Sunday, January 28, 2007

Approval of Texas Family Mediated Settlement Agreements

One of the issues that inevitably comes up in Texas Family Mediations, especially when the parties are trying to creatively resolve their dispute by coming up with a custom made possession order for the child, is the question of whether the judge will approve the mediated agreement once it is presented to the court to be fashioned into a court order.

It would seem to be a fundamental right for two parents to come up with a parenting plan for their child. However, in Texas, this is not the case. The parties, even if they are in full agreement with how the child will be parented, must present their plan to the judge for his or her approval. This is because it has been the practice of some family law judges to take a heavy handed approach of setting aside agreements of parents because, in the judge’s own opinion, the agreement is not in the child’s best interest. The judge’s assumption of this sweeping power is based on case law and the long standing tradition of judges.

However a 2005 amendment to Texas Family Code 153.0071, the statute governing alternative dispute resolution procedures in family law cases, adds a new requirement that effectively takes the sweeping power away from judges to override the judgement of parents. In the the old statute, a court could decline to enter a judgement on a mediated settlement agreement regarding the conservatorship of a child if the court found “the agreement is not in the child’s best interest”. In 2005, subsection (e-1) was added which strictly limited this right of the judge. Now for a Court to disapprove a properly executed and submitted mediated settlement agreement, not only must the court find that the plan is not in the child’s best interest, but also it must find that a party to the agreement was a victim of domestic violence and was too impaired by that to make a good decision. In essence, the legislature has taken away the power of judges to override the wishes of parents to decide at mediation what is in the child’s best interest. The only time the court may not render an order based on a mediated settlement agreement is in the very narrow situation when one of the parents is (a) a victim of domestic violence and (b) that past domestic violence has caused the person to psychologically not be able to make decisions that are in a child’s best interest.

There are several outstanding questions that need to be answered in how this new provision of the ADR procedure statute will be applied. For example, does the domestic violence referred to have to stem from the specific relationship or facts surrounding the present case, or does any past domestic violence count? What if the domestic violence occurred years ago? What if the domestic violence was from a former relationship that has no connection with the present case?

Despite these and other unanswered questions, this newly revised statute is a long step in the right direction for Texas Family Law. It has firmly placed the power of parents to enter into written agreements about their children without unnecessary influence of the courts. For parents going through a divorce or other suits affecting the parent-child relationship, they have the freedom to fashion their parenting plans according to their wishes, and with minimal interference from an impersonal court. For Texas family law mediators and family law attorneys, this means that they have the freedom to help the parties fashion a binding parenting plan with as much customization as is necessary for the personal situation of the parties. No longer will it be necessary to worry about creative solutions for custody and possession going outside of the comfort zone of judges who are afraid to approve any parenting plan that is not cookie-cutter. In today’s age of mixed and blended families, non-traditional families and families separated by long distances, this flexibility is absolutely essential for parties to peaceably resolve their issues regarding their children.

Texas Family Code Sec. 153.0071 as amended states in part:

“…(d) A mediated settlement agreement is binding on the parties if the agreement: (1) provides in prominently displayed statement that is in boldfaced type or capital letters or underlined that the agreement is not subject to revocation; (2) is signed by each party to the agreement; and (3) is signed by the party’s attorney, if any, who is present at the time the agreement is signed.

(e) If the mediated settlement agreement meets the requirements of Subsection (d), a party is entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or any other rule of law.

(e-1) Notwithstanding Subsections (d) and (e), a court may decline to enter a judgment on a mediated settlement agreement if the court finds that: (1) a party to the agreement was victim of family violence, and that circumstance impaired the party’s ability to make decisions; and (2) the agreement is not in the child’s best interest.” (emphasis added).

Sunday, January 14, 2007

Hiring a Private Investigator For Your Texas Divorce or Texas Family Law Case

Certain Texas divorces or other Texas family cases benefit from the use of a private investigator. Investigators can be very helpful in obtaining documentation regarding lifestyle, assets, income, roomates, friends, paramour and parent s including their criminal history, work history, demonstrating hidden affluence, locating and interviewing witnessess, and obtaining information regarding abuse or neglect.

The best way to select and hire an investigator is to find someone referred to you by a lawyer. A next best way would be to simply look in they yellow pages- these investigators typically do more family work. At a minimum, the investigator should have a Class A (investigatons only) or a Class C (investigations or security) license from the Texas Department of Public Safety- Private Security Board. Beyond that, there are several advanced certifications which may distinguish one investigator from another such as the designation of Texas Certified Investigators (TCI) or the national designation of Professional Licensed Investigator (PLI) or Certified Legal Investigator (CLI).

When hiring a private investigator, costs are always a consideration. Costs for a private investigator in Texas varies widely across the state. Rates can range from $35 to $150 per hour. A recent survey of the Texas Association of Licensed Investigators found that the average hourly rate of approximately $85.00 per hour with mileage rates at $0.40 per mile. you have the right to a written contract at the time you are contracting the service. The average for an infidelity surveillance will typically run about $3500 to have a real chance of likely success.

In every Texas family law case, be it divorce or a suit affecting the parent-child relationship, there a issues of both law and fact. In cases where it is called for and a private investigator is employed, then the facts become clearer. And everyone wants the the outcome of their case dependent on solid, verifyable facts, as opposed to the vague and uncertain outcome that is dependant on your attorneys’ art of persuasion. Even the greatest attorney in the world wants facts on their side and hiring a private investigator may be the best way to get those facts brought to light.

Tuesday, January 02, 2007

Texas Property IV: Tracing Rules

In Texas Family Law, one of the most challenging things to do is attempting to establish the existence of funds that are the separate property of one of the spouses.

Luckily, there are some tracing rules that have been developed over time to assist us in identifying separate property.

The first, and possibly most popular, is the Community First Out Rule. As the name implies it is a generally accepted rule that when separate property funds are commingled into an account which also contains community funds, it is presumed that the withdrawals are first made with the community funds. Welder v. Welder, 794 S. W. 2d 420 (Tex.App.--Corpus Christi 1990, no writ).

Suppose you are married and your late aunt Henrieta wills you $500,000 and place it into your joint checking account which has $30,000 in it. You then buy a home for $200,000 and pay cash for it. How much of the home is community property?

Its kind of a trick question.

First, we know that the $500,000 is your separate property because under 3.001 of the Texas Family Code, anything bequeathed to you is separate property. Next the Community First Out Rule, says that the first $30,000 you paid on the home is presumed to have been from the community portion. However, it is not correct to ask 'how much of the home is community property'. The inception of title rule says that the entire house is characterized as community property. The court would still have the power to rule on what happens to the home. (In most cases it is ordered sold). Title however is different from equity.

Pretending for the moment that there is no appreciation in the value of the home, the separate estate would be entitled to reimbursement from the community estate in the amount of $170,000 (that is, once the house is sold, the spouse who had the inheritance would get the first $170,000 from the sale automatically). The remaining equity in the home ($30,000) would be considered community property and would be apportioned between the spouses in the way the judge feels is best . Finally, the remaining money in the joint account ($200,000) would be confirmed as the property of the separate estate because it is presumed that the $30,000 was spent on the home.