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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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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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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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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There are two types of property in a marriage:  separate property and community property.  Separate property is defined as anything either spouse owned before the marriage or anything either spouse received during the marriage through inheritance or a gift.  Community property is any property owned during the marriage that is not separate property.  Property issues can be very complex, and this post is designed to give just a brief overview of a few issues.

In Texas divorce cases, there is a presumption that all property is community property.  In order to prove separate property, the proponent must establish by clear and convincing evidence that the property is separate.  It will generally not be enough for one spouse to simply claim that he or she had certain property before the marriage or that it was received as a gift / inheritance.  He must show records to back it up.  Below are a few examples of separate property issues and how a party could prove them.

Example 1:  Husband owed Home 1 prior to marriage.  Wife moves into Home 1 with Husband.  Two years later, the couple sells Home 1 and uses the $50,000 proceeds from the sale of Home 1 as a down payment on Home 2.  Home 2 is now co-mingled community property and separate property.  Husband must be able to prove (a) that he owned Home 1 as his separate property prior to the marriage, and (b) exactly how much money from Home 1 was put down for Home 2.  He could show that Home 1 was his separate property by producing a deed for the house dated before the marriage and showing him as the owner.  He could show how much money from Home 1 was put down for Home 2 through closing records from the sale of Home 1 and the purchase of Home 2.  Through those records, Husband has established a separate property claim for $50,000 in Home 2.  Husband would be entitled to a dollar for dollar credit for that separate property.

Example 2:  Wife has a separate property bank account before the marriage that contains $100,000.  The account is in her name alone.  Wife marries Husband and continues to have her paycheck deposited into the account.  Her paycheck is community property, and now she is commingling community funds and separate funds.  If Wife is making withdrawals from the account over time, Wife will need to providing a tracing of the account to prove her separate property.   There are a variety of different tracing methods used in Texas.  The most common is the “community out first” rule.  This provides that all withdrawals are presumed to be community so long as there are community funds in the account.  Wife deposits an additional $20,000 into the account during the marriage.  She withdraws money numerous times, for a total of $30,000 in withdrawals.  Under the community out first rule, the first $20,000 out would be the community funds.  The next $10,000 would be her separate property.  In the end, the community would have $0 in the account and Wife would have $90,000 in separate property.  There are other methods of tracing that could lead to a different result.

Example 3:  Husband and Wife are married for 30 years.  Husband receives an inheritance of $50,000 ten years into the marriage.  Husband deposits the $50,000 into the parties’ joint bank account.  Over the years, hundreds of deposits and withdrawals are made from that account.  Twenty years later, the parties divorce.  Husband is unable to provide tracing to prove what happened to the $50,000 because it was hopelessly commingled with community funds.  Husband is most likely out of luck in trying to keep any of the inheritance as his separate property.   The community property presumption will prevail.

Separate and community property issues can be complex and far exceed what can be put into a single blog post.  It is important to have an attorney familiar with the rules and the various ways to characterize property in order to ensure that it is done right.  It is also important to have an attorney who will help you understand the cost benefit analysis of trying to prove separate property.  Is it worth it to spend thousands of dollars on a forensic accountant to trace the money in an account?  Maybe.  It depends on the amount of separate property at issue.

Divorce

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Temporary restraining orders (“TROs”) can encompass a wide variety of issues in family law cases dealing with both property and children.  Often they involve allegations of domestic violence or abuse.  A temporary restraining order is granted without a hearing based on affidavits by the requesting party.

In most cases, TROs are requested at the very beginning with the petition is filed.  In that case, the judge will grant the TRO “ex parte,” which means that the other side, the respondent, does not have the opportunity to appear or respond.  The judge simply reviews the petitioner’s affidavits and determines whether or not the affidavits, on their face, provides enough to grant the temporary restraining order.  The respondent can attempt to dissolve the TRO once it is entered, but most often it is dealt with at the hearing.

Occasionally something happens during a case that makes one side request a TRO.  In that case, the attorney for the party requesting the TRO must notify the other side that a request for a TRO is being filed and give the other side the opportunity to appear before the judge and contest the entry of the TRO.  If the other side files for a TRO against my client, I quickly get my client (and any other relevant witnesses) to draft affidavits with their side of the story.  I then meet the other attorney at the courthouse when he is presenting the TRO to the judge.  I give the judge my affidavits and try to prevent the entry of the TRO, if possible.  In cases where there are allegations of abuse, the judge will almost always err on the side of caution and grant the TRO pending a hearing.  The judge just simply cannot take the risk that the allegations are true.

After a TRO is granted, the court must hold a hearing within 14 days.  If there is no hearing within the time limit, the TRO will expire absent an agreement or another court order extending the TRO.

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If I had a nickel for every post I saw in a Facebook group looking for an “aggressive” family lawyer or a “pit bull” of a family law attorney, I would be a rich woman.  These types of requests make me cringe.  Instead, I wish people would seek out a good, knowledgeable attorney who will look out for their best interests and help them resolve the case in the best possible way.

More often than not, “aggressive” does not achieve those goals.  I know a handful of other attorneys who I would put into the “aggressive, pit bull” category, and they are awful to work with.  I feel terrible for my clients when there is one of these folks on the other side.  It almost always means higher bills, more discovery, more time spent in court, and more heartache in an already difficult situation.  Sure, you may be mad at your soon-to-be ex-spouse, and you may want to go after him with guns blazing.  An aggressive attorney is ready to go with those guns blazing at all costs, but is that really in your or your children’s best interest?  Or, would you be better off reaching a reasonable, fair settlement and moving on with your life without wasting tens of thousands of dollars on attorney’s fees?

In my opinion, the ideal attorney will do a great job on your behalf in court, but she will also help you try and avoid going to court at all.  She will work hard to keep your costs down, help you understand the process, help you know what is necessary and what is not in terms of discovery and court hearings, help you understand the most likely outcome if you do end up in court, and help you settle the case, if at all possible.

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