Contempt is Quasi-Criminal

Contempt is often though of as a civil remedy, but it is actually 

treated like criminal one because it can involve putting a person in jail for defying a court's order.  Therefore legal proceedings for contempt of child support or possession and access orders are styled as "quasi-criminal". 

Because of this, enhanced attention to due process is paid by the courts.  Many of the rights of the accused that are usual seen only in criminal court are often seen in child related enforcement proceedings.  This includes the right against self-incrimination and the right to appointed counsel. (TFC 157.163).  In addition, a lawyer practicing this kind of law has to be technically competent because there is very little "fudge factor" as with general domestic law practice.  Therefore those kinds of "loose" lawyers who usually practice by personality or the seat of their pants would do well to get a more technical minded co-counsel or better yet, steer clear of this area of law altogether.  Careful drafting of pleadings and orders is a MUST because one small error can be devastating to your case.  And unlike divorce and other family law practice, there is no opportunity for a "re-do" if the lawyer screws up.  Double jepordy applies here.

Enforcing Child Support Part 1- Introduction

Today, we begin what will be a multi-part exploration of the law in Texas on child support enforcement.  With divorce statistics on the rise (albeit not as steep of a climb as in the past), and with more incidents of people have children out of wedlock, the topic of to what degree children continue to receive financial support is never more timely.  Unpaid child support due nationally totals $37.9 billion; with only 62.3% of that amount being paid on time.


The factors that impact whether child support is paid in a timely way are both familiar and surprising at the same time.   One factor impacting child support collection is income and education level.  According to national statistics, parents with a college degree were more likely to pay full payment of child support obligations than those without a bachelor's degree or higher.  Considering that in Texas, support is calculated at a set percentage based on net resources with a minimum and maximum income caps, this factor is somewhat surprising.  Also as the new generation of parents are one of the most over educated and under employed in history, the presence of a degree increases the probability of, but does not necessarily equate to higher income.

Another more surprising factor is the impact that ordered custody arrangements have on the payment of child support.  Statistics show that parents with joint custody pay child support on time more than parents who have sole managing conservatorship orders.  This supports what many people who work in family law have observed - parents are more likely to pay their child support when they have frequent contact with their children.  This is definitely something to think about when custody orders are initially put in place by individuals or by government agencies like the Attorney General's Office.  Child Support Orders are often put in place by default and basically, the custodial parent can dictate whatever visitation schedule they want in that situation.  It may be short-sighted in those situations to insist on an unreasonably restrictive visitation schedule that will discourage the non-custodial parent from exercising their visitation.  Aside from the presumption that in most cases (though not all) it is in the best interest of the children to have as much contact with both parents as possible, a custody order that fairly encourages non-custodial visits appears to also increase the odds of the non-custodial parent ultimately paying their child support in a timely manner.    

Source: Custodial Mothers and Fathers and Their Child Support  



   

What Is Contempt?

Without contempt, courts are like a tiger without teeth.

Without the ability to enforce it's orders, the Courts are like a tiger without teeth.  Therefore, courts have the power to hold individuals in contempt.  Although generally considered a non-criminal remedy (a civil remedy) but because a person could wind up in jail, it is basically criminal in nature and should be treated with that level of seriousness.  That is why many of the rights that we would normally think of being attached to a criminal proceeding (reading of rights, right to counsel, etc) may come into play.

Also, attorneys who attempt to get contempt for their clients must have specialized skill because pleadings and orders must be drafted with particular care.  An alleged contemptor may get off on a technicality because of sloppy drafting and because double jeopardy may attach, the careless lawyer may not have the opportunity to fix their error.

Contempt may be punished by a fine of not more tha $500 or confinement in the county jail for up to 6 months, or both.  That is for each violation (which in most family court proceedings there are usually multiple violations of support payments or instances of denied visitation.  In addition, contemptors can be placed on probation and under community supervision for a period not to exceed ten years. (Texas Family Code 157.211 and 157.212).

Contempt comes in two flavors.  Direct contempt is something that happened in front of the judge.  When Judge Judy gets pissed off at the sophomoric behavior of some idiot who can't get clue- that is direct contempt.   Direct contempt ensures that the court and the officers in it are treated with the respect and deference necessary for justice to happen. The other kind of contempt is called constructive contempt.  This is when, outside of court, a person does or fails to do something the court ordered him to do.  Essentially, the contemptor may be smiling to the judge's face, but then thumbing his nose at the court as soon as his back is towards the bench.  Constructive or indirect contempt is much more common and includes the engaging in conduct prohibited by the court such as violating a restraining order or failing to do something the court orders, such as paying child support.  Indirect contempt usually (but not always) requires a written order signed by the judge.

Mumbo-jumbo to know:

• direct contempt
• indirect contempt
• contemptor  

Sensitive Data In Filed Family Law Documents

Texas Rule of Civil Procedure 21c Privacy Protection for Filed Documents has had a substantial impact on family law cases.

A divorce with children could, and oftentimes will, have filings that include all of the types of sensitive data this rule addresses. Rule 21c became effective January 1, 2014, and it states:

(a) Sensitive Data Defined. 
Sensitive data consists of: (1) A driver’s license number, passport number, social security number, tax identification number, or similar government issued personal identification number; (2) a bank account number, credit card number, or other financial account number; and (3) a birth date, home address, and the name of any person who was a minor when the underlying suit was filed.

(b) Filing of Documents Containing Sensitive Data Prohibited. 
Unless the inclusion of sensitive data is specifically required by a statute, court rule, or administrative regulation, an electronic or paper document, except for wills and documents filed under seal, containing sensitive data may not be filed with a court unless the sensitive data is redacted.

(c) Redaction of Sensitive Data; Retention Requirement.
Sensitive data must be redacted by using the letter “X” in place of each omitted digit or character or by removing the sensitive data in a manner indicating that the data has been redacted. The filing party must retain an unredacted version of the filed document during the pendency of the case and any related appellate proceedings within six months of the date the judgment is signed.

(d) Notice to Clerk.
If a document must contain sensitive data, the filing party must notify the clerk by: (1) designating the document as containing sensitive data when the document is electronically filed; or (2) if the document is not electronically filed, by including on the upper left hand side of the first page the phrase: “NOTICE: THIS DOCUMENT CONTAINS SENSITIVE DATA.”

(e) Non-Conforming Documents.
 The clerk may not refuse to file a document that contains sensitive data in violation of this rule. But the clerk may identify the error to be corrected and state a deadline for the party to resubmit the redacted, substituted document.

(f) Restrictions on Remote Access.
Documents that contain sensitive data in violation of this rule must not be posted on this rule. Texas Family Code Section 102.008 “Contents of Petition” subsection (a) requires that the petition and all other documents filed in all suits affecting the parent-child relationship, except suits for adoption, be entitled “In the interest of______________, a child.” Section 102.008 (b) requires that petitions include the name and birthdate of the child. If the child’s name must be in the title of all documents filed in a suit affecting the parent child relationship, and the child’s name is sensitive data, aren’t all filings going to include sensitive data? It is entirely possible that a Judge could reach that conclusion.

 Many attorneys use the child’s initials in place of the child’s full name in the style of all documents filed after the original petition. However, this would not comply with a strict interpretation of Texas Family Code Section 102.008 (a). It is best that you contact the court clerk to determine if the Judge in your case has a stance on this issue and if so, how they want you to style your filings. Texas Family Code Section 105.006 (a) lists the information that must be included in a final order in a suit affecting the parent child relationship, except for terminations and adoptions. This information is as follows:

(1) the social security number and driver’s license number of each party to the suit, including the child, except that the child’s social security number or driver’s license number is not required if the child has not been assigned a social security number or driver’s license number; and
(2) each party’s current residence address, mailing address, home telephone number, name of employer, address of employment, and work telephone number, except as provided by Subsection (c). This means that in all final orders in suits affecting the parent-child relationship, other than termination and adoptions, there will be numerous types of sensitive data.

 Many attorneys will redact social security numbers, and driver’s license numbers and leave only the last three to four digits in the final order. A strict interpretation of Texas Family Code Section 105.006 (a) and Texas Rule of Civil Procedure 21c (b) is that the driver’s license numbers and social security numbers are required by statute and therefore should not be redacted. Again, the best way to determine how to address this situation is by calling the court clerk to determine the court’s preference. 

India Considers Challenge to Muslim Divorce

India’s Supreme Court is considering petitions that challenge Muslim laws governing marriage on the grounds that they discriminate against women, a charged issue that risks angering the country’s orthodox Muslims.

A panel headed by the chief justice that is hearing the petitions directed the government this week to release an official 2015 report that looks at the impact of some of India’s religion-specific laws on women’s rights and recommends legal reform.

Among the petitioners calling for change is Shayara Bano, a Muslim woman whose husband, after 13 years of marriage, divorced her by triple talaq, a practice that allows Muslim men in India to leave their wives unilaterally and often instantaneously by saying “talaq,” meaning divorce, three times. Other similar petitions were put together by the court and are being heard at the same time.The next hearing in the case is expected in May.

The Indian constitution protects gender equality, but on issues of marriage, divorce and inheritance, different religious communities are governed by their own so-called personal laws. Whether a person is subject to those laws is usually determined by their religion at birth.

Muslim clerics and scholars have rebuffed demands for unifying personal laws into a common civil code for all Indian citizens—advocated by Prime Minister Narendra Modi’s Bharatiya Janata Party—rejecting what they call attempts to interfere with their religious practices in Hindu-majority India. There are more than 170 million Muslims in the country out of a 1.2 billion population.

Muslim women’s rights groups argue that the practice of triple talaq misinterprets the Quran and is protected by orthodox Muslim men to perpetuate patriarchy. In her petition, Ms. Bano asks the court to declare it illegal as it “practically treats women like chattel,” infringes their “basic right to live with dignity” and violates their fundamental rights to equality and life guaranteed under the constitution.

Source: The Wall Street Journal

Mississippi Ban on Gay Adoption Declared Void

A federal judge in Mississippi ordered the state to drop its ban on adoptions by same-sex married couples, saying Wednesday that it doesn’t pass muster under the Supreme Court’s 2015 landmark marriage ruling.

The law was said to be the last of its kind in the U.S. But efforts to skirt the full implementation of the Supreme Court’s decision in Obergefell v. Hodges using laws described as “religious freedom acts” remain alive and well in a number of Republican-led states along with measures permitting discrimination against transgender people.

Indeed, the Mississippi legislature has just approved a bill that says, among other things, public employees, businesses, and social workers cannot be punished for denying services based on the belief that marriage is strictly between a man and a woman and that the state government can’t prevent clerks from refusing to license a same-sex marriage. The measure is currently in a conference committee to work out differences between state House and Senate versions.

The state’s prohibition on adoption by same-sex couples was enacted in 2000, as state and federal courts began the process of legalizing same-sex marriage, and reads, simply, “Adoption by couples of the same gender is prohibited.”

It was challenged by four lesbian couples wishing to adopt children either privately or through the state’s foster care system.

Judge Daniel P. Jordan III, of the U.S. District Court for the Southern District of Mississippi, called the state’s defense of the law “tepid,” based mostly on issues of standing, and which agency or part of government could or could not be sued.

While Jordan said the Supreme Court’s Obergefell decision did not specifically involve adoptions, “the Court extended its holding to marriage related benefits—which includes the right to adopt. And it did so despite those who urged restraint while marriage-related-benefits cases worked their way through the lower courts.” Jordan cited this passage of the Obergefellopinion, written by Justice Anthony Kennedy: “Were the Court to stay its hand to allow slower, case-by-case determination of the required availability of specific public benefits to same-sex couples, it still would deny gays and lesbians many rights and responsibilities intertwined with marriage.”

How Much Do You Have to Cooperate With Visitation?

Recently, I was asked how much a mother has to cooperate in getting her children to go to visit with their dad.  She says that even though her divorce decree gives the father the right to see the children, they do not want to go with him for visitations and she doesn't want to push them to go.

Each case is different based on the facts of the case.  The age of the children, and the recent events that affect their relationship with the father would change the specific answer I would give.  But generally, I would say that even though the mother's legal obligation may be limited, her moral and ethical obligation to the kids means she should do more than the minimum demanded by law.  The mother's very question is subject to scrutiny and even a little suspicion.  The natural state is that children love their father and want to be with him.  If this is not the case, then something is very wrong and social science has shown that this this broken relationship with the father will have long term negative consequences for the children. The fact that the mother seems unconcerned that the children don't want to see their father- and is more focused on her own legal obligations suggests that she may be engaging in some passive parental alienation.

As far as her legal obligations goes, the Texas Penal Code sets out the offence of Interference with child custody:

(     
      (a)     A person commits an offense if the person takes or retains a child younger than 18 years when the person: (1) knows that the person’s taking or retention violates the express terms of a judgment or order of a court disposing of the child’s custody; or (2) has not been awarded custody of the child by a court of competent jurisdiction, knows that a suit for divorce or a civil suit or application for habeas corpus to dispose of the child’s custody has been filed, and takes the child out to the geographic area of the counties composing the judicial district if the court is a district court of the county if the court is a statutory county court, without the permission of the court and with the intend to deprive the court of authority over the child.  (b) A noncustodial parent commits an offense if, with the intent to interfere with the lawful custody of a child younger than 18 years, the noncustodial parent knowingly entices or persuades the children to leave the custody of the custodial parent, guardian, or person standing in the stead of the custodial parent or guardian of the child. (c) It is a defense to prosecution under Subsection (a)(2) that the actor returned the child to the geographic area of the counties composing the judicial district if the court is a district court of if the court is statutory county court, within three days after the date of the commission of the offense. (d) An offense under this section is a state jail felony.

[Tex. Penal Code 25.03]

There if very little case law on this subject but one court attempted to set out some guidelines:  In Ex parte Morgan, 886 S.W. 2d (Tex. App—Amarillo 1994, no writ), this court ruled that a parent could not be held in contempt where she passively failed to insist that her children visit their father, but not seek to impede the visitation or encourage the children to resist it.  The court stated that if “a parent has encourage minor children to resist court ordered visitation with the other parent, the line has been crossed between passivity, which is punishable by contempt, and overt conduct, which would be punishable. Again, the well-being of the children is served by both parents’ encouragement to the children to love and respect the other parent.”

Within the spectrum of visitation disputes, there may be instances in which: (1) a parent actively discourage or impedes visitation; (2) a parent passively fails to insist that a child comply with visitation; or (3) a parent is legitimately unable to compel a child to comply with visitation.  The courts have held that the defense of involuntary inability to comply applies only to the third alternative, and not to the first two.  Ex parte Rosser, 889 S.W. 2d 382, 386 (Tex. App.-Houston[14^th Dist.], 1995, no writ). 

While I see nothing in the law that says the mother is required to drag a child to his father’s car and put him in the front seat, the mother should do everything to encourage the visitation within reason as this is best for the child and make the child available at your front door at the designated time.  The mother has an obligation to put her own feelings aside and do truly EVERYTHING as a parent she can to foster a positive relationship and get the children to go with the dad.  The Court in the Ex Parte Morgan case clearly stated this obligation: "It is imperative that both parents recognize that their personal feelings must be submerged in cary8ing out their responsibility to obey the law and, by doing so, demonstrate to their children that they should do so as well." ( 831).

If you need more information on these issues, please visit our website at www.thepalmerlawfirm.com

Getting Text Messages Into Evidence

We text every day- many times without thinking about the fact that these hasty words are perfectly preserved and readily available to be used against you in your divorce or family law case.  

Galveston family lawyers and other practitioners are eating these bits of evidence up like candy in domestic cases.  But there are still some issues about getting evidence of a text before the court that the attorney must consider.  Like all pieces of evidence, attorneys must show that the evidence is an actual document (or an "authentic" true copy) that wasn't fabricated.  Attorneys must also show that the text should be allowed despite the general rule that hearsay (an out of court statement offered as the truth) is not allowed because it is so unreliable.

In the case of Butler v. State, the Texas Court of Criminal Appeals set out the following predicate:

Q. What is [Appellant’s] phone number?

A. 361-215-3899.

Q. Does that number appear on all the pages of the exhibit?

A. Yes.

Q. How do you know that that is [Appellant’s] telephone number?

A. Because that’s where he called me from and that’s what’s on the

same exhibit in front of me.

Q. You’ve read the text messages in the exhibit?

A. Yes.

Q. Who sen[t] you those text messages?

A. He did.

Q. How do you know that it was him?

A. Because he was the one texting me back and forth and he had

even called in between the conversations talking mess.

The Court of Criminal Appeals said that it was not enough for a lawyer to prove that a text was sent to a certain person's phone.  The lawyer must also prove that it was received by the certain person (NOT just the person's phone- because phones can be stolen).  So an attorney must also show that based on the response to the text or other context clues that the phone receiving the information was under the control of the other party.  

Americans Believe That Clerks Must Issue License

Linda Massey opposes gay marriage.  But she was incensed last bummer to see that Kim Davis, a Kentucky county clerk, was refusing to issue marriage licenses to gay couples.

"If the government says you have to give out these marriage licenses, and you get paid to do it, you do it/" says the 64-year-old retiree from Lewiston, Michigan. "That woman", she said of Davis, "should be out of a job."

Americans like Massey are at the heart of a shift in public opinion, an AP-GfK poll has found.  For the first time, most Americans expect government officials to issue marriage licenses to same-sex couples, even over religious objections.

It's partly a matter of expecting public servants to do their jobs.  But more broadly, the issue touches on a familiar dispute over which constitutional value trumps which:  religious freedom, or equality under the law?

The question in recent months has entangled leaders with political sway, among them Pope Francis and the 2016 presidential contenders.  But its not a new conflict for a nation that has long wrestled with the separation of church and state.

Where Davis's answer was the First Amendment's protection of religious freedom- and she severed jail time to back it up- a majority of respondents don't buy the argument when it comes to public officials issuing marriage licenses.  That's a shift since an AP=Gfk survey in July, when Americans were about evenly split.  Then, 49 percent said officials with religious objections should be exempt from issuing marriage licenses to same sex couples and 47 percent said they should be required to issue them.

Source:  U.S. News & World Report

Child Preference for Managing Conservatorship

There seems to be a lot of misconceptions about what the Texas Family Code says about allowing a child to express their preference about who will be the managing conservator.

In Texas, a child over the age of 12 may file with the court in writing the name of the person whom they have preference to determine the primary residence and make other significant decisions.

Although a court may give this preference serious consideration, the court is not bound by it.

Additionally, in nonjury cases, the court is empowered to interview a child of any age in the judges chambers and without parents or their attorneys being present. (TFC 153.009).

If a child is over 12 and one of the parties request it, a record of the interview shall be made and included in the record of the case.  If the child is under 12, the court can determine if the interview will happen.

A Better Marriage is Better for Your Health

From TIME: 

Studies have pretty consistently shown that being married and staying married is better for your health. The married population lives longer and gets less sick. But a new study out of Utah suggests that it’s only really happily married people who get the full benefit.

People often think of marriages as happy or unhappy, but they are rarely so easy to classify. Couples in what the researchers called “ambivalent marriages,” unions that are not bad enough to leave but still have distinctly negative attributes (and no, this is not all marriages—just about 75% of them, says the study), do not get many of the advantages of those whose marriages are very fulfilling, the researchers found.

The study, conducted by Brigham Young University psychology professor Wendy Birmingham, and published in the Annals of Behavioral Medicine, asked 94 couples about their spouse’s behavior and what the study romantically called their “interpersonal-functioning.” A quarter of the couples were genuinely happy and had no complaints. But three quarters of the marriages fell into the ambivalent category: mostly their spouses were great, but there was some areas in which they were unsupportive or overly negative.

“There was a high level of positivity in the marriage, but there was also negativity,” says Birmingham, who cites the example of a wife who’s a great partner but not happy with her man’s career, or a husband who’s a wonderful dad and lover but very critical. “These are people who are committed to the marriage. There’s just a lot of negativity, which is negating the positive physiological benefits.”

Read more here.

U.S. Navy Considering Extended Paternity Leave

From Medina County Gazette:

The Navy’s top officer said Tuesday the service is considering extending paternity leave for new fathers.

The Navy currently awards married fathers up to 10 days of paid leave upon the birth of a child. In July, the Navy tripled paid maternity leave for female sailors and Marines to 18 weeks.

A female sailor asked Navy Adm. John Richardson during a meeting with hundreds of service members at a Pearl Harbor pier whether the Navy might increase paternity leave as well.

Richardson said it was something officials in Washington were now discussing.

Richardson and Master Chief Petty Officer of the Navy Mike Stevens called about 10 sailors who became new fathers within the past year to the front of the pier and asked them how much paternity leave the Navy should offer.

The group quickly discussed the issue, and then replied their consensus was that the Navy should give 30 days of paternity leave.

Richardson said he’ll take that opinion back to Washington.

Read more here.

Abortion Group Asks Top House Republican to Investigate New Videos Online

From Fox News:

A trade group for abortion providers is asking a top House Republican to investigate after secretly recorded videos were posted online by a conservative blogger who wrote that he got the footage from a congressional source.

The National Abortion Federation said Friday that the videos were recorded at recent meetings by the Center for Medical Progress, a small group of anti-abortion activists. The center's furtive recordings of Planned Parenthood officials discussing their retrieval of fetal tissue have sparked an uproar by conservatives and unsuccessful efforts by congressional Republicans to cut Planned Parenthood's federal funds.

The federation obtained a court order in San Francisco against public release of the footage. But in recent days, videos have been posted online at GotNews.com, a conservative website.

That website's founder, Charles C. Johnson, wrote on his site that he has obtained "all of the Planned Parenthood tapes" and got the recordings "from a source on Capitol Hill."

Read more here.

Top Ten Ways To Be A Great Example To Your Children

Whether you are a parent contemplating a divorce, a parent involved in an ongoing custody dispute, or a parent struggling to be cope after a divorce, one thing remains unchanged- you are the parent of a child who, now more than ever, needs you to be a source of strength and stability.  
Parents are role models to their children at all times- even when you think your kids aren't looking (maybe even ESPECIALLY when you think they aren't looking!)  And if you involved in a Texas custody dispute, then there are many OTHERS who are also evaluating your ability to be a role model to your child or children.  Those who are carefully watching you can including your ex-spouse, his or her lawyer, attorney ad-litems, child protective services, grandparents, grandparents attorneys, custody evaluators, parent coordinators, mediators..and of course (and ultimately) the judge in your case.
The best way to appear to be the best parent you can be..is to ACTUALLY be the best parent you can be.  You need to be an excellent example to your children because they learn by example.  Aside from your legal case, you owe this to you children.

Here then are the top ten ways to be a great example to your children.

1. Live a Healthy Lifestyle

How can you say your are keeping your children healthy when your cupboards are filled with junk food and cookies, you watch T.V. for hours on end?  By eating properly and getting regular exercise, it not only sets and example for our children but gives you the energy to play with them and be involved with their busy schedule.  If you live a sedentary lifestyle, chances are your children will too.  Childhood obesity has become an epidemic in American society which can lead to depression and disease. Be a healthy example for your kids by living a healthy lifestyle.

2. Improve Yourself Constantly

There is always something new in life and you need to be an example to your children to be a lifelong learner.  You should always be looking to improve your "game" because your children will adopt that attitude too.  Learn a new skill.  Try a new activity.  Explore whatever is exotic. Not only will you be a good example of a well lived life for your children, your own life will improve and will make you a happier parent.

3. Give Back To The Community

By going out and helping in the community, you will give your child a deeper sense of responsibility for, and attachment to a home and place.  This is especially important if your are experiencing a time of upheaval in your family.  One of children's greatest fears during divorce is that they will loose their place in the world.  By making it a regular habit to get out in your community with your family and volunteer your time and talents your child will know they belong. 

4. Open Up To Your Kids

You should NEVER share the details of your divorce with your children, but that doesn't mean you shouldn't let your children know who you really are.  Children are looking to you give them the model of how to behave in society.  And they will learn not only when you show them how you have successfully navigated life, but they also learn if you open up and show them how you overcame those times when you fell short of societies expectations.  Do not hide who you are as a person to your children. Being strong means showing vulnerability.  I am not saying you should talk about your divorce in detail or use your children as your own emotional crutch.  But you can share your past experiences when it is appropriate: mistakes and victories. Take your children to work with you and let them see your daily life. Let them see how you interact with other adults and how you carry yourself. 

5. Maintain Self-Control

If you are involved in a legal battle, you will be stressed as never before.  Releasing your emotions, whatever they may be, is healthy and will reduce stress. However NEVER do that in front of your children.  If you allow yourself to loose your cool in front of your kids, it will damage them psychologically, will damage your relationship with them, and may very well damage your law suit.  Every healthy adult should have enough self-control to not regularly blow up in front of their children.  If you can't- then you need to seek out help such as a counselor or therapist. 

6. Right Relationships

We have many important relationships and not all of them are going to be pleasant. Maybe there are issues with your parents, stepparents, brothers, sisters, or ex-wife. Forgive and give grace. Seek to be right in your relationships over being right. Make it as hard as possible for anyone to say anything bad about you. Be an initiator and take always personal responsibility first.

7. Respect and Listening

If you want to teach your kids how to be confident, it starts with showing them respect for who they are and listening to their own unique thoughts. This is a tough aspect of leadership, but the best leaders listen carefully and talk far less. Open your mind and your ears to what your children are telling you. They will, in turn, learn to do the same later in life.

8. Positive Attitude

There is plenty of negativity to be found in society today. Do not add to the daily chorus your child experiences. Instead, display a positive and reassuring attitude and optimism. They need to be able to look at you and know that you are a believer and not a cynic.

9. Goal Setting
Setting goals is important to give us a benchmark of where we are going and the progress we are making. Implementing and achieving those goals are of equal importance. When our kids see us moving along exactly according to plan, it shows them the importance of organization and self-discipline in their daily life. Help them come up with their own set of goals and praise them when the goals are met.

10. Walk the Talk
The single most important aspect of being your children’s role model is to always say what you mean and mean what you say. Walk the talk. Back up your words with visible and concrete action and be a man of integrity and value. Actions speak volumes. “Well done is better than well said.” – Benjamin Franklin

Three Common Factors To Common Law Marriage

The following is a reprint of an earlier blog post.

Texas is one of the dwindling number of states that continue to recognize the informal or "common law" marriage. Basically it works this way: if you act like you are married, the state could consider you married even if you never got a license to marry or had a marriage ceremony.

The issue of common law marriage usually comes up when the practitioner is faced with a petition for divorce and there are property issues to be decided. If there are no property issues to divide, there has been no formal marriage, and neither party want to be married, it is usually just best to follow the KISS principal and "fagetaboutit".

In those cases where one side is trying to assert a community property interest in a putative "martial estate", the first issue you must deal with is: "was there a marriage?"

Under TFC 2.401(a)(1), you can have a court declare that a marriage exists if you have a written declaration of marriage. I can't imagine a real life scenario where this would happen, but if you can think of one, then I'd love to hear about it. I mean, after all, wouldn't you just get a marriage license?

The much more "common way" for a "common law" marriage is covered under TFC 2.401(a)(2). In it the following elements must be met for an informal marriage to exist:

1. The parties agreed to be married;
2. they lived together as husband and wife;
3. they represented to others that they were married.

Remember that once established, the "common law" marriage is just a binding and valid as the formal, ceremonial kind.

3 Important Points About Your First Meeting With A Divorce Lawyer

Many people who are interested in seeing a divorce attorney have never been to an attorney before and aren't sure what to expect.  So here are three important points about your first meeting with a divorce lawyer.

1.  This is a relationship test.  

The purpose of the first interview in a divorce case is to determine whether the attorney and the client can work together.  The relationship between an attorney and his client can be a very sensitive one due to the nature of the personal information that has to be shared.  If an attorney and client wish to work effectively together, there must be a good natural feel to the communication flow.  You may be required to reveal some very embarrassing information to this person.  You should be sure this is a person you feel comfortable with.  You have to go with your gut on this one.  It is also the attorney's interview as well.  If the attorney thinks that your values conflict with his, he will decline to represent you.  I have turned down potential clients when I felt the their motives were destructive to themselves or their children.  I think most ethical attorneys would do the same.

2.  This may not be the right time.

Many times clients come in for an interview just to get general information.  It is not unusual for a client who has come into my office for information and I will not see them again for a long time- sometimes years.  Maybe they just want information to help them make a decision about their marriage.  Maybe they just want to be able to tell their spouse that they have been to a lawyer in order to get their spouse's attention.  On occasion I am hired to file a suit, but then the client doesn't really want to follow through to the final decree.   I try to spot these clients ahead of time and advise them to seek counseling as a first measure.

3.  If you are ready- so should be your attorney.

There are some clients who come to my office who are ready to file and follow through right away.  This may be because they are being forced to respond to a divorce suit filed first by their spouse, or because they have come to realize that the pain of remaining in the relationship is worse than the pain of divorce.  Either way, they attorney should be ready to draft responsive pleadings right away and handle any deadlines that exist.  If this is your case, you should bring any paperwork you have received from the court or a process server and be prepared for your lawyer to begin the longer process of gathering information and determining your goals and the best way to handle the case.

The initial attorney interview may be a new experience for some people, but it should not be viewed as an intimidating thing.  It is usually the first small step to a better life.

Divorce Stats: Not As High As Most People Think

Most people think the divorce rate is 50% or higher but the divorce has actually been dropping for some time now.  Texas has followed suit with the nation by see a steady decline in divorces since the 1980s and 1990s.

In metro Houston, 42.1% of the population over 15 is married.  This is lower than the Texas and the national average of 50%.  The second most common marital status is single and never married at approximately 39%.

This is good news for all the romantics and optimists out there.  As an institution marriage brings many wonderful benefits to couples who choose to enter into it.  At my firm, we are NOT advocates of divorce.  We try to encourage our clients to work things out with their spouse if possible, but we are there to make sure the divorce process is fair if it is not possible.    

3 Excellent Reasons To Do Your Own Divorce (from a Divorce Attorney)

When a divorce is on the horizon, many people will run out and retain an attorney and have that professional do all of the details on the case from the beginning to the end. But this may not be necessary in your case.  Instead of retaining an attorney, in many cases it may be best to simply consult with an attorney and do the divorce on your own.  If your situation warrants it, you CAN do your own divorce and this article will give you three excellent reasons why you should.

There is no doubt that divorce is a terrible thing to go through.  For the thousands who experience it yearly, it is rarely without some pain.  Aside from the emotional turmoil, the legal aspects are what create the most stress.  Getting the right attorney is essential to reducing your stress- but too many folks think that the traditional reaction of immediately hiring an attorney on retainer is always necessary.  I say "MAYBE NOT". If you have the right set of circumstances, it is entirely possible to get a divorce without RETAINING an attorney.- but instead taking charge of your own case by doing your own divorce.  So here are three excellent reasons to do your own divorce:

#1:  Taking Control of Your Divorce Case Can Be Very Empowering.

By the time many people are ready to get a divorce, they have been through the emotional wringer.  Their self-esteem has been battered and their sense of control over their lives has been bruised.  If they then go out and retain an attorney and direct him to take care of everything, there is a good chance that no matter how excellent a job the attorney does, the client will feel that their lives have been manipulated- yet again.  Taking direct charge of the process of your divorce can be a great way to get back the control you feel you have lost in dealing with a failed marriage.  If you feel you can think things through and make careful decisions about your divorce, you may find that doing so helps you get back your mojo.

#2:  Involving An Attorney Can Be Like Pouring Gas On An Open Flame.

There are some attorneys who market themselves as "bulldog" attorneys.  They prey on the fears of their clients by conducting a very aggressive and expensive legal campaign which in the end gains the client nothing more than they would have gotten through settlement and sometimes even gets them less.  Aside from that kind of obvious legal combustible, there are a couple of other reasons that getting a lawyer can blow things up.  

First, if you hire an attorney, that will encourage your spouse to "lawyer up" too.  And even if you got a conscientious lawyer who is trying to settle the case on best terms for you, that doesn't mean your spouse's attorney won't be one of those "bulldog" types.  If so, then your attorney will have to respond to all the nasty legal maneuvers that will do nothing but increase the cost of the divorce.  You can best avoid this by not getting an attorney at all and trying to do this without "lawyering up".

Second, even if you both have ethical attorneys who are trying to keep the tension and the costs to a minimum, an attorney's involvement in a case will still complicate it far more than if you did it on your own.  The reason is that attorneys are always worried about their own liability in a case.  They are in constant fear that at the end of case, a client will sue them for being an ineffective attorney- for not doing all that could have been done to win the case.  So if you want to shortcut or speed up some part of a case because you think it doesn't apply to your situation, then the lawyer will either push back or outright refuse to skip certain parts.  Take discovery and valuation of property for example.  This is the part of a divorce where attorneys send out formal demands for the value of all your property.  Suppose you KNOW your spouse will not try to take your grandmother's tea set in the divorce.  The attorney will still want to get an evaluation of it JUST IN CASE the issue goes to trial.  You may be convinced it will not be an issue, but your lawyer is just doing his job if he prepares for the worst and demands an accounting of it.  This will cost you money and complicates the case.  If you are in control of your own divorce, then you can take this risk of not valuing all the property if you choose to.

#3.  Doing Your Own Divorce Is Cheaper.  Duh.

Lawyers are not cheap.  Some are more expensive for good reason- they have expertise in certain aspects of divorce that took many years to come by.  Some kinds of divorces need that expertise.  But most cases don't require it and you are wasting your resources by buying all that.  

Some lawyers are more expensive because they have high overhead- they like to surround themselves in large lavish offices and have all manner of assistants and staff that are not necessary in today's automated world.  They jack up their bills to pay for all that and the free gourmet coffee you are offered at your first meeting with your lawyer will wind up costing you thousands extra at your last meeting with him. 

Finally there are attorneys who demand outrageous rates and will nickle and dime you on every minor transaction because they are - well greedy.  These type prey on the fact that most people aren't knowledgeable about the services an attorney offers and they don't shop around the way they would if it was any other kind of service.  Many people shopping for an attorney will go with the first ad they see in the yellow pages or in the first listing on the internet.  Believe me, if you want a good value in your legal services, go to the second page of listings in Google.

The bottom line is that you don't have to retain an attorney.  If your case is simple and you have basic agreements with your spouse and you are able and willing to stay in charge of your divorce and act as your own attorney (pro se) you can do much of the work yourself. 

HOWEVER, even the simplest of divorces involve complex paperwork and court procedures that are different from jurisdiction to jurisdiction.  People may not need a full service law firm for most of their divorce, but most people attempting to do their own divorce would be foolish not to at least have the consultation of a licensed attorney to give them advice when things get complicated.  Books and automated forms on the internet are usually NOT adequate to the task of getting all the paperwork done right the first.  If you rely on those you will probably do it wrong and wind up wasting hundreds of dollars and many hours or your time.

If you attempt to do your own divorce, you should seek the advice of an experienced divorce attorney who is willing to provide "unbundled" services.  These attorneys will do those parts of your case that are too complicated and offer consultation on those parts you can do on your own.  This is an innovative way of offering services that just might be the best for your situation.

If you have any questions about unbundled divorces, you can check out my firm's website at www.mydivorcefirm.com for more information. 

 

  

Top 7 Questions To Ask When Taking Care of Kids During a Divorce

If you are divorcing or are recently divorced, it is vital that you keep your children's best interest in mind.  It is often easy to loose your bearings as you are caught in a whirlwind of legal activity and emotional distress which all divorces bring.  This turmoil can make it hard to determine if you are doing all you can do to for your child.  So here are the top seven questions you should ask yourself to make sure you are still being the best parent you can be during a divorce.

1.  Are you being there for your child?  You will be drained and you will want to withdraw into yourself during a divorce, but your children need to know that you are still there for them and you will continue to provide emotional support during this time.  Divorce is stressful on everyone and your child needs to know that you are there to answer their questions and help them process their painful feelings.  You do not need to be instantly available 24/7, and everyone needs some mental downtime, but you must make it a point to generally be there when your children need some answers, or just some hugs.

2.  Are you giving your kids needed encouragement and approval?  Kids of all ages seek out the encouragement and approval of their parents.  It is vital to their self esteem to know that you think of them often and are proud of them.  Particularly at a time when they are submerged in self doubt over the divorce, you have to show them in both expressed and subtle ways that you think they are great.  Be generous with your praise.  Carry their pictures in your wallet and their drawings on your desk.  Constantly stoke their self-esteem by praising them.  Now more than ever, they need to be assured that they are worthy of being loved.

3.  Are you treating your kids like people?  Your kids are unique individuals with their own personalities, and perspectives.  You need to be sensitive to their experience of the divorce and how they can be different from yours.  

4.  Are you trying to have a positive relationship with the other parent?  Even though you feel you would be better off having less contact with your ex, or soon to be ex, spouse, this may not be what is best for your kids.  Research has shown that children make the best recovery from divorce when both parents are actively involved in the children's life and the interaction is conflict free.

5.   Are you modeling to your kids how to handle stress?   Divorce is an extremely stressful time.  If you demonstrate your ability to handle the stress of divorce without resorting to becoming violent, verbally abuse, or using drugs or alcohol, you kids will know that it is ok if you occasionally express anger and frustration.  Kids need to see you handle stress without losing control.  They then won't be fearful when you get angry.   

6.  Are you maintaining family and community ties?  Chances are you kids are experiencing the loss of a full-time parent.  They should be allowed to find the comfort of familiar surroundings and support such as scout leaders, church leaders, friends and neighbors.  You may feel like you want to get away and start a new life from your old, but your children need the familiar ties of their community especially at this time.

7.  Are you making every effort to peacefully resolve issues with your ex, or soon to be ex, spouse?  Your kids will be less fearful and stressed if they see you and the other parent working cooperatively.  If they observe examples of flexibility, consideration and cooperation, in resolving parenting issues, they will be less fearful that the aftermath of the divorce will be a never-ending battle of wills- with them in the middle.

Divorce is one of the most painfully stressful times in anyone's lives - and even the most well meaning of parents can fall into a spiral of emotion where they forget to keep their children's best interest at the front of their attention.  When you find yourself in an emotional tailspin from divorce, ask yourself these seven questions to keep your perspective - and your focus on being the best parent you can to your children.   

Back to School Tips for Divorced and Divorcing Parents

A tricky question that will eventually face anyone who is either going through or has recently been in a Texas Divorce is when you should tell others about the break up. As we are looking at the beginning of the new school year, you may be wondering whether to tell your child’s school.  So, should I tell my child’s school about my divorce?  In this video, we’ll answer that question along with other back to school tips for divorced or divorcing parents.

Informing Your Child’s School

Experts say that it is not necessary to jump ahead and tell the school until things are actually in motion.  My general advice however, is to make your child’s school aware of the divorce once it has been finalized and a custody order has been put in place.   This becomes an even better idea if your custody case was or is a contentious one.   Making sure the school is aware of the visitation schedule will help ensure your child goes home with the right parent on the right day.

Protective Orders

However, in some cases, my advice moves beyond “it’s a good idea” to a very pointed and urgent  admonishment that if you are involved in a case with a finding of family violence and a protective order, it is absolutely necessary to inform the school  of the existence of the order.  The school needs to know who and who does not have access to the child.  Fortunately most schools are very aware of their responsibilities to keep your child safe.  Bringing them a certified copy of your protective order is an excellent way to ensure they can do their job by clarifying  their duties as it relates to your child.

General Parent Rights on Education

Fortunately most cases do not require that amount of vigilance.  There are certain conservator rights that are usually granted to both parents in the bulk of all cases, although a Texas court may limit them if it is warranted for some reason.  Many of these relate to schools.  Unless the court specifically ordered otherwise, under 153.073 of the Texas Family Code both parents have the right to receive educational information about their child and to have access to their child’s school records.  Each parent can independently consult with school officials about their child’s educational and extracurricular activities.  Each parent can attend school activates, and each parent has the right to be notified by the school in the case of an emergency.

If you have a standard custody order in Texas, or if you anticipate no reason the court would limit these educational right in your pending divorce or custody suit, then it is probably a good idea to let the school know what is going on.  If the school knows you are living apart, they can take necessary steps such as sending home two copies of report cards, discipline reports, and the like.  This  will keep both parents in the loop and avoid any potential conflicts.  And avoiding conflict will always save you emotional stress, time and potentially litigation costs.

For more information, please visit www.MyDivorceFirm.com