Articles Posted in Divorce

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You have just finished a long bench trial in your divorce and you do not feel that the trial court was correct in its division of your assets and liabilities.  In fact, you feel that the judge was completely wrong and you got the short end of the stick.  So, you wonder what you can do about it.  You absolutely can appeal, but you have a short window frame in order to do so and it is imperative you take certain steps in appealing.

The 7th District Court of Appeals in Amarillo makes this fact abundantly clear in Kenneth Dale Rodgers, Appellant vs. Mary Elaine Rodgers, Appellee in determining whether or not (a) “the trial court abused its discretion in the division of the property” which (b) “materially affected a just and right division of the marital estate.”   In that case, the husband was very unhappy with the property division and he appealed.  However, the husband failed to request findings of fact and conclusions of law from the trial court within the required amount of time. Therefore, the appellate court had no idea what the basis of the trial court’s ruling was and was forced to go along with it.  This is because, as the Court of Appeals held, you must request findings of fact and conclusions of law from the trial court and the trial court must then file those within a certain period of time. This allows the Court of Appeals to determine why the trial court held what it held.  The record sometimes helps, but findings of fact and conclusions of law are obviously more solid and preferred by the appellate courts.

When you have a bench trial (trial before judge, not jury), Texas Rules of Civil Procedure Rules 296 and 297 mandate that you must file your request for findings of fact and conclusions of law from the trial court “within twenty days after the judgment is signed” and then the trial court must “file its findings of fact and conclusions of law within twenty days after a timely request has been made.”  If you fail to do this, then “the trial court is presumed to have made all findings of fact necessary to support its judgment, and it must be affirmed on any legal theory that is supported by the evidence.” Rodgers v. Rodgers.

The moral of the story—you need an attorney at all times.  There are specific deadlines that must be met when preparing to appeal a trial court’s decision.  In addition to the findings of fact and conclusions of law, you also must have your appeal on file by a certain date.   There are too many deadlines to delay, contact an attorney as soon as your divorce is finalized and if there is any doubt in your mind regarding the trial court’s order.

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You have a final decree of divorce and you were either ordered to surrender a certain asset to your ex-spouse and you have not or you are the ex-spouse who is the recipient of the asset and have not received it yet.  Regardless of which situation you are in, one can be pretty certain that an enforcement action is in your near future.  The question becomes what type of relief can be sought on this type of case.  This question is answered clearly as a big “no” in In re Cherilyn Ann Kinney, Relator by the Fifth District Court of Appeals in Dallas.

In some suits for enforcement (most commonly in suits to enforce child support), one means of relief sought is jail time–confinement of up to 60 days in county jail to be exact.  However, in suits for enforcement of property division where one spouse was ordered a certain amount of money in the decree for a debt, lien, retirement division, etc. then jail time is not appropriate.  In this particular case, the wife was awarded one of the homes and to compensate the husband he was awarded$40,000.00 secured by an owelty lien on the residence awarded to wife which the wife had to pay within six months of signing the decree.   Needless to say, she did not pay the $40,000.00 within the time ordered and so her ex-husband filed an enforcement to make her do so.  Unfortunately, they asked for jail time and the trial judge did just that and the wife was arrested on the spot and placed in the county jail.

On appeal, the Court of Appeals held that the “Texas Constitution provides, ‘No person shall ever be imprisoned for a debt’.” Tex. Const. art. 1, §18.  In fact, the Texas Family Code is specific as to what property divisions are enforceable by contempt and that contempt does not mean imprisonment.  Specifically, Texas Family Code Section 9.012(b) states “A court may not, enforce by contempt an award in a decree of divorce or annulment of a sum of money payable in a lump sum or in future installments payments in the nature of debt, except for (1) a sum of money in existence at the time the decree was rendered; or (2) a matured right to future payments.  Therefore, the Court of Appeals did a legal analysis and concluded that the only way to determine if contempt is an option in an enforcement action, the decree must be specific enough—“the divorce decree must indicate the funds existed at the time the decree was rendered or specify particular community funds from which the amount is to be paid.”

Therefore, the Court of Appeals issued a bright line rule as to what remedy is available to the trial court in an enforcement action of this nature.  Specifically, the Court held that “A trial court may invoke its contempt power only to enforce delivery of specific property or an award of a right to future property or the delivery of a sum of money in existence at the time the decree was rendered or a matured right to future payments.”   Basically, the Court can order that the property be delivered or the payments be made and possibly award some attorneys’ fees.  But, in order to seek contempt you must fit within this rule the Court issued recently.

If you have a piece of property or sum of money that is owed to you from your divorce decree, do not wait to contact an attorney.  There is a 2 year statute of limitations and you need to know the options you have. Contact a family law attorney at Guest & Gray today for a free consultation.

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You are divorced and in your final orders you were awarded spousal maintenance on the basis of your disability and inability to earn sufficient income.  So, you went through all of the stages of proving your disability and proving that you could not earn the money that you need to meet your minimum reasonable needs and the judge ordered that your ex-spouse a certain amount per month to you for a certain period of time.  As you know, spousal maintenance is governed by Chapter 8 of the Family Code and with respect to a disabled spouse, it does state that maintenance can be ordered for as long as the disability persists (longer than the statutorily limited period of time).  If it is nearing the ending date of your receipt of the monthly spousal support payments, you are becoming worried because you do not know what you are going to do at this point.  Can you seek further maintenance from the Court because you are still disabled and need the money to survive?

This question was directly addressed in Stephanie Ann Novick v. Andrew A. Shervin by the Fifth District Court of Appeals in Dallas.  There, the trial court held that the wife was “presently disabled” and ordered that the husband should pay her “$2000 per month for 24 months.”  When the time was drawing near for the husband’s payments to cease, the wife filed a motion to modify to continue the support payments and the trial court dismissed that claim to which the wife appealed.  Therefore, the Dallas Court of Appeals had to determine whether or not the trial court erred in failing to honor the wife’s request in continuing the spousal support payments.  In doing do, the Court reviewed a few other appellate cases involving this particular issue to seek guidance which led the Court to render a bright line rule to determine whether or not the support payments could be continued.

The Court held, “An award of spousal maintenance in a divorce decree is properly the subject of a motion for continuance only if the decree indicates the trial judge intended to make the award pursuant to section 8.054(b) rather than 8.054(a).”  Section 8.054(b) allows a trial court to find the spouse disabled (giving guidance as to how and what it means) and in finding the spouse to be disabled, the trial court will make an award of maintenance.  This award can be made subject to periodic request based upon the request of either party and also subject to a motion to modify.  However, Section 8.504(a)  places a duration limit on how long the court can award the maintenance for (5 years) and states that a trial court must render the shortest period possible unless the spouse’s ability to earn income is totally diminished by physical or mental disability.    The key for this Court was that you can seek continuance of the maintenance if the award was under Section 8.054(b).  An example of this type of award would be where a spouse is found to be permanently disabled, awarded spousal maintenance for longer than 5 years, and the Court also order that the spouse receiving support can seek continuance beyond the court-ordered termination date.

Therefore, based upon these sections, the Court held that they have to look to final decrees in each case to determine how the trial court awarded the maintenance.   If this test outlined is not met, then the continuation cannot be granted.   In the present case, the Court denied the wife’s appeal stating that the trial court held she was “presently disabled” and limited the duration to 24 months which was less than the maximum amount of time of duration and did not expressly provide a provision that would allow for the wife to file a motion to seek continuance of the maintenance.

Appellate cases are important because they provide looking glasses into the future as to what would happen if you do not take care of your case while still in the trial court phase.  Thus, as you determine from this article, it is imperative to ensure that your rights are protected in the final order that is rendered by the trial judge—it is imperative that you ensure that the correct language is used so that you are not completely limited in the future.  If you believe that you might have a spousal maintenance claim or have already been awarded spousal maintenance and need assistance in determining whether you can seek a continuation, contact Guest & Gray for a free consult.

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You have a pending case involving a child (divorce, SAPCR, modification) and child support has been established.  However, like most parents you are concerned about the future—what happens when the children go to college, how will I afford their expenses then?  Most people say that you can “save the child support” but that is not ideal.  Children are expensive and it is highly likely that you will spend all of the child support and then some with all of the things that come up throughout their lives until they turn 18 or graduate from high school.  Child support ends on “removal of the child’s disabilities for general purposes, the marriage or death of a child, or a finding by the court that the child is 18 years of age or older and is no longer enrolled in high school or a high-school equivalent program.”  In the Interest of W.R.B. and B.K.B., Children.  So, what are your options to ensure that your children can get a college education and have support from the other parent?

This issue is addressed in In the Interest of W.R.B. and B.K.B., Children from the 5th District Court of Appeals in Dallas.     There, the Dallas Court of Appeals addressed the issue of post-majority support which is defined as applying “only to a non-disabled child who is 18 years of age or older and is no longer enrolled in high school or a high-school equivalent program” Tex. Fam. Code Section 154.001(a).  Therefore, this creates or allows for a specific scenario in which the other parent would still be required to make support payments.  In this case, the Court held that the trial court cannot order post-majority support on its own volition but the parties can agree to post-majority support in writing.  In the agreed modification orders, the parties had done just that.  Therefore, the Court of Appeals held that it was proper for the trial court to render the order of post-majority support.  However, the issue then became that the obligor parent stopped paying the post-majority expenses and so the recipient or obligee parent filed an enforcement action seeking reimbursement of all of the expenses, attorneys’ fees and interest.

The Dallas Court of Appeals held that for post-majority support, this is after the child ages out and was based purely upon the parties’ agreement and so therefore it is not enforceable in a family law court under the Texas Family Code.  Rather, the proper avenue is breach of contract.  This is because the agreed orders, with respect to the post-majority support, are considered a contract because it is an agreement of the parties not based upon legal authority.   This is unlike the issue of child support that was ordered which remains enforceable even post-aging out of the children because the Court still maintains jurisdiction over that issue as it was awarded under the family code.

With respect to consequences of breaching the contract, the Court held that it would be ideal if the parties not only agreed to the post-majority support but also agreed to the consequences if said support was not paid.  This would distinctly provide a source of remedies for a court to look to on the breach of contract claim.  In this particular case, the parties failed to do so and therefore it was difficult for the Court to ascertain what the proper remedies should be—this case is not like a typical enforcement case where, if in fact found to be in arrears, the conduct is punishable by contempt which could be confinement or suspension of confinement, confirmation of arrears, and award of attorneys’ fees.  Therefore, it is clear that this Court made a suggestion for future cases involving post-majority support—create a bright line rule in your orders as to what happens if either party violates that agreement.

Also, the Court offered guidance for future cases involving reimbursement claims of this nature where there are actual child support arrears and post-majority support arrears.  If you have a case of this nature, for the child support your avenue is enforcement. However, for the post-majority arrears you must separate that into a separate breach of contract cause of action and also distinctly separate the expenses out for the court.  You want the court to be able to look at your itemized spreadsheets and be clear on all expenses and totals being claimed; otherwise, you might have your entire case thrown out and not recover the funds.

Clearly, this is a unique issue that should not be taken lightly.  It is one that you have to ensure you get the language in the court order just right to ensure that you can in fact have a remedy if the order is violated.  If you are facing a case in which you think you would require post-majority support OR a case in which you need to sue for arrears on post-majority support, please call us today at Guest & Gray for your free consult.

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Chapter 8 of the Texas Family Code governs spousal maintenance, Texas’ own form of “alimony”.   Spousal maintenance is not easily obtained by divorcing parties; in fact, the legislature has created a pretty high threshold.  But, the issue becomes what if you have an out of state decree that speaks to spousal support and then you have the spouse ordered to pay subsequently wanting to get out of that arrangement?  This is the exact issue that the Fifth Circuit Court of Appeals addressed in In the Interest of L.T.H., R.R.H., and A.W.H., Minor Children.

In that case, the wife appealed a trial court’s ruling to refuse to enforce a California divorce decree modification and the husband’s obligation to pay spousal support.   In California, husband and wife were divorced, subsequently modified the divorce decree in California with a settlement agreement, and entered a reformed decree.  Then, everyone subsequently moved to Texas.  Later, the wife sought to enforce against the husband several times due to his nonpayment of the spousal support and child support.  After the first enforcement, the parties signed a mediated settlement agreement agreeing to certain terms regarding the spousal support (payment was definitely one of those terms) and then an order was subsequently entered.   The wife had to seek a subsequent enforcement due to the husband not paying again pursuant to the orders and in that case, the trial court ordered that they could not enforce the modification of the California decree and ordered that wife take-nothing.  However, the Court of Appeals thought differently and reversed and remanded ruling that they would strictly comply with the parties’ MSA, uphold the MSA and the parties’ agreement.

The Court of Appeals reviewed this case under contract law, which is sometimes unusual when discussing family law cases.  However, most people forget that every agreement entered into (when the proper elements are present), create a contract between the parties that can be enforceable as such.  The Court of Appeals looked to previous appellate decisions to reach this decision such as Schwartz v. Schwartz which held that “When such an agreement is executed by the parties and incorporated into the judgment of a divorce, it is binding upon the parties, and is interpreted under general contract law.”  Schwartz v. Schwartz, 247 S.W.3d 804, 806 (Tex. App.—Dallas 2008, no pet.).   Therefore, the Court would not review the MSA under Chapter 8 of the Texas Family Code stating that this was a contract turned into a court order which did not effectively create court ordered maintenance under the Texas Family Code.

When reviewing an agreement of the parties under contract law, this Court of Appeals held that you have to look to the parties’ intent and looked back to the Reformed California Divorce Decree which contained certain provisions regarding how the parties could in fact modify the terms of the decree.  One of the terms, as you might have guessed, was that the “parties could modify the contractual obligation of spousal support by signing a written agreement”.  Therefore, the subsequent MSA, the Court held, was a valid modification of the terms of the decree.

The Court then reviewed the husband’s arguments and found that he did not have a defense to the contract being enforced.  He tried to argue that the Texas trial court lacked subject matter jurisdiction to modify/enforce the California decree and said that it was a mistake of fact.  However, the Court held that this is a mistake of law, which is not a defense under contract law.  The husband also tried to argue that the wife did not pay any consideration as a part of the agreement (one of the elements to create a contract).  However, the Court overruled that argument as well stating that the wife did in fact “pay consideration” when she agreed to reduce the husband’s arrears down as a part of the MSA.

The Court further held that the trial court erred in trying to modify the parties’ MSA in not granting the wife a judgment against the husband adjudicating that, “Because of the Reformed California Decree and the MSA were founded upon settlement agreements reached by the parties, the trial court had no power to supply terms, provisions, or conditions not previously agreed upon by the parties.”  Ammann v. Ammann, No. 03-09-00177-CV, 2010 WL 4260955, at *3 (Tex. App.—Austin Oct. 28, 2010, no pet.) (mem. op).    Therefore, the Court concluded that the MSA/enforcement was proper due to its allowance by the previous California orders.  Also, the Court concluded that it would strictly comply with the settlement terms and if there was not a particular term within that agreement the trial courts cannot simply just add what they want to make their ruling work.

As a practicing family law attorney, I have had several cases dealing with spousal maintenance issues.  It is one not to be taken lightly and one that everyone deserves to know their rights on.  If you are in the midst of a divorce and need legal guidance, contact Guest & Gray today.

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You may not think that this distinction is important, but in the world of family law it is imperative that you understand the difference.  It could be the difference between you actually being the father of a child in the eyes of the law as well as differing burdens of how to overcome that label if you are not the child’s biological father.  In fact, if you are in the middle of a divorce or a suit affecting the parent child relationship, knowing your definitions is crucial when it comes to duties to support children and your rights to visiting those children.

Texas Family Code Section 101.0015 defines alleged father as a man who “alleges himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, but whose paternity has not been determined.”  So, if you think that you are the father of a child but it has not been concluded by court ordered genetic testing—then you are an alleged father.  We see this type of scenario come up in situations such as cases involving the Attorney General’s Office of Texas.  If a woman petitions the Attorney General’s Office for child support, then that agency will file a lawsuit and have all of the alleged fathers served.  It is then your duty to ask for genetic testing if there is any doubt in your mind about whether or not you are the father.  Once genetic testing is completed and paternity is established, you then become an adjudicated father.   Adjudicated father is defined in Texas Family Code Section 160.102(1) as a man who is determined to be the father of a child by the Court.  Therefore, once your paternity is established by results of genetic testing then the Court will name you as the father and proceed forward with child support, visitation, etc.

In contrast, Texas Family Code Section 160.204 defines a presumed father as follows:

(a) A man is presumed to be the father of a child if:

(1) he is married to the mother of the child and the child is born during the marriage;

(2) he is married to the mother of the child and the child is born before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;

(3) he married the mother of the child before the birth of the child in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;

(4) he married the mother of the child after the birth of the child in apparent compliance with law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and:

(A) the assertion is in a record filed with the bureau of vital statistics;

(B) he is voluntarily named as the child’s father on the child’s birth certificate; or

(C) he promised in a record to support the child as his own; or

(5) during the first two years of the child’s life, he continuously resided in the household in which the child resided and he represented to others that the child was his own.

(b) A presumption of paternity established under this section may be rebutted only by:

(1) an adjudication under Subchapter G1; or

(2) the filing of a valid denial of paternity by a presumed father in conjunction with the filing by another person of a valid acknowledgment of paternity as provided by Section 160.305

As you can imagine, we see this type of scenario in a divorce situation.  It becomes a contested issue when the wife has an affair and becomes pregnant—many men fall into the trap of thinking that they do not have to do anything because the child is clearly not their biological child.  However, that is an unfortunate misconception per the Family Code Section listed above.   You must ensure that you are not adjudicated the father of the child. Also, you cannot get divorced while your wife is pregnant with the other child.  This is because you must go through the genetic testing to prove you are not the child’s father.

Determining which type of father you are is only one of the tasks of our family law team here at Guest & Gray.  Contact us to schedule your free consultation today.  We look forward to helping you in your family law case.

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Many parents, grandparents, and even professionals do not fully understand their duty to report child abuse let alone the consequences for their failure to report.  But what about such duty to report of just an ordinary person?  That is right; ANYONE who has knowledge or reason to believe that a child is being abused in any way must report it to the appropriate agency.  That agency would be the Texas Department of Family and Protective Services, your local law enforcement and even your local district attorney’s office.  The family code does not exclude anyone in the duty to report.  Examples of professionals would be teachers, attorneys, doctors, nurses, and daycare employees.

Chapter 261 of the Texas Family Code encompasses the duty to report, definitions, etc.  Once you have determined what abuse or neglect means in Texas, and you know a child who is being subjected to such acts, you must report it.   Unfortunately, many of the cases we see are children being sexually or physically abused.  Once you learn of this abuse, what do you need to do?

Texas Family Code Section 261.101 legislates and defines those who are required to report as follows:

Sec. 261.101.  PERSONS REQUIRED TO REPORT; TIME TO REPORT.  (a)  A person having cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter.

(b)  If a professional has cause to believe that a child has been abused or neglected or may be abused or neglected, or that a child is a victim of an offense under Section 21.11, Penal Code, and the professional has cause to believe that the child has been abused as defined by Section 261.001 or 261.401, the professional shall make a report not later than the 48th hour after the hour the professional first suspects that the child has been or may be abused or neglected or is a victim of an offense under Section 21.11, Penal Code.  A professional may not delegate to or rely on another person to make the report.  In this subsection, “professional” means an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children.  The term includes teachers, nurses, doctors, day-care employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers.

(c)  The requirement to report under this section applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, and an employee of a clinic or health care facility that provides reproductive services.

(d)  Unless waived in writing by the person making the report, the identity of an individual making a report under this chapter is confidential and may be disclosed only:

(1)  as provided by Section 261.201;  or

(2)  to a law enforcement officer for the purposes of conducting a criminal investigation of the report.

Many people fail to report child abuse or neglect because they are afraid of the backlash that they may receive.  In fact, some people talk themselves out of it saying that they cannot be certain about it and they worry about what if they are wrong, what will happen to them.  The definition is clear—“cause to believe”.  Did the child show up at school with bruises on their backside or on their face?  The important thing to know is that you cannot get in trouble if you have a reason to believe that the abuse is taking place.  In fact, Texas Family Code Section 261.106 makes that abundantly clear.

Sec. 261.106.  IMMUNITIES.  (a)  A person acting in good faith who reports or assists in the investigation of a report of alleged child abuse or neglect or who testifies or otherwise participates in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect is immune from civil or criminal liability that might otherwise be incurred or imposed.

(b)  Immunity from civil and criminal liability extends to an authorized volunteer of the department or a law enforcement officer who participates at the request of the department in an investigation of alleged or suspected abuse or neglect or in an action arising from an investigation if the person was acting in good faith and in the scope of the person’s responsibilities.

(c)  A person who reports the person’s own abuse or neglect of a child or who acts in bad faith or with malicious purpose in reporting alleged child abuse or neglect is not immune from civil or criminal liability.

The worse thing to worry about is what would happen to you if you did not report and someone found out.  We see this arise a lot when it comes to grandparents or even parents.  A court case will begin on instances of abuse; however, the person claiming the abuse failed to make a report to the appropriate agency.  It is a crime, one which can be pursued against you.

Sec. 261.109.  FAILURE TO REPORT; PENALTY.  (a)  A person commits an offense if the person has cause to believe that a child’s physical or mental health or welfare has been or may be adversely affected by abuse or neglect and knowingly fails to report as provided in this chapter.

(b)  An offense under this section is a Class A misdemeanor, except that the offense is a state jail felony if it is shown on the trial of the offense that the child was a person with mental retardation who resided in a state supported living center, the ICF-MR component of the Rio Grande State Center, or a facility licensed under Chapter 252, Health and Safety Code, and the actor knew that the child had suffered serious bodily injury as a result of the abuse or neglect.

The issue arises when people start making reports to spite one another.  For instance, we have had several instances of divorces where parents make sexual abuse claims against the other parent involving one or all of the children part of the divorce.  This happens because both parents might be competing for the exclusive right to designate primary residence.  However, many people do not realize that this is in fact a crime.

Sec. 261.107.  FALSE REPORT; CRIMINAL PENALTY; CIVIL PENALTY.  (a)  A person commits an offense if, with the intent to deceive, the person knowingly makes a report as provided in this chapter that is false.  An offense under this subsection is a state jail felony unless it is shown on the trial of the offense that the person has previously been convicted under this section, in which case the offense is a felony of the third degree.

(b)  A finding by a court in a suit affecting the parent-child relationship that a report made under this chapter before or during the suit was false or lacking factual foundation may be grounds for the court to modify an order providing for possession of or access to the child who was the subject of the report by restricting further access to the child by the person who made the report.

(c)  The appropriate county prosecuting attorney shall be responsible for the prosecution of an offense under this section.

(d)  The court shall order a person who is convicted of an offense under Subsection (a) to pay any reasonable attorney’s fees incurred by the person who was falsely accused of abuse or neglect in any proceeding relating to the false report.

(e)  A person who engages in conduct described by Subsection (a) is liable to the state for a civil penalty of $1,000.  The attorney general shall bring an action to recover a civil penalty authorized by this subsection.

If you have any knowledge of child abuse or neglect, report it today.  Do not wait until you have hard proof, all you need is “cause to believe.”  You may be saving a child’s life.  For your convenience, you can contact the Texas Department of Family and Protective Service’s child abuse hotline at 1-800-252-5400.  If your case involves a situation in which you believe you would want to seek custody of this child, contact us today at Guest & Gray to schedule a free consultation regarding your family law case.  Understand, however, that if you have not reported the child abuse then even our attorneys have the duty to report the said abuse.  It is never too late to make the right decision.  We look forward to helping you.

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I am by no means a licensed mental health professional, psychologist or psychiatrist; however if you have been a follower of my blog regarding divorce, child custody, or any family law issue you know that I constantly write about the psychological tolls that the cases take on my clients.  This is because I witness every day the psychological struggles that my clients go through.   Divorce is hard on everyone involved, no matter how you slice it.  Many people hear this, but do not actually understand until they are in the trenches.  However, it is so important to understand, for your mental and physical health, before you are in the trenches that this will be a difficult process and have a list of coping mechanisms to help you through it.

So many people fall into the trap of bitterness, anger and resentment and cannot get past those emotions.    While I will agree that your feelings are legitimate, you also need to work through those feelings so that you can get to the other side and feel a release.  Many people hang on, even after the divorce is finalized.  I have seen what this does to people, and I do not wish it on anyone.  Getting past that anger is not an easy feat, but one that is beyond necessary.

Also, divorce is difficult because it bring change—the familiarity is no longer there, you have to move, your holidays are not the same, you lose a pet, you have to split the time with the children, etc.  Change is so hard and I will be the first to admit that I hate it.  But, change is a part of life; in fact, life is about seasons and weathering those seasons.  How will you weather in a mentally healthy way?

For children, divorce is scary and they do not understand it.  They cannot process why mommy and daddy do not love each other anymore.  If you are in the middle of a divorce or are considering it and you have children, take a parenting class now.  You should definitely address these feelings on the front end rather than in the midst of the storm.  For example, For Kids’ Sake is a parenting class offered to help parents understand how their divorce is affecting their children and gives them tools to help the children cope through this.  To understand what your bickering, pointing fingers, talking about daddy in front of them, etc. does to the children will truly convict and humble you.  If your children can see you both on a united front to love and protect them in the very beginning, it will help the process in so many ways.  But, if you are in the middle or even already divorce, it is absolutely not too late.  It is never too late to work on parental relationships.  Your children just need to know that no matter what happens, they will always be loved, they will always have access to both parents, and they will always be protected.

So, I discussed having coping mechanisms in your arsenal so that you can get through this; but, what would they be?  I tell my clients to do what makes you happy—do you love to go walking; do you like to run; do you like to work out; do you enjoy playing a musical instrument; whatever you like to do, do it.  But, it is also important to enroll in counseling or something of this nature.  Many people do not realize it because they are in denial; but, you do need help working through those difficult emotions.  If you do not want to or cannot afford formal counseling, a lot of churches and other institutions offer support groups that are specialized for loss, grieving, and even divorcees.  Finding someone that you can vent to is such an achievement because then you are able to get it all out so that you do not bring it into the courtroom.  Also, you will find yourself less inclined to discuss this with your children and maybe even less angry with your soon to be ex-spouse.  Having the opportunity to be heard is half of the battle.   Just be sure that the company you keep is the encouraging kind and not the kind that will keep you in the negative rut.  Remember that life is short; this divorce is just a season, and after winter comes spring.

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In Texas, if the child custody visitation schedules are court-ordered they are typically either standard possession or expanded standard possession (alternate beginning and ending times).   One parent will have the exclusive right to designate the child’s primary residence and then the non-primary parent has the visitation schedule.  In contrast to the school year, summer and spring break visitation schedule, the holiday visitation schedule is regardless of distance between the parents’ residences and most courts only focus on Thanksgiving, Christmas, Mother’s Day and Father’s Day.  However, additional holidays can be requested and ordered such as Easter, Halloween, etc.

In custody orders, holidays are divided out as even and odd years.  So, if you are the primary parent you typically have odd Christmas and even Thanksgiving.   A parent will not have the same year for both holidays.  Because Christmas falls in an odd year this year, the primary parent would have possession of the child from the day the child is released from school until December 28 at noon.  Texas Family Code Section 153.314 specifically sets out the language for the court orders and is follows:

Sec. 153.314.  HOLIDAY POSSESSION UNAFFECTED BY DISTANCE PARENTS RESIDE APART.  The following provisions govern possession of the child for certain specific holidays and supersede conflicting weekend or Thursday periods of possession without regard to the distance the parents reside apart.  The possessory conservator and the managing conservator shall have rights of possession of the child as follows:

(1)  the possessory conservator shall have possession of the child in even-numbered years beginning at 6 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and the managing conservator shall have possession for the same period in odd-numbered years;

(2)  the possessory conservator shall have possession of the child in odd-numbered years beginning at noon on December 28 and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in even-numbered years;

(3)  the possessory conservator shall have possession of the child in odd-numbered years, beginning at 6 p.m. on the day the child is dismissed from school before Thanksgiving and ending at 6 p.m. on the following Sunday, and the managing conservator shall have possession for the same period in even-numbered years;

(4)  the parent not otherwise entitled under this standard possession order to present possession of a child on the child’s birthday shall have possession of the child beginning at 6 p.m. and ending at 8 p.m. on that day, provided that the parent picks up the child from the residence of the conservator entitled to possession and returns the child to that same place;

(5)  if a conservator, the father shall have possession of the child beginning at 6 p.m. on the Friday preceding Father’s Day and ending on Father’s Day at 6 p.m., provided that, if he is not otherwise entitled under this standard possession order to present possession of the child, he picks up the child from the residence of the conservator entitled to possession and returns the child to that same place; and

(6)  if a conservator, the mother shall have possession of the child beginning at 6 p.m. on the Friday preceding Mother’s Day and ending on Mother’s Day at 6 p.m., provided that, if she is not otherwise entitled under this  standard possession order to present possession of the child, she picks up the child from the residence of the conservator entitled to possession and returns the child to that same place.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.  Amended by Acts 2003, 78th Leg., ch. 1036, Sec. 14, eff. Sept. 1, 2003.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 1041, Sec. 3, eff. June 15, 2007.

Acts 2009, 81st Leg., R.S., Ch. 1113, Sec. 8, eff. September 1, 2009.

While continuity and strict orders are absolute necessities in some cases, some parents find it difficult to go by these standard holiday orders because they conflict with family traditions.  Therefore, we have many families who are able to agree upon a holiday possession schedule that allows both parents to fit in their family festivities so that the child does not miss out anything.  Most families do not know that their orders allow for this deviation from the standard possession order, even if the visitation is otherwise a standard possession order.  In fact, Texas Family Code Section 153.311 mandates court orders to state the following:

Sec. 153.311.  MUTUAL AGREEMENT OR SPECIFIED TERMS FOR POSSESSION.  The court shall specify in a standard possession order that the parties may have possession of the child at times mutually agreed to in advance by the parties and, in the absence of mutual agreement, shall have possession of the child under the specified terms set out in the standard possession order.

Added by Acts 1995, 74th Leg., ch. 20, Sec. 1, eff. April 20, 1995.

Amended by:

Acts 2009, 81st Leg., R.S., Ch. 1113, Sec. 5, eff. September 1, 2009.

Therefore, if both parents agree upon a different holiday schedule in advance (I advise that you absolutely get it in writing in some shape or form—email, text message, letter, My Family Wizard), then it is okay to deviate from the standard possession order.  Most courts encourage parents to try and work something out if they can—it is more peaceful and stable for the child and allows the child to spend quality time with both parents rather than just one.

Christmas is quickly approaching.  Do you know your holiday schedule, need one, or need it modified?  Contact a family law attorney at Guest & Gray.  We offer free consultations and are fully staffed to meet your needs.  We look forward to helping you.

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You may be just beginning your divorce case or you may be in the middle.  Regardless of your current position, there are certain tips that will make this painful process much smoother in the grand scheme of things.  In fact, if you would follow these ten easy tips, you would be worlds ahead of other people going through divorces.

  1. Stress management.  There are a couple of ways our clients are able to work through the stress that occurs with a divorce; here are a couple of my recommendations: Research and find a counselor with whom you are comfortable.  I know, I know—most people hate the word “counseling” and feel as though it would not help them. But, so many of our clients attend counseling and I am amazed at the way they are able to process as we go through the divorce.  It does not matter if it is a pastor, licensed counselor, psychologist, psychiatrist, or a free clinic; you just need to talk to someone.  The emotional toll of the divorce can be so taxing and many people need help with coping; this includes you.  OR if you are not ready to take the counseling step, get out and exercise.  Or even better, you can do both.  Go for a walk with a friend, join a gym, or attend a fitness class that interests you.  Start a fitness routine and it will give you something to look forward to.  And remember what Elle Woods says, “Exercise gives you endorphins.  Endorphins make you happy.  Happy people just don’t shoot their husbands, they just don’t.”
  2. Keep off of social media.  I cannot stress enough—do not post anything on any social media account about your soon to be ex, their paramour, the children, the case, etc.   While it may feel good at the time, it will only hurt you in the long run.  All judges frown upon it and it will make the case harder than it already is.
  3. Maintain your children as what they are, just children.  So many parents fall into the trap of venting to their children about the other parent.  Do not be one of those parents! Remember that your children are children, no matter their age.   They do not want to hear about how their dad is behind on child support.  They do not want to hear about mom asking for too much money and not holding up her end of the deal.  They should not have to hear such adult things.  They just want to know that both parents love them, regardless of what is going on in the grown up world.  I suggest, even if your court does not require it, attending the For Kids’ Sake class taught by Dr. Nancy Ferrell.  This class helps parents going through divorces understand how their actions, arguments, words, etc. affect their children.  It is truly eye-opening and will make you think twice about using your child as a sounding board.
  4. Remain cordial with your spouse.  Even if your spouse is sending you nasty text messages and trying to get you riled up, just simply send those texts to your attorney to keep them in the file and do not, I REPEAT DO NOT, respond.  That will make them angrier than if you did retort back and play into their childish behaviors.  The best advice I have ever heard on this topic is do not text your spouse anything that you would not want the judge to see.   Because you can guarantee that if any inappropriate words, videos, or pictures are exchanged they will be on the exhibit list for hearings.
  5. Organizing your case for your attorney.  Stress is also relieved when you are able to organize all of your documents, thoughts, and goals for your attorney.  If your attorney gives you a packet to complete within a certain amount of time, do it early and complete it to your utmost ability.  If you have certain text messages, pictures, or documents that you want the attorney to review have them organized (it will keep your bill down and make life easier for the both of you).  For instance, label the documents, put them in chronological order, etc.  Also, be sure you are clear to your attorney what your overall goal is in the case; they cannot advise you and keep you on track if they do not know what you ultimately want out of the case.
  6. Have your assets/debts organized.  In line with the previous suggestion, you will want to organize your assets and debts into spreadsheets for your attorney.  List everything that you can think of, including jewelry, lawn equipment, homes, bank accounts, retirement accounts, vehicles, boats, exercise equipment, home appliances, etc. along with the approximate market values and where you retrieved the information on that value.  For the debts, think about who is the creditor, the total amount of the debt, the monthly payments, when the monthly payments are due, etc.  Think of this as an inventory for things that will ultimately be divided among you and your spouse.  It will keep you and your attorney organized for mediation and hearings.
  7. Relay children’s medical records for expenses.  In most cases, one party will be ordered to maintain the health insurance and then the parties will be ordered to 50/50 the unreimbursed medical expenses.  If you are the party who mainly takes the children to the doctor, then you will be the party receiving the bill and the party who incurs most of the expenses.  Be sure that you understand how it works—in order to be reimbursed 50% by the other party, you must send them the bills.  And, to be safe, have proof of sending those bills (ex. certified mail, fax confirmations, etc.) Most orders have certain deadlines, so be mindful of those.
  8. Read your orders!  Notice the exclamation point at the end of that.  Read them several times, know them in your sleep.  This is so important and you will not believe how many people are asked questions about their visitation, requirements, or deadlines and they will tell me that they do not know.  However, their orders clearly have exactly what they needed to know within them.  It is important that you read and understand exactly what you are signing and agreeing to; if you have questions, no matter the questions, you need to go over that with your attorney.  You need to know what you are ordered to do because if you do not and you end up not following the orders, ignorance will not get out of the contempt that you might face with the court.
  9. Communicate with your attorney.  Be sure to call and/or email your attorney back promptly.  Your attorney relies on you to approve of pleadings, let them know your responses to certain questions, etc. and they cannot proceed forward without your response.  Understand that your attorney is doing what you hired them to do—represent you.  If you have a deadline coming up that your attorney or their assistant has emailed or called you about, do not make your attorney hunt you down.  Send your attorney an email or call their assistant and let them know that you are going to meet the deadline or if you need some help meeting that deadline.   Remember, communication is key in any relationship.
  10. Be financially prepared.  Your attorney will ask for a retainer upfront to start work on the case; however, if your case is contested you will need to expect to go above that retainer.  You will most likely have multiple hearings, mediation, a social study (if there are children), and if necessary a final trial.  Divorces can be very expensive and it is important to not be blindsided by that amount.  After all, you do not want representation only halfway through your case; you want representation until the very end.