Texas Family Law Blog

Grounds for Annulment in Texas: Marriage of Person Under Age 18

2012-01-31T15:08:00.000-08:00

A marriage may be annulled if one of the parties to the marriage is 16-17 years of age and did not obtain prior parental consent or a court order. (If one person is younger than 16 the marriage is void). A petition for annulment may be filed by a parent or guardian on the minor’s behalf, but must be filed before the minor’s 18th birthday. In determining whether to annul the marriage, the court will consider facts concerning the welfare of the parties and whether the wife is pregnant.

References: Texas Family Code 6.102 – 6.104, 6.205

Article by Sarah F. Berry, Attorney

Grounds for Annulment in Texas

2012-01-18T14:19:00.000-08:00

Generally, under Texas law, a marriage can be annulled if, at the time of the marriage:

1. Marriage of Person Under Age 18: one party was under the age of 18 years old

2. Under Influence of Alcohol or Narcotics: the person seeking the annulment was under the influence of alcohol or narcotics

3. Impotency: one of the married persons is permanently impotent

4. Fraud, Duress or Force: the person seeking the annulment entered the marriage under fraud, duress, or force

5. Mental Incapacity: one of the married persons did not have the mental capacity to consent to marriage or understand the nature of the marriage ceremony

6. Concealed Divorce: the person seeking the annulment discovers the other person concealed they were divorced within 30 days before the marriage

7. Marriage Less than 72 Hours after Issuance of License: the marriage took place less than 72 hours after the license was issued

The articles following later this month will discuss in detail the grounds for an annulment in Texas.

References: Texas Family Code 6.101 – 6.206

Article by Sarah F. Berry, Attorney

How is an Annulment different from Divorce?

2011-12-21T14:16:00.000-08:00

A divorce legally terminates a marriage. While you are no longer married, the marriage was legally valid at the time.

An annulment dissolves a voidable marriage by declaration that it was legally invalid. From a legal perspective, after an annulment, it is as if the marriage never existed.

There is also a difference between a “voidable” marriage and “void” marriage. A voidable marriage is valid and recognized until it is annulled and declared legally invalid. On the other hand, a void marriage was never valid or recognized. For example, a marriage is voidable and can be annulled if one of the parties was under the influence of alcohol or narcotics at the time of the marriage. However, this marriage will be valid unless an annulment is sought. A marriage is void if, for example, one of the parties is currently married to a third party at the time of the marriage. This marriage is invalid and will not be legally recognized.

Texas law allows an annulment only in very specific circumstances and only if the party seeking the annulment can prove certain necessary facts.

Because seeking an annulment is asking the court to declare that the marriage was void and never existed, seeking an annulment rather than a divorce can affect the processes people typically associate with a divorce such as the division of property, and all potentially affected aspects should be carefully considered.

The articles following later this month will discuss the specific grounds for an annulment in Texas.

References: Texas Family Code 6.101 – 6.206

Article by Sarah F. Berry, Attorney

Can I Seek Custody of Someone Else’s Children?

2011-12-02T14:19:00.000-08:00

Blended or complex households may involve raising step-children or even the children of friends and other non-relatives, often for a variety of practical economic and social reasons. But typically a non-relative does not have the legal right (called “standing”) to seek a court order for custody or to be appointed as that child’s conservator.

However, the Texas Legislature has recognized that, under certain circumstances, a non-relative can have enough involvement in a child’s life to be entitled to seek rights typically reserved for that child’s parents or other relatives.

Specifically, a person who has “actual care, control and possession” of a child for at least six months can file a petition to seek to be appointed as that child’s conservator, even when the child is not related by blood or marriage. The petition must be filed within 90 days of the child leaving the applicant’s actual care, control and possession. In this situation, “actual control” means that the applicant had power or authority to guide and manage the child.

So, for example, if the child of a friend has lived with you during the past year while attending school with your own children, and that friend is unable to return to care for the child (due to death, illness, financial misfortune, or other circumstances), you would have standing to file a petition asking the court to appoint you as the child’s managing conservator. Often, this arrangement can be temporary and does not involve terminating the rights of the child’s actual parents, but provides you with legal rights and authority (as described in the court’s order) related to the child’s care, possession and upbringing.

Article by Cindy Veidt.

Legal Separation in Texas

2011-08-22T16:56:00.000-07:00

There is no such thing as “legal separation” in Texas. The only legal proceeding for separation is divorce. Once a divorce is filed, the court can make temporary orders concerning the parties, their property, and their children. However, some couples fee they need to be “separated” for a time to determine if their relationship is reconcilable or if divorce is truly necessary. This can cause problems because property and finances may remain joint between the spouses while married.

While there is no such thing as legal separation in Texas, it is possible for spouses desiring a period of separation with separate finances and property to enter into various property agreements, changing the ownership of property from community to separate. However, the consequences of should be carefully considered.

Legally, the spouses would still be married, and may not be completely protected from financial decisions made by their spouse, no matter how careful their planning and detailed their property agreements. Additionally, once the nature of property is changed from community property to separate property, the change in property ownership will remain effective if the separation does in fact lead to a divorce, which may not have been the intent of one or both spouses. The same is also true if the parties do not get divorced, which may have an unintended effect on property distribution upon the death of one of the spouses.

Article by Sarah F. Berry.

What is Spousal Maintenance and when is it available?

2011-08-08T16:04:00.001-07:00

Texas has very limited laws regarding the availability of spousal maintenance. Spousal maintenance is defined under the Texas Family Code as “an award… of periodic payments from the future income of one spouse for the support of the other spouse.” (Tex. Fam. Code § 8.001) In other words, “spousal maintenance” is something of a misnomer – it is actually paid by a former spouse after the divorce is granted and the two persons are no longer married.

Under Texas law, a person is only eligible to receive spousal maintenance if:

1) the other spouse was convicted of an act of family violence that occurred during the two years immediately before the date on which the petition for divorce was filed, or

2) the marriage lasted longer than ten years and the spouse to receive maintenance cannot support himself or herself.

In general, a Texas court may not order spousal maintenance for longer than three years after the divorce is final, and the court will limit the duration of payments to the shortest period of time possible. However, a person may be entitled to receive spousal maintenance for a longer period of time if he or she has an incapacitating physical or mental disability, or is caring for a child with such disability.

Factors in determining whether to award spousal maintenance include:

* the relative financial resources of both spouses,

* the duration of the marriage,

* the age and earning ability of the spouse seeking maintenance,

* the contribution of the spouse as a homemaker,

* infidelity or fraud during the marriage,

* the spouses’ respective education and employment skills, and

* one spouse’s contribution to the other’s earning power.

These factors are not exclusive. In Texas, there is a presumption against spousal maintenance, and it is not available unless the person requesting spousal maintenance has been diligent in seeking employment and improving his or her job skills and employability.

Lastly, the amount of spousal maintenance cannot exceed the smaller of $2,500 per month or twenty percent of average gross income per month of the spouse who is ordered to make payments.

In summary, spousal maintenance is not available unless the party requesting such payments can overcome the presumption against an award of spousal maintenance by providing evidence supporting the various factors, and – even when awarded – the payments are for a limited amount and only for a limited time.

This blog was prepared by Nathaniel Lipanovich and edited by Cynthia W. Veidt.

What is Spousal Support and when is it available?

2011-08-08T16:00:00.000-07:00

In contrast to “spousal maintenance” (see related blog topic), Spousal Support in Texas is awarded on a temporary basis while a divorce suit is still pending. This temporary spousal support is meant to provide a financially dependent spouse with income during the divorce while the parties are working on a resolution to their financial situation.

Temporary spousal support is based on the common law duty to support one’s spouse during the marriage, by providing “necessaries” such as food, clothing, shelter and medical care. As a result, an award of temporary spousal support can be taken into account when the court divides the spouses’ community property, since the spouse who is providing such spousal support is entitled to reimbursement from their community estate.

To be entitled to receive temporary spousal support, the requesting spouse must demonstrate that: (1) the parties have a valid marriage, (2) he or she is unable to pay for necessary expenses, and (3) the other spouse can afford to pay the amount of spousal support sought.

If the spouse receiving temporary spousal support remains unable to pay for necessary expenses at the time of the final hearing/trial, he or she should consider requesting spousal maintenance for a period of time after the divorce is granted.

Blog prepared by Nathaniel Lipanovich and edited by Cynthia W. Veidt.

How to Change a Child’s Name in Texas

2011-05-09T15:00:00.000-07:00

In Texas a guardian or parent must petition the court if they wish to change a child’s name. This is also the process that must be followed when an adult requests a name change, but in the case of a child, there are additional requirements that must be met. Our blog about changing an adult’s name can be found below.

If a name change is requested for a child, all parents or conservators of the child must be served with the petition requesting the name change by a constable or process server and the name change must be in the “best interest” of the child. As in the case of an adult name change, the petition must include specific personal information about the child. The party requesting the name change for the child must also disclose whether there has been a previous court order regarding the child and which court has continuing exclusive jurisdiction under the Texas Family Code. If the child is 10 years of age or older, the child’s written consent to the change of name must be attached to the petition.

As in the case of an adult name change, a hearing will be scheduled. Other parents or conservators f the child must be notified of the hearing and given the opportunity to contest the name change. If the name change is contested, the court will determine whether or not the name change is in the child’s best interest.

After an order changing the name has been signed by the judge, that person should notify the appropriate governmental agencies such as the Social Security Agency. If a child’s name has been changed and the child has been the subject of a previous court order such as a custody or child support order, a copy of the order changing the child’s name should also be sent to the Bureau of Vital Statistics.

How to Change Your Name in Texas

2011-03-16T10:40:00.000-07:00

Most name changes occur when an individual either gets married or divorced; however, for various reasons, people may desire a name change at other points in their lives. In Texas, it is possible to change your name in a separate proceeding. The process to change an adult’s name is different than that to change a child’s name and this article will only address the procedure to change an adult’s name. Please visit our blog again later to for information on how to change a child’s name.

For an adult, to change your name you must follow the correct procedure and meet all requirements. The person seeking a name change must first file a petition in the district court in their county of residence. The petition must include very specific personal information such as your date of birth, social security number and a set of fingerprints. This personal information is required because the court must find that the person seeking the name change is not seeking it to avoid legal problems such as criminal convictions or evading debts. After the petition has been filed, the person seeking the name change will need to appear before the judge and give testimony regarding the personal information in the petition. At that time, if the judge finds no problems, he will sign an order changing your name.

After an order changing the name has been signed by the judge, that person should notify the appropriate governmental agencies such as the Social Security Agency and Department of Motor Vehicles to obtain a new social security card and driver’s license. You should also notify relevant private organizations such as credit card companies, banks, employers, and insurance providers. If any agencies or companies require proof of the name change, a certificate can be obtained from the district court clerk.
Blog by Sarah F. Berry http://www.carylippincott.com/Attorney_SarahBerry.php

Waiving Service of the Lawsuit in Divorce Cases

2011-02-08T16:30:00.000-08:00

What does it mean to waive service of the lawsuit in divorce and what effect does it have? A suit for divorce is like any other lawsuit in that the person who filed the petition for divorce must serve a copy of the lawsuit on the other spouse. However, the spouse being sued for divorce can agree to waive service of the lawsuit by signing a waiver.

Depending on the circumstances, there can be several good reasons the parties may want to consider waiving service of the lawsuit, especially in a divorce case. First of all, it costs money to serve the lawsuit. You must hire an independent person (such as a process server or constable) to serve your spouse and they charge a fee for their services. So if your spouse agrees to waive service, you will save a little bit of money.

Second, it can be embarrassing to be served with a lawsuit. The process server may appear at your spouse’s place of employment or home to serve the lawsuit. This can result in embarrassment for some people. If both spouses want to get divorced and are on good terms, agreeing to waive service can spare potential embarrassment.

However, if you are the spouse being sued and are considering waiving service, you need to read the waiver very carefully. Waivers can contain different terms. Some waivers say that you are waiving service of the lawsuit ONLY, but want to be notified of everything else in the case. Other waivers say that you are waiving notice of everything. If you waive notice of everything, your spouse can schedule a hearing or trial and is not required to notify you. This can be very problematic.

Waivers certainly have their benefits, agreed upon divorce cases, but make sure you understand what you are agreeing to before you sign a waiver.

Blog prepared by Sarah Berry.

How Do We Divide the House in Divorce?

2011-01-12T08:38:00.000-08:00

One of the most troublesome problems facing divorcing couples in a “down” real estate market involves division of the marital residence (or other real property they may own together). Often, couples have little or no equity in the marital residence and neither spouse will be able to re-finance the debt into their name alone.

When both spouses are joint debtors under the mortgage, a divorce decree by itself will not limit their individual liability for payment of that mortgage, and in these economic times, many mortgage lenders will not agree to release one spouse from individual liability under the mortgage.

Traditionally, one spouse agrees to be responsible for the mortgage payments (becoming essentially the property “owner”) and to indemnify the other spouse from any claims by their mortgage company until the house is sold or the mortgage is paid off; this agreement is usually secured by a lien against the marital residence (so that the other spouse is now placed in the role of a “lienholder” although behind the mortgage lender and perhaps other creditors). In other words, the “lienholder” spouse giving up the marital residence has to hope that the “owner” spouse will be able to continue making mortgage payments after the divorce and – if he or she can’t – must be ready to step in and pay the mortgage to avoid foreclosure of the property and being sued individually for any deficiency between the sales price and the accelerated amount of the mortgage.

If the marital residence has “equity” – in other words, if the value of the property is substantially more than the full amount required to pay off the mortgage – this is generally not a problem. But if the marital residence has little to no equity, or is “underwater” because the property is now worth less than the amount of the mortgage, divorcing spouses have to make some very tough decisions concerning future liability and financial risk.

Even when a divorce is “agreed” and there are essentially no disputes between the spouses about dividing marital assets, in situations where the marital residence or other real property carries substantial debt and little equity, it is best to consult with a family/divorce lawyer to advise you on potential methods for handling the marital residence in a way that will help limit exposure to potentially large and unexpected expenses after the divorce has become final.

Blog by Cynthia W. Veidt

Same-Sex Divorce in Texas

2010-03-25T07:34:00.000-07:00

Laws pertaining to marriage are created and governed by individual states. As a result, laws affecting marriage differ greatly from one state to another. It is precisely this kind of difference that has created difficulties for same-sex couples who get married in one state, but seek divorce in a different state.

Across the United States, same-sex marriage is accepted, or rejected, in varying degrees. Massachusetts, Connecticut, Iowa, Vermont, Maine, and New Hampshire have all come to recognize same-sex marriage. California recognizes the institution for some couples, and other states allow a legalized partnership without the title of “marriage.” Several states, including Texas, have enacted laws or even amended the state constitution in order to refuse recognition of any form of same-sex marriage. Still other states, including Rhode Island and Pennsylvania, have not expressly accepted or rejected same-sex marriage.

What does this mean for same-sex couples who get married in one state and move to a state that does not recognize that marriage? It depends, but it can mean that the couple is treated within that state as if they were not married. In 1996, the United States Congress enacted the Defense of Marriage Act (DOMA), which had two major implications. First, it refused to recognize same-sex marriage on the federal level. Second, it permitted individual states to refuse to recognize same-sex marriages regardless of their validity in other states (up to this time, many same-sex marriage advocates pointed to the “Full Faith and Credit Clause” of the United States Constitution in order to compel one state to recognize a same-sex marriage that was valid in another state).
This has noticeable implications in a state like Texas when a same-sex couple files for divorce. How can a state grant a divorce between two people when it does not recognize them as married? According to one Dallas judge, the answer is by holding that law unconstitutional. In January of 2009, a Dallas man filed for divorce from his same-sex partner three years after they were married in Massachusetts. Despite objection from Texas Attorney General Greg Abbott, the divorce was granted. In the decision, Judge Tena Callahan held that Texas’ refusal to recognize the marriage was in violation of the “Equal Protection Clause” of the Fourteenth Amendment to the United States Constitution. That case is currently being appealed.

In February of 2010, a similar case arose in Travis County where a same-sex couple was granted a divorce. The day after the decision, Attorney General Abbott filed a motion to block the divorce before it was entered into the official record. The outcome of this case is still pending.

Because both of these judicial decisions have been at the trial court level, it is not yet clear what precedential weight they carry. However, if they are any indication of future decisions, we may be approaching an interesting family law jurisprudence in Texas. In other words, marriage may be for a man and a woman, but divorce may be for everyone.

**This article was prepared by Matt Lloyd, and edited by Chloe Love.

Recent Famly Law Change: No Written Designation by Child

2009-12-22T13:07:00.000-08:00

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.

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

2009-08-21T13:39:00.001-07:00

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.

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

2009-04-20T01:24:00.000-07:00

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.

Austin Divorce Lawyer Tips about Common Law Marriage.

2009-04-19T09:58:00.000-07:00

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.

Geographical Restrictions and Relocation Issues in Austin and Travis County Texas

2009-04-14T23:35:00.000-07:00

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.

Austin Lawyer Tip: Retroactive Child Support.

2009-04-01T11:03:00.000-07:00

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.

2009 Texas Legislative Session and the Conflict and Communication Skills Course

2009-03-26T14:46:00.000-07:00

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.

Representing yourself in a Divorce Case.

2009-03-08T18:52:00.000-07:00

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.

What if we can't afford to Divorce?

2009-03-07T16:26:00.000-08:00

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.

Standard Visitation in Texas Divorce and Family Law Cases.

2009-02-07T17:32:00.000-08:00

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.

Mediation in a Texas Divorce or Family Law Case.

2009-02-05T19:11:00.000-08:00

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.

The 2009 Texas Attorney General Tax Chart.

2009-02-02T06:31:00.000-08:00

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

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

2009-01-31T15:02:00.000-08:00

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?

2009-01-31T13:55:00.000-08:00

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.

2009-01-31T09:26:00.000-08:00

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.

Insurance Coverage under COBRA after a Texas Divorce.

2009-01-29T20:47:00.000-08:00

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

2009-01-29T00:22:00.000-08:00

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.

Parent Education and Family Stabilization Course for Texas Divorces

2009-01-28T21:23:00.000-08:00

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.

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

2009-01-25T08:32:00.000-08:00

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.

Spousal Maintenance, Alimony and Tax Tips for Texas Divorces

2009-01-18T18:55:00.000-08:00

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.

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

2009-01-11T11:50:00.000-08:00

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.”

What is a Qualified Domestic Relations Order, or QDRO?

2008-12-29T08:35:00.000-08:00

A Qualified Domestic Relations Order (Acronym - QDRO and pronounced "Quad-Row") is a Court Order that splits up various types of retirement accounts. Federal law (ERISA) generally does not permit state court judges to require that the person who administers a retirement account (the "Plan Administrator") immediately pay retirement benefits out to a divorcing spouse, even though the accumulated benefits may be community property (in a community property state such as Texas). For this reason, the alternate payee is said to receive the benefits "if, as, and when" the retiree or employee receives the benefits. As a result, the QDRO will assign to an "alternate payee" (who is usually the divorcing spouse) the right to receive all or a portion of retirement plan benefits payable to a "participant" (or the employee). A QDRO can also sometimes be used to collect child support or spousal maintenance.

Texas Waiting Period for New Marriage After Divorce

2008-12-13T18:03:00.000-08:00

Sometimes we are asked the question: “How long do I have to wait before I can remarry?” Despite the obvious question – “Why are you trying to remarry so soon after you just divorced?” Nevertheless, if you are not dissuaded by a recent divorce, (say, for example, your adulterous relationship has produced a child) here’s how it works: After your divorce, you are not permitted to remarry another person before the 31st day after the date the divorce was “decreed” (usually meaning the day the Decree was signed). The only proviso is that when “good cause” is shown (again perhaps the child example above) the court can waive the prohibition against remarriage if a record of the proceedings is made (in open court with a court reporter) or with “written findings of fact” prepared and signed by the Judge. The only exception is that the former spouses can remarry at any time.

Divorce Name Change in Texas

2008-12-13T18:02:00.001-08:00

At the time a divorce is granted (or annulment or suit to declare a marriage void) the court shall grant a name change to a name used prior to the divorce, unless the court states in the decree a reason for denying the change of name. The court cannot deny a change of name solely to
keep last names of family members the same. You should also be aware that you can apply for a “Change of Name” certificate from the clerk of the Court.

FAQ: Can I get Alimony in Texas?

2008-12-13T18:00:00.000-08:00

No. There is no “Alimony” per se under Texas law. However, the Court can grant “spousal maintenance” in certain limited circumstances, such as when: (1) there has been a conviction (or a grant of “deferred adjudication”) for an act involving family violence within two years of the filing for divorce, or during the pendency of the divorce, (2) the parties have been married for at least ten years and the spouse seeking the maintenance “lacks sufficient property” . . . “to provide for the spouse's minimum reasonable needs” and when any one of the following [a, b, or c] exist: (a) the spouse seeking the maintenance is unable to support him or herself through “appropriate employment because of an incapacitating physical or mental disability,” (b) the spouse seeking the maintenance is the custodian of a child of the marriage (of any age) who requires substantial care and personal supervision because of a physical or mental disability, or (c) the spouse seeking the maintenance “clearly lacks earning ability in the labor market adequate to provide support for the spouse’s minimum reasonable needs.”

Real Property Division in Divorce

2008-11-22T15:36:00.001-08:00

One of the more difficult assets to divide during a divorce is that of real property, such as the marital homestead. The reasons for the difficulties include: (1) the fact that both of the parties reside in the home, (2) it can accumulate a substantial amount of equity, and (3) there is usually secured debt upon the residence (mortgage, home improvement loans, or home equity financing). As a result, most personal property, stocks, bonds, and financial accounts are easier to split up. There are potentially many ways to deal with real estate. However, in the situation where the divorcing spouses jointly own a single, marital residence, descriptions of the two most common ways to deal with the house:

(1) Sell The Home: The home can be listed for sale with a real estate broker and sold. The net proceeds of the sale (if any) would then be divided between the spouses as any other asset of the marriage. This is certainly the simplest way to go. It promotes certainty, it is easy to figure the equity, and it removes a significant liability and the entanglements that come with joint ownership and the joint liability. However, it will displace the family, including the children from the home. As a result, it will likely be the most disruptive. The other downside with selling the home is that there are usually significant closing costs with the sale and disposition of real estate. These expenses will be duplicated three times if each of the spouses are going to then buy their own home after the divorce.

(2) Conveyance to the Other Spouse: The second most common option regarding the marital homestead is a conveyance from one spouse to the other. Usually when children are involved the "primary" parent is the one that stays in the house. For example, in one of the the most common scenarios, the Wife stays in the home with the children and the Husband moves to an apartment. In this example, the Husband would sign a Deed (what is generally referred to as a Special Warranty Deed) and the Wife would then own the home outright. Most people understand that one spouse then owns the home, but many people do not understand what happens with the secured debt on the home.

WHAT ABOUT THE SECURED DEBT? Occasionally, the Judge will Order that the spouse who received the home refinance it (or the parties will agree to this), but oftentimes (due to high-interest rates, lack of credit, lack of income to justify the mortgage ratios, or, as we have now, the possibility of a lack of available lenders and funding) the acquiring spouse will not be able (or it will not be economically feasible) to refinance the home. What many people don't realize in this situation is that just because the home is conveyed from one spouse to the other, does not mean that the conveying spouse is no longer liable for the debt. The spouses and the Court cannot modify the contractual rights of the Mortgage Lender. Additionally, unless there is substantial equity in the home, and, in part, due to the fact that during a divorce the lender will be concerned regarding repayment, it is very rare that the lender would be willing to release the conveying party.

In this situation, the family law lawyer can assist by preparing the documents necessary to equalize the rights of the parties. In essense, the acquiring spouse will "asssume" the mortgage indebtedness. The conveying spouse will then receive a Deed of Trust to Secure Assumption (DOTTSA) - signed by the acquiring spouse. The Deed of Trust to Secure Assumption will allow the conveying spouse to foreclose his or her own lien, reacquire the property, and then either refinance, cure, or pay-off the note(s) owned by the Lenders (and potentially any other liens that have been placed upon the property).

A "Second lien" is what is held by the conveying spouse. This type of lien is generally "inferior" to that of the "superior" Purchase Money Security Interest that will be held by the Mortgage Lender. Because of the fact that the lien held by the conveying spouse is inferior, it is important for this spouse to notify the Mortgage Lender of this lien (preferably in writing) so that in the event of a foreclosure, the lender will notify the inferior lien holder of the impending foreclosure. This will allow the spouse holding the inferior lien to cure any defaults and then foreclose him or herself. The foreclosure will be "subject to" the lien held by the Mortgage Lender. In other words, the primary note will still have to be refinanced, paid-off, or sold with the new buyer then "assuming" the Note and making the payments. Because of the relative speed at which a Mortgage Lender can foreclose (potentially 45 days with a residence, and even less on non-residential property), it is important to keep up with the status of the loan.

WHAT ABOUT THE EQUITY? Because the spouses can build up a substantial amount of equity through: (1) payments on the mortgage, (2) an appreciation in value of the home, and/or (3) home improvements (sometime referred to as "sweat equity," many times the spouses are confronted with the difficult task of attempting to fairly dividing the marital assets when the marital residence has substantial value. This is generally accomplished inat least three ways.

(1) Refinance the Home and Pay Cash. The first way, as discussed above, is to do a refinance of the home and take the "cash out" option. If this can be done it is the easiest way, but, as addressed above, sometimes the acquiring spouse will not be able to make use of this option.

(2) Offsetting Assets. The next way to do this is with offsetting assets. For example, if there is a retirement account or another assets with substantial value the other spouse can receive this asset, rather than equity out of the home.

(3) Owelty Note. An "Owelty" Note -- think of it as "I Owe" -- is one of the ways to accomplish the equalization. In this option, the conveying spouse would, in essence, become a secured lending for his / her spouse. The Note can carry with it any number of terms as with any other Note, such as interest only payments, a balloon, equal month payments, or other financial options. You will want to discuss these potential options with your attorney to come up with a plan that works for everyone. Again, this type of Note would be a second lien and have the peculiar problems associated with this type of Note. This option also requires more involvement by the family law lawyer, but it is a relatively easy way to equalize the equity.

Criminal Laws Regarding Adoption

2008-09-22T16:08:00.000-07:00

In Texas, an attorney cannot help prospective adoptive parents locate a child for adoption. Moreover, prospective adoptive parents may not advertise in the public media for a child. It is a Class B misdemeanor for a person to serve as an intermediary in the identification of a birth mother who may desire to place a child for adoption. Importantly, one must be extremely careful regarding the providing of any financial assistance whatsoever to a birth mother, because it is illegal (at least a third-degree felony – 2 years to 10 years in prison), among other things, in Texas to offer to give, agree to give, or give a thing of value to another for acquiring a child for the purpose of adoption. The Sale or Purchase of a Child provisions, and the provisions regarding serving as an intermediary in the identification of a birth mother, of Texas’ penal statutes are very broad, so you will want to consult an attorney about any contemplated arrangement before taking action of any kind.

What is a Subpoena?

2008-06-30T15:55:00.000-07:00

A Subpoena is the method by which a person is required or “compelled” to attend an official court proceeding. Under the Texas Rules of Civil Procedure the witness can be “commanded” to appear for a deposition, hearing or trial. However, in Texas, the Subpoena may not compel the witness to travel in excess of 150 miles from where the person resides or where the person is served. Texas also allows for the service of a Notice of Deposition when the witness is a “party” to the lawsuit (usually Plaintiff, Defendant, or Petitioner or Respondent in a family case), and, when served on the party or attorney, it has the same function as a subpoena. Sometimes the party issuing the Subpoena will also request that the witness bring documents with them to the Court hearing or deposition and this is usually called a Subpoena Duces Tecum.
If the witness ignores the Subpoena, then the party who compelled the witness to attend may request a Writ of Attachment, to have the Sheriff or Constable bring the witness to Court, forcibly if necessary. Alternatively, if the witness refuses to appear, the party issuing the Subpoena may file a Motion requesting that the witness be held in contempt of court. If the witness has a valid excuse, or if the Subpoena causes undue expense or burden, then the witness may file a “Motion to Quash” the subpoena or a Motion for a Protective Order.

Children and Divorce

2008-04-01T11:55:00.000-07:00

Divorce is difficult for everyone involved, but it can be an especially hard on children. However, there are ways parents can help their kids through these rough times. Author Max Sindell watched his parents divorce as a child. He has since written about his experience so that parents may better help their own kids. He has set out seven rights that all kids should have after a divorce.

1. The right to feel safe and secure
2. The right to awareness
3. The right to counseling
4. The right to be heard
5. The right to be independent
6. The right to remain neutral
7. The right to private communication

For more information see Max Sindell’s article, When Parents Part Ways: Smart Steps to Protect the Basic Rights of Children Dealing with Divorce, in the January 2008 edition of the Austin Family magazine.

Informal Settlement Conference and Signing of Documents

2008-02-28T09:56:00.000-08:00

Often parties feel that a case would settle if only they could discuss matters directly with the other party or spouse. Sometimes we are asked by clients whether they can or should meet directly with the other party. In other words – can the Husband and Wife meet to talk about settlement without their attorneys present?

As a general rule, we remain neutral about informal discussions when initiated by the parties themselves. However, we sometimes actively discourage such direct, face-to-face communications, depending upon how emotional a case has become or other factors, to prevent discord and unintended consequences. For example, one party may feel that the other is trying to take control of the informal discussions. This can polarize the situation and make matters worse. Once there is mistrust between the parties, attorneys often spend more time trying to undo emotional damage, rather than discussing resolution of the parties’ legal issues. When there is much at stake (such as when children or divisive and emotional issues are involved), then it is our general belief that settlement meetings should be handled through the parties’ attorneys or by a trained and experienced mediator.

It is important to understand that attorneys can never discuss matters directly with an opposing party who is also represented by an attorney. See State Bar Rules, Rules of Professional Conduct, Rule 4.02 (a). This rule also prohibits attorneys from making settlement offers through their client directly to the other party – what cannot be accomplished directly cannot be done indirectly. However, attorneys cannot prevent a client from talking about their case directly to the other party.

In short, the parties are certainly allowed and may agree to informal settlement conferences without their lawyers present. However, you should never do this if you feel that you may be in danger, if there is a protective order, or if you cannot speak to one another in a respectful and courteous manner. Keep in mind that you may not communicate with the other party by the use of “vulgar, profane, obscene or indecent language or in a coarse or offensive manner, with the intent to annoy or alarm the other,” Tex. Fam. Code § 6.501 (a) (1), and you may not “threaten . . . to take unlawful action against any person, intending by this action to annoy or alarm the other,” Tex. Fam. Code § 6.501 (a) (2).

One final point, if you do agree to meet, we strongly advise against signing anything. You can always contact your attorney and explain your understanding of the informal settlement. You can also take your own notes. However, you should understand that if you sign a document – no matter how “informal” it may seem – you may find yourself bound to an agreement that is not in your best interest, or that may actually prevent you from taking certain actions in the future. Thus, you should always consult your attorney and have the attorney review any document before signing.

Travis County's Standing Order regarding Children, Property and Conduct of the Parties

2007-10-04T10:05:00.000-07:00

The Travis County District Courts have issued a "Standing Order" that applies automatically in all cases involving Divorce, Child Custody or Child Support, without the need for hearing, as soon as the case is filed. (See our "Links" section.) Among other items, the Standing Order prevents the parties from doing any of the following without seeking leave of Court:

removing any children involved in the case from the State of Texas (directly or in concert with other persons);

hiding the child from the other parent;

changing the child's residence;

withdrawing the child from school or day-care;

threatening or harassing the other party;

harassing the other party;

incurring indebtedness;

destroying, removing, concealing, selling, transferring, mortgaging, encumbering, or otherwise taking any action which would harm or reduce the value of either party's separate property or the parties' community property;

making withdrawals from any checking or savings accounts for ANY purpose other than payment of reasonable living expenses for food, clothing, shelter, transportation, medical care and reasonable attorneys' fees;

concealing or destroying personal and business records; and

canceling or altering insurance policies.

Similar standing orders have been entered by several district courts throughout the State of Texas. As a result, it is always a good idea to check with your lawyer, or to consult the court's local rules, to see what orders may be in place before taking any action related to your children, assets, ar debts while your divorce, custody or support case is pending.

Major Changes to Texas Family Code related to Child Custody and Paternity!!

2007-10-04T09:46:00.000-07:00

Effective September 1, 2007, approximately 375 changes were made to the Texas Family Code. Although too numerous to mention at length here, the vast majority relate to the parent-child relationship, including extended visitation schedules, amended child support guidelines, and enforcement/collection procedures related to child support.

Some changes regarding Visitation – the Leg acknowledges the global electronic revolution!

Conservators can request reasonable periods of “electronic communication” with their child as a supplement to their Possession Schedule. In other words, parents who have difficulty communicating with or visiting their child may want to consider an order allowing them access via Web Camera, Internet Chat, email, or similar methods for a reasonable period of time to facilitate the parent-child relationship.
The Standard Possession Order now provides for weekend possession throughout the entire year, rather than only during the school year.
The date to exchange possession during the Christmas or Winter school holiday has changed from Dec. 26th to Dec. 28th.
Conservators in the military who are deployed for a period of more than six months to a location where access to their child is not reasonably possible (such as Iraq or Afghanistan) can now designate a “proxy” who may exercise that conservator’s possession of a child.

Some changes regarding Paternity/Parentage:

Sperm or egg donors are legally presumed to be a child’s “parent” unless the donation is made through a licensed physician for use in assisted reproduction.
Effective January 1, 2008, a man who fails to register with the State’s Paternity Registry may have his alleged parental rights terminated without notice where the child is over one year of age.

The foregoing items are only some of the important changes made under Texas law affecting parents and their children. If you have not reviewed your orders or decrees in the recent past, we recommend that you consult with a family practitioner or seek other legal guidance regarding the possible effect of these statutory changes on your respective rights and duties.

Major Changes to Texas Family Code related to Child Support

2007-10-04T09:26:00.000-07:00

Effective September 1, 2007, approximately 375 changes were made to the Texas Family Code. Although too numerous to mention at length here, the vast majority relate to the parent-child relationship, including extended visitation schedules, amended child support guidelines, and enforcement/collection procedures related to child support.

Essentially, all orders (including modifications) or decrees entered after September 1st will incorporate the following regarding Child Support:

Income withholding for payment of child support is mandatory – no exceptions.
Severance pay and “lump sum” payments (which arguably include commissions or regularly-scheduled bonuses) are now included in income withholding orders.
Severance pay and “lump sum” payments (which arguably include commissions or regularly-scheduled bonuses) are now included in income withholding orders.
The “cap” on the amount of child support awarded under the Statutory Guidelines has been raised, with an automatic adjustment to take place every six years. For example, the “maximum” monthly support (in the absence of extraordinary circumstances) for one child has increased from $1,200 to $1,500.
In addition to child support under the Statutory Guidelines, “cash medical support” must be paid by the obligor if the obligee provides health insurance coverage for the child.
Income withholding also governs any award of “cash medical support.”
Child support for a high school student who is more than 18 years old will terminate if a court finds that the child has failed to meet school attendance requirements. The obligation of support will also end on the date that the child begins active military service.
Any unpaid child support obligations become due on the date the obligor dies, and the obligation is payable by the obligor’s probate estate (although it can be secured by appropriate life insurance). Actions to enforce payment by the obligor’s estate can be brought in an appropriate family court.
The deadline to bring an enforcement proceeding for any arrearage is extended to two years after the child support obligation ended.
All state-issued licenses, as well as motor vehicle registrations, may be suspended and renewal may be denied if the applicant has failed to pay child support for several months. An unpaid arrearage may also prevent an obligor from receiving state grants, state loans or payments on state contracts.

FAQ regarding Divorce # 17: How do we divide any retirement accounts?

2007-09-28T15:31:00.001-07:00

Retirement accounts, not unlike mutual funds and some stock accounts, are assets acquired over the course of many years. In dividing these assets during a Divorce, you must first determine the character of the retirement account – in other words, whether it is Community Property or Separate Property (or, perhaps, both – as explained below).

First, purchases or contributions that occurred prior to the marriage would be Separate Property. Next, purchases or contributions that occurred after marriage would be considered Community Property. (Actually, it is a little more complicated than this, when you add in the earnings, losses, dividends and stock splits that occur in most retirement accounts, but the essential point is that such assets have a dual character.) Often, lawyers will hire financial experts to provide an opinion as to how much is owned by one spouse as separate property versus how much is jointly owned as community property, and therefore subject to division with the other spouse.

Also, retirement accounts (like 401k’s) are not usually divided under the Divorce Decree like other assets. This is true because there is often an administrator that is responsible for managing the retirement account. Under federal law, which Texas judges must follow, the Court will not be able to simply order the administrator to liquidate the account and pay it in cash to the respective spouses. Instead, federal law allows the state Court to issue a Qualified Domestic Relations Order (also simply known as a “QDRO” – pronounced for short “Quad Row”). The QDRO will set out how the account is to be divided. Ordinarily, the retirement account administrator will create another account in the amount (usually designated in either a total dollar amount or a percentage of the account as of a date certain) to be paid to the other spouse as specified in the QDRO. When the QDRO divides the account into two accounts, both spouses will be subject to the rules governing the retirement account (sometimes called the retirement “Plan”). Depending upon the Plan, disbursements for particular reasons may be allowed or loans may be allowed. You will need to check with the retirement account administrator to find out the rules relating to the Plan.

FAQ regarding Divorce # 16: Is there a way for me to continue living in the house with the children?

2007-09-28T15:28:00.000-07:00

This question commonly arises for the simple fact that parents often believe that it is best for their children to have continuity by living in the same house. The equity in your home is like any other asset that is subject to division by the Divorce Court. The home can be sold and reduced to cash, but oftentimes this is not necessary. Sometimes, another asset can go to the other spouse, including retirement accounts of either spouse, to offset the large amount of equity received by the spouse who keeps the house.

Also, like any other commercial transaction, one spouse can essentially “loan” money to the other by taking back a Note and Deed of Trust (usually “junior,” or of a lesser stature, to the financing or mortgage used to purchase the house). This relationship is sometime referred to as an Owelty Deed or Owelty Lien, or sometimes as a Second Deed of Trust. This is nothing more than one spouse promising to pay the equity in the home over time (with a Promissory Note or simply a Note) and the other spouse receiving a Deed of Trust or other form of security so that if the Note is not paid, that party has recourse to ensure payment (which may include the ability to foreclose upon the house).

FAQ regarding Divorce # 15: What is the difference between "Community Property" and "Separate Property" in Texas?

2007-09-28T15:26:00.001-07:00

Texas is a Community Property state. This generally means that income that is earned during the marriage and property that is obtained during the marriage is presumed to belong to both spouses (regardless of whose name may appear on the paycheck or title documents) and is subject to division by the Divorce Court in a manner that the Court deems to be “just and right.”

The best way to define Community Property is to determine what is not community property – then everything else is “presumed” to be that of the community. Generally speaking, either spouse will have a “separate property estate” in the event they acquire property (a) prior to marriage or (b) during marriage by some type of inheritance or by way of a gift. Again, the rest of the property is presumed to be community property.

Spouses can also agree to alter the “community property” presumption through certain types of written agreements. The most common type of such agreement is generally referred to as a “prenuptial agreement,” because it usually occurs prior to the marriage, but spouses can also enter into similar agreements after the marriage.

FAQ regarding Divorce # 14: How much will I have to pay in Child Support?

2007-09-28T15:19:00.000-07:00

This usually depends upon three things: (1) the number of children involved in the Divorce, (2) whether there are any children “outside of the marriage,” and (3) how much you (as the “Non-custodial Parent,” or NCP) earns. The general percentages applied to your “Net Resources” (but not your current spouse’s Net Resources) are as follows:

One Child 20%
Two Children 25%
Three Children 30%
Four Children 35%
Five Children 40%
Six + Children Not less than Amount for Five Children

The percentages are slightly less if you have other children that are “outside of the marriage,” in other words you pay a little less (but not much) if you have children from a prior relationship for whom you also have a “legal duty of support.” If you are paying child support regarding other children, or if you support other children who reside with you, then you would pay a slightly lower percentage of your Net Resources than under the preceding guidelines.

“Net Resources” does not mean “net income,” however. It is not calculated based upon what you actually receive in your paycheck, because you can change this yourself (i.e. – take out more for a 401k contribution, etc.). The Court will calculate this fictional “Net Resources” by subtracting out what a single person taking the standard deduction and one personal exemption would pay in taxes (Social Security and FICA). You can find these amounts in the Attorney General’s Child Support Tax Tables, which is located on their website. The Court will also subtract any amounts actually paid by you for health insurance for the benefit of the Child, but not the portion of your health insurance deduction that applies to your own coverage. The Court will also deduct any union dues that you must pay.

Also, you need to be aware that the Court will consider any other sources of income that you are entitled to receive, including commissions, overtime pay, bonuses, interest on savings, dividends, capital gains, royalty income, net rental income, annuities, pensions, severance pay, retirement benefits, disability or workers’ compensation benefits, social security benefits, and similar sources of revenue. Persons who are self-employed should be aware that the Court will not merely look to your “salary,” if any, but may consider any benefits allocated to you from your business or undertaking, after taking into consideration the ordinary and necessary expenses required to produce such income.

There is a “cap” on the amount of Net Resources to which the foregoing percentage guidelines can be applied. That amount, for cases filed after September 1, 2007 (but before the next cost of living adjustment in 2013) is $7,500 per month. This is the maximum amount of Net Resources that the Court will usually consider for purposes of calculating your child support obligation, even if your actual Net Resources are greater. For example, a person with Net Resources of more than $9,000 per month with one child would generally pay child support in the amount of $1,500 each month, calculated as follows: $7,500 times 20% = $1,500.

Sometimes, the Court will award more or less than the amount calculated under the statutory guidelines, but only in compelling circumstances (this is referred to as a “Variance”). As the name “Guideline” implies, this is the amount that will guide the Court – and the amount you usually will pay.

FAQ regarding Divorce # 14: How much will I have to pay in Child Support?

2007-09-28T15:16:00.000-07:00

FAQ regarding Divorce # 13: Can we vary from the Standard Possession Schedule?

2007-09-28T15:15:00.000-07:00

Yes. The Standard Possession Schedule only applies when the conservators/parents cannot agree about visitation. Therefore, for conservators that discuss their child’s schedule and plan out what is best for them, the visitation schedule is whatever you agree it should be – on a day by day and (perhaps) minute by minute basis. Thus, the Visitation Schedule, in whatever form, is usually what happens when there is no “mutual agreement.”

FAQ regarding Divorce # 12: How does the "Standard Possession Schedule" work?

2007-09-28T15:08:00.001-07:00

Over the years, the Texas Legislature has looked at and repeatedly refined what we now refer to as the "Standard Possession Schedule." The reason we have a very detailed schedule is simple -- many parents cannot agree as to the best schedule for their children. Therefore, the Texas Legislature has stepped in to set out its own schedule.

The so-called “Standard" Schedule usually gives the conservator/parent that does not have the right to designate the primary residence of the child (in a Joint Conservatorship) or the Possessory Conservator in all other situations, the right of possession and access to the child on the first, third and fifth weekends (when there is one) of every month. The Standard Schedule attempts to make an even distribution (or as close to even that it can) of each and every minute of the child’s life between the respective parents; this includes all major holidays, the child’s birthday, Father’s Day, Mother’s Day, spring break, extended summer visits, and many, many other situations. The Standard Schedule also sets out who will pick up and who will drop off the child, and where and how this exchange of possession will occur. Although this is a daunting task, under most situations, the Standard Schedule does an excellent job of allocating the child’s time with each parent in a fair and equitable manner.

The danger in departing from the Standard Schedule (under most situations) is that lawyers cannot always contemplate all of the situations that can arise in the future, which may lead to future confusion or disagreements between the conservators. This is not to say that the Standard Schedule is what is best for your child; we recognize that there are situations where the Standard Schedule is partially or completely inappropriate. However, you should understand that the “split” schedules that many conservators attempt can be difficult on a child who must repeatedly pack up and go to another house, and can lead to the child essentially living out of a suitcase. Such situations are usually difficult – even for adults – and can be particularly disruptive for a child.

FAQ regarding Divorce # 11: How does Custody work in Texas?

2007-09-28T15:06:00.000-07:00

In Texas, there are many forms of “custody” and “custodians.” We refer to these persons or entities (in the case of foster care, etc.) as “conservators.” In most situations, the parents will be named so-called “Joint Managing Conservators” (JMC); this is presumed to be best for most of Texas’ children. JMC is most similar to situations where the parents are still married and make decisions “jointly” for the best interests of their child.

Unfortunately, many times parents cannot get along and sometimes do not make decisions that are in the best interests of the children. Sometimes they make decisions based upon what is best for them, or don’t make decisions at all. In certain circumstances, if there is evidence to support a different approach or an agreement between the parents, other forms of conservatorship may come into play. A “Sole Managing Conservator” (sometimes referred to as only a “managing conservator”) generally has all of the powers of conservatorship (i.e. – the authority to consent to medical treatment involving invasive procedures, the power to designate the primary residence of the child, the power to make educational decisions) without any input from the other parent. In contrast, a “Possessory Conservator” generally has visitation rights and will usually have limited authority to make certain parental decisions while the child is in the custody of that conservator.

The rules governing conservatorship are complicated and an attorney should be consulted for specific questions as to what form of conservatorship is best suited to your particular situation.

FAQ regarding Divorce # 10: What exactly is a Divorce Decree?

2007-09-28T15:03:00.000-07:00

We usually ask you to consider the Divorce Decree in terms of being a “Rule Book” for all of the various things that could or might happen after the Divorce is granted. The actual granting of the Divorce is nothing more than the Judge declaring that the marriage is dissolved for either “grounds” or on the “no fault” ground of insupportablility. Insupportability just means that there are so-called “irreconcilable differences” -- referred to in Texas as a “discord or conflict of personalities that destroys the legitimate ends of the marriage relationship,” provided further that “there is no reasonable expectation of reconciliation.”

The rest of the Decree (as well as other pleadings referred to as Temporary Orders or Final Orders) provides guidelines and rules for dealing with any children (such as custody or “conservatorship,” the powers of conservatorship, visitation, child support, medical support, and health insurance coverage), property (such as assets and debts), and various other issues such as any change of name, taxes, and similar matters.

FAQ regarding Divorce # 9: When does my Divorce become final?

2007-09-28T15:02:00.000-07:00

Although this might seem like a simple question, the answer is more complex. Ordinarily, the Divorce case becomes final when the “plenary power” of the Texas court has expired. This ordinarily occurs thirty days from the date that the Divorce Decree (sometimes called the “Judgment”) is signed by the Judge. If, however, some type of Motion is filed after the Decree is signed, such as a Motion for New Trial or similar pleading, then the time periods are extended to allow for the possibility of an appeal from the Decree.

Although there are other situations where the Decree can be changed, clarified, or appealed, these situations are not normal and can be very difficult to bring about a substantive (or meaningful) change in the Decree. Also, when a “material and substantial” change in circumstances occurs, a party may ask that the Court modify the Divorce Decree or a prior order in the case.

FAQ regarding Divorce # 8: How does the Texas waiting period work?

2007-09-28T15:00:00.000-07:00

The Court does not have the power to grant a Divorce for at least sixty days after the Divorce petition has been filed. The Texas Legislature’s reason for requiring this waiting period is to ensure that something as serious as a Divorce is not rushed into without a period of reflection and thought. This waiting period cannot be waived by agreement or shortened by the Court.

FAQ regarding Divorce # 7: Can I move after the Divorce case is filed?

2007-09-28T14:57:00.000-07:00

Ordinarily, yes. As long as you were a resident of Texas for at least six months and of the County where you filed for ninety days before filing the Divorce petition, then you can move after the petition is filed. However, you should be aware that many Courts have “local rules” requiring notice and possibly agreement from the other spouse (or an order from the Court) before you can move out of the County where the Divorce petition was filed, particularly when children are involved. You should also check to see if a Temporary Restraining Order, Temporary Injunction, or some geographical restriction is in place before you leave.

It is generally a good idea to wait to move until after the case is finalized, and we strongly suggest at least waiting until service of process is obtained to be sure that the case does not have to be dismissed. However, if relocation is absolutely necessary prior to the time the Divorce becomes “final,” there are procedures that allow you to legally do so.

FAQ regarding Divorce # 6: I just moved here, can I still get a Divorce?

2007-09-28T14:55:00.000-07:00

Maybe. It depends on where you moved from and how long you have lived here. Texas has a residency requirement. At least one spouse must have resided in this State for the preceding six month period prior to the filing of the Divorce case, and one spouse must have resided in the County where the Divorce will be filed at least ninety days preceding the date of filing. This is “jurisdictional,” meaning that the Court has no power to act, including granting the Divorce, unless the residency requirement is met.

FAQ regarding Divorce # 5: Can I get a legal separation?

2007-09-28T14:54:00.000-07:00

Although some states recognize a “legal separation,” Texas does not. The only procedure for a recognition that persons are going to cease living together as husband and wife in Texas is Divorce. With that said, after you file for a Divorce there is nothing that requires you to carry through with it (unless, of course, the other spouse decides to file a Counter-Petition for Divorce of their own). Usually the Divorce case can be dismissed if the spouses “reconcile.”

FAQ regarding Divorce # 4: I just got served with Divorce papers, what should I do?

2007-09-28T14:51:00.001-07:00

After being served with a Divorce Petition, you become the “Respondent” in the Divorce case. Most lawyers will advise you to immediately obtain an attorney and to not agree to anything and certainly don’t sign anything. If you do not respond in writing, with particular language and within approximately twenty days (actually, by the “Monday next following the expiration of twenty days”), then a Default can be taken against you. At the Default hearing, your spouse will oftentimes receive anything and everything they request in Court.

You should also be aware that many “Waivers of Service” also contain language instructing that the case can be taken up and considered by the Judge without further notice to you. A form containing this language, if signed, could also result in a Default being taken against you with everything going to your spouse. You should review all proposed waivers with caution, since you definitely don’t want this result!

FAQ regarding Divorce # 3: How do I file for a Divorce?

2007-09-28T14:49:00.000-07:00

A divorce case is initiated like any other lawsuit with the filing of a legal “pleading.” In the Divorce context, this pleading is the Original Petition for Divorce filed in either a District Court or a County Court with domestic relations jurisdiction. Once filed, this Pleading must be served upon the other spouse, unless the other spouse has voluntarily waived service. The spouse who filed the petition is referred to as the “Petitioner.”

FAQ regarding Divorce # 2: Should I get divorced?

2007-09-28T14:45:00.000-07:00

Sometimes people want a lawyer to tell them whether they should get a divorce or not. This is usually not the function of a lawyer and any guidance in this area is personal opinion, rather than legal advice, so please treat it as such and proceed carefully. However, most attorneys will use their experience to explain the circumstances under which someone may want to proceed with a Divorce and the possible outcomes from such proceedings. Each lawyer will explain it differently, but here are some common situations when we agree that a spouse would be justified in filing for Divorce:

a) Physical Abuse – No one should be required to live with the fear of being physically battered when there is a disagreement among spouses;

b) Adultery or Cheating on you by your Spouse – Marriage implies an element of exclusivity. Although no one is perfect, if your spouse insists on maintaining relationships outside of marriage, then Divorce would seem appropriate;

c) Alcohol or Drugs – Again, no one is perfect, but if the substances control your life (such as interfering with a normal relationship with you, your children, or with work obligations, or results in repeated criminal incidents) then Divorce is understandable.

Oftentimes, people cite to financial problems, mental cruelty, mental or physical problems, or irreconcilable differences, as grounds justifying divorce. Every relationship probably has an element of each of these issues. The question is whether such problems and/or differences destroy the legitimate ends of the marriage relationship. If you have unsuccessfully tried counseling and/or medical intervention, or your spouse is unwilling to obtain help or change, then it is understandable that you want to end the marriage.

FAQ regarding Divorce # 1: Should I hire a lawyer or try to do it myself?

2007-09-28T14:40:00.000-07:00

We get asked this question all the time. We usually respond with a rhetorical, “Would you do surgery on yourself?” We do not think you should represent yourself in any Court proceeding. However, if there is basically no property other than personal possessions, no children, and all you’re really doing is getting the Court to bless a separation that has already occurred, it may very well be that the downside of a mistake is substantially outweighed by the certainty of attorney’s fees. You should understand that representing yourself will not be easy unless you already have some legal training. Also, you should proceed very cautiously.

You should also be aware that most attorneys will not step in to correct any problems created when you represent yourself (called “pro se” representation). We have seen many situations when a pro se litigant gets to the Court date only to have the Judge deny the divorce because he or she failed to meet all of the procedural requirements. You must also understand that, other than telling you what the defect is, the Judge is unlikely to help because of they are prohibited (as are Court staff generally) from giving legal advice to the parties. If you decide to represent yourself, you must get the most current “do it yourself” package (one set is available at http://www.tyla.org/family_law.html) and make sure that you understand all of the procedures before taking action.