It's About Time: Enhancing Timely Relief in Divorce Litigation

As a Texas attorney with two decades of experience exclusively in family law, I am always on the lookout for things that can positively impact the lives of my clients as they go through
the painful process of divorce.  And it's not often that I can find positive impact from the actions of the Texas Legislature, but recently, the "Distinguished Gentlepersons" up in Austin got something right.  A small change to the Texas Family Code caught my attention, and I believe it will greatly improve the timely relief of temporary matters in divorce litigation. In this article, I will delve into the details of this new provision and its implications for couples navigating the challenging waters of divorce in Texas.

 

The New Provision:

 

With the passage of Texas House Bill 2671, beginning September 1, 2023, the Texas Family Code will now include § 105.001(a-1), which addresses Temporary Injunction and Other Temporary Orders. This newly added subsection offers a solution to a common problem faced by divorcing couples: the delay in obtaining temporary relief due to referrals to mediation.

 

Explaining the Change:

 

Before this change, when a court referred a divorce case to mediation and a motion for a temporary order was pending, the initial hearing on that motion could be postponed to a later date, leading to unnecessary delays in resolving urgent matters. However, the new provision brings an essential safeguard into play.

 

Under § 105.001(a-1), if the court, on its own motion, refers a suit for mediation where a motion for a temporary order is pending, the court cannot postpone the initial hearing on that motion beyond the 30th day after the original hearing date was set. This means that once a motion for temporary relief is filed, the court must address the matter and hold the initial hearing within 30 days.

 

Enhancing Timely Relief:

 

The implications of this change may not seem profound to most,  but I believe it will mean the world of difference to people who are suffering in untenable domestic situations that need quick relief . Divorce cases often involve pressing issues such as child custody, temporary support, and property matters. Couples require swift resolution to these matters to maintain stability during the divorce process. By mandating an initial hearing within 30 days of filing the motion, this new provision ensures that temporary matters are addressed promptly.

 

Moreover, the change promotes efficient case management and streamlines the divorce process for both parties and the court. Timely resolution of temporary matters can alleviate stress and uncertainty, allowing individuals to focus on moving forward with their lives.

 

The addition of 105.001(a-1)) to the Texas Family Code marks a small but significant step forward in enhancing timely relief of temporary matters in divorce litigation. As a family law attorney, I believe this change will have a positive impact on divorcing couples, offering them the assurance that urgent issues will be addressed promptly. Moreover, the provision reflects a commitment to efficient case management and the well-being of those navigating the complexities of divorce.

Divorce Pitfalls for Small Business Owners

 The prospect of getting a divorce can be daunting, and even more so if you own a small business. When a marriage ends and both parties own a business, it can be complicated to navigate the legal and financial aspects of a divorce. What are are the top considerations for small business owners facing divorce?  

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Whether you are considering filing for divorce, or your spouse has already initiated the divorce process, there’s important considerations when a small business is part of the equation.

If you're a business owner and one or both of you are seeking a divorce, there are some particular points of concern that you need to keep in mind. First and foremost is the value of the business itself. The court may order an appraisal of the business to determine what the fair market value is. This is so each party can receive an equitable share in the assets. If one of you was the sole owner of the business prior to marriage, the court may decide that ownership of the business isn’t subject to division but the increased value of the business is.

Another point to consider is how much of your time and resources the divorce process will take up. Divorce can impact how much time and attention you can put into your business, as well as how smoothly operations run while the divorce is underway. It’s important to make sure that both parties understand their respective roles in the business during the divorce proceedings. If one or both spouses are also employed by the business, those roles need to be specified in order to ensure that everyone remains in compliance with any court orders that may be issued.

If you are considering filing for divorce and are a small business owner, it’s important to seek professional counsel on how best to protect your rights and interests in the process.

Pets In a Texas Divorce

Is “Limited Scope” the Future of Legal Representation?

Over the last decade, the demand for legal representation, particularly in the area of family law has increased.  At the same time however, the costs to hire an attorney for full legal representation has increased as well.  Finding free or reduced fee legal services has been nearly impossible for many.  As profit margins have decreased for big law firms, their commitment to donating free services to people who cannot afford an attorney has wained.  In addition, there are many “middle class” individuals who do not qualify for public assistance or other help in obtaining a free lawyer (called “pro bono”).

With limited options become ever more limited, many people have resorted to trying to “do it themselves” and be their own lawyer (called acting “pro se”).  They know they must get out of a bad marriage or get court orders for their children.  In desperation, they may look for legal forms they find for free online.  However, many find that the old adage “you get what you pay for” holds especially true when it comes to legal services.   People without any formal legal training are often bewildered by the process and the complex maze of documents.  Forms are readily found online, but are they the right forms?  And if they, there is a good chance they are outdated and are no longer adequate (if they ever where) in court, or are not proper in their jurisdiction.  They become frustrated when the Courts will not (and cannot) provide them with answers to their legal matter.  Turning to nationwide paid services such as Legal Zoom who prepare forms is often a frustrating exercise and a waste of money.  There seems to be no good middle option for people who need just some assistance but cannot afford the $5K to $10K for initial retainers for full retainers, nor can they afford to send twice or three times that amount before their case is concluded when all aspects of their case is handled by an attorney.

Amidst this growing problem, a new breed of lawyer has emerged to answer the need.  The day may have arrived for the “Limited Scope” attorney to help people gain fair access to our justice system.

Limited scope legal services is a method of legal representation in which an attorney and client agree to limit the scope of the attorney’s involvement just to those specific areas in which the client needs the assistance of an experienced attorney.  Other aspects of the case are left to the client to save the client money and give them more control.

Limited Scope legal services are employed as an attempt to lower costs for the client by reducing the amount of time the attorney spends- and therefore the amount the attorney bills- on a legal matter.

Do you think “Limited Scope Representation” is right for you?  Find out the details of this unique legal alternative by getting our free infographic:  “Top Four Ways You Can Save THOUSANDS on Your Divorce.”  To order your free copy, visit us at to www.thepalmerlawfirm.com/top-four.html

If School Is Closed For Weeks or Months Due to the Coronavirus (COVID-19) Crisis, How Does That Affect My Custody Schedule?

In Texas, most possession schedules are organized around the school schedule of the child.  Spring break, teacher work days and other periods of changes of possession are often incorporated into the custody orders for children.  The order to either surrender or return on certain dates is determined by the school schedule of the child.  In most cases this means the published calendar of the school district in which the child is enrolled.  But with schools shut down for the Coronavirus Crisis for weeks and possibly months, how does that affect the possession times for the children?

The first step to answering this question is to look is the existing possession order you have.  The language of the order should be reviewed carefully to understand what it was intended to do in normal times.  Second, you need to see if there are any special clauses in the order that may cover special circumstances such as when the child needs to stay home because they are sick.

Assuming there are no special provisions covering emergency situations and the order is basically aligned with the Standard Possession Order, the general rule is that possession times, exchanges, and the surrender and return dates and times should continue to follow the school district calendar AS IF the child was still in school and the normal calendar was being followed.

There are two rationales for this.  Firstly, following the calendar AS IF the child was enrolled this is the standard practice that is followed for children who have not yet attained school age.  Standard possession times for children over 3 but who are not yet in school uniformly follow the dates and times of the school and district calendar for AS IF the child was attending school.  This gives certainty to order and avoids confusion.

Secondly, the courts in recent days have issued strongly worded standing orders to all attorneys and their clients that parents who had their children over the spring break must immediately return the children as if school had resumed on the normal day (March 16).  This is a very clear signal that the Court will insist that custody orders must continue to follow the language of the order and follow the published district and school calendars for the purposes of exchange even if the children are not actually following that schedule because of emergency changes related to the COVID-19 outbreak.

In fact the Galveston County family courts standing order issued on March 16, 2020 was particularly blunt when it declared:

“If your family has a COURT ORDER that provides spring break possession for the non-custodial parent, that non-custodial parent must return the children AS IF school resumed on Monday, March 16, 2020.  For Parents who have NOT returned the children by Monday, March 16, 2020: YOU MUST RETURN THE CHILDREN IMMEDIATELY OR YOU WILL BE FOUND IN CONTEMPT OF COURT AND WILL BE FINED AND SANCTIONED.”

So it is clear that if parties want to avoid trouble with the courts, they need to stick with the schedule AS IF school was going on normally.

However, parties may want to come up with a stop-gap agreement to address changes for the best interest of the child.  This is allowed as long as the parties agree.  Also it is still unclear how things will be handled if the school shut down continues into the summer possession time.

If you are stumped on what this schedule would look like or if you want to negotiate a new schedule with the other parent, this is were an attorney or even mediator can step in to help you.  In the end, parents must keep a cool head and either stick with the order they have or negotiate what is in the best interest of your children and makes most sense for everyone.

If you have any questions about how recent events may affect your custody order, please contact us at The Palmer Law Firm.  We practice in Harris and Galveston counties, Texas.  With our mediation experience we can help parties come to agreements that work.  With our litigation experience we can help you fight for the best options for your child.  We encourage you to schedule a free call with one of our family lawyers.  We have leveraged technology with our online client portal, electronic forms and e-signature document capacities to minimize your need to make trips from your home to advance your legal issue.  We also offer on-line virtual mediation session to help you come to an agreement, even when apart.  You can book your free Virtual Meeting by visiting our website at www.thepalmerlawfirm.com or calling us at 832-819-3529.

Child Custody and The COVID-19 Coronavirus Crisis

We are all in a very stressful and fearful time with the outbreak of the COVID-19 virus changing the way we live our lives.  Many people have been sent home from jobs or limited in interacting in large groups.  For our children, schools are closing and many normal extracurricular activities have suddenly stopped.  To stop the spread of this highly infectious disease, we are being told to practice “social distancing”- staying away from other people and especially larger groups.

But what about families with custody orders?  To date there has been no clear message about how families should address this, and for families who already find themselves in high conflict custody arrangements, the strain will be tremendous and the path confusing. Should periods of visitation with non-primary parents be discontinued along with other “social distancing”?  What will be the repercussions if I keep my child from the other parent and how can I avoid them?  Here are some clear answers to these questions:

1.  Don’t deny visitation to the other parent unless you have a very good reason.

If you are the primary caregiver and the other parent has periodic visitation, you may be tempted to deny the other parent their weekend visitation during this crisis out of general fear that your child may become infected at the other parent’s house.  Before you unilaterally disregard your custody order, you should consider very carefully whether you have any real reason to do so.  The consequences of violating the custody order may be very real and land you in real trouble with the courts.  Our Harris and Galveston County Judges take a dim view of people violating orders- even if the reasons are well intentioned.  Denying visits may result in severe consequences for you and may give cause for a change of primary custody to the other parent or even a jail sentence in some cases.

2.  Communicate and find common ground for decisions.

Before you decide on your own to deny visitation with the other parent, communicate with the other parent about your fears and try to come to an agreement about temporary modifications to the visitation schedule.  You may find they share the same fears about the child being in your home.  If your co-parenting has been high-conflict up to this point, however, you may find this very difficult.  But you must put your best effort forward. 

Even if you have had difficulty in communicating in the past, both parents should try to put that aside (at least until this crisis is passed).   One of the best ways to handle the situation is to adopt a business-like and professional attitude to deal with the issues at hand.  Try to be focused and avoid emotional reactions.  Tell the other parent exactly what you want to talk about and stick to that only.  If they try to bring up the past or get off topic remind them of the urgency and importance of coming to agreements on how to handle the visits during this crisis.  You both may have different viewpoints of what is the best action to take with regard to keeping your child healthy.  With so many conflicting messaging on social media and the mainstream news, it is not surprising you both would have different ideas.  The most important thing is to be consistent between the two parents.  This situation is like no other and was very likely not conceived of when you made your custody order.  You may be called upon to make decisions that are outside the order.   Try to find a neutral and reliable source for a tie-breaking resource if you both disagree on how to manage this crisis.  Try to agree on one source for recommendations for your child’s safety and agree that you will both use that source for co-parenting decisions that are not covered in your court order.  You may agree to follow the advice of the child’s pediatrician for guidance. This is especially important if your child is immunocompromised or has another underlying health condition.   Or you could both agree to follow the latest recommendations found on the CDC’s website or the Texas Health and Human Services.  Whatever source you decide on , it is important that you both avoid the added conflict and stress of disagreement and you should find as much common ground as possible.  One good start in finding common ground may be in that you both express your fears for your child and reaffirming that you each love your child and have their best interest at heart.

3.  Think of creative solutions.

What solutions could you come up with that would satisfy each of your concerns about infection and health vs. the legitimate right and need of the child having contact with both parents?  If infection is a legitimate concern such as if one parent has been exposed to an infected individual, is it possible to agree to temporarily have visits outdoors and agree to keep the recommended distance from the child- perhaps playing catch, kickball or similar activity?  This may sound outlandish in different times, but these are unusual circumstances.  Can the parent have Facetime (or increased facetime).  Can you agree that the other parent will have additional periods of time with the child to make up for time lost during this crisis?

4.  Get an agreement in writing.

Get the agreement in writing and make sure each parent has a signed copy.  Insist that each have it notarized if you feel this is necessary.   A signed agreement can be used in court to defend yourself if the other parent claims you have unilaterally violated the order.

5.  If you can’t come to an agreement, you must file a modification request with the Court.

If you legitimately believe that child is at increased risk of infection if they are allowed visits with the other parent and you can’t agree with the other parent on a modification of the custody arrangement, then you must consider filing a Motion to Modify the Parent-Child Relationship and request emergency temporary orders to discontinue the visits.  If you don’t do this, you run a high risk of being held in contempt of court for denying the other parent’s court appointed visitation.  You will also have to execute and attach a “significant impairment affidavit” that details why you believe physical contact with the other parent would endanger the child.  The standard on getting such emergency temporary orders however is very high.  General or undefined fears will not be sufficient.  You will have to have special compelling reasons to believe that visits with the other parent will significantly impair the child’s health.  Reasons that may be warranted, if proved, could be:

• ·        The other parent had close contact with someone diagnosed with COVID-19;
• ·        The other parent recently traveled to Italy or China
• ·        The other parent attended a high exposure situation such as the Biogen conference in Boston that led to a breakout among attendees
• ·        The other parent may have had contact with someone infected with COVID-19 AND, your child has a compromised immune system or other underlying health condition.

Agreements are like a vaccine against family conflict and are always the first and best line of defense against the harm that comes to children as a result of parent disputes.  However, if agreements are ineffective or unavailable, then it may be time to call an experienced family law attorney. 

If you have any questions, please contact us at The Palmer Law Firm.  We encourage you to schedule a free call with one of our family lawyers, or come see us in person.  We have leveraged technology with our online client portal, electronic forms and e-signature document capacities to minimize your need to make trips from your home to advance your legal issue.  If you do choose to visit us in person, you can rely on us for clean offices with restrooms and hand washing facilities and hand sanitizer.  We are here to help.  You can book your free appointment right from our Facebook page or call at 832-819-3529.

New Requirement for Summer Possession Notice

For all standard possession orders entered after September 1, 2019, a new requirement has been added for notice.

As normal, the non-managing conservator under the standard possession order will have a period of extended summer possession (30-42 days).  The managing conservator can request a period during that extended time when they can visit with the child.  However, the managing conservator must pick up the child(ren) from the possessory conservator and return the child to the possessory conservator.

Now under the new notice requirement of HB 553, the possessory conservator must now also give the managing conservator 15 days written notice of where they can pick up the child.  The new law says:

"153.312(C) Parents Who Reside 100 Miles or Less Apart-
(c) Notwithstanding Section 153.316, after receiving notice from the managing conservator under Subsection (b)(3) of this section designating the summer weekend during with the managing conservator is to have possession of the child, the possessory conservator, not later than the 15th day before the Friday that begins that designated weekend, must give the managing conservator written notice of the location at which the managing conservator is to pick up and return the child."

So for example, John and Mary are the parent of Joseph.  They live less than 100 miles apart. Mary is the "managing conservator" because Joseph lives primarily with her and John is the "possessory conservator" because he has regular visits with Joseph.  They have a standard possession order for visits which means that in addition to his weekend visits and certain holidays, John has a 30 day period during the summer break when Joseph will be with him.  Normally this will be the month of July (unless John picks a different 30 days and sends written notice to Mary by April 1).

Thirty consecutive days without seeing a parent is considered a long time by some and may be difficult for the child to go that long.  So under the Standard Possession Order, if Mary gives John written notice by April 15, she can pick up Joseph for one weekend- HOWEVER, it is SHE who must pick up AND drop off from John- not necessarily at his house, but where ever he happens to be.  What this means is that if Mary wants her summer weekend, she must be willing to travel wherever John is with Joseph over the summer to pick up Joseph  on Friday and drop off him off again on Sunday at that same location .  What if John and Joseph are on a camping trip at Yosimite?  Yup, that means Mary must pick up Joseph at Yosimite and return him to Yosimite if she wants her weekend visit.

Apparently there has been a change in the law to attempt to fix a problems that comes up with this.  What if John refuses to tell Mary where he will be during his 30 days with Joseph?  Former he was not required to.  If he doesn't however, that effectively prevents Mary from exercising her right to a weekend visit.  With this new law, the Texas Legislature has plugged this gap in the SPO order by adding a requirement of John that if Mary sends him timely written notice that she wants a weekend during John's extended summer visit with Joseph, then John must now give Mary 15 days written notice prior to Mary's weekend of where he intends to be with Joseph during that weekend.  This will allow Mary to make arrangements to pick up Joseph for her weekend.

I think the requirement is necessary to protect the managing conservator's right , but I also see how it puts a burden on the possessory conservator.  What if John and Joseph are just traveling in an RV and don't have a set agenda, and want to visit a different city than originally planned, or are delayed from arriving at a certain place due to weather or other event out of their control, or what if John just changes his mind about the trip?

Again, this new notice requirement applies only to orders rendered after September 1, 2019.  People with orders prior to that do not have the added notice requirement.

The Palmer Law Firm practices exclusively in the area of Family Law litigation in Harris and Galveston Counties, Texas.  If you have any questions about your possession order, or other issues regarding your legal rights and duties to minor children, in Harris or Galveston counties, Texas, please visit our website at www.thepalmerlawfirm.com or call us at 832-819-3529.

"We Can't Protect Your Heart, But We CAN Protect Your Rights."- THE PALMER LAW FIRM

Law Protects Privacy In Property Agreements

A new law passed in the last legislative session is aimed to protect people going through a Texas Divorce from having to revealing the sum and total and the division of their marital estate.

Prior to this new law, divorce decrees would be put on the public record and could be accessible to anyone interested in looking at them.  These divorce decrees necessarily listed in detail the assets and debts of the parties including even separate property not subject to division. This does not sit well with many who reasonably do not want to reveal the their entire financial to the world.   In the age of widescale privacy breaches and with the advent of electronic access to court files, there has been growing concern about the court system revealing the details of people's financial situation, debts and even details of nearly every possessions they own. 

Texas Family Code 7.006(b) Agreement Incident to Divorce or Annulment has been amended by HB 559 so that if the parties agree to a property division, they do not have to file the details of that agreement with the records of the court.  The parties can simply refer to the property agreement and "incorporate them" by simply referring to the agreement in the decree.

Obviously the details of the property division agreement should still be in writing and each party should have a true copy of the agreement in their possession in case they ever have to enforce the agreement in court at a later date.

The author's opinion is that there are much better methods to maintaining your privacy during and after your divorce.  However, this change is another tool that can be used.

If you have any other questions about privacy or other matters regarding your divorce, please visit our website at www.mydivorcefirm.com or call us at 832-819-3529.

"We can't Protect Your Heart, But We Can Protect Your Rights!"