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What goes into an award of spousal support here in Texas?

Texas appeals court asked to reconsider same-sex divorce case

Originally published by On behalf of Laura Dale.

The battle for equal rights for same-sex couples didn’t end when the Supreme Court quashed the Defense of Marriage Act in 2015. New sorts of battles — many of them related to the way that same-sex couples were treated in the past — were just beginning.

One of those battles is determining what exactly makes a marriage when your marriage isn’t recognized under the laws of your state. Same-sex couples who were in long-term, committed relationships that fall technically short of the definition of marriage only because the parties were of the same gender find themselves facing this question often when such a marriage comes to an end.

Why does the date of a same-sex marriage matter if the couple is splitting? It’s simply because the start and end of a marriage is both a social and a financial contract. The date of a marriage often informs issues like how much spousal support a dependent spouse is due or what assets are really marital assets and subject to division in a divorce.

Now, the Texas Fifth District Court of Appeals is being asked to grant a new divorce trial to a man who split from his partner of 15 years just prior to the Obergefell v. Hodges decision that made same-sex marriage legal throughout the country. A lower court said that no marriage existed because there was no legal same-sex marriage in Texas.

The plaintiff and his attorneys argue that the couple did everything short of legally marry. They say that since they were prevented from doing so by a law that is now considered unconstitutional, that shouldn’t prevent the court from treating their relationship as a marriage.

Cases like this will, unfortunately, continue to come up for a long time into the future. That’s why same-sex couples seeking a divorce are wise to look for attorneys who understand their unique concerns.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Social Media and Text Messaging: How technology impacts the evidence in a family law case

Social Media and Text Messaging: How technology impacts the evidence in a family law case

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

Towards the end of yesterday’s blog post from the Law Office of Bryan Fagan, we began talking about two of our favorite things as a society: text messaging and social media. I don’t say that sarcastically, either. Human beings love to communicate with one another. It’s just that in our day and age the way that we communicate with each other has changed. Change in the means of communication between people has something that has always occurred, but now that we are doing so via a third party (our computers/phones) how the communication occurs has changed in a significant fashion.

That brings us to today’s blog post. What has the impact been on family law cases from the changes in communication that we have seen occur over the past decade? Whereas even ten years ago text messaging was not nearly as common as it is today, in 2020 we text our friends and families more than we talk to them on the phone. If I were to take a guess, I would go out on a limb and say that you and I send ten times as many text messages as we do phone calls.

Since text messaging and social media posting are so prevalent there is likely to be a connection between these things and your family law case. With the assistance of an experienced family law practitioner, you can leverage your social media presence against that of your opposing party to accomplish goals within your case. However, if you are not working with an attorney who possesses knowledge of these issues and how to use them to help your case you are at a significant disadvantage.

Keep your personal information personal- don’t overshare online

You may be surprised to learn (or may not surprised, after all) that most people overshare information online when using social media. Something is comforting about these social media websites that allow us to let our guard down and share information that we may ordinarily keep closer to the vest. Being online is funny because we can connect to the entire world all from the safety of our homes. We feel so comfortable in our surroundings that the internet takes on a comforting feel to it.

The trouble begins when we start to cozy up to the internet and its social media websites. These are public forums, after all. Would you want to post about your latest night out in the Houston Chronicle? I don’t think so. So why would you want to post something potentially embarrassing on the internet? Anyone with a computer and a little bit of know-how can tap into your online profile and get a pretty good idea regarding what you are all about.

One of the first things that any family law attorney worth their salt will do once a new case is signed up is looking at your and your opposing party’s social media profiles. This is a great way to see if there is any evidence that can be used for or against either of you. Sometimes there are things that we can learn about a person that may have slipped your mind or that you felt to be irrelevant when speaking to your lawyer for the first time. If we see something that could be problematic to your case, we can talk about it early on and then do something about the problem before it hurts your case.

Be aware that who you network with online matters

Whether you use social media to post photos of your kids or to post photos of your nightly escapades around town, you need to be aware of the people that you connect with on the internet. While it seems like nothing important to ask someone to be an online friend, that decision can have serious impacts on your life later on. By friending someone, you are building a bridge that allows that person to put information up about you and include your identity within that post. When that post is a compromising photo or less than the flattering description that involves you, that is when seemingly little decisions can have big impacts on your case as a whole.

The big thing to keep in mind is that you could have blocked your opposing party from viewing social media profiles that you have, but that doesn’t mean that he or she cannot obtain worthwhile information about you anyways. For instance, go through your social media profiles and look through all of the people that you are connected to. Now, think about how many of those people that you are connected to are also connected to your opposing party. Probably more than you are comfortable with.

What you can do about this is take some time and protect yourself by blocking people that have relationships to your opposing party. That doesn’t mean that you have to block the person forever, it’s just that this is a good defensive measure for you to take in conjunction with your family law case. The reason why I advise folks to do this is that it doesn’t matter how your opposing party gets information about you online unless he or she has hacked into your social media profiles. If your ex-spouse gets his sister to look up compromising photos of you to use in your child custody modification case, then there is nothing wrong with that from a legal perspective.

What methods do people employ to get social media evidence for a family law case?

Here is where you can play detective regarding digging up dirt on your opposing party and their family. Usually, an attorney does not have to prompt a client to do so, but it would be a good idea for you to go online and start to look for information that may relevant to your family law case. For instance, if your spouse is attempting to win primary custody of your kids, a photo from a random weekday night showing that he’s out on the town engaging in bad behavior may seriously help your case. A series of photos from consecutive weeks or even months would be even better.

Some people, for whatever reason, will post online every single photo that they have ever taken of their children. This is all good and well if the photos are of your child walking or crawling for the first time, but I can tell you that most people do not limit their postings to just these kind of photos. Rather, many people will post photos of their child with alcohol in the background or from times where your child has been exposed to things or people that are probably not appropriate given the age of your child.

If all it takes is your spouse’s attorney asking him to go online and look for compromising photos of you on social media, what’s to stop him from doing just that? You need to think about anything that you have done online that you may now regret. The good thing about social media is that you can control what goes up and what goes down. If you have a friend who you know always posts every photo from nights out socializing, you may want to contact that person to ask them to not “tag” your name in any photos or status updates that may put you in an awkward position.

Here is what your attorney will be doing (and what your spouse’s attorney will be doing to you): logging onto their own social media profiles and conducting simple searches of your spouse’s name. Whatever comes up will be a part of the research that is being conducted. If nothing can be found on social media websites, Google is the next logical place to go. You may as well as Google your name and see what pops up. Odds are it will be pretty benign but if you find something that puts you in an unfavorable light. Report back to your attorney about what you have found.

Text messages as evidence in Texas family law cases

Let’s jump subjects and talk about how text messages are often used in family law cases in Texas. If you have text messages on your phone that put your spouse in a negative light you should do your best to not delete them. Judging from working with past clients, most of you going through a divorce have photos or text messages of your spouse on your phone that at least make him or she appear to be a really bad person.

Some of the things that these folks have said via text messages are enough to make your toes curl. I think it has to do with the ease by which you can communicate something. There is no friction between your brain, your fingers and the keyboard for your phone. In a matter of seconds, you could write and send a text message that paints you in a terrible light. At least in the old days, it took a little more thought and effort to communicate with one another. Those added seconds likely did a great deal to prevent not well thought out messages from being sent to other people.

From a technology standpoint, all you would have to do is figure out how to take a “screenshot” of your phone when a specific text message or string of text messages are up on the screen. You can take a screenshot of the text message, save it to your phone and then send it to your attorney. Let your attorney take a look and decide as to whether or not it is something that can be used in your case.

Why are text messages important to your family law case?

Text messages are evidence just as much as paper documents can be evidence. You can use text messages to catch your spouse in a lie during a trial or temporary orders hearing. For example, if your attorney asks your spouse if she has ever threatened you and she says no, your attorney can catch her in a lie by introducing a string of text messages that show her making threats towards your safety and well-being. Since text messages are sent so easily I think they are more reliable and trustworthy a source of information. The reason being that we don’t have an opportunity to think about a text message before sending. We’re more likely to be honest, in other words.

Another way that you can use text messages or social media posts as evidence is to prove that your spouse was at a particular place when he is denying being there. A party where people were doing drugs and engaging in other bad behavior should not be a place for someone with kids. However, if your spouse is shown to be at a party like this on a weekend when he had your child it can be especially damaging to his case. Keep this in mind as you engage socially after your family law case has already begun. It may be wise just to keep to yourself and to stay at home during your case.

How do social media posts and text messages become usable evidence? Find out tomorrow

In today’s blog post we talked about text messages and social media posts and how they can impact your family law case. All of this discussion is theoretical unless you can obtain evidence and have it admitted into the record of your case. That is what we will talk about tomorrow when we pick up where we left off today.

In the meantime, if you have any questions about the material that we covered in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week here in our office. These consultations are a great opportunity to ask questions and receive direct feedback about your case. We pride ourselves on representing clients to the best of our ability and believe that the successes we achieve across the family courts of southeast Texas are unmatched elsewhere.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Want to resolve your Texas family law case outside of court? Remember these rules of engagement

Safety, Substance Abuse and Mental Health: Helping yourself through a Texas family law case

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

Family law cases are among the most difficult of all areas of the law because of how intimate the subject nature is. True, you may not be worth millions of dollars like a multinational corporation but your family case deals with subjects that are more important than money. Your marriage, your children, your personal behaviors and that of your spouse are all relevant in a family case. While an investment banker’s work habits may require some embarrassing information to be disclosed in a trial, nothing compares to having to discuss your marriage to a room of strangers in a divorce trial.

Sometimes the material that is relevant in a family law case is more than just intimate or embarrassing. On occasion there is subject matter that relates to family violence, the safety of your children and even mental health disorders that become a huge part of family law cases. In these situations, you need to be able to know what to expect to encounter when dealing with problems associated with matters that are best kept private but are nonetheless relevant to your current family law case. Whether you are concerned for the well-being of your kids, yourself or even your soon-to-be ex-spouse I want to share some tips on how to handle these sorts of circumstances in your own family case.

What to do when you are worried about the safety of your children

If you find yourself worried about the safety of your children there is no time to waste in attempting to do something to remove those concerns from your life and theirs. Imagine being in a position where you had suspicions or thoughts about a hazard in your child’s life but did nothing to remedy that hazard. The next thing you know, something bad happens to your child and you end up blaming yourself for having identified a problem but having done thing to stop that problem from impacting your child.

This happens all too regularly with family law cases, I am afraid to say. For some reason our instincts as parents are inhibited by all of the hoopla associated with a family law case. This is ironic because at the core of what you are doing, no matter if it is a divorce or child custody case, is a desire to improve the lives of your children. The best advice that I can give to you is that you can improve your child’s life by addressing any concerns regarding safety immediately after you learn about them.

First and foremost, concerns about your child’s safety should be addressed by police and Child Protective Services (CPS). It is probable that the police will contact CPS anyways, but you should see to it that the police are aware of any concerns that you have for your child’s well being. If your child comes home from their mother’s house and tells you that her friend is acting inappropriately, your first step should be to talk to your child about any incidents that have occurred. Next, contact the police if that voice in your head tells you to. Better to be safe than sorry.

You need to know that if your spouse has a history with CPS, that will be an especially relevant bit of information that will need to be discussed with the judge. Family violence is a serious subject as judges want to, above all else, keep your children safe. Any words that you or your spouse use towards one another that could be construed as violent or threatening can and will likely be brought up again.

What does this mean to you on a practical level? Well, for starters, you need to get into the mindset that anything and everything that you say can be recorded and documented. This means those words can be taken out of context, potentially, and used against you and to the advantage of your spouse. Meaning: choose your words carefully. Especially choose how you text and email your spouse. Take a moment before responding to a particularly mean or nasty email to consider how your response can be utilized against you by your spouse.

Next, certainly never put your hands on your spouse for any reason. Even if you are justified in touching your spouse do not do it. Remove yourself from any situation that may rise to violence, animosity or anger. It is not worth it to you to be involved in any discussion that is heated. Use your attorney to convey difficult messages if you don’t believe that your spouse can be respectful of you and your opinions. Even if you are merely defending yourself, it can be a disaster to your case if you were to injure your spouse (especially if you are a man).

One thing that I have seen in recent years is people fighting over cell phones. Grabbing for a phone to see if someone has contacted your spouse or for any other reason can be dangerous. Mostly because those sort of actions can quickly escalate and lead to further use of violence or at the very least coarse language. Nothing contained in that phone is worth potentially losing time with your kids over- or even going to jail for. Be aware of your surroundings and do what you can to de-escalate any situation that you believe could lead to heated tempers.

Is protective order relevant to your situation?

A lot of clients ask about protective orders at the beginning of a child custody or divorce case. The thought being that one could potentially serve the purpose of de-escalating potentially dangerous situations. A protective order can serve a purpose when family violence has occurred in the home recently and that the violence is likely to continue but for the obtaining of a protective order.

If you get a protective order against your spouse that can be severely detrimental to his case in a divorce or child custody matter. You would need to decide whether or not to pursue a protective order that protects you and your kids or just you. While in today’s world we do not ordinarily consider these situations all that often, the fact is that men can be abused, as well as women. Think about all the information we are told about how women are reticent to come forward with details about abuse that they have suffered. The same can be said for men. Men are typically even less willing than women to come forward with details about abuse that they have suffered.

Handling issues regarding mental health in conjunction with a family law case

These are two subjects that come up all the time in family law cases. In some cases they are the primary reasons why there are child custody issues or circumstances that have led to discussions about divorce. Whether your spouse has been diagnosed with having a mental impairment or other mental health difficulty, or you suspect him or her of having a condition like this, mental health problems shine through brightly in many family cases.

Do you suspect your spouse of being bi-polar, having anxiety or being depressed? Some clients of mine in the past have commented that their spouse must be bi-polar considering how hot and cold he/she is. One minute they could be having a conversation together, and the next minute that same spouse could have grabbed a knife to attack our client. Behavior like this that is inconsistent and aggressive can be downright dangerous.

Another problem that clients frequently run into are issues related to a parent’s inability to take their medications as prescribed. The result is comments that relate to how good a parent your spouse might be when he or she is taking their medication, but if that medication is not taken as prescribed your spouse may be the most disagreeable person on earth. It is understandable to not want to take medication when those medicines cause you to feel out of sorts, but that concern needs to be balanced against the desire to keep your safe.

Finally, you need to speak to your attorney about your own history involving drugs and alcohol. The reality for many parents is that if there is a history of drug or alcohol abuse, you probably do not want to share those details with anyone. However, the worst thing that you can do is to keep that history a secret until a mediation or hearing date. Having your lawyer blind-sided by an opposing attorney who disclosed a history of drug and alcohol abuse is not a good plan to have.

Beware of back and forth bickering

Sometimes it is inevitable that you and your spouse will get into an argument. That happens even in the best functioning of marriages. Those arguments usually go nowhere and just leave everyone involved stressed to the max and angry that the discussion was ever started in the first place. Many times, we can see these discussions/arguments happening ahead of time and it takes a little bit of self-control to simply avoid them altogether.

There is nothing more awkward and potentially detrimental to your case to get into an elaborate game of bomb throwing in a courtroom. It typically will happen like this: both you and your spouse have allegations that the other acted inappropriately, was emotionally abusive or generally did something that was harmful to the kids. You then use your time on the witness stand to defend yourself and then hurl a few bombs her way.

What this ends up being is a back and forth game of unsubstantiated allegations. Instead of using your time productively to testify credibly for yourself and against your spouse, you are going to alienate your judge and distance yourself so far from the facts of your case that you may have trouble getting back on track. I have seen this happen many times in other cases and even in my own cases. Emotionally it may be satisfying to fire back at your spouse when he or she makes allegations against you, but in the long run that sort of behavior rarely if ever turns out to work to your advantage.

The people in your life that you trust are there to be your support system

We all have moments in our lives that require the support of others. Whether it is during a difficult family law case, a death in the family or the loss of a job, we cannot always be at our best. It is during those times that we rely on others to prop us up and support us. With that said, keep in mind that there is nothing wrong with doing so. At some point in the future it is likely that you can repay that person by being there for him or her when they need you.

Remember, also, that your mental and physical well-being matters. Staying in a marriage for the sake of your kids is noble, but ultimately self-defeating. Your kids deserve a parent who is at their best. You cannot be at your best when you are involved in a marriage that is emotionally

unfulfilling or worse yet- violent. We will discuss this topic when we pick up where we left off today in tomorrow’s blog post.

Questions about family law cases in Texas? Contact the Law Office of Bryan Fagan

The attorneys with the Law Office of Bryan Fagan would like to express their sincere appreciation for your interest in today’s blog post. We post articles like this every single day in order to share some of the knowledge that we can have gained through serving people in our community just like you.

In order to speak to one of our licensed family law attorneys about your case, please do not hesitate to contact us today. A consultation at our office is absolutely free of charge and can go a long way towards helping you better understand your circumstances and how to help your family and yourself.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Mediation and its impact on your Texas Child Custody Case

Mediation and its impact on your Texas Child Custody Case

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

It has become a trend in recent years for courts in southeast Texas to mandate that parties must attend at least one session of mediation (and likely more) before they ever are able to have their case presented in front of a judge during a trial. As far as alternatives to having to go the “distance” in a contested child custody case, mediation is at the top of the list as far as places to go when you need a resolution to your case.

The benefits of meditation are many. You and your opposing party are able to take an active and participatory role in the process that will determine the outcome of your case. This is the case to an extent in a trial, but keep in mind you are only able to present evidence once you get in front of a judge. It is the judge who will be making the final decision in your trial.

Domestic violence and mediation in Texas

Child custody cases that involve domestic violence can be especially troublesome when taken in the context of mediation. For one, if you are the victim of acts of domestic violence as perpetrated upon you by the opposing party in your child custody case that you may not be able to negotiate to the fullest extent possible. This is often times the case because you are not only fearful of your own well-being during mediation but can also be “under the thumb” of the opposing party due to their role in supporting you economically. If you haven’t worked in a decade or more, how freely can you negotiate in mediation knowing that your well-being is tied up in the other person paying your bills?

It is for this reason that the requirement for you and your opposing party to mediate your case is waived in many southeast Texas courts when family violence is an issue. Furthermore, even if the requirement to mediate your case is not waived automatically due to family violence being involved, it can happen that if you object to having to go that the objection will likely be upheld by the judge.

In cases where there is domestic violence that has occurred between you and your opposing party do not be surprised if the judge takes extraordinary steps to ensure your protection. I have seen judges appoint third parties to attend mediation as an extension of the court in order to help prevent additional acts of violence from occurring. Many judges have “go-to” mediators who have specific experience one expertise in handling cases where there have been acts of domestic violence perpetrated by one party against the other.

If you have been the victim of family violence it is ultimately up to you whether or not you will attend mediation in your case. Some people believe that there are still benefits to be had with the process if, in fact, you feel that you can negotiate freely, considering the circumstances. On the other hand, you may feel constrained for multiple reasons and can choose to opt out of the mediation requirement of your court. Either way, this is a decision that is fact-specific and ought to be discussed at length with your attorney prior to arriving at a final decision.

International divorces- how where you’re from can impact your Texas divorce

In a city like Houston, it is not at all uncommon to encounter families who have one or both parents born internationally or at least have roots in another country. You may be in a position where you are currently living abroad while your spouse lives here in the United States. Or, you both may live here in the United States but you could own property in foreign countries. Your having had children may have created opportunities for you to visit family abroad more often. There are certainly numerous ways that your family could have international ties.

Family law in Texas becomes a tad more complicated when you consider the implications of an international divorce. The more diverse the set of facts and circumstances, the more crucial it becomes for you to be able to sort through them in a logical and clear-headed manner. In today’s blog post from the Law Office of Bryan Fagan, we will discuss this topic in greater detail.

What are the main issues relevant to an international divorce?

From my experiences, there are basically six topics that we have to discuss that relate in some way to an international divorce. Those issues would be jurisdiction, service of process, choice of law, discovery, property division and then the enforcement of the orders that are arrived at in the child custody or divorce case. While we can say with some confidence what the issues are that we need to discuss, the fact that they are all interconnected can make things more complicated.

Let’s take each of those six issues and discuss them in greater detail.

Jurisdiction- who gets to decide what?

If you are like most people who go through a divorce, you are likely chomping at the bit to have the important questions of your case decided. Who gets what property? How much child support are you going to have to pay? To what extent will you be able to see your children? These are all relevant questions that need to be answered. Unfortunately, they are questions that cannot be answered without first determining whether or not Texas has jurisdiction to hear the case. If, in fact, the state of Texas lacks jurisdiction to hear your case then you are in a position where you need to figure out what venue is appropriate.

Simply put, jurisdiction refers to a court’s authority to make rulings and issue orders in a specific legal matter that is brought before it. These rulings, in a divorce context, are usually tied to property rights and child custody. In an international divorce, you not only have to contend with the questions of whether or not Texas has jurisdiction over your case but whether or not any U.S. state has jurisdiction over your case.

Personal jurisdiction is the first issue that we have to tackle. Ask yourself whether or not you and your spouse have sufficient ties with Texas in the event that it is here that you want your case to be heard.

Next, you will need to determine whether or not a court in Texas has the authority to handle your divorce case and all the issues that are connected to it.

Finally, it could be the case that Texas and another jurisdiction both have equally strong claims to hearing your case. In that event which court should and would your case be heard in?

From the beginning of your case until its end, these are the dominant themes and questions that you will be asking yourself. The difficult part of the process is that determining jurisdiction is not always a straightforward issue. A judge in Texas may have jurisdiction over your case while a judge in another country may have an equally strong claim to having jurisdiction. In those type of situations, you and your attorney will need to determine where your case ought to be filed from a strategic standpoint.

What country’s laws should apply to your international divorce?

Family laws differ significantly from state to state in our country so I’m sure it wouldn’t surprise you to find out that the laws of divorce can vary even more so from country to country. Once you have determined which court will actually be hearing your case the next question that needs to be asked is what set of laws will be determining the contested issues in your case.

First of all, how will you file for divorce? Do you need to assert “fault grounds” for your divorce? Texas allows you to file for divorce for any reason under the sun- including no particular reason at all. However, some foreign countries do not allow you to do so. Will you need to prove adultery or domestic violence in order to get your divorce if you have to file in an international divorce?

Next, does the law of the country that will govern your divorce require that you divide the property up in your divorce along with a 50/50 basis? Texas is a community property state that, absent other circumstances, will usually require a fairly even split of the marital assets (property that came into being during the course of your marriage).

Will prenuptial or postnuptial agreements be honored?

The concept of prenups has become fairly well known through our popular culture in the United States. Coming to an agreement with your spouse-to-be while you are still on good terms regarding certain property related issues is a good idea in the eyes of the State of Texas and property agreements like this are honored in most cases.

This may not be the case for your foreign courts. When considering where you should file your divorce and attempt to establish jurisdiction this is a question you need to ask yourself: whether or not you have come to an agreement on a premarital or post-marital agreement. If you have done so it would be unwise to file for divorce in a jurisdiction that would not honor the agreement.

Spousal maintenance: to pay or not to pay?

If you are in a position where you will need to be requesting spousal maintenance be paid from your spouse to you at the conclusion of your divorce you need to do your homework to determine what laws are most favorable in this regard. Texas only recently began to allow judges to impose orders regarding the payment of spousal maintenance. Even then, these payments are typically only allowed for a relatively short period of time and under limited circumstances. The length of your marriage, for instance, must be at least ten years and you must also show that you cannot provide for your minimal basic needs otherwise.

Service of process issues for international divorces

Typically, when you file for divorce in Texas you will have a constable or private process server pick up the divorce paperwork from the courthouse, drive out to your spouse’s residence or business and have him or she served personally with notice of your lawsuit having been filed. The process can take a few days but it is typically a low-key and simple transaction to complete. It is important, nonetheless, because your case cannot proceed without your first having provided notice of the lawsuit to your spouse.

There are international treaties that are in effect that govern how you can provide notice to any person who is a resident of a country that has signed on to that treaty. While the United Nations has a treaty in place that governs this subject, each member nation interprets its contents a bit differently. From personal experience, I can tell you that this step is one that can delay a case for weeks and even months. You are best served by hiring an attorney who knows how to quickly and correctly serve an opposing party with an international service of process.

More on international divorces to be posted tomorrow

In tomorrow’s blog post from the Law Office of Bryan Fagan, we will discuss more issues related to divorce from an international perspective. In the meantime, if you have any questions about the material that we have covered please do not hesitate to contact the Law Office of Bryan Fagan. We offer free of charge consultations six days a week with one of our licensed family law attorneys. It would be an honor to meet with you to discuss your case and answer any questions you may have.

Our attorneys and staff share a commitment to putting your interests ahead of our own and to provide the best legal representation of any family law attorneys in southeast Texas. To find out what sets us apart from our competitors please give us a call today.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Child custody essentials for Texas families

Co-parenting your way through a child custody case in Texas

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

Many people who go through child custody cases do so with the initial motivation to not have to live with their child’s other parent. There are always reasons for this but they tend to be fairly similar across the board: money fights, infidelity, etc. The fact is that people seem to be less and less likely to work on a failing relationship and instead opt to exit.

The ironic part about ending your relationship with your spouse or significant other is that if you have a child with that person you will actually be working closely with him or her on parenting your child after the case is over then you may have been doing before.

Co-parenting is one of those phrases that is used a lot these days by therapists, attorneys, and judges. It is a term that basically indicates two people coming together to parent a child who is not married or otherwise in a committed relationship. It’d be like if two business partners decided to adopt a child and then had to make decisions about raising the child based on a business agreement. In many ways, your Final Decree of Divorce or Final Orders in a Suit Affecting the Parent-Child Relationship (SAPCR) is exactly that.

Today’s blog post from the Law Office of Bryan Fagan will focus on your ability to co-parent your child with your ex-spouse after your child custody case has concluded.

Conflict can be minimized if you put your best effort into co-parenting

It is healthiest for your child when you do your best to work with your ex-spouse during and after your child custody case in order to make decisions together that are in your child’s best interests. Keep in mind that if there has been a history of domestic violence, substance abuse, a history of cooperation issues or even a significant distance between your residences, co-parenting may not be possible. However, for most of you reading this blog post-co-parenting is not only possible it is essential to your being able to give your child his or her best opportunity to be raised in a stable environment.

The comparison I used in the opening section to this blog post, that of a businessperson being compared to a parent, is actually quite apt in my opinion. It is hard to think about yourself, not as a loving caretaker, but rather as an objective, results-oriented businessperson but that is what you become once you enter into a family law case. The rules that govern your relationship with your ex-spouse and your child are written in black and white almost as if it were a business contract. It is, in fact, a contract of sorts between yourself, your ex-spouse and the judge.

Communication is the key to any good relationship. It may not be possible at this stage to communicate as effectively as you would like with a person who you are divorcing but it essential that you make an effort to start anew for the betterment of your child. If you can be positive with your ex-spouse about your efforts to co-parent each of you will be better served in doing so. Not only will your final orders require that you behave in such a manner, but the well-being of your child demands that you make an attempt to act civilly.

Conflict is normal- don’t be normal

If you were to ask a judge if it were normal for two divorcing parents to not get along with one another the response would surely be that, yes, it is normal. That normal back and forth of arguing, anger and conflict work against the successful resolution of a case and can also harm your relationship with your child. In these situations, it is worth noting that it is those parents who can be “weird”, set their differences aside and do what is best for their child that judges will give the most latitude to in terms of possession arrangements. If you display an unwillingness to co-parent it may be that your possession schedule is by the book and very rigid.

Most counties in southeast Texas require divorcing parents to attend, either via the internet or in person, parenting courses that will teach you how to approach your ex-spouse in terms of co-parenting. Setting aside your differences and approaching your new relationship as one where your only objective is to do what is best for your child is what I find parents do the best with.

How will a judge determine your ability to co-parent?

No matter how strongly you dislike your soon to be ex-spouse, a judge will not care about your feelings towards him or her as far as your own pride or hurt feelings are concerned. Rather, the judge will view your relationship with one another as a means to best raise your child. The question remains: how will the judge view you and your ex-spouse as a team in raising a child together?

Do you and your ex-spouse work together to make decisions that are in the best interests of your child? Have you displayed an ability and willingness to set aside time to talk to one another about the issues that are affecting your child’s life? If you can report that you and your spouse talk on the phone weekly about activities the child is involved with, changes in your work schedule that affect drop off/pick up times, and subjects like these it is more likely that your judge will view you and your spouse in a favorable light.

Next, what kind of restraint are you able to show your ex-spouse when you are feeling upset with him or her? It is easy and can feel good momentarily, to lash out in anger at your spouse while the divorce case is going on. I have heard many stories about spouses leaving nasty voicemail messages, text messages or saying mean and spiteful things to one another during a divorce case. The pressures of the case can be significant so it would be understandable to want to lash out at one another. However, if you can show restraint and civility you will earn points in favor of your case with the judge.

How often have you used your child as a messenger or go-between? Obviously, if you are the parent of an infant or toddler this probably hasn’t come up very much, but if your child is over the age of six it can be tempting to tell your son something so he can repeat it to your spouse when he goes over to his house for the weekend. This may be easier on you, but it is not a good position to be putting your child into. Furthermore, the judge does not want you and your spouse involving your child in this aspect of your case. In today’s world, we do not suffer from a lack of means to communicate information. Even if you do not want to speak directly to your spouse, email, text messages, and parenting websites make communicate easier than ever. Do not use your child to communicate updates or messages when you have a variety of means available to you in order to do so.

Next, I would ask yourself how willing you are to support your child’s relationship with your soon to be ex-spouse. This does not mean that you have to sing your ex-spouse’s praises to your child every time you see him or her. What it does mean is that your being respectful of your child’s other parent can not only build up that person in your child’s eyes but can also build yourself up. Your child is learning from you how to treat other people. If you can act respectfully towards your ex-spouse it is likely that you will act respectfully of all people. Your child will feel that it is appropriate and encouraged that he has a relationship with both you and your ex-spouse.

Finally, you need to be aware of your ex-spouse and their desire to be updated about changes in a child’s routine or daily habits. For instance, if your child has been having problems eating certain foods or has had a bad reaction to a certain sunscreen that information ought to be included to your ex-spouse. Not only is it harmful to your child it shows a lack of respect by not addressing these issues with him or her. Furthermore, if you know that your ex-spouse is taking off of work to attend a school function or doctor’s appointment you should inform him or her immediately if you are told that there has been a time change or something like that. Failing to do so can cause a great deal of animosity to be directed your way- and rightfully so.

Where do you want to live once your divorce is over with?

In today’s world, it is common for people to pick up and move at the drop of a hat. Jobs are no longer tethered as tightly to one specific location. Many employers prefer that employees work remotely and therefore have little preference as to where you live. Telecommuting seems to be the wave of the future in many jobs and sectors of the economy.

It is possible to co-parent despite living a fair distance away from your ex-spouse. Communication has never been easier with cell phones, text messages, emails and the like prevalent even among those (like myself) who are not overly tech-savvy. Whether or not a judge will allow you to move a long distance away from your child’s primary residence, or to move with your child away from your current location, is a question that depends on the specific circumstances of your case.

For example, wanting to move in order to “start fresh” or establish roots in another place are not good enough reasons in and of themselves for moving. Not only are you decreasing the stability and consistency in your child’s life (at least temporarily) but you are also causing there to be a potential rift in your child’s relationship with your ex-spouse. It would not be fair to be able to move your child away from their home and your ex-spouse for no other reason than merely wanting a fresh start somewhere new.

Next, the age of your child would need to be considered. If your child is young and has not yet started attending school on a full-time basis the chances of a judge allowing you to relocate after a divorce are increased. However, if your child is already of school age it is far less likely that a judge would endorse and allow you to move away with your child after the case has concluded.

Finally, and most important, it is almost a foregone conclusion that your ex-spouse’s relationship with your child would be harmed if you moved a considerable distance away. It would also force your ex-spouse to pick up and potentially move to be closer to your child. For this reason, most courts will insert what is known as a geographic restriction into your final orders that allows you to live in your home county and any county contiguous to your home county. This allows for greater consistency and stability for your child while ensuring that your ex-spouse does not have to constantly move to keep up with your child’s whereabouts.

What issues are the most commonly encountered in child custody cases?

Those who don’t know history are doomed to repeat it. What lessons can you learn from other people’s child custody cases that are relevant to you and your family? Stay tuned tomorrow to find out the answer to this question.

In the meantime, if you have any questions about the material that we covered today please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week where we can address your issues and answer your questions in a comfortable, pressure-free environment.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Want to resolve your Texas family law case outside of court? Remember these rules of engagement

Want to resolve your Texas family law case outside of court? Remember these rules of engagement

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

Going to court to resolve a family law case is not a fun experience for anyone involved. You probably didn’t need me to tell you that, but it is the absolute truth. There is nothing glamorous about it. You will not have the moment in time where you get to call out your ex-spouse for the bad behavior he engaged into the delight of your family watching in the audience and the shock of the judge. If you are after truth, justice, and the American Way, then a family court is not the place to go.

What you are more likely to experience is a judge who is engaged but not sympathetic and an opposing party who is slinging mud at you based on issues that may or may not have ever occurred. Do not expect your ex-spouse to be contrite in response to any of the accusations that you hurl at him. I’ve seen enough men and women who have done bad things go on the offensive against a “victim” ex-spouse enough times to know that family court doesn’t deliver results in the way that you may anticipate.

With all of that said, it would make some sense to attempt to appeal to your spouse’s reasonable side and attempt to settle any family case outside of the courtroom. Mediation is a great resource for parties and attorneys alike when it comes to attempting to reach a middle ground on the important issues of your case. The nice part is that the judge in your case will likely require that you mediate your case at least once before you get anywhere near a courtroom. Odds are good that your case will settle and a potential courtroom drama can be averted.

What happens from the beginning part of your case until you get into mediation can have a lasting impact on the chances of your case settling. When it comes to co-parenting with a person who you may not see eye to eye with, getting along may not be an option. In these high conflict family court cases can you do anything to avoid disagreement and disaster?

Today’s blog post from the Law Office of Bryan Fagan will seek to answer that question. We actually took up the issue at the conclusion of yesterday’s blog post and we will continue to run with it in today’s blog. This is an important subject that you need to know about sooner rather than later. Learn what will work when it comes to co-parenting and avoid problems before they occur.

Be accountable to your co-parent

Whether you were married to your child’s other parent or not, you now have a sizeable amount of history with that person. You should feel some degree of responsibility to be held to your word. Basically, you should do the things that you say that you’re going to do. Just as importantly, you should avoid doing the things that you have said that you will not do. That shows that you take seriously the responsibility you have in raising a child with this person.

Even if you couldn’t care less how your child’s other parent views you, remember that everything you do in this case should be done to benefit the life of your child. Do not put your child in a bad position because you cannot be trusted or because you think it’s unimportant to be held to account for your actions. Taking the easy way out may seem better at the time (especially if doing so could harm your ex-spouse) but remember that in a co-parenting relationship you will often find yourself facing similar circumstances down the road.

Although you cannot control what your child’s other parent will do in response to your actions in the future, you have complete control over how you act at the moment. If you say that you are going to do something- do it. It’s as simple as that. Even if it means going out of your way or doing something that doesn’t seem like much fun if you said something your actions need to back those words up.

Keep a journal of interactions with your ex-spouse

If you are not a big fan of organization you may want to pay particular attention to this section of our blog post. Keeping notes of what you say and what your ex-spouse says in relation to your child is an important trait to pick up. For one, it will help you to remember better what was said so that you do not operate under mistaken assumptions and memories of things that did not occur. We’ve all been there- absolutely sure something happened, but as it turns out nothing close to that having occurred.

Before you consider filing a family lawsuit- whether that is a modification or enforcement lawsuit- I would recommend that you review those notes to determine how your memories line up with the reality of the situation. You may find that your emotions are not justified by past events as they actually occurred. It is a good practice to be able to check yourself by keeping notes of your meetings, interactions, phone calls, etc. Better to know exactly what took place than to run off to an attorney for no good reason.

Mediate, and mediate again (if necessary)

As I noted at the outset of today’s blog post, your case will very likely be decided in mediation rather than in a courtroom. Family court judges in most courts will mandate that you mediate your case at least once before stepping foot into their courtroom. When you and your ex-spouse find yourself facing a situation that is too big for you to resolve on your own, it is a good idea to push your attorneys to schedule a mediation early in your case.

Many times I will encourage clients to mediate their case even if an agreement is in place before the case is filed. Let me explain. Suppose that you and your spouse are getting a divorce. You know that you are getting a divorce- there is no chance to reconcile with your husband and divorce is the only alternative that you can seek at this point. You feel good that you all sat at the kitchen table and hammered out an agreement that will allow you to avoid having to go to court.

The next thing one of you does is walk into our office and tell one of our attorneys that you have an agreement for your divorce. All you are looking to do is have a lawyer draft order based on the agreement and you will be on your way. This sounds reasonable and in many ways is exactly what you should have done before coming to see a lawyer. However, I will add one thing to this discussion that should encourage you to seek advice from an attorney and mediator.

Here is that information- even if you have an agreement with your spouse in place for a divorce settlement, there is nothing guaranteeing that your spouse will stick to their word and honor that agreement. A lot can happen in between the time you all agreed to something at the kitchen table and the time where a judge can sign an order. An order has to be drafted, both sides must review the draft and signatures from you and your spouse must be collected. We’re talking at least a couple of weeks.

In the event that you or your spouse change your mind on the terms of your agreement, there is nothing to protect you. You could come up with an agreement only to see your spouse change their mind at the last minute. As long as he hasn’t signed the divorce decree he can turn his back on the process. This is completely legal and happens all the time. Before you start to worry, here is where mediation can solve this problem.

By going to mediation and resolving your issues there, you assure yourself of two things. For one, any agreements that you reach are going to be memorialized by a Mediated Settlement Agreement (MSA). You, your spouse and your attorneys will sign the MSA along with the mediator. This is significant because once it is signed there is no going back. I will tell clients that you cannot call me the next morning in a panic and tell me that the MSA needs to be tossed out because you realized you made a mistake of some sort. The final decree of divorce will be drafted off of that MSA.

Next, not only will you have an agreement in place that is unbreakable, but you also will ensure that you have accounted for all of the areas that are necessary for a divorce. Divorces can be complicated and touch on a range of issues. By coming up with your own settlement you are possibly missing out on a number of subjects that you had failed to account for. By having multiple attorneys and an experienced mediator look at the MSA you are almost guaranteed of having an agreement that takes into account all the areas you needed to account for.

What happens if you cannot agree on compromises after an order is established?

Once all the parties and the judge have signed off on an order it is set in stone. In the future, if there are any disagreements between you and your ex-spouse you can go back and refer to the order to see what your responsibilities are. That is reassuring to have a guidepost like that, but it can also be frustrating due to the fact that your family may “outgrow” the order.

In the future, you and your ex-spouse are free to resolve issues on your own without even filing a lawsuit. This is what judges assume will happen- the two of you will work together and resolve problems on your own without too much difficulty. You will save money and time by not filing a lawsuit and in the end, you will reach conclusions that are better tailored for your family than anything a family court judge could have come up with.

In the event that you have a problem that cannot be solved by negotiation and compromise, remember that the order is what controls the situation. Think of the order as your fall back provisions. Whatever you cannot agree upon means that your order takes center stage. As long as have a mutually agreed upon solution to a problem, you can go off of that solution. However, once one of you no longer agrees to abide by the compromise you must go off of what the order has to say.

This is important for you to know since you cannot be assured that you will always be able to come up with solutions to your problems on the fly. So, what you should take away from this discussion is that your orders had better be workable for your family- both now and in the future.

Questions about visitation problems? Come back to our blog tomorrow to find out more

As children age, and as your own circumstances evolve it may become apparent to you and your child’s other parent that your visitation orders need to be re-worked. What can you do in situations like this? If you find yourself in this sort of position, I would recommend that you return to our blog tomorrow. We will spend some time discussing this subject and how you can work around problems like this.

In the meantime, if you have any questions about today’s blog post or anything another subject in family law please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys can schedule you for a free of charge consultation six days a week. These consultations are a great opportunity to ask questions of our experienced attorneys and to receive direct feedback about your particular circumstances.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Texas Court May Not Ignore Stipulations in Property Division in a Divorce Case

Texas Court May Not Ignore Stipulations in Property Division in a Divorce Case

Originally published by Francesca Blackard.

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Generally, a trial court in a Texas divorce case has the discretion to divide marital assets.  A trial court can, however, abuse its discretion if it divides property without reference to guiding rules or principles and without evidence to support the ruling.  An appeals court recently found that a trial court abused its discretion by mischaracterizing separate property as community property and improperly divesting the husband of his separate property.

Both parties had been married previously, and both asserted throughout the trial that they had separate property.  They each pled and testified that they had separate property and submitted documentation showing they had separate property.  Additionally, each submitted sworn inventories and filed proposed property divisions admitting the other party had separate property.  Neither party ever disputed or contested the other’s claims. There were only two disputed issues before the court at the time of the trial:  how to divide the wife’s retirement account and whether there were any reimbursement claims against the separate property.

The trial court, however, issued a letter ruling dividing all of the assets as though they were community property, despite the various agreements, stipulations, and uncontested submissions.  The husband moved for reconsideration, and the wife filed a short response in opposition.  The appeals court noted she had received the majority of the husband’s separate property under the letter ruling.

 

Following a hearing, the trial court denied the motion, stating that neither party proved their separate property by clear and convincing evidence.  The court entered its final divorce decree in accordance with the letter ruling.

The husband appealed, citing three issues.  He argued the court erred in failing to confirm separate property to which the parties had stipulated, that the trial court improperly divested him of his own separate property, and  finally, that the court failed to make a just and right property division.

The wife argued the appeals court should uphold the final decree because the parties had not rebutted the presumption of community property by clear and convincing evidence.

There is a rebuttable presumption that property owned at the time of a Texas divorce is community property. If a party claims assets are separate property, he or she has the burden to prove they are separate property by clear and convincing evidence.  The evidence does not have to be undisputed or unequivocal, but it must be sufficient to give the trier of fact a firm belief that the property is separate.

Texas law identifies certain property as separate, including property that was owned prior to the marriage or property that was received by one spouse by gift, devise, or descent.  In Texas, the marital estate only includes the community property, and the trial court does not have the authority to divest a party of his or her separate property in the divorce decree.

Parties may stipulate certain issues.  Stipulations are agreements, concessions, or admissions made by the parties in a court case.  If issues are excluded by stipulation, those issues are excluded from the court’s consideration.  There is no need for proof on an issue that is stipulated.  A stipulation of fact is conclusive as to the issue it addresses and is binding on the court.

Both parties stipulated that they did not dispute the other’s claims for separate property.  They filed sworn inventories.  They each submitted proposed property divisions or final decrees requesting the other’s separate property be confirmed as separate property.  The appeals court found that the trial court did not have the discretion to issue a ruling contrary to the stipulations, admissions, and undisputed evidence.

The appeals court found the trial court had unjustly divided the marital estate.  The trial court had mischaracterized separate property as community property, and then it had awarded the wife a large percentage of that community estate.

The appeals court found the trial court abused its discretion in divesting the husband of his separate property.  The appeals court affirmed the divorce but reversed the rest of the judgment and remanded for the trial court to confirm the separate estates in accordance with the stipulations, admissions, and undisputed evidence and to divide the marital estate in a just and right manner.

This case shows that courts sometimes act beyond the scope of their discretion.  If you are facing a high-asset divorce, a skilled Texas divorce attorney can help protect your rights and your assets.  Call McClure Law Group at 214.692.8200 to schedule a consultation.

 

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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What does being a joint managing conservator mean in a Texas family law case?

What does being a joint managing conservator mean in a Texas family law case?

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

If you are involved in a
family law case in Texas then you are likely interested in knowing what you need
to do in order to best position yourself within the case. Certainly your
concerns lie mainly in being able to spend as much of your time with your
child as possible and to have a hand in making important decisions in
your child’s life. The rest, as they say, is just details.

The reality is that you need to know how to prepare yourself within your
case in order to be able to make credible arguments regarding your future
role in your child’s life. Although there is a presumption in place
under Texas law that both parents of a child should be named as joint
managing conservators of that child you will still want to have the evidence
available in your case point towards you becoming the primary managing
conservator if your case were to go to a trial.

Let’s take that assumption one step further: assuming that you and
your child’s other parent are going to be named as
joint managing conservators of your child, what are the biggest areas of disagreement that you can
expect to encounter in a negotiation or trial? In today’s blog post
from the Law Office of Bryan Fagan, PLLC we will discuss the subject of what
questions really matter in a Texas child custody case.

Designating the primary residence of your child

This is the big one that parents in child custody and divorce cases alike
get up in arms about- with good reason. Being able to designate the primary
residence of your child means three things. The first is that you are
able to live with your child during the week when school is in session
and for most of the summer. As a result you are awarded more time with
your child. Under a Standard Possession Order (SPO) this means that you
will likely be able to spend 55% of the year with your child, if not more.

Next, you have the right receive
child support from your child’s other parent. If you have one child at issue in
the custody/divorce case this means that 20% of your child’s other
parent’s income is on the hook for child support. Child support
is intended to even the scales a bit since the other parent does not see
your child as often and will not be responsible for much of the day to
day costs associated with raising the child. Keep in mind that child support
is not intended to allow your child to live the lifestyle that he has
become accustomed to or anything like this. It is meant to care for the
base essentials of daily life.

Third, being named as conservator with the right to designate the primary
residence of your child means that you are able to also be awarded superior
rights as to your child as well. It is typical that the parent with the
right to designate the primary residence of the child also is able to
have superior rights to being able to make educational and health care
related decisions as well. This is not always the case but it is often
times the case.

What about a geographic restriction on where your child can reside?

Even after the conclusion of your child custody case the court will retain
jurisdiction over the case so that a judge will be able to issue additional
orders in the future if the need arises. A typical restriction that is
put on families after a child custody case is that of a geographic restriction
on where a child can reside. While you are no longer subject to the jurisdiction
of a court, your child will be until he or she turns 18 or graduates from
high school. As such a court can regulate where your child lives until them.

The purpose of a
geographic restriction is to allow both parents of a child to develop and maintain a relationship
with their child after a child custody case. The thought is that if there
would be no geographic restriction that is put into place a mother or
father who is the primary conservator of a child could move away from
Texas after a case ends causing the other parent to need to move as well
in order to keep up. A geographic restriction states that you as the primary
conservator of the child must live within a certain geographic area. It
could be Harris County and any county that borders Harris. It could be
within a certain zip code. Or it could be within the boundaries of a certain
school district.

A geographic restriction is usually lifted in the event that the non-primary
parent moves out of the geographic area where the parties are restricted
to living. For example if your child is restricted to living in either
Harris or Montgomery County and after two years you decide to move to
Waller County then the geographic restricted is automatically lifted.
Your ex-spouse can move with your child wherever he or she wants. The
reasoning behind this is that the geographic restriction is intended to
benefit you, and if you decide to make a decision that does not coincide
with the order then you should not expect your ex-spouse to have to live
by the order either.

How is time with your child going to be divided up when your case concludes?

A Standard Possession Order (SPO), as its name implies, is the most typical possession schedule that is
handed out in a family law case in Texas. Its details can be found in
the Texas Family Code, but it basically involves the non primary parent
being awarded possession on the first, third and fifth weekends of each
month as well as a Thursday night during the school week. Holidays are
alternated on a yearly basis with the other parent. Summer vacation means
extended time to spend with the non primary parent as well.

If your case makes it all the way to a trial then a judge would likely
award the non primary parent a SPO barring evidence showing that it would
not be appropriate. Things like family violence, drug or alcohol abuse
are examples of situations that could lead to a SPO award not being made
by a judge.

If you are a parent to a young child under the age of three then you should
be aware that a SPO does not apply to you or your child. A judge would
need to take your specific situation into consideration when handing out
an order for possession. Obviously the needs of a child under the age
of three are considerably different from older children. What typically
happens is that a “stair step” order goes into place which
allows the non primary parent to be awarded more time with your child
the older the child gets.

If your family has a unique circumstance involving a child with a disability
or a factor that we have not covered today the best advice that I can
provide you with is to contact an experienced family law attorney in order
to discuss your circumstances in greater detail. There is no substitute
for being able to get practical advice from someone who has dealt with
cases like yours before. While you can receive advice from anyone, the
advice isn’t worth much until the advice giver has seen and experienced
what you are going through in particular.

Questions about family law matters in Texas? Contact the Law Office of
Bryan Fagan

The attorneys with the
Law Office of Bryan Fagan, PLLC appreciate your time and interest in today’s blog topic. If you
have any questions or seek clarification on anything that you’ve
read today please do not hesitate to
contact our office. We offer free of charge consultations six days a week in our office.
A licensed family law attorney would be honored to meet with you and answer
your questions and concerns in a pressure free environment.

We post to our blog every day of the wee and we hope to see you back here
tomorrow as we continue our discussion into relevant and important family
law topics.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Arbitrator’s Evident Partiality in Texas Divorce Case

Arbitrator’s Evident Partiality in Texas Divorce Case

Originally published by Kelly McClure.

By

Many couples facing a Texas divorce seek alternative dispute resolutions, such as arbitration or mediation.  Parties to an arbitration are entitled to an impartial arbitrator.  The Texas Arbitration Act requires a court to vacate an arbitration award on the application of a party if that party’s rights were prejudiced by “evident partiality” of an arbitrator.  The award should be vacated if the arbitrator does not disclose information that might give an objective observer a reasonable impression that the arbitrator is partial.  The requirement to disclose applies whether the conflict arises before or during the proceedings.  The nondisclosure itself establishes evident partiality, regardless of whether there is actual partiality or bias.  Texas courts have acknowledged that extensive experience in the area of law related to the dispute will result in a need for the arbitrator to disclose prior dealings with parties or attorneys.  However, the parties should be informed and have the opportunity to evaluate the potential bias ahead of time.

In a recent case, a wife challenged an arbitration award based on the arbitrator’s failure to disclose his connection to the husband’s attorney.  The parties agreed to arbitration pursuant to their pre-marital agreement. In the initial status conference, the arbitrator said he did not have a material relationship with either party or their attorneys beyond normal professional relationships. He did not supplement his disclosures after a new attorney filed a notice of appearance on behalf of the husband as co-counsel.

When the arbitrator failed to issue an award within the time frame set by the court, the husband’s attorney requested a ruling.  In her email, she stated, “You know how much I think of you as a friend and a lawyer . . .”   The arbitrator issued the award several days after the email, ruling in favor of the husband and against most of the wife’s claims.

The wife moved for a continuance, stating she had evidence of an undisclosed social relationship between the arbitrator and the husband’s attorney.  She asked to conduct further discovery and moved to vacate the arbitration award on the grounds she was prejudiced by the arbitrator’s partiality.

The husband filed an affidavit signed by his attorney.  The attorney stated she had known the arbitrator for more than 30 years.  She stated they both practiced in the same area of law and were both active in state bar activities and CLE programs.  She stated she and other family law attorneys had attended three or four cookouts associated with the state bar at the arbitrator’s home.  They had each spent the weekend at a mutual friend’s ranch, along with their respective significant others and other Houston attorneys.

The trial court found the motion for continuance was not filed timely and signed a final decree pursuant to the arbitration award. The wife moved for a new trial, or, in the alternative, to vacate, modify, correct or reform the decree.

The husband’s attorney testified the arbitrator had mediated her cases five or six times and arbitrated an issue in one case several years ago.  She also testified she had arbitrated a case he was involved in but did not remember the details.  She said she had gone to the ranch as the guest of her significant other.

The arbitrator testified he had known the attorney for about 30 years.  He said he had been mediator in her cases “maybe five” times and had been “clean up arbitrator” in a telephone arbitration.  He said he only remembered one cookout.  He also testified there were six to eight couples at the ranch that weekend.

The trial court denied both motions.  The wife appealed, arguing the failure to disclose the personal and professional relationship with the husband’s attorney showed partiality that warranted vacating the award.  She pointed to the attorney’s presence as a guest at cookouts at his home, the weekend both spent at the ranch, and the previous arbitration and mediations.

An arbitrator does not have to disclose trivial relationships.  The appeals court found, however, these were not trivial interactions and the two did in fact have a social relationship.  Furthermore, the arbitrator had previously been mediator and arbitrator for the attorney in multiple cases.  The husband argued the interactions were limited and they had merely a trivial social relationship. The appeals court it must review the facts from the perspective of an objective but found these connections could give an objective observer the reasonable impression that the arbitrator was partial.

The husband argued the trial court had resolved any questions of fact regarding evident partiality in his favor.  The appeals court noted the issue was a matter of law, not fact.  A trial court can resolve conflicts in the evidence, but there were no material conflicts requiring a factual finding.  There were some differences in the recollections of the attorney and arbitrator, but the appeals court ultimately found the differences were not material.

The appeals court also rejected the husband’s argument the wife waived the partiality complaint by not raising it earlier.  The appeals court found the email from the husband’s attorney did not constitute a full disclosure of the relationship.

The appeals court found the arbitrator’s failure to disclose the relationship constituted evident partiality.  The court affirmed the portion of the decree granting the divorce, but reversed the rest of the decree and remanded.

If you are facing a divorce, a skilled Texas divorce attorney can assist you.  The attorneys at McClure Law Group are experienced in both arbitration and litigation.  Call us today at 214.692.8200 to discuss your case.

 

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Court May Order Battering Intervention and Prevention Program in Texas Custody Case

Court May Order Battering Intervention and Prevention Program in Texas Custody Case

Originally published by Robert Epstein.

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In Texas custody cases, the best interests of the child are the primary consideration, and the court uses broad discretion in determining them.  If the court finds it is in the child’s best interest to do so, it may limit a parent’s visitation with the child or increase a parent’s time with the child, but only if certain conditions are met.  A father recently challenged a court’s order that he would have to complete a Battering Intervention and Prevention Program before the possession schedule could change.

The parents lived together with the child until the mother moved out of the home.  The father filed suit, asking to be named joint-managing conservator and to have the exclusive right to designate the child’s primary residence.  A jury found the parents should be joint-managing conservators. Although the jury gave the father the exclusive right to designate residence, it placed a geographic restriction on that right.

When the court issued the order, it left the temporary orders for possession in place until the father finished a Battering Intervention and Prevention Program. The mother was granted the exclusive right to consent to invasive medical procedures, make decisions regarding the child’s education, and possess the child’s passport.  The father requested findings of fact and conclusions of law, then appealed.
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Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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