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children of divorce

Can we temporarily change our parenting plan by verbal agreement until quarantine is over?

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children of divorce

Question:

Can we temporarily change our parenting plan by verbal agreement until quarantine is over?

Answer:

I practice law in the state of South Carolina. Unless you live there, I cannot inform you as to the specific laws of your state, but I can give you some general observations on family law issues and how they are affected by the COVID-19 pandemic, based on the jurisdiction where I practice.

The answer is yes, and it highly is encouraged that parents be reasonable in attaining such an agreement. It is inevitable that both parties will experience some roadblock that renders their rights short of what is court ordered. Both parents should expect to make concessions for the other to abide by the spirit of the agreement as much as possible. A family court judge undoubtedly will respect the parties and their decisions considering the circumstances.

If you are the parent being asked to make a change in the parenting plan, then you should consider these requests. Keep in mind that your conduct can be scrutinized by a judge if the facts show that you were not being reasonable under the circumstances. It also is important that you make clear to the other parent that the change strictly is intended until such times as things get back to normal. You should be careful in not allowing the other party to misconstrue the change as a new agreement, but rather a temporary agreement.

If you are the parent requesting for a change in the parenting plan, then you should memorialize these communications whether the changes are consented to or not. Memorialized communications can be recorded through text message, email, or any other form of written communication wherein you can justify the other party’s intent. If the changes are not consented to by the other party, then these communications will come in handy when illustrating to a family court judge the conduct of the other parent should you need to go to court in the future. Similarly, these memorialized communications will protect the requesting parent should the other party claim some violation of the Agreement in the future. The bottom line is that written communication is key when communicating with the other parent.

Due to the fact-specific nature of this situation, I would strongly suggest you contact an attorney who handles family law matters in your jurisdiction to see how your state’s laws specifically can help you with this serious situation. This type of attorney should be helpful in providing you specific assistance for your matter. Remember, I am unable to provide you with anything more than tips, so please consult a domestic litigation attorney in your jurisdiction to obtain specific advice as to the laws in your state and how they particularly impact your potential case.

To arrange an initial consultation to discuss divorce rights for men with a Cordell & Cordell attorney, including South Carolina divorce attorney Chris Jacob, contact Cordell & Cordell.

The post Can we temporarily change our parenting plan by verbal agreement until quarantine is over? appeared first on Dads Divorce.

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Texas Mediated Settlement Agreement May Be Binding Even If Signed Before Divorce Is Filed

Texas Mediated Settlement Agreement May Be Binding Even If Signed Before Divorce Is Filed

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Originally published by Francesca Blackard.

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Texas family law allows the parties to a divorce to enter into a binding mediated settlement agreement (MSA).  If the agreement meets certain requirements, a party is entitled to judgment on the agreement.  In some cases, however, one party may wish to challenge a mediated settlement agreement.  In a recent case, a wife challenged the enforceability of a mediated settlement agreement.

The couple was married for about 10 years when the wife decided to end the marriage.  She sought a mediator, and the parties attended mediation without attorneys and executed a written MSA.

The MSA made the parents joint managing conservators, with the husband having the right to designate the kids’ primary residence.  The parties agreed the husband would keep the marital home and the wife would not pay child support.  The MSA required the wife to file the divorce petition within 10 days.  The MSA further provided the case would be finalized any time after May 1, 2015.

The husband filed a divorce petition nine days after the MSA was executed.  He asked the court to approve and render judgment consistent with the MSA.  The wife filed an answer with a general denial.  The husband and his attorney appeared in court, but the wife did not receive notice of the hearing and did not appear.  The trial court rendered oral judgment on the MSA at the hearing.

 

The wife moved to set aside the verdict, and alternatively, for a new trial.  She also moved to revoke the MSA, arguing it did not comply with the Family Code because it was signed before the divorce petition was filed.  She also argued the hearing had violated her due process rights because she had not received the required notice.  Finally, she argued the husband breached the MSA when he filed the divorce petition because the MSA provided she would do so.  The trial court denied the wife’s motions and incorporated the terms of the MSA into its final decree.

The wife appealed, and the appeals court reversed.  The appeals court held there must be a pending suit for divorce for an MSA to be statutorily binding.  The parties had executed the agreement before the divorce petition was filed, so it was just an ordinary contract.  The appeals court also found the wife had been denied due process when she did not receive notice of the hearing.  The appeals court held she was entitled to 45 days’ notice because she had made an appearance by filing the answer.

The husband petitioned for review by the Texas Supreme Court.  Pursuant to Texas Family Code Section 6.602, a mediated settlement agreement is binding if it includes a prominent irrevocability provision, is signed by both parties, and signed by any party’s attorney present.  If the agreement meets these requirements, it is binding on the parties and the court generally must adopt it in the divorce decree.

The wife argued the MSA was not enforceable because there was no divorce suit pending when it was signed.  The appeals court based its decision on language in the statute that a trial court “may refer a suit for dissolution of marriage to mediation.”  The Texas Supreme Court rejected this reasoning, noting that the statute allows a court to refer a divorce suit to mediation, but does not require it.  The Texas Supreme Court also noted that a trial court only has authority to order mediation once suit has been filed.  The statute does not restrict the parties’ right to voluntarily participate in binding mediation.

The Supreme Court of Texas held there was no requirement under the statute that the divorce suit be pending when the MSA was signed.  This MSA met the enumerated requirements of the statute and was therefore binding on the parties.

The Texas Supreme Court then considered whether the wife’s due process rights were violated.  Tex. R. Civ. P. 245 requires at least 45 days’ notice for contested cases, but provides that “[n]oncontested cases may be tried or disposed of at any time whether set or not…” The husband argued the parties had resolved their disputes through the MSA and the case was therefore not contested at the time of the hearing.  The Texas Supreme Court rejected this argument.

The Texas Supreme Court noted the wife had filed a general denial in answer to the petition.  She had made an appearance and put the matters raised in the petition at issue.  The case was therefore contested and the wife was entitled to notice.  The Texas Supreme Court also noted that MSA’s are often challenged and therefore the existence of an MSA does not make a case uncontested. The trial court erred in rendering judgment without the wife having notice of the hearing.

The Texas Supreme Court remanded the case to the trial court, but pointed out the court and parties would be bound by its holding that a pending suit is not required for the MSA to be binding under the statute.

The Texas Supreme Court has now resolved the question of whether a mediated settlement agreement is binding if it is signed before the divorce petition is signed.  If you are facing a divorce, an experienced Texas divorce attorney can guide you through the entire process, including mediation and trial if necessary.  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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Texas Court Finds Prenuptial Agreement Was Enforceable

Texas Court Finds Prenuptial Agreement Was Enforceable

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Originally published by Robert Epstein.

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Texas law generally favors the freedom of contract.  This principle also applies to prenuptial agreements.  In Texas divorce cases, prenuptial agreements are generally valid and enforceable unless they were involuntarily signed or were unconscionable and signed without proper disclosures.

A wife recently challenged the enforceability of a prenuptial agreement. The couple met online while the wife lived in Vietnam.  When the husband visited Vietnam, he gave her a copy of the prenuptial agreement his attorney drafted.  The wife did not speak English, so she had it translated.  She requested a change to the agreement.

The wife came to the U.S. and told the husband she was pregnant a few months later.  He told her she needed to sign the agreement before they got married. The husband stated a paragraph was removed from the agreement based on the wife’s request.

 

He took her to a Vietnamese-speaking attorney for a consultation. The husband paid the fee, but was not there for the consultation.  The parties signed the prenuptial agreement in the attorney’s office after the consultation.

The wife filed for divorce in 2015.  The trial court found the prenuptial agreement was enforceable and incorporated it into the final divorce decree.  The wife appealed, arguing the agreement was unconscionable, involuntarily signed, and violated both federal law and the Texas Constitution.

In support of her unconscionability argument, the wife asserted she was pregnant “when it was made clear” she had to sign or go back to Vietnam.  She also argued it was unconscionable to “forc[e] a mother to accept a likely future in which her child would seldom see his father,” especially when both “would be at risk of shame and humiliation” in Vietnam.  She said she thought her child’s life would be better in Texas.  She argued it was unconscionable to require her to sign to avoid having to go back to Vietnam. She claimed taking her to a lawyer found in the yellow pages was just “window dressing.”  She asserted she was more unsophisticated than the husband and did not speak English.  She also argued he had not disclosed information about his assets and liabilities.  Finally, she argued it was a one-sided agreement.

When reviewing unconscionability, courts consider the circumstances, including available alternatives, bargaining ability, illegality or public policy against the contract, and whether it is “oppressive or unreasonable.” When reviewing prenuptial agreements, courts may consider age and maturity, business and educational backgrounds, and prior marriages.  The court will generally enforce a voluntarily-entered contract unless there is mistake, fraud, or oppression.

The wife knew the husband expected a prenuptial agreement before she met him in person. She testified they commonly discussed it after their engagement.  He gave her a copy when he was in Vietnam in the summer of 2007.  They executed the agreement in August 2008. The appeals court found she knew about the prenuptial agreement long before she arrived in the U.S. and became pregnant.

The court found the wife’s various reasons for not wanting to return to Vietnam did not make the agreement unconscionable. There was no evidence the mother or the child would be in danger there.

The appeals court also rejected the mother’s argument regarding her attorney. She argued the attorney could not have performed independent due diligence, such as finding out the property values.  The appeals court found no evidence that information was necessary or the wife did not already know it.  She testified she understood the terms of the agreement.

The wife argued the husband had not disclosed information about his assets and liabilities.  There was testimony the husband had disclosed.  Even if he had not, it would not make the agreement unconscionable.  Lack of disclosure is the second prong of the test and only matters once the agreement is found unconscionable.

The appeals court also rejected the wife’s argument she was less sophisticated and had less bargaining power.  Both parties were mature adults.  Although she had less formal education, the wife had owned and operated two businesses in Vietnam.

An agreement is not unconscionable just because it is one-sided or unfair. The appeals court found no evidence of mistake, fraud, or oppression.

There was no error in the trial court’s finding the agreement was not unconscionable.

The wife also argued the agreement was not voluntarily executed. In reviewing voluntariness, courts consider whether the party had an attorney’s advice, whether there were misrepresentations, what information was provided, and whether anything was withheld.  She argued her attorney had not had opportunity to study the agreement, analyze the information about the assets and liabilities, and “review the immigration agreements.”  The appeals court found no evidence the attorney did not have sufficient time to review the agreement.  Both the wife and the attorney testified she understood the agreement’s terms. She did not claim she received incompetent legal advice.

The appeals court rejected her claim the agreement was involuntary because it contained material misrepresentations regarding whether it disclosed the value of assets and liabilities.  There was evidence the husband had disclosed the information regarding the assets and liabilities.

The wife also argued she was under duress because she did not want to return to Vietnam.  The appeals court noted duress is only a defense to a contract if it involves a threat to do something the party has no right to do.  The husband did not have a legal duty to marry the wife, so his threat not to marry her if she did not sign did not constitute duress.

The wife argued the agreement violated federal law because it conflicted with the affidavit of support the husband signed.  She argued the affidavit created an obligation requiring the husband to use all of his assets to support her, while the prenuptial agreement only obligated him to use community property.  The appeals court found any obligation created by the affidavit ended when she became a citizen.  The appeals court also rejected the wife’s argument the agreement violated the Texas Constitution.

The appeals court affirmed the trial court’s judgment.

If you are facing a divorce involving a prenuptial agreement, an experienced Dallas divorce attorney can assist you.  Call McClure Law Group at 214.692.8200 to set up a consultation.

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



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What Can You Include in Your Prenuptial Agreement?

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Originally published by Family and Criminal Law Blog.

Essentially, a prenuptial agreement is a legal contract between two people who are planning to get married. While there are those who have an adverse reaction to the mention of a prenuptial agreement and think of it as, not a preparation for marriage but preparation for divorce, a prenuptial agreement can set and manage expectations for marriage. It can also bring peace of mind to the parties to the agreement knowing that certain assets will be protected in the event of divorce or, should divorce occur, they will already know how certain things will play out. Of course, the full extent of what can be accomplished by a prenuptial agreement will largely depend on what the parties choose to include in the agreement itself.

What Can You Include in Your Prenuptial Agreement?

One of the best, and most popular, uses of a prenuptial agreement is to address the issue of marital property and how it will be distributed in the event of divorce. In this case, the prenuptial agreement should specify the assets and liabilities that each party are bringing into the marriage. It should then set forth the property rights of each throughout the marriage and what will happen to property rights, should the parties ever divorce. The agreement can accomplish this by distinguishing what property will always be considered separate property and which property will be considered marital or communal property. In divorce, marital property is subject to division between the parties.

A prenuptial agreement can also be used to manage financial expectations for a couple during the marriage. The agreement can set forth future financial goals and how these goals will be accomplished by certain investment strategies, among other things. The agreement should also address if, and how much, income should be paid into any joint or separate bank accounts. If there will be spending allowances distributed to a party, this should be included as well. The agreement can also include budgetary restrictions. For example, it can specify the way household expenses will be managed, who will pay which bills, and how much each party will financially contribute in general to the payment of household expenses.

A prenuptial agreement can also set forth financial expectations for the parties should the marriage end in divorce. The agreement can establish the fact that one spouse will not be liable for certain debts of the other spouse should the two divorce. This will protect the spouse from assuming financial liability for debts of the other party. Additionally, the prenuptial agreement can establish whether or not alimony, or spousal support, will be paid in the event of divorce. The agreement can also state how much alimony will be paid. It is important to note, however, that a court will not enforce an agreement that it determines to be punitive or will leave one spouse without any financial resources.

A prenuptial agreement can also work to protect inheritance rights. For instance, if you have children from a previous marriage, the prenuptial agreement can make sure that these children still have property rights. It can help ensure that they will still inherit a portion or all of your property as outlined by the prenuptial agreement.

Helping Set You Up for a Successful Marriage

While many view a prenuptial agreement as a plan for divorce, it can actually be of great help in working to help a marriage succeed. Setting forth and managing expectations of a marriage is a great way to start off the marital journey. For all of your prenuptial agreement help, Navarrete & Schwartz, P.C. is here for our clients. We are proud to serve the residents of Midland, Texas. Contact us today.

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



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modify child custody agreement

Can I Modify My Child Custody Agreement Myself, Without Going to Court?

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modify child custody agreement

 

As an experienced Somerset, NJ divorce and family law attorney, I can tell you that the answer is yes, of course! But I don’t advise it, because when you and your ex alter your child custody arrangements on your own, you are creating more problems than you are solving.

Who suffers? Ultimately, your children.  Read on to find out how you can best protect your children and your parental rights.

Can I Modify My Child Custody Agreement?

The Child Custody Agreement

How a child custody agreement is reached varies by state, but in general, it is negotiated as part of your divorce and a court decree is entered setting forth the child custody terms. When parents agree on what living and legal arrangements are best for their children, the process goes smoothly.

When parents disagree, this is where the court steps in, attorneys negotiate, and a compromise is reached. Most often, compromise satisfies neither party and there are continuing ill feelings. But at least there is a court order in place, and either you or your ex could ask the court to step in if one of you fails to comply with it.

Generally, the initial child custody agreement will establish who has physical and legal custody, and whether there is joint custody shared between the parents or one parent has sole custody.

Physical vs Legal Custody

In most states, legal and physical custody are different rights. The child lives primarily with the parent who has physical custody. Either parent or both may have the right to make decisions for the child, and this is called legal custody.

When parents are married, both have physical and legal custody of their children.  When married parents divorce, these rights must be either divided or shared.

Joint Custody vs. Sole Custody

These are what they say they are:  where children live with both parents, this is called Joint Custody. In this situation, both parents as a practical matter often retain joint legal custody.

Sole Custody is the term for when one parent has both physical and legal custody of a child. Usually, for the other parent to lose these rights, there is a hearing and the judge will make that determination based upon factors that vary by state.

Asking the Court to Alter The Child Custody Agreement

Parents who change the terms of child custody through the courts are doing the most they can to protect their rights as parents because the court issues an order memorializing those changes.  Thereafter, the new child custody terms can be enforced by the court should one party fail to keep to them.

Altering the Terms of Child Custody on Your Own

Of course, you and your ex can agree to change the child custody arrangement outside of court.  It’s quick, easy (assuming you both agree), and cheap in that there no attorney fees or court filing fees. But beware of the following pitfalls of changing the child custody agreement on your own:

The court will not and cannot enforce your new child custody terms.

If your ex wakes up one day and decides not to stick to the new child custody arrangement, there is nothing you can do about it. Only a court order is legally binding on your ex. There is no way to enforce your informal agreement with your ex.

Your ex can get the court to enforce the terms of the original child custody agreement.

You might be acting in good faith and sticking to the changes you and your ex worked out.  But your ex could still haul you in front of the judge and demand that the court enforce the original child custody order.  That would be well within his rights, and the court would find that you are the party who violated the order.

Changes in child custody may work out at first, but if you allow one informal change, where does it end?

It is common for an ex to take advantage of the situation when you are willing to make informal changes, either planned or on-the-fly.  Your life could become a hell of variables and resentment, with your ex constantly demanding little changes to the child custody schedule and you feeling powerless to say no because you allowed such changes in the past.

In short, making informal changes to child custody might seem convenient and harmless at the time but you end up laying the groundwork for future conflict between you and your ex. Didn’t you go through the pain of divorce to end that conflict? Your children also suffer, not only from the revived conflict between you but from the uncertainty in their parenting schedule. Parents who remain civil, a calm, stable environment, and a predictable schedule all help children heal from divorce.

Let the court help you and your children, and your ex, move forward in an orderly and predictable way by memorializing any needed change to a child custody agreement with a court order.

The post Can I Modify My Child Custody Agreement Myself, Without Going to Court? appeared first on Divorced Moms.

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Child Support: How To Reach a Child Maintenance Agreement That Benefits Your Children

Child Support: How To Reach a Child Maintenance Agreement That Benefits Your Children

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Although you may not be able to avoid tension during a divorce, your kids are your most important consideration. That’s why it’s vital to arrange a child maintenance agreement.

The post Child Support: How To Reach a Child Maintenance Agreement That Benefits Your Children appeared first on Divorce Magazine.

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