Most, if not all, of the courts in Collin County, Dallas County and Denton County require the parties to mediate before going to trial.  Even when mediation is not required, I almost always recommend to clients that they attend mediation.  Mediation allows you to come up with creative solutions that a judge could never order.  It also allows you to have control over the final result, which a trial does not give you.

Probably 90-95% of my clients are sure that mediation is pointless going in, as they know that neither party is going to compromise enough to reach a settlement.  Yet somehow 90-95% of the cases that I take to mediation end up settling.  There is a reason that mediators have jobs.  If the parties and attorneys could settle cases on their own, mediation would not be necessary.

Typically at mediation, my client and I sit in one room and the opposing party and his or her attorney sit in another room.  At most mediations, we never even see the other side.  The mediator (who may or may not be an attorney) goes back and forth between the rooms to try and help the parties reach a settlement.  By definition, the mediator is neutral.  If the mediator takes sides, he or she will almost certainly lose the ability to negotiate with the other side.  The mediator will often play devil’s advocate in both rooms.

In my experience, the best family law mediators are attorneys with extensive family law experience who know the judges and who know what the most likely outcome at trial is going to be.  They also have a very good grasp of the Texas Family Code to be able to guide the parties when they want something they would never get in court.

Mediation is a slow process.  Although some mediations can be done in half a day, I have been in mediations lasting anywhere from 8-13 hours for family law cases.  The mediators generally provide snacks and lunch.

Occasionally I hear from people who are interested in mediating without lawyers.  Although this may sound like a good idea in theory, it can be a dangerous proposition.  Mediators cannot give legal advice, even when they are attorneys.  This can really cause a party to be blind in the negotiating process, as he or she will have no clue what the law is or what he or she is really entitled to.

Overall, I think mediation is a wonderful process and very helpful in reaching amicable resolutions in family law cases.

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Often times family law cases involve one party with pending criminal charges.  I most often see this connected to a family violence allegation, but any type of pending criminal charge is usually relevant in a family law matter.  If a party has pending criminal charges that touch on the issues in the family law case, they can be very detrimental to that party’s case.

If a party has pending criminal charges, that party will almost certainly not be allowed to testify by his or her criminal attorney.  If that party does not have a criminal attorney yet, the family law attorney should know enough about criminal law to strongly advise the party against testifying in the family law matter.  Even if the party believes he or she is completely innocent and has nothing to hide, any criminal law attorney will still tell his client not to testify.  For one, the party’s testimony could be used against him or her in the criminal case.  If the party makes any type of admission related to the incident the basis of the criminal charges, it could mean jail time, a worse plea agreement, and/or a more likely conviction.  Even if the party does not make any admissions, if his or her testimony changes in any way by the time the criminal case rolls around, it will damage the party’s credibility and increase the chances of a poor outcome in the criminal case.

The party with pending criminal charges will have to invoke the fifth amendment and refuse to testify in the family law case.  While pleading the fifth amendment in a criminal case cannot be held against you, the same is not true in a family law case.  If one party pleads the fifth, the judge can hold it against that party.  As a result, whenever possible, if I am representing a client with pending criminal charges, I try to delay the family law case as long as possible in the hopes that the criminal case is resolved.  Once the criminal case is resolved, that party is free to testify in the family law matter.  That testimony can no longer be used against him or her in the criminal case.

Juvenile Defense

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Temporary orders can be entered in any family law case to govern what will happen with various different aspects of the case while it is pending.  Temporary orders can relate to both the child(ren) and other financial matters.

Typical temporary orders related to children in either a divorce or custody case include: (1) designation of conservators as either temporary joint managing conservators or temporary sole managing conservator / possessory conservator; (2) the possession schedule be for the child with each of the parents; and (3) whether child support will be paid and, if so, how much.

Examples of additional financial matters to consider for temporary orders in a divorce case are: (1) who will get primary use of the marital residence; (2) how community bills are going to be paid during a pending divorce; (3) whether or not one party will pay temporary spousal maintenance to the other; and (4) who will get primary use of any vehicle(s).

Temporary orders can also govern how the parties treat each other while the case is pending and what is said or done in front of the children.  Temporary orders can either be reached by agreement, or they can be ordered by a court after a hearing.  Temporary orders hearings are like mini trials.  In Collin County, temporary orders hearings are limited to twenty minutes per side, which can really limit what you can do.  In other counties, such as Dallas County and Denton County, you are often given significantly more time for a temporary orders hearing.

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Texas is a community property state, and there is a presumption that ALL property in the name of either party at the time of divorce is community property.  Certain types of property are classified as separate property, specifically any property owned before the marriage or any property received by inheritance or gift during the marriage.  The big problem here is proving the amount and existence of the property as separate.

For example, Husband had several 401(k)s from employers he had before the marriage.  At some point during the marriage, he rolled the 401(k)s into a new account.  He is able to show the creation of the account during the marriage and that the funds came from these other accounts.  The only way the husband can show by clear and convincing evidence that the money in the account is his separate property is to produce statements from right before the marriage and trace those accounts to their current location.  If the account has been rolled over and there is no paperwork from the prior account, this can be very difficult to do.   Husband would have a much more difficult time in this scenario if he had rolled the separate property accounts into an account co-mingled with community property.  Establishing what is separate and what is community in a co-mingled account can be extremely difficult.

If you happen to receive separate property during the marriage, either by inheritance or gift, it is advisable to keep that property in its own, separate account.  Once you co-mingle the funds, it can be hard to prove which funds were separate and which funds were community, especially if some funds have been spent or moved around.  It is also critical to keep records reflecting where the separate funds came from so you can prove that money is, in fact, your separate property.

Although very few people expect to get divorced, the bottom line is that many people find themselves in that situation some day.  The moral of the story is to keep records of separate property accounts going all the way back to before the marriage or to the date you received the separate property.

Divorce

 

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Therapists often find themselves involved in child custody disputes.  Either the therapist was involved before the parents filed for divorce, or the parents or the court may identify a therapist to see the children during the midst of their pending litigation.  However a therapist may end up in your case, it is important to remember that they are there to help your children, and they are not there to help your litigation, though they may serve this roll as well at some point.

Therapists are rarely trained in their education to know what to do when faced with a family involved in active litigation, and because of this lack of training, well-meaning therapists will often find themselves in a position where they are either making custody recommendations on their own accord out of a perceived belief that they are helping your child, or they are asked by an attorney or a Judge to make a recommendation regarding a parent’s possession and access.  However, it has always been unethical for a therapist to make custody recommendations, and now, it is in violation of the Texas Family Code as well.

104.008 of the Texas Family Code, which became effective on March 1, 2016, specifically states that therapists cannot make recommendations for possession and access, though they can certainly testify to their assessments, their observations, and their treatment plan for their client.  In addition, a therapist’s ethical code also prohibits a therapist from making assessments of someone that they have not evaluated, and this is the reason that a therapist cannot recommend supervised access, for example, for a parent who they have never met or only met in the realm of a parent consult.

So, if you are thinking about identifying a therapist for your child in the midst of your divorce or modification proceedings, I would encourage you to identify a forensically trained therapist who knows these limitations and how to best help your child, and potentially your case, by maintaining those boundaries; while actively involving both parents.  However, if you already have a therapist involved in your case, be sure that they are not asked to provide a recommendation and that they are discouraged from doing so in order to ensure that the significant information that they do have to offer your case is not tainted by a recommendation that they cannot make.ChristySchmidt

Christy Bradshaw Schmidt, MA, LPC

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Child Custody Evaluator/Expert Consultant

www.txfamilylawforensics.com

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A right of first refusal is a common term included in many divorce and child custody cases.  I highly recommend to my clients that they request a right of first refusal.  A right of first refusal provides that if the parent in possession will be unable to watch the child for more than a certain period of time while the child is not in school (or sometimes daycare), that parent must give the parent not in possession the first right of refusal to care for the child.

For example, Mom and Dad have a custody order that provides for a right of first refusal if the parent in possession will be unavailable for a period of four or more hours.  Mom is scheduled to have the child this weekend, but Mom has to work this Saturday from 9-4.  Mom is therefore unable to care for the child for a period of more than four hours.  Mom must notify Dad and give him the first option to care for the child while she is at work.  Dad has no obligation to care for the child during that time, but he will get the first choice.  If he says no, Mom is responsible for finding someone else to care for the child.

Parents can choose any length of time for the right of first refusal.  Some parents choose four hours, six hours, eight hours, overnight, or even a period of several days.

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Texas courts favor residency restrictions in child custody orders as long as both parents have shown the ability to parent the child.    In general, if a non-custodial parent asks for a residency restriction, the court is almost certain to restrict the custodial parent’s residence to the county of the court plus the contiguous counties.  However, the residency restriction would state that if the non-custodial parent moves outside of the zone, the residency restriction no longer applies.  For example, if Mom and Dad get divorced in Collin County and Mom is awarded primary custody, Dad can request that Mom (and the children)’s residence be restricted to Collin County and the contiguous counties (the counties touching Collin County).  If Dad chooses to move to California or Houston or even Tarrant County (which is not contiguous to Collin County), the residency restriction would no longer apply and Mom would be able to move anywhere she wanted with the child absent a new court order.  (If Dad in this scenario were moving to Tarrant County, he could likely get a new residency restriction in place to avoid Mom moving far away.  That would require a modification proceeding and a new order.)

If parents are awarded a 50/50 custody schedule, then a residency restriction will be placed on the children. The restriction would require both parents to live within a certain zone, which could be the county and contiguous counties, or it could be smaller.  With a 50/50 schedule, the zone is often smaller because both parents need to be conveniently located to the children’s schools.

Residency restrictions are extremely hard to get around if the other parent wants to be involved in the child’s life.  If both parties agree, you can have an order entered without a residency restriction.  However, if the parties do not agree, the custodial parent is almost certainly going to be stuck in or near the county where the court case takes place.

CPS

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Texas is a community property state.  All property acquired during the marriage that is not separate property is community property.  Each spouse shares an undivided one-half interest in all community property.  Examples of community property include wages earned during the marriage, retirement benefits earned during the marriage, real property purchased during the marriage, and any furniture or personal property purchased during the marriage.

Under the Texas Family Code, all property possessed by either spouse is presumed to be community property in a divorce.   Either party can rebut that presumption by establishing by “clear and convincing evidence” that certain property qualifies as separate.

Property is considered the separate property of one spouse if: (1) the spouse owned the property before marriage; (2) he or she received the property as a gift during the marriage; or (3) he or she inherited the property during the marriage.  However, any income earned on separate property is considered community property.

Characterizing community and separate property can be complicated if the parties have a lot of assets and one or both had assets prior to marriage.  However, an experienced family law attorney can help wade through the property issues to help determine how everything should be properly categorized.

Divorce

 

 

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Most (if not all) of the courts in Collin County require mediation before a trial in family law cases, including divorce and child custody cases.  Most courts in Dallas County and Denton County have similar rules in place.  Because I feel that in most cases a settlement is preferable to a trial, I almost always advise my clients to mediate, even if there is not a court order to do so.  When the parties cannot settle the case informally, mediation is a great tool to help reach a settlement prior to trial.  This saves the parties the financial and emotional costs of a trial.  In addition, the parties can agree to a variety of creative options in mediation that a judge could never order.

If your case is headed to mediation, your attorney should prepare a mediation statement for the mediator.  I always send mediators a letter explaining the issues in the case and where my client stands on those issues.  I set forth my client’s priorities and goals in the case and let the mediator know of any problems that I think could arise from the other side during mediation.  I also send the mediator the most recent offers made by each side, if offers have been made.  This helps the mediator jump right in at mediation without wasting time coming up to speed.

Mediation is generally a long and slow process.  You and your attorney will sit on one room and the other party and his or her attorney will sit in another room.  A neutral mediator will go back and forth between the parties to help facilitate a settlement.  Sometimes the mediator is in a room for fifteen minutes, and sometimes the mediator is in a room for hours.  Many mediations last a full day in family law cases.  Divorce cases with minor children usually take the longest because there are both property and custody issues that most be addressed.

The vast majority of the time my client is sure that the case has no hope of settling at mediation, and the vast majority of the time those same cases do settle.  Once a settlement is reached, the mediator will prepare a Mediated Settlement Agreement (MSA) for both parties and their attorneys to sign.  The settlement can dispose of all or some of the issues in a case.  The MSA is binding, and neither side will be able to change their mind later about the terms and back out.  After the mediation, one attorney (usually the petitioner’s attorney) will prepare a final order based on the MSA (if a full settlement was reached).  Depending on the type of case, one party may have to appear in court to prove up and finalize the final order.

Divorce

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There are certain aspects of a divorce decree that can be modified later and certain aspects that cannot.  Issues regarding the children (conservatorship, possession and access, child support, health insurance, and almost any other issues related to the children) can be addressed in a modification.  To modify, one party needs to file a Petition to Modify Parent-Child Relationship.  There is no waiting period for a modification, so if the parties are in agreement, a modification order can be entered almost immediately after the petition is filed.  If the parties are not in agreement, the case would follow the standard child custody case procedures.

You cannot, however, modify property or debt division from a divorce decree.  For this reason, property and debt division should never be tied to child support or custody issues.  (For example, if one party agrees to take a smaller piece of the pie in the property division in exchange for receiving higher monthly child support, this would be a huge mistake.  The monthly child support amount can always be modified later, but the person who took the smaller piece of the property pie can never go back and reclaim what was rightfully his or hers.)   This is also a very key reason why parties should consult with attorneys before agreeing on property or debt issues in a divorce.  I have seen it time and time again where someone makes a critical mistake with regards to property (usually a house) in a pro se divorce decree.  They have no way of fixing the problem down the road because you cannot modify a decree on that issue.

Divorce

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