Family Law Discovery Issues:

If there is one aspect of practicing law that a consensus of attorneys will agree is a mental beat-down, it would be the discovery process. Since discovery is a necessary evil, discovery is a tool that attorneys must effectively wield in order to adequately represent their client.

Very often, we have men and women who are attempting to battle through a divorce on their own, and once they are served with discovery requests they come looking for help. That is the smart move. An experienced family law attorney will know exactly what needs to be done and will get your case on track.

The Texas Family Code has a lot to say on what it means to be a father, what rights fathers have in regards to their children, and what obligations come along for the ride.

So first off, who is considered to be the father?

It is “a man legally determined to be the father, a man who has been adjudicated to be the father by a court of competent jurisdiction, a man who has acknowledged his paternity under applicable law, or an adoptive … father.” TFC § 101.024.

Dads are very important people. Very important to some really cool little people in this world. We are not say that because Dads are important that Moms are not. Moms are important too. Yet it seems, and maybe it’s just us, that during custody proceedings, the courts have to choose who is the most important to that kid. Then they give that winning parent the most Time. And Time is extremely precious.

In many cases, the most valuable parent award goes to Mom. Sometimes it’s Mom even when Dad has been doing most or the same amount of the caregiving, bathing, cooking, cleaning, homework supervising, and story-time-reading-before-the-kid-will-think-of-going-to-bed work.

Dads, stereotypically, have an uphill battle. So what is a good strategy for Dads fighting for more time with their kids? Dads who will fight to be in their kids lives, because their kids are important to them and they are important to their kids?

“I have to move, but my ex-spouse still lives here. Can I take my kids?”

This is a question that we hear fairly often here at Guest and Gray. Many people find themselves having to relocate for work or the need to be closer to family. However, for divorced parents, this problem is exacerbated by geographic restrictions that say where there children must live. These are known as “Geographic Restrictions”

Geographic restrictions most often place restrictions on the county in which you may live, or the maximum distance from the other parent that you may live. These restrictions are either negotiated by the parties or provided by court order. This means that if you want to relocate out of your geographic area, you have to go to court again and explain the reasons for your relocation.

So, could someone come to your home and take you kids? It is a fear, or maybe depending on a night of unending shrieking, a fantasy of all parents. The answer is, as any good attorney worth his/her salt will tell you, “It depends.”

Are you using hard illegal drugs in front of your children? Are you leaving them at the tender age of 5 alone for hours on end? Are you feeding them only when you remember to on a weekly basis? Are you knowingly letting your children be abused or mistreated by registered sex offenders?

I sure hope you said no to all of these questions. If you did say yes to any of the above, know that there is help. Stop what you are doing right now. Call CPS on yourself immediately. Do it for your children. You are not ready to be a parent, maybe ever (probably ever, but we have other blog posts for you to read).

Divorce cost money, no matter how easy a lawyer and the client try to make the process, one cannot get around the fact that going through a divorce is expensive. There are, however, certain alternatives that couples can partake in to try and reduce the amount of time spent in court and may also help lessen the costs. One of these ways is through family mediation.

Although it is presumed that couples going through a divorce are so completely filled with hate that no agreements can ever be made, this is not always the case. And for clients who believe that they may be able to come to certain agreements on topics such as, child custody and splits of assets or debts, mediation is a great alternative to litigation. Parties that choose to go through mediation are able to make equitable choices of how to divide their assets and debts rather than being stuck with how the court decides to distribute them.

A neutral third party, whose goal is to help couples reach an agreement that satisfies their needs and interests, conducts the mediation. The mediator is not partial to either party, but only helps each party to make decisions that will be beneficial to themselves and each other’s interest.

On June 26, 2015, the Supreme Court of the United States held, in Obergefell v. Hodges, Director, Ohio Department of Health, Et Al., that the 14th amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of State.

Since the establishment of the Supreme Court in 1789, landmark decisions, similar to the opinion formed on June 26th, have changed America, and will continue to do so. Whether we agree with the Supreme Court’s decisions or not, they are a part of our history and have shifted America. And whether we agree or not with the decision made on Friday, it will be one that fills the history books for our children’s children to read.

The Court, in this case, points out that marriage is a union that has evolved over time. At one time marriage was an arrangement, made by the parents, that was based on political, religious, and financial concerns. And before women began to gain legal, political, and property rights, a married man and woman were treated by the State as a single, male-dominated legal body.

How do I prove that certain property in my divorce is separate from the community property?

When the court divides property in Texas there is a presumption that the community owns everything, that is both parties will have a right to it. Anything that you or your spouse has received through gift, devise, or descent is your separate property, and you will need to show this to the court. But, if there is some property that you have used your separate funds to purchase, and is your separate property you will have to prove this to the court through clear and convincing evidence. The Fifth District Dallas Court of Appeals case, Slicker v. Slicker, defines clear and convincing evidence as the “measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” So, you and your lawyer will need to bring in enough evidence and proof that will reasonably convince the judge or the jury the property is in fact your separate property.

How does the court divide community property?

In most family law cases children are seldom asked to testify because of unreliability. But, in some cases a teenager may be called to testify in situations such as; when a teenager wants to live with a different parent, where a parent has made serious accusations about the other parent and the only witness is the child, an enforcement action, or a custody or termination where the child wants to testify.

How is a child called to court?

If you know that you will be calling a child to testify in a case, it is good practice to notify the judge in advance. Most of the time lawyers will serve subpoenas to the parent of the child. This is the most common way because the parent will be actually driving the child to the court The judge can be specific about the provisions of the subpoena, providing guidance on who will bring the child to the courthouse, where the child is to go when he or she gets there, and who can talk to the child before giving the testimony.

What steps will my lawyer take to file for divorce, annulment, or to declare my marriage void?

First, the attorney will need to file a petition for divorce to the court. When filing a petition for divorce, the attorney will not have to be specific with the facts, unless the parties are seeking specific property rights. If children will be involved in the divorce, a SAPCR (suit affecting the parent-child relationship) must also be included. The attorney will make sure that all the relief that is sought is filed in this initial pleading. The pleading can be changed as the case goes on. In Texas, the petition will need to meet the fair notice requirement, requiring the party to provide a short statement to give fair notice of the party’s claims. This will give the other opposing party an idea of what the controversy will be about. If you are representing yourself you must sign the pleading, or if an attorney represents you the attorney will sign it.