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

Should You Negotiate Or Litigate Your Divorce?

When a husband and wife are facing the emotional and psychological turmoil of a divorce, a question that must inevitably come up is whether the parties should seek and out-of-court settlement or would they be better off taking the matter to trial.   This is probably the most critical question you will face in your divorce and there are pros and cons to each approach.

Letting the Judge Decide

If parties, cannot, or will not settle out of court, then the alternative is to let the family court decide.   A family judge is a county judge, but unlike district judges, they only deal with matters that fall under the Texas Family Code.  This judge is supposed to act with impartiality and without any preconceived ideas about your case until they have heard the evidence presented by each side.  Bringing a case to court has significant risks because you must convince a judge about every aspect of your case that you are trying to get from custody of your children to who gets the lawn mower.  Most people have a skewed idea of what court is about.  They think it is a stage in which they just have portray their spouse to be the worst human on earth and therefore they should give everything to you – “the good guy”.  But the fact is that such unfocused mud-slinging very rarely will sway a family judge one way or the other.  Parties really need to present their case in a way that will follow the strict rules of what can and can’t be said and at the same time prove each point in the case you present.  When you choose litigation, you are putting all your trust into your attorney that he will present the best case for you and in the court system that they will do the just thing.    This may the only option you have if the settlement offers from your spouse are less than what is fair and equitable and are far less than you think the judge would give you in court.  On the other hand, if the settlement offer is close enough to what you could reasonably get in court, and the high cost of taking it to court and the risk you face in that “all or nothing” game make it not worth the trouble of taking it to court, then parties should choose to settle it out of court.

Communication Is Key To Settlement

If you are one of the very rare few spouses who maintain good communication and respect through the divorce process then you may be able to settle matter on your own and perhaps you and your spouse may utilize your attorneys only in an administrative capacity to help make sure the legalities are done correctly.  However, in my experience, less than 1% of all divorce cases are resolved in this way.  Most couples lack communication and/or respect by the time they file for divorce, or they will lose this ability by the time the case reaches the negotiation phase.  For the other 99%, they lack the ability to communicate and cooperate.  Under these circumstances it may be nearly impossible to settle your issues and avoid court.  Fortunately that does not mean all these couples are fated to have a contested trial to end their case.    In Texas, there are a whole range of procedures to help couples who can’t communicate to nonetheless settle their case.  These procedures are called Alternative Dispute Resolution.  These are private meetings outside court system which are designed to bring about a mutually agreed settlement.  In divorce cases, we most commonly use a process called mediation, but there are many other procedures such as settlement conferences, mini-trials and arbitration that can be tailored to your cases’ needs.

Which Is Right For Your Case?

I believe that each client is an individual with unique needs, and so each divorce case is also unique and will be successful or not depending on the attention to those special details.   If you are facing a divorce, you should begin to think about those details.  Depending on where you are in the emotional process, this may be hard, but the earlier you begin to think strategically about your case, the better will be the outcome.  What are your plans for the future?  Will you remarry?  Do you plan to have any more children?  Will you purchase a new house?  Will you start a new job?  Money is always a very important issue in considering whether to go to trial or settle.  At the earliest stage, many people try to avoid attorneys altogether so save money.  What these people fail to understand about settlement and negotiation however is that it will only work if both parties are negotiating from a position of strength.  The threat of the other side winning everything at trial is what motivates people to settle before it gets to trial.  The only way for you to be able to have that strength is to hire a reputable, experienced attorney who is ready and able to take the case all the way- and win.  

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.