It is important to meet with an attorney to determine whether temporary orders are necessary in your family law case. Depending on your county, you may have Standing Orders that govern the conduct of the parties while the case is pending. Standing Orders are binding on the parties immediately and continue until the case is finalized unless specifically modified by the court.

Temporary orders can be very helpful in setting the tone for the case and making sure certain issues are presented and ruled on early on. Temporary Orders are not effective immediately and must be requested by a party. Hearing dates will be set according to the court’s docket and how full the calendar is.

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

Typical temporary orders related to children in either a divorce or child custody case include: (1) designation of conservators as either temporary joint managing conservators or temporary sole managing conservator / possessory conservator; (2) what the possession schedule will 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 if the county’s standing orders do not already do so.  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 Denton County, temporary orders hearings are typically limited to thirty minutes a side. In other counties, such as Dallas County, you are often given significantly more time for a temporary orders hearing.  (Post by Soheyla Dixon)

Divorce

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Any debts incurred during the marriage are presumed to be debts of the community.  Any debts incurred prior to marriage are the separate debts of the party who incurred them.  However, the party trying to argue a debt should be separate would need to prove the debt existed prior to marriage to prove its separate nature.

The only way a debt incurred during the marriage can be confirmed as a separate debt would be if there was a written agreement for the creditor to look only to the separate estate of the party, not to the community estate. One spouse applying for the credit individually is not the same as the creditor agreeing only to look to her separate estate for payment.

The court will divide debts as part of a “just and right” division of the entire community estate.  However, the court does not have the ability to influence a third party creditor.  Even if the court awarded a debt to a certain party, the creditor would look to the person whose name is on the debt to pay it (regardless of who the court ordered to pay it in a divorce decree).  Normally debts are either paid off with available assets or proceeds from the sale of property or the person whose name the debt is in takes it (but is often compensated with additional property to make up for it).

The court will look at the following factors when determining how to allocate debt in a manner that is “just and right”: (1) the spouse’s ability to pay; (2) the property securing the debt (if a party takes the property security the debt, that party takes the debt); (3) the relationship to the creditor (if wife borrows from wife’s family, she’ll end up with that debt); and (4) the party responsible for creating the debt.

It is extremely common for clients to have concerns about credit card debt the other party has accumulated.  If the charges on the credit card are for ordinary living expenses, those will definitely be considered community debts and will very likely divided 50/50.  (This doesn’t mean each is paying half of the credit card bill, it just means we are factoring in a 50/50 split of the debt into the division of the estate.)  If the wife is buying gifts for her boyfriend on the card, then she is most likely going to get hit with that debt.  If the husband is just a spender, it’s most likely going to be divided 50/50.  If someone is doing really insane, crazy spending, then they may end up taking a bigger portion of the debt.

Student loans will almost always go with the person who received the education tied to the student loans.   Secured debts generally go with the property to which they are secured.  For example, if the parties have a car with a loan, the spouse who takes the car will take the loan.  If that loan is in both parties’ names (or the name of the spouse not taking the car), the spouse taking the car will generally have to refinance into his or her own name within a certain amount of time.  If he or she cannot do that, then the car usually must be traded in or sold.

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In Texas, the grounds to have a marriage annulled are extremely narrow.  Specifically, a court can grant an annulment only if one of the following applies:

  1. One of the spouses was under the age of 18  and did not have the appropriate consent or a court order;
  2. One spouse was under the influence of drugs or alcohol at the time of the marriage, lacked the capacity to consent as a result, and the parties never lived together after the effects wore off;
  3. A party was permanently impotent at the time of marriage, the other spouse did not know, and the parties did not voluntarily live together after the other spouse learned of the impotency;
  4. The respondent used fraud, duress or force to induce the petitioner into marriage, and the petitioner has not voluntarily lived with the respondent since learning of the fraud or being released from the duress or force;
  5. One of the spouses is mentally incompetent, lacked the ability to consent to the marriage, and the parties have not lived together since the discovery of the mental disease or defect;
  6. The respondent divorced a third party within 30 days before the date of marrying petitioner, at the time of marriage the petitioner did not know of the divorce, and since discovery the divorce, the parties have not lived together; or
  7. If the parties were married less than 72 hours after issuance of the license, the marriage can be annulled only if filed within 30 days after the marriage.

If none of the above grounds apply, the parties cannot annul the marriage.  Although there are a few other situations where a marriage can be voided (incest, bigamy, a party is a minor, or one party is a current or former step-child of the other), most people looking to dissolve a marriage who cannot get it annulled will need a divorce.

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Unfortunately, the state of Texas is not very kind to stay-at-home parents in divorce.  Texas is a community property state, so anything made by the working spouse during the marriage is subject to being divided (usually 50/50).  This is great if the couple has been good about saving during the marriage.  If not, the stay-at-home-parent is really going to be in a bind.

Texas does not have alimony absent an agreement for contractual alimony between the parties.  Spousal maintenance exists, but it is very hard to get.  In order to receive spousal maintenance, a stay-at-home parent would have to prove that s/he lacks sufficient property to meet his/her minimum reasonable needs and s/he meets one of four statutory bases for spousal maintenance: (1) the spouses have been married for at least ten years and s/he is incapable of earning a sufficient income to meet his/her minimum reasonable needs; (2) his/her spouse was convicted of or received deferred adjudication for a criminal offense that constituted family violence against him/her or his/her child; (3) s/he is disabled and lacks the ability to earn sufficient income; or (4) s/he must care for a disabled child, which prevents him/her from earning a sufficient income.

As you can see, the criteria above are very specific and most stay-at-home parents do not meet any of them.  Did you give up your career so your husband could take a new job?  Not a reason for spousal maintenance.  Did you give up your career because your wife made enough money to support the family and you decided together that you would stay home?  Also not a reason.  Did you giving up your career years ago to raise the children mean you can never get back into that position again?  Not a reason.

A stay-at-home parent can expect to receive child support, assuming s/he is going to be the primary parent after the divorce.  However, child support is rarely enough to support the family.  The stay-at-home parent will almost certainly need to start working in order to have sufficient income to support him/herself and his/her children.

Divorce

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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.

Child Support

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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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