Dallas Divorce Lawyer Blog

Filing for a divorce can be a scary task because not many people know the law, or they've heard several things about what could happen, but aren't sure if it's true. It's an unknown territory and can be difficult to maneuver on your own. This is why it's important to have a concise explanation about each step in the process, to ensure that you're informed and can be prepared.

• Step One: Filing
You've hired your attorney at Guest & Gray, P.C. to handle your divorce. The first step is to file what is called the Original Petition of Divorce which lays out all of the information on your divorce such as the dates of your marriage and separation, the grounds for your divorce (insupportability is standard but there can be other reasons such as adultery), whether there are any children of the marriage, and division of the community property.

As well, the original petition can include temporary orders which are requests that the judge, while the case is pending, order that the other party do something or refrain from doing something temporarily until the divorce is final. Additionally, in filing the original petition in Kaufman County, your attorney will attach a copy of the standing orders signed by all the judges which are orders by the Court that both parties must adhere to while the divorce is pending.

If your petition contains temporary orders, then your attorney will likely (after receiving a court assignment), go the court coordinator and get a setting for what is called a "Notice of Hearing on Temporary Orders." This just puts your hearing on the court's docket and it's better and easier to get all of this taken care of on the same day. After receiving the date of which the hearing will be set, then this notice of hearing is also filed with the District Clerk's office.

• Step Two: Service
After your attorney files this petition, then service is the next step. You have to make sure that the other party receives a copy of your petition as well as your notice of hearing if there is one. If both parties are in agreement with this divorce, then your attorney won't have to have citation prepared in order to serve the other party with the petition. The other party will have signed what is known as a waiver of service and that is filed with the court as well. Otherwise, if the parties aren't in agreement, the District clerk's office will prepare citation and your attorney will have it served on the other party.

• Step Three: Temporary Orders Hearing
As stated before, your attorney can file what is known as a notice of hearing which will give your date from the court and also it's a judge's order commanding that the other party appear on that date. This notice of hearing doesn't necessarily have to be filed on the date of filing the original petition. Either way, it will be filed and you will have a temporary orders hearing in almost every divorce, particularly contested divorces.

This is an important step in your divorce process. Concisely, it's a hearing on what the parties can and can't do until the divorce is finalized. Issues addressed at this hearing include who are the children going to live with, what can you do with your money during this time that is considered community property, who gets what vehicle, what party has to pay child support and health insurance for the time being, if there is going to be any spousal support, etc. All parties and their attorneys will be present and will be permitted to have witnesses testify and to put on evidence in the case to essentially get what you're asking for. Based upon this evidence and testimony, the judge will enter temporary orders and they will state that it remains in effect until the case is finalized.

• Step Four: Discovery
Many people hear this word "discovery" and have no idea what it entails. Attorneys use discovery to find out about the other party and their case, including its strengths and weaknesses.

In reality, this step can come at different stages in the divorce process. It truly is based upon a case-by-case basis and depends on the unique issues that are presented. Sometimes discovery is filed with the initial petition for divorce and sometimes it comes after filing the petition in an effort to prepare for the temporary orders hearing. Discovery can also be supplemented later and you can do additional discovery if you have not reached the statutory limit on your discovery.

Basically, there are four types of discovery that are normally used in divorce proceedings. The first is requests for disclosure which come from Rule 194 of the Texas Rules of Civil Procedure and they are set questions developed by the legislature that can be asked in a civil case. They are standard questions such as who are your witnesses going to be, are you going to use any experts at trial (doctors, psychologists, etc.), and what are your claims or defenses. The second is interrogatories which are open-ended questions to the other party. These questions can be either standard, uniquely prepared, or a mix of both. The third is request for production which are basically telling the other party what documents you need them to produce. This would be important for such things as producing tax returns so that you can determine the amount of child support that is going to be paid; but, also it's important if there is a particular issue in the case and you know the other party has documented evidence that would prove your point on that issue. The last form of discovery typically used is called request for admissions and this is where you can get really creative. It's telling the party "admit or deny" and then you make a statement and the literal response can only be admit or deny.

There are time limitations on the responses to this discovery. If served with the original petition, then the other party has 50 days to respond. If served after the original petition, then the other party only has 30 days to respond. If not answered within the allotted time, then you as the petitioner can file motions to compel which basically ask the judge to make the other party answer your discovery. If you have admissions that haven't been answered, then you can file a motion to deem the facts admitted and once the judge signs that order, then the judge takes those as true and proven. The other party can no longer deny them, even if there is no proof as to their truth. By not answering, they've admitted to those statements.

• Step Five: Mediation
In Kaufman County in contested divorces, the judges will order the case to mediation before a final order or ruling will be issued by the judge. The judge will order the case to mediation, and the parties will agree upon a mediator and a date to mediate the case. On the date of mediation, typically the parties will go to the mediator's office, the parties will be in separate rooms, and the mediator will go back and forth between the parties with the offers of settlement and the issues that need to be addressed. Parties have an option of a half day or full day mediation, and it generally depends on how many outstanding issues there are in the case and the expected difficulty of settling those issues.

Upon reaching an agreement, the parties, their attorneys, and the mediator will sign a mediated settlement agreement (MSA) which will be filed with the Court. Then, the final order will be prepared based upon that agreement which all parties will sign as well and it will be presented to the judge for approval.

If the parties are unable to reach an agreement, then a final hearing must be had in the case.

• Step Six: Trial/Final Order

As stated before, if you reach an agreement at mediation, then all that needs to occur is a final order. Typically, the MSA will state within its terms that the petitioner's attorney will draft the final order and send it to the respondent's attorney for review within a certain amount of days after the parties sign the MSA. If both parties approve the final order, then they will sign it and it will be presented to the judge by the petitioner's attorney and he/she will sign it as it as it will be agreed to.

However, if there is no agreement in the case and a final hearing is needed, then this must be placed on the judge's docket. On the day of the hearing, all parties and their attorneys will be present and it will occur much like the temporary orders hearing where parties will be able to present any additional evidence and witness testimony. Again, based upon this information, the judge will enter a final order in the case.

According to the U.S. Census Bureau, "in 2009, 14 states had divorce rates for men that were significantly above the U.S. average, ranging from 10.0 to 13.5 per 1,000" which included Texas.

Divorce is present throughout our state and it is a difficult and emotional process. But, it's even more difficult when there are children involved. All parents worry about the choices they make and how those choices will effect their children. Divorce is no exception. And, parents have every right to worry--research indicates that the manner in which parents handle divorce can have a direct effect on children's adjustments.

But, parents, don't fret because there are healthy and helpful ways to deal with these effects and the divorce process. In fact, many family clients of attorneys are not only urged but also required to take parenting classes that focus on these issues--how is the divorce effecting your child, how can you talk to your child about the effects of divorce, how to manage the divorce process without placing the child in the middle of the parents, how to maintain the relationship you have with your children despite the changes in your lives, etc. One such class is called "For Kids' Sake" and it is taught by a psychologist trained and educated in these particular fields.

So, let's say you become interested in this class and you call your attorney at Guest & Gray, P.C. in Kaufman County. This is the information that you would find out:

Any person can attend. It can not only be you, but you can bring your support system too--your parents, friends, aunts, uncles, etc.

There are seminars offered at several locations and times. Many parents are adjusting to their new schedules, and For Kids' Sake understands that and makes accommodations. In fact, For Kids' Sake is currently in over 50 counties throughout Texas.

For a list of classes and the times, you can call 214-526-4625. Also, you can request a registration form from this number as well. Or, your attorney at Guest & Gray can get that form on your behalf.

Nancy K. Pherrell, PhD, is the person who will lead the class primarily. But depending on the size of the class, there may be assistants also there.

The cost is a mere $50.00 per person which you pay in advance of attending the seminar.

Upon completion of the four hour class, you will receive a certificate of completion. This is not only beneficial for you and your child or children. But also, it can be filed in your case if your divorce is still pending and the judge will see the efforts and steps you are taking to ensure your child's well-being.

The success rate of For Kids' Sake in parents' and their children's lives is why so many courts are now requiring this program for many parents. As said before, divorce is an emotional, draining, and overwhelming process. It is so easy to be absorbed by your own emotions and not realize that it's also effecting the children in the same ways it's effecting you and in different ways as well. Being informed and receiving training is the only way to combat this. Call your attorney at Guest & Gray to receive more information. We are happy and honored to guide you through this process.

Temporary Orders arise in several situations. In divorce cases, either you've recently filed for divorce or been served with a petition for divorce. In suits affecting the parent-child relationship, temporary orders can arise in the initial proceeding and in cases where you or your ex are seeking to modify the court's final order because you're seeking to get expanded visitation, change conservatorship, etc.

In order for temporary orders to be entered by a court, a party must first file a petition or motion for temporary orders and there must be a hearing. In family law, often this is the first hearing that the parties will attend in front of a judge and it might even be the last one if the final order is agreed upon and all that is necessary is a judge's signature.

Temporary orders are an important stepping stone in family law cases because they serve several purposes while the case is actually pending such as specifying conservatorship, visitation with the children, ordering a party to make payments of child or spousal support as well as debts and interim attorney's fees. The court can also order who has possession of what property while the case is pending and where the parties are to live. Also, the court can forecast what is to come in the case and set deadlines for the parties to meet. Often times, the final orders are contingent upon these deadlines.

Once you give notice or you are given notice of a temporary orders hearing, you're probably wondering what process comes next. You call your attorneys at Guest & Gray, PC in Kaufman County and ask them to guide you through this.

First, your attorney will inform you that he/she will be present at the hearing with you and all the parties will appear. This is going to be a real hearing in which your attorney and opposing counsel will present witnesses and evidence to the court in order to support the petition/motion for temporary orders and essentially, to get what you want ordered while the case is pending. This is why it's crucial to always tell your attorney any witness that you can think of and any issues that you believe might arise during the hearing. Also, you have to consider what is most important to you and what you want while the case is pending--do you want to make sure that you have your children on a specific date, are able to drive your car and not have that interfered with by your ex, can prevent your ex from draining the bank account, etc. This hearing, while formal, is normally a quick process and that's why the attorney must be informed of all the key points beforehand so that they can be fully prepared.

At the temporary orders hearing, only the issues set forth in the motion/petition will be discussed. Meaning, just as the name insinuates, only things of a temporary nature can be brought up before the court. So, you can't ask the judge what property you're going to ultimately get out of the community estate or if you're going to ultimately be repaid for certain debts you paid on your ex's behalf during the marriage. All of that will be finalized at a later date.

Once a court has entered the temporary orders. the parties must abide by them until the time specified in the order. Usually it's until the final order of the court is entered, but the court can set a different deadline if it so chooses. If you're not completely satisfied with the temporary orders, your attorney can seek a modification on your behalf. Also, if you think of additional things that you want included, then your attorney can seek further temporary orders. This would arise if you find out that your ex is moving, having their boyfriend/girlfriend stay the night while the children are there, dating someone with a criminal history, etc. Basically, something has changed since the temporary orders hearing and you want to have the orders reflect this change.

If any party violates the temporary orders while the case is pending, you should contact your attorney at Guest & Gray immediately. This means that either the person is doing what they shouldn't or they aren't doing what they should. Your attorney can file a motion for contempt on your behalf and it will be served on the party who violates the orders. The court will consider the matter and can order sanctions such as paying attorneys fees and court costs and the court will order the person to either stop what they're doing that's in violation or order them to comply with a specific provision.

As stated previously, temporary orders are essential to the family law process. These orders nor the hearing are to be taken lightly. Contact your attorney at Guest & Gray with any questions you may have.

Your attorney at Guest & Gray has successfully filed a petition for divorce or petition in a suit affecting the parent-child relationship. However, there are standing orders attached to the newly filed petition and you aren't sure what it all means--there are several restrictions listed and you want to be clear on what you and your ex can and cannot do with regards to each other and any children of the marriage. In fact, these orders must now be attached to all petitions for divorce in Kaufman County. For 14 days after filing, they act as a temporary restraining order. As long as neither you nor your ex complains about them to the court, after the 14 days, they turn into a temporary injunction. This just means you can't do any of the stuff listed while your case is ongoing.

Some things prohibited may not be applicable to you, but it's still wise to be informed because it may come up with your ex and then they would be in contempt of court orders.

1. No Disruption of Children:

a. Basically, this just says you can't take the child out of Texas, withdraw them from their school or daycare without the other parent's consent and you can't hide the child or change your address and not give your ex notice. Also, you're supposed to keep this as stable of a process as possible for the children. This means don't speak ill about your ex or his/her family in front of the kids and don't talk about the pending divorce and what you're going through with your kids. As easy as it may be to open up to your kids because they are good listeners, refrain from doing so. It's not only now ordered by the Court, but it's also a good idea for your case--if you chose to speak to your child about this stuff, it will backfire on you and will make the divorce more difficult. And finally, neither you nor your ex can have a dating, intimate partner spend the night while the divorce is pending and while in possession of the child.

2. Conduct of the Parties During the Case:

a. You should remain as cordial as possible with your ex, being careful not to speak to them in an offensive manner. This includes not threatening your ex in any manner with harm or committing harm against them. Also, you can't repeatedly call your ex at all hours of the night.

3. Preservation of Property and Use of Funds During Divorce Case

a. This section essentially instructs you not to do anything with your property while your case is pending and to make sure you tell the court and your attorney about every piece of it--all your land, homes, personal property, any debts that you have, all of your bank accounts, etc. Full disclosure is the policy. Also, don't rack up a bunch of charges on credit cards, take out a loan, or really incur any debt during this time. Make sure that you're just spending your money for living expenses and paying your bills and stuff like that. In fact, leave all the bills as they are at the time the petition was filed and don't cancel anything like the internet or cable. Moreover, don't sign any checks in your ex's name or try to change or cancel any credit cards they have. And finally, if your ex is in possession of a vehicle, and you believe that it belongs to you, don't try to take matters into your own hands. All the property is divided and awarded to the parties by the judge. In fact, the Texas Family Code Section 7.001 states that the judge shall make a just and right division of the property.

4. Personal and Business Records in Divorce Cases

a. We are beginning to see a pattern here. Again, this section deals with not interfering with or destroying but in this situation it is any personal records such as financial statements from your bank, tax returns, deeds, birth certificates, income statements from your work like a check stub etc. Just keep track of them, and give the requested ones to your attorney.

5. Insurance in Divorce Case

a. Finally, you and your ex are prohibited from cancelling, changing, or interfering with any insurance while the case is pending; this includes car insurance, health insurance, life insurance, etc.

In the midst of all the things you and your ex are instructed not to do, there are also specific authorizations, in case you are unclear, as to what is acceptable while the case is pending. The basics have been mentioned previously--spend your money wisely; meaning, for now, only for attorney's fees and costs of the divorce as well as living expenses. And, if you have a job--keep going to it. Continue your life while your attorney handles this matter for you.

While tedious, all of this is for your benefit. Indeed, the more civil you are, the better it looks for you and the easier the process is. If you believe that your ex is in violation of any of the stated prohibitions, notify your attorney at Guest & Gray immediately so they can bring the issue to the court's attention.

You are divorced and have your decree issued by a judge in Dallas, Kaufman, or a contiguous county and you thought you would never have to deal with your ex ever again, besides the occasional conversation about your child(ren). You want as little to do with them as possible and you're happy just knowing that your child(ren) have a stable routine. But, imagine this scenario:

Your child Little Johnny or Mary comes home after visitation with their mother/father and reports that your ex-spouse has a new live-in boyfriend/girlfriend and he/she is over there all the time while the kids are there and maybe even wants the children to call them "Mom" or "Dad." You are angered by this information because you do not want a strange adult near your children, let alone in the same house with them while they are staying with your ex. You do not want to send your children back to their mother/father's house while this stranger is there also. You are wondering what your legal rights are from this point. You want to protect your child(ren) and you want to ensure that they do not incur any psychological issues as a result of interaction with this person. So, you call your attorney at Guest & Gray and ask "What can I do to keep this person away from my kids while they're visiting their mother/father?"

Our response is to immediately look to see if your divorce decree includes a "Morality Clause." Typically, you will find that your ex agreed to not have any unrelated adult with whom they have a dating or intimate relationship stay in the same residence while he/she is in possession of your child(ren) within a certain time frame (usually indicating no overnight stays with that person).

If the final divorce decree does contain this clause, there are a few options that you have to ensure that your ex complies with what the judge orders. After all, you follow the orders, why doesn't your ex have to do the same? The judge's orders were entered for several reasons, but one of the main issues a judge considers when determining custody and possession is the "child's best interest."

To ensure that your child(ren) are safe and that your ex follows the judge's orders, you can ask your attorney to file a motion for enforcement. This asks the judge to take notice of your ex's non-cooperation and order your ex to not have that person as an overnight visitor anymore. Basically, do what the morality clause says.

Also, if you are unsure as to what person this morality clause applies to, you can ask your attorney to file a motion for clarification asking the judge to spell out what the clause means exactly so that both parties of the divorce are clear as to who cannot be in the residence within a certain period of time when the children are there.

That is the beauty of the morality clause--to ensure that your ex doesn't have a rendezvous with their new boyfriend/girlfriend while they are in possession of your children. If you have one, seek to do either options discussed above.

Finally, if you are seeking a divorce, ask your attorney to make sure this clause is inserted into your decree.

Child support arises in divorces and in suits affecting the parent-child relationship. In these cases, the court orders the parent not designated as the primary conservator to pay child support (usually monthly) and to maintain health insurance for the children. Chapter 154.125 of the Texas Family Code contains statutory guidelines for the amount of child support that this parent has to pay and it is based upon the amount of net resources that this parent has as well as the number of children that need the support. It starts out at 20% and then goes up in 5% increments--1 child = 20% of the obligor's net resources, 2 children = 25% of the obligor's net resources, and so forth. However, there can also be reasons that the court would deviate from this guideline and order the obligor (parent paying child support) to pay more or less than this. For instance, the Texas Family Code permits higher child support when a child has special physical or mental needs. For example, if the child has severe asthma and allergies which require allergy shots and medication or if the child has a learning disability and requires educational services. When the court does deviate from the guidelines, the judge must state in the orders the reason for doing so. The person ordered to pay child support must do so, as stated in the Texas Family Code Section 154.006, until the child turns 18 or graduates from high school.

Let's say that you've been to court, you've gotten your divorce decree or final order from the court laying out all the rules that the parties must follow and it's a few months later or maybe a year, and the obligor has yet to pay a dime in child support. In fact, a rising issue in Texas, particularly in the Kaufman County and East Texas regions, is parents refusing to pay the child support they owe--you can tell them how much they owe until you're blue in the face, and they still won't pay. So, you call your attorney at Guest & Gray, and they tell you the options of how to get your ex to pay.
When someone is delinquent in their child support, it's called arrearages. There are several things a court can do to that person. In fact, there are a few options authorized by the Texas Family Code.

First of all, there can be mandatory withholding of wages. This basically means that the court will send an order to your ex's employer with the percentage that should be withheld from their take-home pay. It can also apply to severance pay and bonuses. Second, if the obligor is 3 months or more delinquent in paying child support, the court can order suspension of a license which could be his/her driver's license or professional license. Third, your attorney can seek a money judgment on your behalf. That is, you look at the total amount of child support that your ex hasn't paid, and the court will then order your ex to pay. And, there are several ways that this judgment can be enforced. In fact, the only way for them to get out of the judgment is to pay. Finally, if the final order included a child support obligation, then the court can hold the obligor in contempt which means that he/she could be facing up to 6 months in jail, a $500 fine, or both.
Thus, there are several avenues that your attorney could seek to enforce a child support order. Don't waste time; get the child support owed to your children today.

Picture this:

You've been divorced for a year and are dropping your 6 year son, Junior, at your ex's house in Forney at the end of your weekend possession. As soon as you show up at her house she starts bitching about you being 5 minutes late. You immediately chuckle because as you drove up you looked at your phone and noticed you were actually 5 minutes early. In response to her stupidity, you stick your phone display in her face to prove your righteousness and tell her that she'd know how to tell time if she hadn't dropped out of high school to pursue a career in cosmetic sales. Her brow wrinkles, her mouth opens, and in her worst hillbilly dialect she smirks, "I don't even know why I let Junior stay with you. You ain't paid me in 6 months, and you ain't even his real daddy." Confused and angry about what your lying, no-good ex has done to you, you call your attorney at Guest & Gray and ask, "How can I fix this?"

Until recently, our answer would have been discouraging because it has been over 4 years since you became the presumed father of Junior at the time of his birth. But now, thanks to our friends at the Texas Legislature, we would tell you to run, not walk, to our office so we can file your termination petition to get you off the hook from paying your sorry ex child support for Junior (who turns out to be her love child with Randy, the Kaufman County dog catcher).

"But what if I knew she cheated on me with good ol' Randy in the restroom of the Stables Club approximately 9 months before baby Junior discovered America?" No worries, you have until September 1, 2012 in order to file your petition for termination. After that date, the new law requires you to file your petition to terminate within 1 year from when you discovered the facts indicating that Junior was not your kid.

"Does this mean that I don't have to pay my ex the 6 months of back child support I owe her?" No. You're still responsible for all past due child support. But, the judge can't put you in jail for failing to pay your back child support after the termination goes through.

"What if I still want to take Junior to all our favorite places like Home Depot and Twin Peaks after my rights are terminated?" This one is a little trickier. You can ask the court for post-termination access and visitation with Junior (without child support), but the court will grant it only if denial of such contact will significantly impair Junior's physical health or emotional well-being.

Continue reading "Change In Mistaken Paternity Law Helps Texas Fathers" »