What is a Mediated Settlement Agreement?

If you reach an agreement in a mediation, more precisely called a Mediated settlement agreement or MSA for short, the agreement is binding on you and all other parties you are agreeing with in a family law case as long as the MSA is drafted in the way that is required under the Texas Family Code. The agreement must be the result of a mediation, hence the name, which is basically just the meeting of both parties with a neutral third person facilitating the conversation so that the parties can come to an agreement. Texas law encourages mediation as a cost-efficient and time-efficient way of settling disputes. One of the benefits of mediation is that instead of a judge who has only a glimpse into the lives of parties based on evidence presented to him or her, during a mediation the parties who know their situation and family the best get to come to an agreement that works for them and is custom to their situation.

One downside to a mediation could be that as opposed to a judge who should know what the consequences of their decision could potentially be, parties could be making agreements in a mediated settlement agreement using language that will have consequences after the agreement is entered that they did not intend. One of the reasons that we trust judges to make decisions for us in legal matters is that in general they have years of experience dealing with similar matters and they should understand what all of the legal jargon that goes into an order actually means.

What is a standing order?

New standing orders were issued from Dallas County on January 1, 2017. If you are familiar with any type of family law case in recent years, especially in Dallas County, hopefully you are familiar with what “standing orders” are in general. If you need a refresher, they are basically orders that the judges agree are a good thing to apply to all family law cases that must be attached to any petitions filed in the county. The standing orders apply to the parties while the case is pending. In the broad sense, the standing orders are meant to prevent the parties from acting badly while a divorce is ongoing.

To see the full standing orders, please follow this link: Dallas County Standing Orders.

What is Jurisdiction?

Jurisdiction is the ability for a court to hear a case. When two states are involved, the states must decide which court more rightfully has jurisdiction to hear the case so that there are not conflicting orders out of two different courts in two different states. Under the uniform child custody jurisdiction and enforcement act, which Texas has adopted into its family code, a trial court can have jurisdiction over a child custody case under certain circumstances laid out in section 152.201.

Even when a trial court has this jurisdiction under 152.201 of the family code, the court can still defer jurisdiction to another jurisdiction if the court considers itself an “inconvenient forum.” This inconvenient forum provision is codified in section 152.207. The court is supposed to consider certain factors when making this determination that include: (1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child; (2) the length of time the child has resided outside this state; (3) the distance between the court in this state and the court in the state that would assume jurisdiction; (4) the relative financial circumstances of the parties; (5) any agreement of the parties as to which state should assume jurisdiction; (6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child; (7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and (8) the familiarity of the court of each state with the facts and issues in the pending litigation.

What is the Maximum Amount of Child Support I Can Be Ordered to Pay in Texas?

 
            It would be really easy to answer the question of what the maximum amount of child support possible is if the Texas Legislature had decided to put an absolute cap in the family code on the amount of child support, but unfortunately or fortunately depending on where you may be situated in a family law case, there is not absolute cap on child support in Texas. This issue was taken up before the Court of Appeals for the Fifth District of Texas at Dallas on March 9, 2017 in the case In the Interest of V.J.A.O., A Child, where the court re-affirmed that the statutory guidelines allow for courts to consider relevant factors when setting child support and that trial courts have discretion to set child support amounts above what is presumed to be in the best interest of the child under the family code.

What are the Statutory Guidelines?

Why is everyone talking about fault and no-fault divorce lately?

Fault divorces have been in the news lately in Texas because Representative Matt Krause from Fort Worth authored a bill that would get rid of so-called “no-fault” divorces in Texas. Right now, all fifty states allow for a no-fault divorce. Currently under the Texas Family Code a Judge can grant a divorce based on either “fault” or “no-fault” grounds. This fault or no-fault option is something that only 17 states and the District of Columbia currently allow. “No-fault” is known by family law attorneys as insupportability, basically there is no proof required to obtain a divorce based on the ground of insupportability. Section 6.001 of the family code simply states, “[o]n the petition of either party to a marriage, the court may grant a divorce without regard to fault if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.” Most family law attorneys say the majority of divorces that they file are based on insupportability because it speeds up the process and reduces the stress related to divorce for many parties.

According to Representative Krause, the bill in its current draft would not actually get rid of all no-fault divorces. The bill in its current form would only apply to divorces with children or “unilateral” divorces. Basically, if there are no children of the parties seeking the divorce and both parties agree that they want to get divorced this bill would not apply and the ground of insupportability would still be available to obtain a divorce. The idea behind this according to proponents of the bill is to promote stability for children and prevent quick acting divorces. Opponents of the bill worry that this bill would increase the cost of divorce and lead to an increase in domestic violence as a result of parties being unable to easily obtain a divorce.

Can I ask a Texas Court for visitation rights for my grandchild?

Texas allows grandparents to gain court-ordered visitation of grandchildren in very limited circumstances. The reason that the statute allowing grandparent visitation is so limited is because the United States Supreme Court has decided that parents having the ability to make decisions about raising their children is a fundamental right that should not be interfered with by courts. Basically, in the United States we want parents to be able to decide whether their kids get to see their grandparents or not even if the parents don’t seem to have a great reason for keeping their kids away from their grandparents. A parent’s right to decide how their kids are raised is more important under the law than a grandparent’s desire to see their grandchildren.

How does Grandparent visitation work in Texas?

Aren’t half of marriages going to end in divorce no matter what?

Sort of. It is true that about 40 to 50 percent of marriages in America end in divorce. With numbers that high, some might assume that divorce is almost inevitable in most marriages. But research indicates that there are certain things that successful couples are doing to keep their marriages successful while there are things that couples who end up divorcing are doing that make divorce almost certain. Understandably, most of our clients are past the point of looking for ways to save their marriage, but hopefully some of the people who are seeking out this divorce blog may be able to use the research to make positive changes in their marriages and avoid the costly and stressful process that is divorce.

What does the research show about divorce?

What is a material and substantial change?

The Texas Family Code allows for a modification of a suit affecting the parent-child relationship if modification would be in the best interest of the child and the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the date of the order or the date of the signing of the mediated settlement agreement that the order is based off of. Material and Substantial change is not defined in the code, but obviously this is a term that has been dealt with by Texas Courts extensively. Material and Substantial change may sound like a high standard, but in actuality the courts give very broad discretion to trial court judges in their assessment of what a material and substantial change is.

What have appellate courts said about material and substantial change?

Can I appeal my divorce while still accepting benefits from the parts of the judgment that work in my favor?

As with most questions asked about the law, the answer to whether you can appeal a part of your divorce while accepting benefits from the parts of the divorce you do like is, it depends.  More accurately, the answer is, probably not. This is because of a legal concept called estoppel.

What is estoppel?

The Texas Family Code requires that a child in the conservatorship of DFPS attend all permanency hearings. This section also requires that if the court determines it is in the best interest of the child, and the child is older than four, that the court must consult with the child in a developmentally appropriate manner regarding the permanency plan. However, Texas courts do not consistently require children to attend permanency hearings.

Why aren’t children attending the hearings? 

The code has an exception that states that judges can make an individual determination that excuses a child from attending a specific hearing. Apparently,  many judges are deciding that it is not necessary for the children to be at the hearings. Of course, issues with school attendance and actually getting children to court are factors that contribute to children not being able to attend permanency hearings, but options like video conferencing and the fact that a child attending court while in foster care is an excused absence should help to alleviate any of these problems.