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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.

By

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.

By

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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The Costs of a Child Custody Conflict Case

The Costs of a Child Custody Conflict Case

You can help yourself by researching and understanding the process as well as the costs of a child custody conflict case.

The post The Costs of a Child Custody Conflict Case appeared first on Divorce Magazine.

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