Dallas Divorce Lawyer Blog

A question we get asked frequently is whether a client or potential client can get “joint custody” of a child. The term “joint custody” is NOT a term that has legal significance under the Texas Family Code. The language in the family code that does use the word “joint” is “joint managing conservator,” and that doesn’t mean what most people think it means. This blog post is going to explain the difference in the two terms.

What is Joint Custody?

            In Texas, we don’t use the term “custody” to describe the time parents spend with their children. We use “possession and access” to describe what most people think of when they use the word custody. When people use the term joint custody they typically are speaking of a 50/50 possession and access schedule. For more information on what that may look like and what that means look here: What Does 50/50 Custody Mean. The long and short of that blog post is that there is no 50/50 possession and access schedule listed in the Texas Family Code and that there are multiple “equal” possession schedules that courts use.

There is no way that anyone can give you an exact timeline of how long your divorce will take. Each case is different. However, there are a few things that can be known for sure and this blog post is going to go through some of the things to keep in mind when trying to figure out how long your divorce is going to take.

1. There is a Mandatory Waiting Period

 
In Texas, divorces cannot be finalized before 60 days have elapsed since the date of filing. This is almost always the case, unless a judge waives the waiting period. Typically, judges think the 60-day waiting period is a good thing and they do not waive this requirement. However, under a few extreme circumstances, such as deployment or an imminent birth that is not of the marriage, judges have been known to waive the waiting period.

There are a lot of changes that happen because of a divorce. One that may not be at the top of people’s minds when going through a divorce is the impact their divorce is going to have on their property when they pass away. Divorce can change the way property is treated with respect to certain deeds, life insurance policies, wills, and other estate planning documents.

What Impact Does a Divorce Have on a Will?

In general, Texas law takes into account that people don’t want to leave things to their ex-spouse after a divorce. Without express language that says otherwise written into a will, anything left to a spouse will be treated as if the spouse is essentially dead at the time the will is probated under Texas law. This means that anything that was meant to go to an ex-spouse will now go to whoever is next in line. This could mean that an alternate beneficiary was designated and the property will go to that next person listed or it could mean that the property now will pass as if no will was drafted because no alternate beneficiaries were named.

Many people are familiar with the standard possession schedule that is written in the Texas Family Code. It basically involves first, third, and fifth weekend possession with rotating holidays and extra time during the summer. Less people are familiar with section 153.015 of the family code that provides a way for judges to order electronic communication with a child as a way to supplement the time a parent has to spend away from their child under a possession order.

What does section 153.015 say?

The court may award a party reasonable periods of electronic communication with a child upon request of the party.  In determining whether to award electronic communication, the court will consider whether electronic communication is in the best interest of the child, whether equipment necessary to facilitate the electronic communication (phone/ipad/computer) is reasonably available to all parties subject to the order, and any other factor the court considers appropriate.

Can you Modify a Judgment that is Currently Being Appealed in a Family Law Case?

 
What is an appeal?

Generally, in legal actions an appeal is an action you take when you think the judge you are in front of got it wrong. For the most part there must be a final order for a judgment to be appealable. Usually, an appeal means that the lower court holds off on taking any further action while a higher court reviews the case and reviews that everything was done correctly. Family law cases are unique for a lot of reasons, one of them being that they have a continuous nature when children are involved. When children are involved courts have what is called continuing, exclusive jurisdiction after a case involving a child is in their court. This makes the issue of appealing a case involving a child more complicated than a normal civil case in which the final judgment is going to be final and the last word that a judge has to say on the matter.

How does the default possession schedule work in the family code for winter break?

As school is letting out for the holidays families under new possession orders may be wondering how exactly December and January are going to work for them. The Texas Family Code presumes that a certain holiday possession schedule is in the best interest of children in section 153.314. This possession is something that has not always been the default in Texas so it may not sound exactly like what people are used to doing for holiday possession in the past. As of now, the family code allows for one parent to have possession of the child from the time that the child is dismissed from school for winter break (or at the time the public school district that the child lives in dismisses from school if the child is not in school for whatever reason) until December 28th at noon. The other parent shall have possession of the child from noon on December 28th until 6 p.m. on the day before school resumes at the end of winter break. This set up flips back and forth between parents each year with one parent having the first half of the break during even years and the second half of the break during odd years and the other parent having the first half during odd years and the second half during even years.

What does that look like using a real school district’s schedule?