8 Tips on Successful Co-Parenting After Divorce

Divorce presents us with problems that don’t have easy answers.  The advantages of co-parenting after divorce are clear- by both parents participating in decision making- both parents are actively engaged in a child’s life.  But for most parents, having a low or no conflict relationship after the bitter struggle of divorce is just not realistic.  But if parents don’t consciously try to reduce conflict, one or the other may take the matter back to court which will cause stress and chaotic uncertainty while the case is pending, and may produce undesired results from the court who may modify custody in a cookie cutter way which worsen the situation.  Certainly taking an ex back to court to modify a custody order will cost a lot of money and will only worsen the relationship between the ex-spouses and make it even harder for them to communicate and co-parent in the future.

One fact is that after the divorce, parents no longer have an incentive to compromise.  Often there is one parent who is more cooperative at the beginning, but after some arguments and insults, they no longer cooperate and the relationship slides into chaos.

Its important to view co-parenting as both a short and long term venture.  Very few divorced couples have respectful, cooperative  relationships soon after the divorce.  But if you feel that this is how it will always be, you shouldn't give in to your more negative emotions.  While you may never consider each other best friends, most parents eventually settle into a civil relationship for the sake of the children.  To do this earlier than later, it is helpful to keep the following eight Tips in mind:

Tip 1:  Redefine your relationship

Try to see you ex not as friend, but as a business partner, and your child as a business.

Tip2:  Choose your battles

Recognize that you have some control over your child, but that there are some things you cannot control.  You can only do your best with the control you have. 

Tip 3:  Respect your ex’s relationship with your child

You have a unique relationship with your child, but your ex has an equal and separate relationship.  Unless there is abuse, your ex’s relationship is important to your child’s wellbeing.  Don’t interfere or sabotage that relationship.  This means not just overt sabotage such as keeping the child from having contact with the other parent, but also subtle sabotage such as bad-mouthing your spouse in front of your child.

Tip 4:  If you have a legitimate concern about your ex’s parenting, try to be diplomatic in how you bring it up.

Instead of “You should..” try “Perhaps just consider..”

Instead of “I think you ought to..”, try “Obviously, its up to you..”

Instead of “The way I do things..”, try “In case this is helpful..”

Instead of “Try it this way..”; try “It may not work for you, but here’s something that worked for me..”

Instead of “Here’s the solution”, try “Of course you can figure out your own solutions, but here’s an idea if you want to consider it..”

The point is, before you contact the other parent, mentally prepare yourself to resist the urge to explode in anger, call names, or shut down the communication.  Whether you succeed in avoiding a fight over the issue or not, you will find a little effort on your part will go a long way to your concern actually being addressed.

Tip 5:  Make it a point to ensure your ex is included in your child’s life.

If you get information about an event in your child’s school, extracurricular activities and other important occasions in your child’s life, inform the other parent as soon as possible.  It is hard to be angry with someone who is making a real effort to keep you in the loop.

Tip 6:  Be flexible.

Work with your ex to accommodate special occasions.  Life is not always on a schedule.  Be willing to switch weekends, or modify pick up or drop off times.  Hopefully the other parent will reciprocate when you want some flexibility.  But even if they don’t, remember your flexibility is often for your children’s benefit, not the other parent’s.

Tip 7:  Co-parenting does not mean “equal parenting”.

Just because you are sharing time with your child doesn't mean that each parent will be all things to a child during that time.  We all fall into natural roles in parenting and that doesn't change because of an artificial court order.  One parent may more naturally be a more emotionally nurturing parent.  Another may be a more experientially stimulating parent.  There are many roles to play as a parent and we have to acknowledge that we can’t be all things at all times.  It doesn't make your ex a “bad parent” if they aren't playing the same roles as you.  Your child will thrive if all aspects of parenting are given by both parents.

Tip 8:  Whenever you are making a decision about your child, put her best interest as the first consideration.

Try to separate your personal issues with your ex from the decision you make for your child.  Don’t say “no” just because your ex says “yes”.   Especially soon after a divorce, you may need to get the advice of a disinterested person such as family, friends, clergy or a therapist.  When making decisions, you need to hold your child’s best interest in mind and put down the old emotional baggage.

Most parents want to do what is right for their children, but the intense emotions of divorce often cloud their views.  Being a successful co-parent means being self-disciplined in your communications with the other parent and raising your child’s needs above your own hurt.  It may be difficult now, but if you keep trying your best, co-parenting will get easier over time.

What Should I Think About Before Relocating With Children

If you are current engaged in divorce, are thinking about a divorce, or are post divorce, you may have thought about moving your children to another city, state or even country.

Although the idea of a fresh start in a new place may sound appealing, it may not be as easy as you think especially if 

children are involved.

Before you rush into any decision, here are three tips to consider before you start packing:

1.  Is this move really in the children's best interest?

When you relocating your children, you are moving them away from the other parent.  That may sound like a good idea, but for your children this may be a devastating move.  As Texas courts do, you must also think about what is in the best interest of the children before you make any moves.  If your ex-spouse has possession time with the children, chances are that your decree has a geographic restriction on the residency of the child.  it will not be easy to convince the courts to lift those restrictions and allow you to move away unless you have a very compelling reason.  Remember also that you will be moving your children from both family and friends and they will have much more limited access to that support system.   If you have to litigate this matter, it may be a long time before you get a ruling from the Court, so timing of your move is also a critical consideration.  If your children are old enough, you should open a dialogue with them very 

early on so you can access their wishes on whether they want to move at all.

2.  Develop a plan.

Have you thought everything through?  What school will your children attend?  Is that school as good or better than the 

 one they are leaving?  Who is going to take care of the children when you cant?  Do you have family or friends nearby?  Many parents consider relocating for work.  Is your job definite or a "maybe"?  Is the new job really a better opportunity?  The court will be asking these and many more hard question.  You better have a good answer and a solid plan.

3.  Talk with the other parent

Communicate with the other parent about your proposed move.  Who knows?  You may be shocked to find they are 

willing to cooperate with the move.  That's the best scenario and would save you considerable litigation costs.  By 

communicating you can together develop an appropriate parenting plan and visitation schedule.  Communication can also promote creative solutions such as virtual visitation through Skype or Face-time.  Open communication and assurance that you are not trying to cut the other parent out of the children's life will make deciding details such as travel 

expenses for visitation and other issues much easier and without expensive litigation.  

There are just a few of the important considerations you have to take into account if you are thinking of relocating your children.  You should talk with an experienced family lawyer about all the factors that the court will take into account.  

Ultimately, relocation with children should not be an impulsive decision, but rather one that is well thought out  and planned appropriately.    

Do I Have to Pay Alimony to My Wife?

Generally Texas frowns on the permanent payment of alimony to an ex -spouse after the divorce.  There are two forms of "alimony" in Texas.  One is temporary spousal support and the other is contractual alimony.  For contractual alimony, the parties have to contract and agree to the payment of alimony after the divorce.  This is usually only done when a spouse is a high wage earner and there are tax benefits to him or her in paying alimony.

The other type of alimony is more common, but still only applies in some narrow set of circumstances and usually only for a limited amount of time.  It is designed to help an ex-spouse from a long term marriage temporary support while they gain skills or education so they can be self sufficient after the divorce.

Eligibility is narrow an only applies if:

1.  The spouse from whom payment is sought was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence under Family Code Title 4 and the offense occurred within two years of the date the suit for dissolution of the marriage was filed OR the offense occurred during the pendency of the suit;

OR

2.  The duration of the marriage was 10 years or longer, AND

a.  the spouse seeking maintenance lacks sufficient property, including property distributed under the family code, to provide the minimum reasonable needs, (limited by the Family Code at 8.054), AND

b.  Is unable to be self supporting because of an incapacitating physical or mental disability, OR is the custodian of a child who has a physical or mental disability that requires the spouse not be employed outside the home, OR the spouse lacks the earning ability in the labor market to provide the minimum reasonable needs for that spouse.  Payments shall be for the shortest reasonable time that allows the spouse to obtain a job or skill level so as to reach that spouse's minimum reasonable needs (8.054).

The Perception of Bias in Family Courts

The Texas Family Code says that in seeking custody of children and rights of a parent, there should be no bias by the judge based on the sex of the party, or of the child. (Sec. 153.003).  That is, the old idea that children should be with their mother in all cases is no longer used in courts.

But what is the law and what is really in the minds of family judges are sometimes two different things.  Fathers who have fought for custody and won still believe that the cards were stacked against them.  One father who won custody still had this to say:

"The courts are heavily biased.  They made me feel ashamed to ask for custody.  Laws seem equitable but are not practiced by older judges as they should be.  They stereotype a lot.  To get custody you have to head and shoulders above your wife.  Fathers don't seem to get custody when the wife is seen as competent."

Fathers complain that they have to spend thousands to protect what is theirs and mothers usually have the upper hand.  It is many fathers' perception that the courts are biased against because of their gender and are at the mercy of an archaic set of values that, though no longer technically exists in Texas, is still exercised by judges.  And the scary part is that these judges have almost limitless power in deciding what is "best" for your children.

Here is where an experienced family law attorney can make all the difference for a father seeking a fair custody or child support order.  The lawyer is a key player not only in providing legal and emotional support, but in setting the overall tone of the case.  With the father's input, an experience attorney can decide which issues to raise in court and how to include the children.  The lawyer can offer impression about the judge's hot buttons and soft spots regarding what is best for children.  And most significantly, the lawyer can give special attention to the impact of any bias that may be held against the father or against the mother.

If you feel you need help or advice with a child custody or child support case in Harris or Galveston county, contact the Palmer Law Firm for a free consultation.  Call 832-819-DLAW(3529) or visit us at www.mydivorcefirm.com.  At the Palmer Law Firm, We Can't Protect Your Heart, But We Can Protect Your Rights.

Handling your own divorce case is like flying to Albuquerque on a banana.  It just makes no sense.  Here, Burt Likko describes an exchange in a family court:

Judge:  Petitioner, is your marriage completely and intolerably broken down?
Petitioner: Yes it is, Your Honor.
Judge:  Respondent, do you agree with that?
Respondent:  I don’t understand, Judge.
Judge:  The correct form of address is ‘Your Honor.’
Respondent:  Oh. Sorry, Your Honor. Yes, I agree that our marriage is completely broken.
Judge: Petitioner, will counseling or intervention help you reconcile or reconstruct your marriage?
Petitioner: Well, Your Honor, he never really gave it a try.
Judge:  Petitioner. Will, or will not, counseling or intervention help you and the respondent reconcile or reconstruct your marriage? [Arches eyebrows.]
Respondent: No, it won’t, Your Honor.
Judge: Thank you, Mr. Respondent, but I need to hear from her.
Petitioner: No, Your Honor, nothing will make us reconcile.
Judge: Very well. The petition for dissolution of marriage is granted. Are there any personal possessions left to divide?
Petitioner: Yes, Your Honor, he still has some of my sheet music.
Judge: Is this sheet music particularly valuable?
Petitioner: It is to me, Your Honor, it was from my mother’s estate.
Respondent: Your Honor, she took everything but my clothing. She’s welcome to come back to the house and take whatever else she wants.
Judge: Do you dispute that the sheet music belongs to her?
Respondent: I don’t care. She can have it if she wants it.
Petitioner: Why wasn’t it there when I came by the house before?
Respondent: You didn’t ask for it so I didn’t know to get it for you.
Judge: All parties will please address the court and not each other. Respondent will find and deliver the sheet music. Anything else?
Petitioner: I would like to address the issue of alimony, Your Honor. If you look at the tax returns, you’ll see that he can make good money when he chooses to work. It’s very suspicious that he decided to retire a few weeks after I filed for divorce, and he claims to have no money and he’s going to get married again in just a few weeks. He can make money if he wants to.
Judge: Well, I can’t make him want to work, and I can’t order him to go to work. How old are you, sir?
Respondent: Seventy-eight.
Judge:  There you go.
Respondent: I’ve looked everywhere for that sheet music, Your Honor, and I can’t find it.
Judge: Once again, sir, I am ordering you to find and deliver the sheet music. Go home and look, hard.
Petitioner: I would like you to be aware of what’s in this sexually explicit e-mail he sent me. It was just awful, awful. I haven’t had a decent night of sleep since I received it.
Respondent: Your Honor, I would like to be heard about this allegedly explicit e-mail, she’s taking out of context, and–
Judge: You know what? I don’t care about the e-mail. I’m here to divide up your property and that’s it. Your sex lives are not my concern.  [Departs the courtroom.]
Petitioner: [Sotto voce, to Respondent] This isn’t over, you bastard.

Face palm.

Don't go it alone.  If you are facing a divorce, child custody or support hearing, call on an experienced team like The Palmer Law Firm.  You can contact us at 832-819-DLAW (3529).  And remember, We Can't Protect Your Heart, But We Can Protect Your Rights.

My husband and I are divorcing and I think I deserve to get most of the property.

Alright then.  The first thing to understand is that the court begins with the idea that your property should be divided "fairly and equitably".  (Keep in mind this DOES NOT necessarily mean 50/50).  So if you want more than fair, it becomes your job to prove to the court that you deserve more than fair.

You likely need to tell the court in your first paperwork (called a "Petition") that you are claiming one of the 28 different factors that the court can consider in deciding whether to grant a disproportionate division of what you earned during the marriage (a.k.a. "community property").  You will have to plead that one of these things changed the normal presumption of equal division to your favor.  You need justify why you should get the lion's share of the property by claiming one or more of the following:

1.  Husband was at fault in the breakup of the marriage;
2.  You would have received benefits from the continuation of the marriage;
3.  He earns much more than you;
4.  Your health is worse than his;
5.  You got the children so you should get more property to help pay for them;
6.  Your children's needs are great;
7.  Your education is less than his and/or your prospects for the future are lower;
8.  You are less employable than him;
9.  There is a lot of marriage debt;
10.  The division of property will put more tax burden on you;
11.  The differences in you ages is great;
12.  The earning power, business opportunities and abilities favor your husband;
13.  You need future support;
14.  The kind of property to be divided means it would be fair for you to get more;
15.  Your husband wasted your community property;
16.  You husband doesn't deserve any credit for temporary support he paid you;
17.  Your husband used community funds to pay for out of state property;
18.  Your husband decreased your community property because he gave unreasonably valuable gifts during the marriage;
19.  You can show that your efforts (time, talent, labor) unduly increased your husband's separate property (which the court has no power to divide) and you should be compensated;
20.  Your husband gave so much of your community property away to his separate estate or to the children that it was unreasonable and should be compensated;
21.  The community estate should be compensated;
22.  Your husband is expecting a large inheritance;
23.  You should have more money to pay for attorney's fees;
24.  You used up your separate property to create community property;
25.  The size and nature of your separate property is much less than his;
26.  You disproportionately created community property by your own efforts, whereas he did not;
27.  He committed fraud (lied) that put you in a worse financial position than you otherwise would be in;
28.  His actions amounted to fraud, even if he didn't technically lied that put you in a worse financial position than you otherwise would be in.

These are called the "Murff Factors" after the original case:  Murff v. Murff, 615 S.W.2d696,698 (Tex.1981).

It should be noted that requested a disproportionate share of the community property will eventually require you to prove your allegations.  Claiming something is easy.  Proving it is another matter.  If you want a disproportionate property division, you probably will need an experienced lawyer to help you with this.

Can my new husband adopt my child because my ex is in jail?

This is actually two separate cases.   First you have to terminate your ex's parental rights, then you can proceed with the adoption by your husband.  The Texas Family Code conveniently allows you to combine the two cases into one, however, you may not want to do that.  If your ex has agreed to sign an affidavit of relinquishment, he cannot change his mind for 60 days.   So you want to close that deal quickly and finish the termination before he can change his mind.  You can then open the adoption case at your ease.    If you tie termination and adoption, together, it may require much more than 60 days to get the social study and other requirements finished.  In the meantime ex may change his mind and complicate everything.  On the other hand, some judges will not terminate parental rights unless there is an adoption in the works, so you may have to combine the cases.  You have to know your judge and jurisdiction.  As you can see, this is a complicated matter and you really should find a knowledgeable attorney.

10 Tips for Newly Single Fathers

After you have won a custody suit, there is often a period of adjustment.  You and your children may be in a much better situation now that you have won your suit, but your family will be facing a whole set of new challenges in the days, weeks and months ahead.   Here is some practical advice on making that transition easier.

Tip #1:  Don't try to be be a Super-Father.

As much as you want to be, you can't be all things to everyone. Being a single parent means that you are trying to maintain a household with less resources of time and energy.  Something has to give. Usually that will have to be work.  Whether it was part of your life plan or not, you have accepted the role as a single father.  Usually this means that your career path will not be the same.  Don't fall into the same frustrating trap that many feminists fell into in thinking you can be a great father and still keep up with men who can devote all their time to work.  Something has got to give.

Tip #2: Consider talking to your boss.

You may want explain to your boss your new living situation.  In some cases, this may make things easier for you. Consider your situation before you do so though.  There are a few places where the boss will think a single parent makes a bad employee.  But you will find this less often than ever before.  Convince your boss of your commitment to the job and you may find they will be more flexible if they know you are a single parent.

Tip #3:  Don't make any major work changes.

If you can avoid it, don't make any dramatic changes to your career or work schedule.  You should give yourself some time to adjust to your new lifestyle and if your work situation is in transitional chaos, you will feel overwhelmed.

Tip #4: Inform your children.

If they are old enough, explain to your children about the demands of your work.  Assure them that you are there for them and you want to be with them, but you also have to work to bring money in.  Explain it to them in a way that will not make them feel guilty for asking for your time.  They should understand that you are under pressure, but they should not feel they are the cause of that pressure.

Tip #5:  Define when you can contact your children.

If non-emergency calls are allowed at your work, then you are lucky, and your children can call you when they want.  But in any case, you should make your children understand when it is appropriate to call.  Explain the what is a real emergency and what is not. If you can call your children at a certain time, such as a lunch break, let your children know you will be calling them to check in.  Keep it consistent.

Tip #6:  Don't reinvent the wheel if you don't have to.

Chances are that you are not the only person at your work who is in a similar situation.  Talk with your co-workers.  Find out how they are handling their child care issues.  By asking a few questions, you may be able to tap into a whole network of resources you didn't know existed.

Tip #7:  Pick your day care -carefully.

No matter what your occupation or situation, you will eventually need day care for your child.  Your selection of day care is critical.  There are many options out there and you have to pick a center that make sense for you.  At a minimum, make sure the facility is licensed by the Texas Department of Family and Protective Services:  http://www.dfps.state.tx.us/Child_Care/Child_Care_Standards_and_Regulations/default.asp
Call the TDFPS to see if there are any complaints about the facility.  Ask to speak to other parents who use the center.  If possible, take your child there and see what his/her reaction is (although that should not be the determinant factor in choosing).

Tip #8: Keep your kids in the loop.

If old enough, let your kids know your work schedule and where you will be.  Try to avoid last minute meetings or sudden over-time.  It will reassure your children to know where you are and when you will be back.

Tip #9:  Teach your kids how to handle strangers.

Your children should know how to deal with callers or visitors when you are not home.  For example, they should not tell a stranger that you are not home, simply that you can't come to the phone right now.  No one should come to the house when you are not there, and they should not open the door at any time.  These rules should be in place even if you have a caretaker in your home.

Tip #10:  Be Firm, But Be Flexible

Be consistent with your rules, but be willing to renegotiate your rules as your children get older.

Top 5 Myths About Single Fathers

Since 1973, the number of father only families has increased at a faster rate than has the number of mother-only families.  Today, 15% of all single-parent families are headed by a father.  Fathers facing divorce should consider carefully any decision they make about child custody that is based on old, outmoded ideas of "traditional" roles.  And although they are  changing somewhat slower than the rest of society, the courts are coming around to the realization that fathers can make just as successful single parents as mothers.  So it is time to reexamine some of the old myths about single fathers.

Myth #1:  Fathers who gain custody were themselves products of single-parent families.

There is no evidence to suggest that fathers who are awarded custody of their children were raised in any specific way.  Studies in the 1980s show that 80% of fathers who are awarded custody grew up in a two-parent households, but this was likely to be the result of a generational difference because divorces were far less common in the 1950s and 1960s than they are today.  Today's single father can come from any kind of background and upbringing.

Myth #2: Custodial fathers have high incomes

It is well documented that there is an extremely high percentage of mother-only families that are below the poverty level.  What is less well know is that more than 18 percent of father-only families are poor.  Another 21 percent are just above the poverty line.  If there is a custody dispute, the ability to afford a child is indeed one of the factors the court will decide in determining who gets custody. Higher income will give one party and advantage- if combined with other factors.  But remember, the amount of income is only relative to the other parent.  If both parents receive the same amount of income, even if it is very little, this will not sway the courts.

Myth #3: Most Custodial Fathers have remarried.

Although custodial fathers are more likely to be married than custodial mothers, the fact is that most custodial fathers (59%) are not currently married. 

Myth #4:  Custodial Fathers primarily receive custody of older boys

This myth really has two parts: first, the fathers primarily obtained custody of older children and second that fathers are more likely to receive custody of boys.  It is true that the children living in father-only families are older than those living in mother-only families.  This may be a hang-over effect of the "tender-years doctrine" which favored women over men for custody of young children.  Many family courts followed the doctrine for years, but it has fallen aside with other stereotypes and is not a lawful factor in Texas courts.  Still, 17.5 percent of single-father families include children younger than three, and about a third contain a preschooler.  Similarly, although children in father-only families are somewhat more likely to be boys, 44 percent of all children in such families are girls.

Myth #5:  Most custodial fathers are widowers.

This may have been true at one time, but being a widower is not were you will find most custodial fathers today.  In fact, you will only find 7.5 percent of single father households being widowers today.  As a matter of fact, 24.5 percent of single father households are headed by never-married fathers.

Many fathers make their decisions about whether to seek custody based on outmoded ideas about what is acceptable in society and in the courts.  But these myths need to be busted and fathers need to based their decisions on the real and current facts.  If you are a father involved in a custody battle, you need to seek the truth from an experienced family law attorney who will help you separate fact from fiction.  For more information, please visit us at www.bayshoreattorney.com

My Ex-wife has not been following our court orders for visitation. Can I sue her for contempt of court?

Well, that depends.  

The Court where you had your original case would have the power to enforce its orders if they are not being followed.  There are two forms of contempt- direct (as in, you did something bad right in front of the judge) or indirect, where a party violates a written order.  In your case we are probably talking about indirect contempt.

 Another thing to know about contempt is that there are two types of punishment: coercive and punitive.  Coercive is designed to "persuade" the person to stop violating the order.  If for example, jail time is involved in the punishment, the person will be released once they start following the order.  In essence, they have the keys to their own cell.  In contrast, punitive is a situation where you have really P.O'ed the judge and her or she is gonna make you pay for it.  You can't get out of this type of punishment.  

From a lawyer's perspective, the handling of a contempt matter is highly technical and requires a  lot of skill and care.  Because a finding of contempt can carry some pretty heavy consequences, the law will provide your wife many procedural "outs".   There are a lot of ways that your ex-wife can weasel out of a contempt order and thumb her nose at you.  Most of these outs for your wife can arise is the underlying order was poorly drafted.  If it was in any way vague, or has any technical flaws, the court will not be able to find contempt.  I recommend you seek and experienced lawyer with at least several years working exclusively in family law, like myself.    

Two Wrongs Don't Make A Parental Right: Watts v. Watts

Under Texas law, when there is a pattern or history of abuse by one parent against another, then the Court may not grant Joint Managing Conservatorship.  (Texas Family Code 153.004).  But what if BOTH parents are found to be abusing EACH OTHER?  When both parents act as the abuser and the victim can the court ignore the rule of 153.004 and appoint both parents Joint Managing Conservators?

No.  Under the case of Watts v. Watts, 2012 Tex. App. LEXIS 8978 (Tex. App. - San Antonio, October 31, 2012) (Cause No. 04-11-0777-CV) the Court of Appeals held that rulings on conservatorship must still follow the "no JMC" rule of 153.004 because it reasoned that when there is a history or pattern of abuse by both parties against each other, it necessarily includes a history of abuse by one against the other.  Therefore 153.004 kicks in even though there is plenty of blame to go around.

In such cases of mutual spousal abuse, the jury or judge must appoint only one of spouses as the sole managing conservator.  This is truly a choice of the lesser of two evils.

Who Makes Decisions About The Children?

Before 1993, the law in Texas gave virtually all decision making to one parent, usually the mother.  After 1993 however, the legislature rewrote the code so that parental rights and responsibilities are presumed to be given somewhat equally to both mother and father.  This is known as “joint managing conservatorship”.  However, if evidence is brought out in court to show that one parent is not fit to make these decisions, the court may grant virtually all decision making power to one parent in what is called “sole managing conservatorship.”  If no such evidence is brought the court will generally appoint both parents as conservators and will specify what kinds of decisions can be made by either parent, what kind require agreement by both parents and what kind can be made exclusively by one parent only.

Don't Host Underage Drinking in Texas!

As this is the graduation/beginning of summer season, it is worthwhile to clarify a misconception about underage parties.

Many parents are under the FALSE belief that they can throw parties for underage kids and provide alcoholic beverages as long as it is under adult supervision.  WRONGO.

It is true that it is not a crime for a parent to purchase an alcoholic beverage for or give an alcoholic beverage to their child if they are visibly present when the children possesses or consumes the alcohol (Tex. Alco Bev. Code Sec. 106.06(b)). 

 HOWEVER it is NOT TRUE that you can do so for other people's kids.  Even if they have permission from each of the minor children's parents.  If you purchase or give an alcoholic beverage to a person under 21 who is not your child you are committing a Class A misdemeanor and are subject to a $4000 fine and 1 year in jail for each kid you let belly up to the bar.

And here is a basic fact: underage kids should not be drinking.  Period.  You may think you are being clever by having a party at your house instead of the kids having a party somewhere where they may drink and drive.  But this is wrongheaded thinking.  Parents should teach their children to obey the law.  The law in every state is clear: no drinking until you are 21!  And no matter how you think you are going to force all the kids to not drive, to sleep in your house etc., there are thousands of ways all that can go wrong.

Which brings up the issue of liability.  Any person who hosts a drinking party for minors can be held civilly and criminally liable for any injuries that are caused by drunk kids.  (Tex. Alco. Bev. Code Sec. 2.02(c)).  Do you really want that kind of heat coming down on you because you wanted to be the "cool" parent?   Instead, teach your children well and early about drug and alcohol abuse and demand zero tolerance for abuse.  That is the best way to ensure your children stay safe at this time of year.

Who Gets the House in A Divorce: Texas Has An Odd Inception of Title Rule

My husband and I lived together for about a year before we got married.  We were looking for a home and decided on one just before our wedding ceremony.  To make sure the loan went through, we applied through my husband's credit (which was excellent- mine was not good due to a recent bankruptcy).  He got the loan and we financed 100% of the payments.  My husband signed an earnest money contract and we went off to our wedding.  When we got back, we closed on the house and I co-signed all the paperwork as the wife.  Thereafter, we made all the loan payments from our joint account.

Now that we are divorcing, my husband claims that the house is his separate property and the court cannot award it to me in the divorce.  Is he right?

As odd as it may sound, and as unfair as it may seem, your husband is probably right.

All property that is possessed during a marriage is presumed by the courts to be community property and subject to division by the courts.  However, this presumption can be rebutted if a party can show that the property was acquired before the marriage.

The result is what is called the "Inception of Title" rule, which basically says if you can prove the property became the legal ownership of one party before the marriage, it is considered that party's separate property and cannot be taken from him or her in the divorce. 

Normally ownership begins in the moment when you obtained legal title to the property, but oddly, not in the case of real estate.  For real estate, the court traces the characterization back to the earnest money contract.  This was the holding in Wierzchula v. Wierzchula, a 1981 case. 

However, there are several factors here which should give you some solace:

1.  It is your husband's burden to overcome the community property presumption.  For example, if he can't produce the earnest money contract in court, the judge may declare the property community anyway.

2.  Just because the property is characterized as your husband's separate property doesn't mean you loose out on all the mortgage payments that were made from your joint account.  You will still have an equitable reimbursement claim on all that money- which the court may award you.  You may not get the house itself, but you can get back a lot of the value of it.  Make sure that your pleadings ask for this.

3.  The Wierzchula case mentions the fact that the house in question was the homestead of the parties, that is, they were living in it.  If your house was not a homestead but instead was, or at some point became, a rental or other investment property, you may be entitled to the income generated from that property.  The general rule is that rents collected during a marriage, even if from one party's separate property are considered community property. (McElwee v. McElwee, 1995).

So the bottom line is that although your husband can't lose title to the house, under your circumstances, the court is free to reimburse back to the community estate the mortgage payments made on the house, and also any income generated from the house as it deems fair and right.  I would also suggest that if you can prove that the house has appreciated in value significantly over the time of the marriage, then you may also be able to convince the court that the appreciation is also community property, subject to right and proper division.  However, you would have to investigate this further because in today's depressed real estate market such appreciation is no longer an assured fact.  

Rice at the Wedding, Ricin at the Divorce

Throwing rice around used to be the symbol of marriage, now in one case, mailing ricin is likely the symbol of a divorce.

Last week, Texas resident and pregnant mother of five, Shannon Guess Richardson tried to accuse her husband of mailing three ricin-laced letters to the president, the mayor of New York City, and a gun control lobbyist.

But as it turned out, it was Richardson herself who mailed the letters.  In an attempt to frame her husband Nathan, Richardson met with FBI investigators to try to pin the felony charges on him.  Although Richardson is an actress with several small T.V. and film credits, her performance apparently wasn't convincing to the FBI.   When her story did not add up to the federal investigators, the direction of the case quickly turned on Richardson herself. 

On Thursday she confessed to mailing the letters knowing they contained the deadly ricin.   That same day, Nathan filed his Texas petition for divorce.  In the pleadings, he said that his him marriage had become " insupportable because of discord or conflict of personalities".

Talk about an understated pleading...

Ten Things Your Divorce Attorney WONT Tell You.

We live in a world in which getting a divorce is no longer the social stigma it once was.  Since the advent of the "no fault divorce", divorce has never been easier to start, and therefore we see an incredible spike in divorce rates.  A billion dollar industry has sprouted up to feed off this intensly personal and difficult time in some people's lives.  Before, during and after this process there are millions of therapists, lawyers, form prep services, financial analysist and an army of others who will be selling all kinds of services and products to the unwary.  They all will claim to help, but they all have a financial interest which may or may not align with your real best interests.  In short, my fellow attorneys and all others of our ilk will attempt to sell you on the process of divorce and fail to tell you unequivocably the real truth about divorce.  As someone who has been both the seller, and buyer of these services, I want to tell you what the others will not.  Here then are the 10 truths about divorce that your attorney (and all others in the divorce industry) will NOT tell you.  They don't apply to ALL situations, (such as domestic abuse) but they do apply to MOST ALL cases.

1.  You should avoid divorce at all costs.
Divorce is a tragedy.  You will suffer greatly during the divorce process and that suffering will last a long, long time.  The divorce itself can take up to two years in Texas.  If you think it will be over quick, you are probably wrong.  And you may suffer long after the actual legal procedure is over.   In fact you will be shocked at how much you will suffer during this process.  You therefore should be  ABSOLUTELY CERTAIN that at the very least, the outcome will be worth the emotional hell that you will be put through.  And the fantasies which you harbored as you thought about filing, about a wonderful life of peace and personal satisfaction are probably blown way out of proportion to what reality has is store for you after the divorce.  The best you should hope for is that things will be worth it in the long run.  Then again, they may not.

2.  Your children will suffer.
No matter what the age of the children, 2 or 52, your children will suffer pain from this divorce.  This is absolute and uncontested in any scientific study.  Generally those justifying divorce will talk about how resilient kids are, how they will adjust over time, etc.  That may be true, but you can also survive and adjust to injuries from a car crash, but that doesn't mean you should intentionally drive into a brick wall.  I am not here to debate certain decisions to divorce but only to say that decision always comes at a price of emotional pain that your children will have to pay either now or sometime in the future.   You need to be certain that the outcome is worth this.  And be cautious that you are not rationalizing a selfish decision for your own happiness by convincing yourself this is the best decision for your children simply because you are happy.  Have you asked them how THEY feel about it?

3.  There are NO friendly divorces.
Divorce is a legal process.  Legal processes by their very nature are - adversarial.  Sure you can reduce some of the animosity by use of mediation and other things, but just because we have the Geneva Convention, that doesn't mean it is not still war.  Divorce is the most personal thing you will ever go through that is open for all the world to see.  You will feel besieged.  You will feel sad.  You will feel vulnerable.  And if you wind up going to court, you will feel bloody and beaten- no matter who "wins" the fight.  

4.  You will lose out on 50-75% of your kid's childhood.
This is especially true if you are a man and don't get good legal representation.  You will have to split your children with your ex and that means all those precious moments they spend with the other will be lost to you-- forever.  I recently had to watch my child go off to California and experience Disneyland for the first time- without me.  I had dreamed of experiencing that with her since she was born.  Now the moment is gone and I mourn it like something precious has died.  In a way it has- I have missed a irreplaceable moment of her childhood which is now gone forever.

5.  You lose the right to control your children without interference from the State
When you divorce, the State basically is saying to you that because you messed up your relationship with your spouse you no longer can be trusted to know what is best for your kids.  From the moment papers are filed, your children become wards of the State.  And that is permanent.  They will be overseeing all your parenting from this point forward- thank you very much.

6.  If you let the lawyers take over you are doomed.  They will try to take over.
Make no mistake: there is a difference between a counselor-at-law and an attorney.  A COUNSELOR tries to help you make your own decisions.  An ATTORNEY tells you what to do because he/she is the expert and the only one allowed to speak out in court.  Most family attorney's don't talk to you anymore.  They want to push you through "the system".  And you probably don't want to talk to them that much anyway because most all attorneys will only talk to you at the full hourly rate- same as if they were making a brilliant closing argument in a complex court case.  Who can afford that at $300 per hour?  So the lawyers find it easier to just do what they want with your case without consulting you.  Consulting is expensive.  Besides they are the "EXPERT".  And then if you allow them to make decisions for you, they are going to pick every decision that is for their convenience.  I'm not saying they will intentionally not work for your best interest, but some will do very little to figure out what that means to you and then tailor the case to your particular needs.  So you will be pushed towards standard this, standard that.  Mostly because you don't understand the pros and cons but also because the lawyers don't want to take time to explain it to you except at their most exorbitant hourly rate.

7.  You will be replaced.
Chances are that you will replaced by another person that your spouse chooses.  In your spouse's eyes that person is a far, far better person than you in almost every way. You may say you don't care.  Deep down you will care and it will not be a pleasant feeling.  And this "far better" person will eventually enter your kid's world.  They say you will not be replaced, but it will feel that way.  If you are a wife, think about how you will feel about some other woman lovingly braiding your daughters hair.  If you are a husband think about another man taking your son to the park to fly some radio controlled toy you couldn't afford to give because of the divorce.

8.  You will be financially ruined.
Divorce will devastate you financially.  You may face bankruptcy.  This truth is too complex to detail here, but it is the truth and it is universal.  Even if the degrees of financial ruin are different for each individual, they are felt proportionately the same.  To figure out HOW financially ruined you will be after a divorce, follow this simple equation:  Take the amount you think the divorce will cost you, then double it.  Now double it again.  And multiply that by the time you think it will take you to get back on your feet (increased to the third power).  Then again you may never get back on your feet.  Before your divorce, Saturdays may have been for you mowing your lawn.  After your divorce, Saturdays may find you mowing someone else's lawn.  Imagine having the living standard of a struggling 20 something in the body of a 40 something.

9.  You will miss being a family.
You may not miss your spouse, but you will miss being part of family.  You will miss tag team aspects of parenting.  You will miss the social certainty of having a wedding ring on your finger.  During and after a divorce you will be thrust into a grey social limbo.  Yes, you will have a great opportunity to reinvent yourself.  But you will do it in a stinky apartment.  With a cat.  If you start talking to the cat, you are already doomed.

10.  It IS your fault.
Couples don't work hard enough at marriage.  In this age, we demand instant gratification and we feel we are entitled to bliss every moment of our lives.  The fact is that although the highs can be high, the lows can be very low too.  But if seen from a longer perspective, many couples who have chosen divorce were living pretty pleasant lives together.  But we cry havoc when things don't meet our unreal expectations and the modern divorce system has made it very easy to cut bait and run.  Even if you don't file for the divorce you helped bring it about by your own actions or inactions.  At some point you didnt fight hard enough or soon enough or both.  If it is too late for your marriage, then you need to own that and steel yourself for all the misery to come-so you can survive it.  But if it is not too late, then please consider the immutable effects of getting a divorce I have outlined here.  In the end, you may still decide to go forward with the divorce, but you should do so knowing the whole truth.

Parenting Plans: Make Your OWN Decision

Parenting Agreements: Introduction

Baby Daddy: Fathers Seeking to Establish Paternity

It may seem that in today's world there are too many men trying to avoid fatherhood.  But this may just be that those who do so are getting all the press.  Good men who want to meet their obligations and share in the joys of parenting will want to establish their legal rights over their children.

If a man thinks himself the biological father of a child, he has the right to file a lawsuit to prove that.  The case is called a "Suit Affecting the Parent-Child Relationship" (SAPCR).  Even if the mother has a husband (making him the "presumed father") a man can challenge the paternity in court.

Texas has set up a Paternity Registry, the purpose of which is protect the parental rights of fathers who want to assume responsibility for children they have fathered.  The registry is run by the Texas Bureau of Vital Statistics.

So let's suppose a man thinks he may have fathered a child.  He is a stand up guy and wants to meet his responsibilities, or perhaps would welcome the joys of fatherhood.  He can file a registration before the birth or within 31 days after the date of birth of the child.  If he fails to do this, should the mother decide to give the child up for adoption, he would not receive any notice of the proceedings and could have his paternal rights terminated without his knowledge.  If he registers however, he must be given notice of any lawsuit to terminate his parental rights and have the child put up for adoption.  Once he knows this is going on, he can join the suit and file his own claim of paternity so a judge can official rule that he is the father and has the rights of a parent.  If he does this, and the judge rules he is the biological father, the mother cannot have his rights terminated on her own, even if she wants to give up the child for adoption or someone else wishes to adopt the child.  The father would have to either voluntarily give up his rights or be found to be an unfit parent to have his rights involuntarily removed.

Jurisdiction in Family Law: Specialized Family Courts

 Jurisdiction is the most important initial quesiton a practitioner of family law can ask.  Jurisdiction consists of two things: (1) the court's power, conferred by constitutional or statutory authority, to hear a cause alleged in the petition, and (2) the court's power to award the relief requested. 

In the family law context, a court can only hear a suit affecting children if it has been granted jurisdiction in "family-law matters" which include adoptions, divorces, annulments, child welfare, custody, support issues and relationships of the wife and husband and children.

In Texas, district courts are the primary trial courts and all district courts have family law jurisdiction.  However, the Texas Constitution gives the legislature the power to create specialized "family district courts" to help handle the huge caseload in certain counties.  Follows is a list of counties that have family law district courts:

• Brazoria
• Dallas
• El Paso
• Fort Bend
• Galveston
• Gregg
• Harris
• Hutchinson
• Jefferson
• Midland
• Nueces
• Potter
• Smith
• Tarrant
• Taylor
• Wharton

These courts have the same jurisdiction as general district courts, but they have primary responsiblity for handling family-law matters, including child support.  This does not prevent a general district court from hearing a family law case however.  But family cases in counties that have these specialized courts will almost always be filed in those courts.