilization course. See Texas Family Code Section 105.009. Although the courses are not mandatory unless ordered by the Court (although some counties now have local rules requiring that the parties take the course), many people believe that these courses are very productive and help people to focus their attention on what is truly best for their children. The Austin / Travis County Courts have not yet required the course. Of the clients that we have had take these courses, many say that the courses are helpful and report a positive experience. The courses are usually between four and twelve hours in length and are "designed to educate and assist parents with regard to the consequeof divorce on parents and children."


Pusuant to Texas statute, the course must include information on the following issues:

(1) the emotional effects of divorce on parents;
(2) the emotional and behavioral reactions to divorce by young children and adolescents;
(3) parenting issues relating to the concerns and needs of children at different development stages;
(4) stress indicators in young children and adolescents;
(5) conflict management;
(6) family stabilization through development of a coparenting relationship;
(7) the financial responsibilities of parenting;
(8) family violence, spousal abuse, and child abuse and neglect; and
(9) the availability of community services and resources.

When one of the parties to a contested custody case is particularly difficult or is not doing what is best for the children, one option is to request that the Court order that party to take the course. You should be prepared for the likelihood that the Court will simply order both of the parties to take the course, when one party requests. If you have more questions about the Parent Education and Family Stabilization Court you should seek the advise of an experienced family law attorney.

Sunday, January 25, 2009

What is a Guardian or Attorney Ad Litem in a family case?

A Guardian Ad Litem (“Ad Litem,” meaning for purposes of the litigation) is appointed by the Judge in family law cases and will attempt to inform the Court as to what he or she believes is in the “best interests” of the child. In situations where legal action may be required, the Court can also appoint an "Attorney Ad Litem."

The Guardian Ad Litem usually has an advanced degree in either sociology or psychology and has special training in assisting children. The Guardian is usually appointed in termination or adoption cases, but, in special circumstances, also can be appointed in contested child custody cases.

In contested child custody cases, upon the appointment of either (or both) a Guardian / Attorney Ad Litem, the parties will lose some degree of control over what goes on at hearings and at trial. However, when a party is convinced that greater disclosure and investigation will be advantageous to his / her side (and, of course, the "best interests" of the child), then the appointment may be requested. These factors (and others) should be carefully weighed and it is recommended that you consult with an experienced family law attorney. Some of the things that the Guardian / Attorney Ad Litem can / may do are:

1) meet with and interview the child(ren);
2) interview the parents and other family members;
3) interview teachers, counselors, neighbors & others involved with the children;
4) interview other witnesss / third parties;
5) request that the Court order a home study and/or investigate the neighborhood;
6) collect evidence by serving subpoenas on schools and medical or psychological providers;
7) suggest (or request in Court) that the child (and/or parents) see a qualified psychiatrist, psychologist, or counselor for evaluation and/or treatment;
8) initiate (or merely attend) depositions in the case;
9) the filing of Motions concerning matters such as child support, visitation, conservatorship, temporary injunctive relief, health or psychological problems with the children, abuse or neglect of the children, or other matters that have not yet been brought to the attention of the Court;
10) the filing of a formal report to the Court;
11) initiate meetings between the Judge and the child(ren);
12) subpoena witness to hearings and trial;
13) attend hearings and trial; and/or
14) the making of formal or informal recommendations to the Court concerning custody, visitation, powers of conservatorship or other matters.

Sunday, January 18, 2009

Spousal Maintenance, Alimony and Tax Tips for Texas Divorces

Spouses can agree to the payment of spousal maintenance (or what is basically alimony in Texas) . However, spouses in the process of a divorce would regard a Court Order requiring the payment of spousal maintenance to be an unfavorable scenario. This may not actually be the case. Because of how the IRS treats the payments for tax purposes, this may actually be favorable for both spouses. If structured properly, the paying spouse (Obligor) may be able to deduct the payment from his or her income. As a result, this liability actually removes income from the paying spouse's reported income, thereby reducing the Obligor's tax liability. The effect of this over time could be significant, especially if the payments drop the Obligor into a lower tax bracket.

On the other hand, the receiving spouse (Obligee) must report the payments as additional income on his or her Form 1040. By structuring the settlement in this manner, the Obligor could hang on to additional assets and reduce his or her tax liability at the same time. Conversely, the Obligee could obtain the security of payments over time and, assuming the Obligee is in a lower tax-bracket, reduce the overall tax liability of the marital estate.

Under IRS publication 504, the following types of payment are not considered to be spousal maintenance (alimony):

· Child support,
· Noncash property settlements,
· Payments that are your spouse's part of community income,
· Payments to keep up the payer's property, or
· Use of the payer's property.

In order to qualify to be alimony (or spousal maintenance), the settlement must be structured properly. The following seven requirements are mandatory:

1. The payments must be made as part of a written divorce agreement;
2. The payments must be made to your ex-spouse and usually not to third parties;
3. The divorce (or agreement incident to divorce) should not expressly disclaim that the payment is for alimony (spousal maintenance);
4. After the divorce, you and your spouse cannot live together in the same household and should not file the taxes jointly;
5. The payment must be in cash or equivalents (checks, money orders, cashier's checks) and not money from a property settlement;
6. The payment cannot be considered to be child support; and,
7. The obligation to make payments must cease if your ex dies.

If you have questions, you should consult an experienced divorce attorney or CPA.

***** Treasury Circular 230 Disclosure - To comply with requirements imposed by the Internal Revenue Service, to the extent this blog posting could be construed to include "tax advice," the information is not intended or written to be used, and cannot be used, by any person for the purpose of avoiding tax penalties that may be imposed on the person. This blog post is intended for informational purposes only, the taxpayer should seek advice based on the taxpayer's particular circumstances from an independent tax advisor.

Sunday, January 11, 2009

I’ve been served with a Divorce Petition in Texas, what should I do / not do?

Although receiving a divorce petition is scary, there is usually time to act. As is explained in the document attached to the divorce petition called the “Citation,” (assuming this was included with the service papers) you generally will have until the “Monday next following the expiration of twenty days (at 10:00 in the morning)” within which to file an Answer. Sometimes you may have even longer (up to a 60 day waiting period) if the Original Petition was filed recently. This means that if an Answer is not filed before the deadline, your spouse can obtain a divorce and you will literally have no say in the terms. As a result, unless there is an immediate hearing scheduled (usually called a “Temporary Orders” hearing), you will have until Monday at 10:00 a.m. following twenty days from the day you were served within which to file an “Answer.” As a result, this is at least twenty days. This should be plenty of time for you to retain an experienced divorce attorney and get your Answer filed. You can certainly meet with your spouse to discuss the situation, provided you can do so without any possibility of threats or violence. However, you should not sign anything without first talking to a lawyer. If there is a Temporary Orders hearing scheduled, you should either retain an attorney well in advance of the hearing date or (or if you are unable to hire an attorney prior to the hearing date) at least go to the hearing and explain to the Judge that you have not yet had the opportunity to hire an attorney. Unless there is some emergency, the Judge will usually grant this request – called a “continuance.”