Child support is a critical element of a child custody case in Texas.  In the majority of cases, one party or the other does end up paying child support.  Here are several important factors to consider in determining whether or not you would have to pay child support (or if you would receive it) and, if so, how much that would likely be:

  1. What is the possession schedule?  If Parent A has primary custody and Parent B has a standard possession order or expanded standard possession order, then Parent B will almost universally pay guideline child support.  However, if Parent A and Parent B have a 50/50 schedule, then the issue of child support is not as clear cut.  If they have some other unique possession schedule, we would look at the percentage of time the child has with each parent and go from there.
  2. If there is a 50/50 possession schedule, what are the incomes of the parties?  There is nothing in the Texas Family Code about 50/50 possession or about what to do with child support when the parties have a 50/50 schedule.  However, I see 50/50 possession schedules on a very regular basis.  If Parent A earns a very high income (well over the child support cap of $8,550 per month in net resources) and Parent B earns a very low income or no income, Parent A will likely still pay guideline child support, even with a 50/50 schedule.  If Parent A’s income is not super high but Parent A makes more than Parent B, then we will usually see a child support offset.  That means we would calculate what Parent A would pay under the guidelines, calculate what parent B would pay under the guidelines, and the parent who makes more (Parent A) would pay the difference.   Sometimes with 50/50 schedules, parties will reach agreements on splitting expenses (daycare, extracurricular activities, etc.) instead of having one party pay child support.
  3. What are the child support guidelines?  The Texas Family Code provides guidelines for calculating child support.  To calculate child support, you simply multiple the paying parent’s net monthly resources (up to the cap of $8,550) times the percentage applicable.   The guideline calculations are easy if the paying parent has no other children to support.  Those guidelines are as follows:  1 child (20%), 2 children (25%), 3 children (30%), 4 children (35%), and 5+ children (40%).  If the paying parent has other children to support, there is a chart that shows the various percentages based on the numbers of children.  For example, a parent with one child in the current case and one other child to support would pay 17.5% under the guidelines instead of 20%.
  4. Can we agree to no child support?  That depends on a few factors, such as the possession schedule, the income of the parties, and whether there are extenuating circumstances that would weigh in favor of no child support.  I have seen many parties agree to no child support, but I have also seen a few judges balk at it.

The best way to determine whether or not you would need to pay child support (or whether or not you would receive child support) in any particular case is to speak with a knowledgeable family law attorney.

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This is one of the most frequently asked questions I hear during divorce consultations.  The answer is much more complicated than a simple yes or no.  There are several questions that need to be answered first:

  1. Is the house community property or separate property?  If the house was purchased by either one of you before the date of the marriage, or if either one of you entered into the contract to purchase the house before marriage, then it is separate property.  If your spouse is the one who purchased it before marriage, you are almost certainly not going to be able to keep the house, no matter how long you have lived in it.  If you purchased the house during the marriage, then it is community property.  If the house is your separate property, you can almost certainly keep it (provided you can buy out any reimbursement claims your spouse may have).  If the house is community property, you may be able to keep it, depending on your answers to the following questions.
  2. How much equity is in the house?  It is very important to know how much equity is in the house.  This is determined by how much the house is worth minus how much is owed on the mortgage.  If you purchased the house a year ago with very little down, then there is probably very little equity in the home.  If you purchased it 20 years ago, the equity is probably significant.
  3. Can you afford to buy out your spouse’s share of the equity?  Most of the time, the community estate is going to be divided 50/50, so your spouse is probably entitled to 50% of the house.  That money does not necessarily have to come from the house, though.  For example, if the equity in the house is $100,000, you need to have $50,000 somewhere to put on your spouse’s side of the ledger.  Perhaps there is an investment account that has $50,000 in it that can be awarded to the spouse.  If there is not another $50,000 out there, can you cash out enough money on the refinance to buy out your spouse’s share?  If you cannot afford to buy our your spouse’s share of the equity one way or another, the odds are very slim you will be able to keep the house.
  4. Can you refinance the mortgage into your own name?  In order to keep the house, if the mortgage is not solely in your name, you would have to be able to refinance it into your own name within a certain period of time.  I normally see anywhere from 90 days to 6 months after the date of divorce, although in certain rare situations I have seen parties agree to a longer period of time.  If your income is not sufficient to qualify for the refinance on your own, you will not be able to keep the house.  If you have been a stay-at-home parent, even if you recently started a job, you will most likely not have a long enough work history to qualify to refinance within the necessary amount of time.
  5. Can you afford to pay the mortgage on your own?  I always recommend against including expected child support in the budget when trying to determine if you can afford the house.  Too many people fail to pay child support in a timely fashion, and the child support could be modified down the road for a variety of reasons.

In the majority of cases, I see divorcing couples selling the house.   Sometimes, parties sell the house because everyone wants a fresh start.  Sometimes parties sell the house based on the answers to the questions above.

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Texas is a community property state, and all property belonging to either spouse is presumed to be community property.  Property that either spouse had before the marriage, along with any property either spouse received as a gift or through inheritance, is the separate property of that spouse.  The burden is on the spouse claiming separate property to prove it.  Although there are a number of ways of proving separate property, below are a few issues that commonly arise.

The longer a couple has been married, the harder it can be to prove what one spouse had before the marriage.  Most people do not keep financial records when they get married thinking, “I’d better keep this statement so I can show how much was in my 401(k) at the time of marriage just in case we divorce in 20 years.”  Often people switch jobs and 401(k)s get rolled over, sometimes multiple times, which can make tracing back to the beginning of the marriage a challenge.  The spouse trying to prove separate property will need to show how much was in the account at the time of marriage and that it never went below that amount during the marriage.

Certain types of property are easier to trace than others.  For example, if one spouse owned a home before the marriage, it is easy to look at the property records and show that he or she purchased the house before marriage.  Be warned, though, that if you ever add your spouse to the deed, it will likely be presumed that you gifted your spouse half of the house.  This seems to happen regularly when a couple wants to refinance a separate property house.

When one spouse receives a gift or inheritance during the marriage, that spouse will also need to trace the money in order to confirm it as separate property.  If separate property is co-mingled with community property, this can become more difficult to do.

Example A:  In 2004, Husband receives a $10,000 inheritance.  Husband puts it into a bank account in his name alone and never puts other money in that account.  In 2014, money from the account is used as a down payment on a house for the couple.  In 2017, the couple divorces.  Husband should easily be able to trace the down payment back to his separate property account with a cancelled check or confirmation of a wire transfer, plus proof of where the funds in that account originally came from.  His chances of receiving his money back from the down payment are high.

Example B:  In 2004, Husband receives a $10,000 inheritance and puts it into a joint bank account. Over the years, the parties deposit their paychecks into the account and pay their bills and various other expenses out of the account.  In 2014, money from the account is used as a down payment on a house.  In 2017, the couple divorces.  Husband will have a much more difficult time proving that the down payment came from his separate property inheritance.  He would need to hire a forensic accountant to trace the funds in the account, which could cost just as much as the separate property at issue.

Establishing separate property can be a difficult task if the parties do not keep good records or if they co-mingle funds.

The Draper Law Firm, P.C.

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In most courts in Collin, Denton and Dallas counties, mediation is required before you can have a final trial in a family law matter.  In some of the courts it isn’t required but is “strongly encouraged.”  In my opinion, almost every case is appropriate for mediation before you have a final trial.

Mediation is a confidential process that takes place outside of the courthouse.  The parties hire a neutral, third party mediator to help try and get the case settled.    Although some mediations occasionally involve an opening session with all parties, I have not seen that happen in a family law mediation in many years.  Each party sits in a separate room with his or her own attorney.  The mediator goes back and forth between the rooms to help the parties reach a settlement.  The parties usually won’t even see each other, unless they happen to cross paths walking to the restroom or the parking lot.

Mediation can be a very slow process.  Most divorces involving child custody issues will take a full, eight hour day.  Sometimes they can last well beyond eight hours if there are a lot of issues in dispute.  Cases involving only property issues can take less time unless there are significant property issues to address.  Although many mediators offer half day (four hour) mediations, it is extremely rare for a family law case to settle in that short of a time.

Although mediation can get expensive when you add up the mediator’s fees and attorney’s fees on both sides, it is usually a lot less expensive than going to trial.  Further, it is a great way to help get cases settled in creative ways.   Judges are limited in what they can order in a trial, but the parties can agree to all kinds of arrangements at mediation.

The vast majority of my clients are convinced that their cases  have no hope of settling at mediation, but the vast majority of those cases do actually settle at mediation.  Parties tend to think that if they cannot settle the dispute on their own, why would it settle at mediation?  But the reality is that mediators have jobs for a reason.  Their help can be critical to getting cases settled.

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When a couple divorces, one of the key issues is determining how property and debt should be divided. Often, one spouse or the other has handled the finances in the family and the other spouse has little or no idea what assets and debts actually exist.  In the vast majority of divorce cases, we will have the parties exchange what is known as a sworn inventory and appraisement.  Sometimes you will hear this referred to as an “inventory” or an “I&A.”

An I&A is a super long form that lists out all the assets and all the debts for the community estate and each party’s separate estate.  The list includes everything from real estate to retirement plans to jewelry to airline miles and everything in between.  It also includes all types of debts, such as mortgages, car loans, student loans, and credit card debt.  For most people, many sections on the list will not apply.

An I&A is more than just a list.  It details how much the asset (or debt) is worth on a given date, how much it was worth at the time of marriage (if it existed then), identifying information for an account, the nature of the account, etc.  Often we will have the parties included supporting documents to backup the information on the inventory.  This could include the most recent statement, a current snapshot of an account, an appraisal, etc.

Each party will swear that the I&A is accurate to the best of his or her knowledge before a notary, and then the attorneys will exchange them.  Because the inventories are usually very long,  I then take the information from both inventories and put it into an excel chart.  This allows everyone to easily compare the inventories and easily move assets or debts into different columns for dividing the estate.

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In Texas, grandparents have rights only in very limited circumstances.  The general rule is that the parents have a fundamental right to decide how much, if any, access a grandparent should have.  There are two different issues when dealing with grandparent cases:  (1) When does a grandparent have the ability to sue for custody? and (2)  When does a grandparent have the ability to sue for visitation?

Under the Texas Family Code, a grandparent has standing to sue for custody in a variety of ways.  First, the grandparent can sue for custody if any of the general standing requirements are met under Section 102.003(a) of the Texas Family Code.  These general standing requirements apply to all adults, not just grandparents, so in these situations the person’s status as a grandparent is not relevant.  Those grounds include: (1) a person with court-ordered visitation in another state or country; (2) the child’s guardian; (3) a person who has had actual care, control and possession of the child for at least six months; (4) a person designated as a managing conservator in an affidavit of relinquishment or given consent to adopt; or (5) a person who resided with the child and a recently deceased parent.  A grandparent also can gain standing under section 102.004(a) of the Texas Family Code if she has satisfactory proof that the child’s present circumstances will significantly impair the child’s physical health or emotional development.  The significant impairment must exist at the time suit is filed.

The standing rules are different when it comes to a grandparent just wanting visitation of a child.  In order for a grandparent to file suit for possession and access, the grandparent must prove that her son or daughter who is the child’s parent is unavailable.  This prong is met if the parent: (1) has been incarcerated for at least three months before the petition was filed; (2) has been judicially declared incompetent (3) is dead; or (4) does not have actual or court-ordered possession of or access to the child.  Essentially, it is presumed that if the grandparent’s child is in the picture, that person has the right to determine if the grandparent has access or not.  It is only when the child of the grandparent is out of the picture that the grandparent now has a right to file suit for possession and access.

If the grandparent can sue for possession and access under these terms and the child is with a parent, the grandparent must then show that the child’s physical health or emotional well-being would be significantly impaired if the grandparent is not given possession and access.  If a non-parent has custody, many courts have held that significant impairment need not be shown.  The grandparent must also prove that the parent or non-parent managing conservator intends to completely deny possession and access to the grandparent.

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Waivers of service are quite common in family law cases in Texas.  They do exactly what they say – they waive service of process.   A waiver of service does NOT mean that the other person is not contesting anything in the case.

When I am trying to approach a divorce, child custody case, or any other family law matter in the most amicable way possible, I almost always ask the opposing party to sign a waiver of service.  This means that we will not be having a constable or private process server take the petition and citation and hand it to the person.  Instead, the opposing party is acknowledging receipt of the petition, providing up-to-date contact information for the court, and saying that he does not need to be served.  The waiver of service must be signed before a notary and filed with the court.  I generally have the opposing party return the waiver to me for filing.

In general, I have no issue with someone signing a waiver of service.  However, if you are asked to sign one, you need to read it very carefully to ensure you are not waiving any of your other rights.   I have seen waivers prepared by other attorneys that say the person is waiving the right to be notified of any future hearings or things like that.  The purpose of the waiver should be solely to waive being served and to enter your appearance before the court, nothing else.

If you someone presents you with a family law petition and a waiver of service and you plan to hire an attorney, you do not need to sign the waiver.  Instead, take the petition to the attorney.  The attorney will answer on your behalf.  This still eliminates the need to be served.

Why would we want to eliminate serving someone?  There are a few reasons.  First, most people do not want to be served, especially at work.  Therefore, asking them to sign a waiver eliminates that potentially unpleasant experience and sets the stage for a more amicable process.  Second, it costs money to serve someone.  You need to pay the clerk to issue a citation (and maybe more, depending on the circumstances), plus you need to pay for service by either the constable or a private process server.  I almost always use a private process server, as I find it to be the most effective means of serving someone.  However, if the opposing party is difficult to find or dodges service, the costs can skyrocket.

There are times when I do not use a waiver of service and move straight to serving someone.  Most often this occurs when the client needs urgent relief through some type of emergency order and/or temporary orders.  If we need to set a hearing right away, we will need to serve the other side.

If you are presented with a waiver of service and have any doubts about what you are signing, it is best to contact an attorney before signing.

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In any family law case (divorce, child custody, child support, etc.), you may hear the term “discovery” used.  Although there are many kinds of discovery, this term is typically used to refer to formal, written discovery.  Common types of written discovery include a Request for Disclosure, Requests for Production, Interrogatories, and Requests for Admissions.

A Request for Disclosure is a standard set of questions that comes from Rule 194 of the Texas Rules of Civil Procedure.  It is used in all types of civil cases, not just family law, and therefore many of the questions are not relevant in a family law case.  There is some helpful information to be gained from a Request for Disclosure, such as a list of persons with knowledge of relevant facts, so it is still common to see this type of discovery in family law matters.

Requests for Production ask a party to produce documents or other tangible things.  There is no limit to the number of requests for production a party can request, and it can become extremely time-consuming for a party to gather the requested documents.  It can also be extremely time-consuming to review the documents produced by the other party.  Examples of commonly requested documents are tax returns, school records, medical records, diaries, e-mails and texts.

Interrogatories are questions that seek a written answer from the other party.  In most case, parties are limited to serving 25 interrogatories on the other side, so it is important to make them count.  Common interrogatories include asking for a list of trial witnesses, asking for information on medical issues, or asking for specific financial information.

Requests for Admissions ask the opposing party to admit or deny a certain fact.  I normally find that people will deny almost everything based on some type of technicality, so I don’t use Requests for Admissions too often.  There are certain cases where there are facts that you really want the other party to admit or deny, so on occasion these can be helpful.

In my practice, I rarely initiate written discovery.  Most often I feel it is an unnecessary expense for the client where a lot of needless information is sought.  If there is a document or information I need, most attorneys will hand it over voluntarily.  That type of informal discovery streamlines the process tremendously.  However, if the other party serves written discovery, I will always serve written discovery on that party.  Some firms make it a standard practice to use written discovery in most cases.   If you are served with written discovery, it is important to meet the deadlines to answer or any valid objections you may have will be waived.

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I recently became board certified in family law by the Texas Board of Legal Specialization.  Many attorney advertisements reference the fact that an attorney is or is not board certified.  I have to admit that until I started looking into board certification for myself, I did not even realize what it took to be a board certified attorney.  How hard could it be?  It seems like board certified attorneys are everywhere, so it cannot possibly be that hard, can it?

First, board certified attorneys are not as common as you may think.  According to the Texas Board of Legal Specialization website, there are over 100,000 licensed attorneys in Texas but only 7,450 are board certified.  There are twenty-two different specialty areas, so the number of board certified attorneys is any one area is significantly lower.

Next, when I started looking into the board certification process, I realized just how difficult it is to become board certified in family law.  No attorney can apply for board certification until he or she has been practicing for at least five years with at least three years in the specialty area.  However, given all of the requirements needed to become board certified, it takes most attorneys longer to qualify.

In order to become board certified in family law, the attorney must complete the following requirements just to be allowed to take the board certification exam:

  1.  The applicant must submit five references who are substantially involved in the practice of family law, with four being other attorneys and one being a judge before whom the applicant has appeared.
  2. The applicant must have 60 hours of Continuing Legal Education hours specific to family law in the past three years.
  3. The applicant must have devoted a minimum of 35% of her time to the practice of family law during the preceding three years (however, I think it would be difficult to achieve all of the requirements while only spending 35% of time on family law matters).
  4. Within the three years immediately preceding the application, the attorney must have completed the following:
  • Participated as lead counsel in at least 9 contested trials or binding arbitrations regarding family law matters, with at least four involving property issues and at least four involving appointment or modification of conservatorship;
  • Participated as lead counsel for a party or children in at least 30 contested family law matters that were finalized without a trial;
  • Satisfied at least two of three of the following:  (1) Participated as lead counsel for a party or children in at least two jury trials, with at least one involving family law; (2) handled an appeal and filed a brief as lead counsel in a family law matter; or (3) represented a party or children or served as a mediator in at least 25 family law mediations.
The application is extremely detailed, seeking information on the other attorneys involved in every case, the dates of mediation, the value of property involved in each case, the final disposition of the case, etc.  If the application is approved, the attorney is allowed to sit for the board certification exam.
I received notice that I could sit for the October 2016 board certification exam in the summer 2016.  At that time, I began asking other attorneys about the difficulty level of the test and how much studying would be necessary.  Surely someone who has practiced almost exclusively family law for the past several years would know most of the material on the test, right?  Wrong.  The test is extremely difficult.  Most attorneys I talked to recommended attending the annual Advanced Family Law seminar and said they spent hours each week for months preparing for the exam.  The attorneys I talked to who did not take studying seriously the first time around did not pass the test.  As a result, I attended the Advanced Family Law seminar, read all of the papers from the speakers (over 2500 pages, according to my iPad), and spent several months studying for the test.  The studying paid off, as I passed the test on the first try.  And, I can definitely say that all of the studying and preparation for the exam made me a far more knowledgeable attorney than I was before.
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This morning, I sat in a courtroom waiting to do a prove up hearing with a client.  There were six cases in line before us, and all of those cases were pro se divorce prove ups.  If a person is pro se, it means he or she is representing himself or herself.  When there is a pro se divorce prove up, we know that both parties were pro se.  Of the six cases heard before us, the judge rejected five of the orders, and those people did not get divorced today.  This particular judge took the time to tab all of the pages with problems and give a good amount of information to the parties.  However, in my experience, most judges will not do that.  Many judges will simply say they cannot give legal advice but they are not going to approve the order as written.  All of the problems I saw today would have been avoided if at least one party had an attorney.

There are an abundance of do-it-yourself divorce forms out there floating around.  Although most of them are probably technically accurate, they are very vanilla and cookie cutter.  The only time I would ever recommend someone attempt to do their own divorce is if there are no children and no property or debt.

In cases involving children, the pro se forms include cookie cutter standard language regarding custody and child support.  Although a couple may be fine with standard possession and guideline child support, there are many other options out there that pro se parties would never know exist.  Is a 50/50 schedule preferable in a particular situation?  Is there a reason why the parties should have something other than guideline child support?  An attorney would be able to help answer those questions and draft a custom order that best fits the parties’ situation.  The good news is that at least mistakes related to the children can be fixed because custody and child support can be modified down the road.

With regards to property and debt, if the parties do something wrong in the divorce decree or forget to include an important provision, after thirty days it cannot be changed absent very limited circumstances.  For example, Husband and Wife divorce pro se.  In the decree, they say Wife will keep the house.  They do not know that they should include a provision that the Wife must refinance the mortgage into her own name within a certain amount of time or the house must be sold.  So, there is no such provision included.  Several years down the road, Husband decides he wants to buy a house of his own.  Guess what?  He is still listed on the mortgage of the house owned by Ex-Wife, and he cannot qualify for a mortgage for another house.  Unfortunately for Husband, there is absolutely nothing he can do to force Wife to refinance or sell the house.  He is stuck. Similarly, if Wife does not pay the mortgage or gets behind, Husband’s credit will be negatively affected.  The mortgage company could even come after Husband to pursue the debt.  He never would have been in that situation if he would have hired an attorney in the original divorce.

Divorces involve extremely complicated issues related to both children and property.  It is simply not possible for pro se parties without knowledge of family law to properly deal with those complicated issues.  Unless you have no children and no property or debt, it is highly recommended that you hire an attorney to handle your divorce.  If you and your spouse are in agreement as to the terms, that is wonderful!  However, it is still a good idea to hire an attorney to make sure the paperwork is drafted properly and to make sure you are correctly addressing all important issues.

Divorce

 

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