Cordell & Cordell Executive/Managing Partner, CEO Scott Trout and Jacksonville divorce attorney Christina Wilford discuss the topic of standing family law orders.
Ms. Wilford outlines what purpose standing orders serve in family law and explains why they are important. They then discuss how they can be a pitfall for many guys going through the divorce process.
Click the link above to listen to the full podcast episode. Also make sure to subscribe to the podcast on iTunes or whichever podcast app you prefer.
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“… vulnerability in self-esteem which makes narcissistic people very sensitive to ‘injury’ from criticism or defeat. Although they may not show it outwardly, criticism may haunt these individuals and may leave them feeling humiliated, degraded, hollow and empty. They react with disdain, rage, or defiant counterattack.”
To a narcissist, separation or divorce is both criticism and defeat. Even if they are the ones who chose to end the relationship. They will view you as the one who abandoned them by not being the “saviour” they needed you to be, which they interpret as rejection and defeat.
It can make leaving a narcissistic relationship incredibly difficult.
You stay and continue to be demeaned, controlled and diminished.
You leave and be attacked.
They will use a range of tactics to exact their revenge with the most powerful being turning the children against you and using Family Court to punish you.
This hits you financially, emotionally, energetically and spiritually.
Narcissist do not easily recover from narcissistic injury. They aren’t the “forgive and forget” type. They will hold this grudge for eternity and drag you back and forth through Family Court despite the expense.
They may not always be the ones turning to court though, they could completely abandon the system and take their own form of justice – what they say is true (another narcissistic classic). This results in victims having to continually return to court for access to children, to enforce orders and even to make basic decisions.
In court, narcissistic injury presents as cleverly executed counterattacks – you hit them, they raise the bar with a fresh allegation. Every effort you make to be treated equally is met with retaliation. All designed to get you to submit.
So how do you overcome this relentless pursuit of “justice” (a very distorted “eye for an eye” philosophy)?
My top tips for handling narcissistic injury in the court process are:
Stay focused on your goal – don’t get drawn into their game. They want you to be tied up in the sheer volume of allegations and threats so that you can’t prove the truth
Keep your emotions in check – this behaviour is an attempt by the narcissist to self soothe by putting all their anxiety onto you. This is all in an attempt to bait you into reacting so that they can stand back and go “there, see, I told you so”
Boundaries, boundaries, boundaries – their energy is intense and it can feel like your own. Putting boundaries in place regarding when/how to contact, your own responses and recognising your own triggers will protect you from being gaslighted by them and their flying monkeys.
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Every unhappy family may be unique, but right now, a lot of families are unhappy in a similar way for similar reasons. Here are tips for keeping your family intact during the Coronavirus.
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There has been considerable speculation that one consequence of the Coronavirus will be an increase in the divorce rate resulting from togetherness imposed by the quarantine that push marriages already on shaky ground over the brink. Whether divorces will increase in the future due to Covid-19 remains an open question, but what is certain is that a sizable number of future divorces will involve the transfer of a business ownership interest between spouses as part of the divorce. To address this situation, this post focuses on key business issues that arise when one spouse (the “Divesting Spouse”) transfers an ownership interest in a business to the other spouse (the “Recipient Spouse”) as part of a divorce settlement. Addressing these issues will help the Recipient Spouse continue to run the business successfully and also avoid future conflicts with the Divesting Spouse, as well as with future investors and potential buyers of the business.
1. Don’t Rely on Divorce Decree or Settlement Agreement to Document the Transfer of a Business Ownership Interest Between Spouses
A divorce decree and settlement agreement will document the terms of the divorce and the division of property between spouses, but it is not a good idea to rely on the decree or the divorce settlement to memorialize the transfer of a business interest between spouses. There are a number of reasons for the Recipient Spouse to insist on securing a stock transfer agreement (or its equivalent), including the fact that the Recipient Spouse will likely be required to show the transfer document to third parties in the future, including banks or other lenders, new investors, company officers or managers, and potential future buyers. The Recipient Spouse will not want to show the decree or settlement agreement to these third parties, however, because they include private matters unrelated to the business. This will therefore require the Recipient Spouse to prepare a heavily redacted document for review by third parties. It is more efficient to simply require a transfer document to be signed that is limited solely to issues related to the business.
Another reason for the use of a transfer document is that it will include many provisions that are not normally part of a settlement agreement. The decree or settlement agreement will become a very lengthy document if it includes all of the provision that are traditionally set forth in a separate document that covers the transfer of a business interest.
2. Secure a Separate Release of the Divesting Spouse’s Claims Against the Business
After the business is transferred and the divorce becomes final, the Recipient Spouse will not want to defend claims that are brought by the Divesting Spouse against the business. This requires the Recipient Spouse to secure a broad release of claims against the business from the Divesting Spouse. This release of the business is separate from and in addition to the release that the Divesting Spouse provides to the Recipient Spouse, individually.
For example, if the Divesting Spouse was an officer, employee, director or manager of the company, the Divesting Spouse’s release needs to include a release of all employment claims, such as claims for unpaid wages/back pay, vacation time, unpaid expenses, and commissions. The release will also include the Divesting Spouse’s release all claims for wrongful termination, claims related to the distribution of any profits generated by the company and all other business related claims. The release will also confirm that the Divesting Spouse has resigned from all positions with the company and has no further right or authority to take any action for or make any statements on behalf of the company.
3. Confirm Broad Transfer of All Rights by Divesting Spouse
The provisions that confirm the transfer of ownership in the business by the Divesting Spouse need to be broadly described in the transfer agreement to include all rights, title and interest of every kind related in any way to the business. This includes all rights of the Divesting Spouse in any and all intellectual property of the company, such as company names, trademarks, trade secrets and patent rights. This is particularly important if the Divesting Spouse worked in the business, because the Recipient Spouse does not want to be faced with a situation in the future where the Divesting Spouse later claims that he or she developed some software, designs or other intellectual property rights that are not owned by the business, and which are now being used by the Divesting Spouse in direct competition with the company.
4. Consider Requesting Divesting Spouse to Accept Restrictive Covenants
In a normal M&A transaction, a company buyer secures a set of restrictive covenants from the seller as part of the purchase agreement to prevent the seller from competing in any way with the company after the sale takes place. The buyer will require the seller to provide all of the following restrictive covenants that will last for two to five years: (i) a covenant not to compete, restricting any involvement by the Divesting Spouse — whether as an owner, employee, consultant, etc., — in a business that is competitive with the subject business for a reasonable period of time within a reasonable geographic area, (ii) an agreement not to interfere with the business’s relationship with its customers and vendors or to solicit customers, or attempt to persuade the business’s customers and vendors to cease doing business with the company, and (iii) an agreement not to hire or solicit the hiring of any of the employees of the business, or otherwise attempt to persuade any of the employees of the business to cease their employment relationship with the company.
If the Recipient Spouse is concerned that the Divesting Spouse may compete in business against the company after the divorce, the Recipient Spouse may want to request the Divesting Spouse to agree to accept some or all of these restrictions. The Divesting Spouse will not agree to accept these post-divorce restrictions, however, without a corresponding commitment from the Recipient Spouse to provide some amount of additional consideration in the divorce settlement.
5. Request Confidentiality Agreement from Divesting Spouse
Confidentiality agreements are similar to restrictive covenants in that they prevent the person who is subject to the agreement from taking actions that are harmful to the business. The confidentiality agreement is specific, however, in prohibiting the individual officer or employee from using or transferring any of the company’s confidential information or trade secrets. All of the company’s officers and employees are subject to a common law duty not to use or misuse any of the company’s confidential information, but a written confidentiality agreement makes this prohibition clearer on the use of confidential information and trade secrets.
If the Divesting Spouse has not already entered into a confidentiality agreement with the company, the Recipient Spouse will want to request the Divesting Spouse to accept and sign a confidentiality agreement to protect the company’s valuable confidential information and trade secrets. The Recipient Spouse wants to make sure that the company’s confidential information, technology and trade secrets are maintained in strict confidence.
6. Secure “Tail Coverage” of Divesting Spouse From D&O Carrier
If the company has a directors and officers liability insurance policy (a “D&O Policy”) that provides protection for officers and directors from third party claims, these polices will generally remain for one or two years after the company’s officers and directors are no longer affiliated with the company. The Recipient Spouse will therefore want to secure “tail coverage” to provide continuing insurance coverage for claims made against the Divesting Spouse. In this regard, the Recipient Spouse may want to secure a tail policy will extend the D&O coverage over former officers and directors for a total period of five years.
The Recipient Spouse may feel like securing a tail policy that extends coverage for third party claims against the Divesting Spouse is unnecessary because it provides a benefit solely for the Divesting Spouse. In fact, a tail policy provides insurance protection that protects both the Recipient Spouse and the Divesting Spouse, and it is also a benefit to the company. If third party claim is made against the Divesting Spouse after the divorce related to the business, the Divesting Spouse will likely demand that the company indemnify him or her. If the D&O policy is still in place, however, the tail policy will enable the company tender a defense of the claim against the Divesting Spouse, because the D&O carrier will cover all of these legal defense costs. Fortunately, a tail policy that extends D&O coverage is often not too expensive to secure.
7. Specify Treatment of Future Tax Filings
Dealing with all of the tax issues involved in the transfer of the business is an extensive subject that goes beyond the scope of this post, and spouses engaging in the transfer of a business interest are strongly advised to consult with a tax advisor during their divorce. But there is one tax issue that the Recipient Spouse should consider addressing up front. Many businesses held in marriages are structured as pass through entities (i.e., LLC’s partnerships, Sub S corporations), which means that the owners pay the taxes on all profits that are generated by the company. As a result, in the year following the divorce, Recipient Spouse may be required to issue a K-1 to the Divesting Spouse based on the ownership interest held in the business by the Divesting Spouse during the year in which the divorce took place.
If the K-1 issued in the year after the divorce reflects any income that is apportioned to the Divesting Spouse, he or she may expect to receive a cash distribution from the company that is sufficient to cover the Divesting Spouse’s federal tax liability based on this income. If the company does not issue any distribution to the Divesting Spouse, that would create what is known as “phantom income” because the Divesting Spouse has to pay taxes on this income even though no distribution was issued by the Company. The issuance of phantom income to the Divesting Spouse is likely to provoke a heated dispute at that point.
The Recipient Spouse will therefore want to address in the divorce settlement how the future K-1 that will be issued to the Divesting Spouse will address any income generated by the business in the year of the divorce. If the Recipient Spouse is prepared to issue a distribution to the Divesting Spouse, that will take care of the issue. If the Recipient Spouse has no intention of authorizing the company to issue any distributions in the future to the Divesting Spouse, however, this issue will need to be dealt with by the Recipient Spouse a manner that will not lead to a future legal dispute with the Divesting Spouse.
Conclusion
The transfer of ownership interests in business is common in divorce settlements. But if business issues related to the transfer of this type of interest are not considered at the time of the divorce, the parties may find themselves engaging in continuing disputes they did not anticipate. The Recipient Spouse, in particular, needs to take steps to ensure that the transfer takes place in a manner that allows the business to continue to run successfully, and to head off potential future conflicts with the Divesting Spouse and others after the divorce.
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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.
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Family Court is set up to be adversarial. It pits one parent against another. This unfortunately feeds into the narcissist’s ego defence which is to win at all costs. They do this by masterfully playing the role of either hero or victim (often both at the same time). They will claim you are alienating them or abusing them. They will even manipulate the children to confirm their story thus proving their prowess.
I have worked with hundreds of parents who have sought support and protection for them and their children from Family Court only to be disappointed and disillusioned to see that the court is easily duped by the narcissist and given more time with the children. In many cases the narcissist manages to use Family Court to cut the other parent completely out of the child’s life.
How can this happen?
The Problem
One would think that those highly experienced in law (solicitors and judges) would have what it takes to easily recognise deception, or at least know how to ensure that a person is examined thoroughly enough to make reasonably sure that they are telling the truth. But those in law are just as vulnerable to the highly skilled narcissist as the average person is.
Narcissists love the court arena because they get to take centre stage and express their grandiosity. It feeds their ego and they seek to control the process. Some will do this by not turning up, issuing last minute changes to mean you have little or no time to prepare. Others will keep breaching the order so you have to take them back to court. They will all threaten court repeatedly as a way to control you and get their own way – “if that’s what you want, then we had best go back to court”. The fact they get to financially ruin in the process is the cherry on the cake for them.
Because narcissist’s are naturally talented imposters, charmers, and deceivers, many judges get duped on a routine basis by narcissistic parents, who are simply using the court and the judge to continue to humiliate, exert control, and abuse their ex, and force their ex to react to them in some way. Narcissists live to manipulate and control others emotions, self-esteem, and behaviours. Many will describe the ‘high’ they get from manipulating others successfully, and if they get the judge to believe them, they will begin to brag that the judge is their ‘ personal friend’.
How Can They Get Away With It
Narcissist’s get away with what they get away with because they are so very talented at presenting themselves as innocent victims of their ex, their boss, their parents, etc. etc. They have an uncanny talent to manipulate situations and people and to twist the obvious facts to fit their lies. You know in your own relationship how they managed to convince you that they were worth falling in love with. This is their own personal superpower – manipulating others.
Part of the problem is that in the context of family court, no one really believes that a parent (especially ones who presents so well) can be so cold, calculating and abusive to use their own children to hurt their ex in such extreme ways. Nor do they believe that children would lie about such matters as being abused. I always found this very strange because, having worked in child protection, we know that child abusers ARE highly manipulative and deceptive AND that children will lie to protect the abuser.
Narcissists have survived by understanding people and how they tick. They know exactly how to get others to do their bidding and convince them it is all of their own doing. Charles Manson is a prime example of how charming and manipulative a narcissist can be at getting people to do the unthinkable. The problem in Family Court is that no judge (or professional) will ever want to admit they have been manipulated like that. It hurts their ego as well and so very often, they will continue on the path the narcissist has led them down to save their own ego. People are inherently selfish and so even those charged with protecting children rarely act from a completely unbiased and empathic place. It’s human nature. We all want to be seen to do the right thing and not be criticised. Narcissists use this to control others.
How can court recognise a narcissist
Firstly I would always advise against labelling your ex as a narcissist (unless they have an official clinical diagnosis). You are not a psychologist or psychiatrist and so you cannot diagnose them. To do so undermines you. There are ways however that you can alert the court and professionals to the behaviours which are problematic:
Narcissists will continuously be going back and forth to court sometimes with issues which barely make sense or are fully nonsense or are taken back to court for repeatedly breaching the order
They will be constantly changing legal representation
They may attempt to act as an equal or friend to professionals
They can be very demanding about the treatment they receive when attending court
They present as being very agreeable but breach the order within days (sometimes hours) of leaving court
They will refuse to take any responsibility for anything
There will be multiple, unsubstantiated claims of abuse/harassment against the ex
There may be a pattern of behaviours in past relationships
There is inconsistency in what they say and how they behave
There may be multiple allegations of abuse against the ex but with NFA’s from the police
The children display very black and white thinking against the other parent (one is all good, the other all bad)
The narcissist has cut contact with everyone involved with the ex including all the children’s aunts and uncles
How to make judges take notice
The reality is that within the court arena it is very hard for judges to decipher everything. They are reliant upon other professionals, usually social workers, to provide them with reports and recommendations. It is therefore important that, as a parent going through this process, you remain child focused and allow the narcissist’s behaviour to reveal itself.
The court can order both parents into counselling towards the goal of effective co-parenting. Once a custody order is made, the court can monitor the compliance of both parents. This is often when the narcissist begins to show their true colours. They just cannot comply with any authority other than their own self-inflated opinions and will. In most cases, if they comply at all with the counselling (many do not even make it to one session), it only takes a short time before they will discredit the counsellor, petition the court for some other counsellor, and just stop showing up. What they really want is a counsellor that cannot ‘see through them’ and find one that they can manipulate for their own purposes, meaning supporting their position that their ex is persecuting them.
Another option is for the family to undergo a psychological evaluation. Usually this will entail the psychologist spending time with each parent individually, the children separately if possible and the children with each parent. They will then evaluate the dynamics and make recommendations to the court about next steps. It really helps if the psychologist can include a thorough description of the IMPACT and capacity for change of the parents within these situations. Unfortunately I have seen time and time again where psychological evaluations identify the issues but fail to inform the court what this means. Again, judges are not mental health or child development professionals. They need guidance on what this means for the children moving forward and the impact of any action taken.
As the other parent, you can contribute to this process by not biting when the narcissist tries to bait you. They will deliberately push your buttons in public to get a reaction out of you which they will then use as “evidence” of all the allegations they are making about you. It is therefore important that you prepare fully for court both in terms of how you feel on the day but also dealing with your own trauma from the relationship. We have specifically designed our Get Court Ready programme to help you with this. It provides you with tools, insights and activities to rewrite the narcissists narrative, manage your own emotions and protect the children. Find out more at the Get Court Ready page on our website.
Finally, it would greatly benefit all professionals involved in child protection (solicitors, judges, social workers, court workers) to undergo basic training on personality disorders, domestic abuse and parental alienation. This will at least provide them with an additional theory to examine the evidence against. I personally have developed numerous courses on these areas which are CPD accredited and available online. Head to my other website, Child Protection Centre, for more details.
What are your experiences of Family Court? What more do you think can be done?
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One of the cool parts of being a family law attorney with the Law Office of Bryan Fagan is that there is never a dull moment. There are always unique people with unique circumstances who walk through our door with questions about their lives and their families.
Like Texas, many other states lay out a specific percentage of a non-custodial parent’s income to pay in child support to the custodial parent. Texas has it that for one child, a non-custodial parent should pay 20% of their net monthly resources towards the support of that child. For two children, 25% would go towards child support. The percentages increase by increments of 5% until you reach five or more kids topping out at 40%. In this way, courts have a straightforward mechanism to be put into action for determining child support in most cases. It has become so predictable that the guideline levels of support will be implemented that most attorneys and clients don’t bat an eye when the issue of paying guideline support is raised.
Recently, a potential client presented a scenario where he and his wife were divorced in a state other than Texas, and after the divorce the man’s ex-wife and children had moved to Texas. The state that the children and ex-wife had previously lived in was a higher than average cost of living state and our potential client was ordered to pay child support that is above and beyond the “guideline” levels of support for that state.
Our potential client was thus left with a child support order that obligated him to pay an amount of child support that was above and beyond what is proscribed in the family code of his native state. When a judge decides regarding any subject that is related to a child, he or she must do so based on what is in the best interests of that child. This is a standard that most every state utilizes when applying the law towards the specific circumstances of a child and their family.
Based on the needs of that child, their current circumstances, the ability of their parents to provide the necessities of life and any medical/social/educational needs of that child, an amount of child support will be ordered. Whether the parties to the divorce agreed in mediation to that level of child support or a judge ordered that the amount be paid after a trial, the fact is that the current child support order for this man obligates him to pay an above guidelines level of support.
Where does the Law Office of Bryan Fagan come into play?
Here is where our office becomes relevant to the discussion. This gentleman contacted us about representing him in a child support modification case. His thoughts on the matter center around the reduced level of expenses that his ex-wife is responsible for now that his children live in the Great State of Texas. Having moved from another state whose cost of living is much higher than Texas, our potential client wanted to see what a judge would consider as far as reducing the above guidelines level of child support. Is there a basis in prior court cases to argue that an out of state child support order can be modified to see a reduction in the child support obligation based on circumstances like this?
Today’s blog post from the Law Office of Bryan Fagan will seek to answer that question. As I see it, there are two parts to this discussion that we have to tackle. The first is whether or not a Texas Court has the jurisdiction to modify an out of state child support order. The second is what basis in the law would a family court judge have to reduce the above guidelines level of child support when there has been a change in the cost of living associated with raising children.
When does a Texas court gain the jurisdiction to modify an out of state child support order?
There are a couple of ways that a child support order that comes from a court outside of Texas could be modified, potentially, by a Texas family court. The Texas Family Code states in section 159.613 that if both the child support obligor (parent who pays child support) and the oblige (parent who receives child support payments) and the child all reside in Texas then our state has attained jurisdiction over the case and may modify and/or enforce the out of state order.
Likewise, when only one party (parent) live in Texas, then a modification is possible even if both parents do not reside in Texas. This occurs when the parent bringing the modification cases (in our above scenario, the father) is not a resident of Texas and the responding party (the mother in our example) lives in Texas and is subject to personal jurisdiction in Texas. Here, too, a Texas family court would have jurisdiction over the case.
What have Texas courts stated about subject matter like this?
So now we at least have a basic understanding of how a Texas court gains the ability to make rulings regarding an order issued by an out of state court. The jurisdiction to do so is critically important. You may be in a situation like our potential client- having seen a change in circumstances that have materially affected your family since the issuing of that order. Thus, some portion of your prior order is no longer suitable for you or your children. However, if you cannot successfully argue to a Texas court that jurisdiction is proper in Texas you will not be able to make an argument about any of the facts and circumstances that justify a modification.
A fairly recent Texas state appellate court decision would further assist us in our discussion. In re Dennis J. Martinez, 450 S.W.3d 157 (2014) contains within it a good discussion of the relevant law regarding how and when an out of state court can lose jurisdiction over a case and its parties.
This court notes that in section 159.205 of the Texas Family Code, our state law provides only two ways in which a court may lose jurisdiction over a case and its parties about a family law matter. First, the obligor, the oblige, and the child would have to all move out of the state that issued the order (as we discussed previously). Another and less likely scenario would be that all individuals file written consents in Texas allowing a Texas court to assume jurisdiction and modify the other state’s order.
As noted above, the circumstances under which a court may modify a support decree from another state are found in section 159.611 of the Family Code. SeeTEX. FAM.CODE ANN. § 159.611. A modification is permitted by the non-rendering state under the circumstances outlined in section 159.611 because under such circumstances the rendering state no longer has a sufficient interest in the modification of its order.
If you are facing a situation like a gentleman who contacted us about potentially representing him in a child support modification case here in Texas, you need to consider whether or not a Texas court will even be able to hear your arguments and potentially grant you whatever relief you are requesting. Keep in mind that if you cannot clear this jurisdictional hurdle you won’t even get the opportunity to submit any of your arguments to the court as to why your child support order needs to be modified.
Can a Texas court grant a reduction in the child support obligation of a parent under an out of state order?
Here is the question that our potential client is interested in knowing the answer to. He wanted to find out what facts and circumstances would need to be in play that could lead to a court in Texas reducing his above guidelines level of child support that he is currently obligated to pay.
A modification of a child support order is warranted when the petitioning party (the person asking for the modification) can provide evidence showing a material and substantial change in the circumstances of one of the parties to the order or a child of the order. As the court in Tucker v. Tucker, 908 S.W.2d 530 (1995), notes, there is an inherent fact-finding nature of child support issues and the cases that are made up of those issues.
The high court in Texas was stating what every family law attorney worth his salt could tell you: that family law cases are extremely fact-specific. If you would like to modify a child support order then you will need to present facts clearly and concisely to the court. This means that your initial petition to the court and in your oral arguments inside of a modification hearing need to display the requisite level of material and substantial change needed to grant the modification.
Cost in living expenses has been a factor alleged by prior parties seeking child support modifications
Part of the analysis that your court will look at when considering whether or not to grant a child support modification is the expenses incurred by the custodial parent who is raising the children on a day to day basis. Remember- our potential client would like to make an argument that because his ex-wife and kids now live in Texas, with its lower cost of living than their native state, is no longer in need of a child support payment that is above the guidelines of his home state.
Costs associated with special education for your child, school tuition and things of this nature are relevant to our discussion. A court would look to the expenses of your ex-spouse to determine whether there is sufficient evidence in the record to compare the expenses of her and your children at the time that the original child support order was issued and what the expenses are now. This means that you will need to do some digging to produce this kind of evidence, especially if the child support order is from a decade ago.
In the case, In the Interest of C.C.J. and C.M.J, Minor Children, 244 S.W.3d 911 (2008), the court went over a good analysis when that has to be shown to a court to justify a modification:
To determine whether there has been a material and substantial change in circumstances, the trial court must examine and compare the circumstances of the parents and any minor children at the time of the initial order with the circumstances existing at the time modification is sought. London v. London, 192 S.W.3d at 15.
In that case, the parent who was attempting to modify the prior court order was the mother. She was arguing for an increase in the level of child support based on a material and substantial change in the circumstances of her and her children. Her expenses, she attempted to argue, had increased dramatically in recent years, while the income of her ex-husband had increased. The evidence she presented, the court determined was insufficient to justify an increase in child support. Here is what the appellate court determined:
Here, without both historical and current evidence of the financial circumstances of Mother and the children, the trial court had nothing to compare. See id. Because there is no evidence in the record of the financial circumstances of Mother or the children at the time of the entry of the divorce decree, we conclude the trial court’s finding of “a substantial and material change of circumstances since the rendition of the prior order” is not supported by the record. Accordingly, we conclude the trial court abused its discretion in increasing Father’s monthly child support obligation.
What does the Texas Family Code have to say about a decrease in the needs of a child about child support?
The Texas Family Code states that an increase in the needs, the standard of living, or lifestyle of the oblige since the rendition of the existing order does not warrant an increase in the obligor’s child support obligation. Texas Family Code section 156.405. I would also argue that the opposite could also be potentially held by a Texas court. Specifically that an argument that a decrease in the needs, the standard of living or lifestyle of the custodial parent is not necessarily a reason in and of itself to modify a child support obligation.
A Texas case that is important for our purposes is In the Interest of J.A.H. and M.K.H, Children, 311 S.W.3d 536 (2009). Here, as in the prior case we discussed, a mother was attempting to argue that an increase in her expenses due to a change in the cost of living after a move justified an increase in the child support obligation of her ex-husband. What the court found, in this case, was that all of the evidence submitted by the mother tended to show that there had been a change in her circumstances rather than a change in a substantial change in the circumstances of her children.
The court argued that simply showing a change in lifestyle and not a material or substantial change in circumstances of the children does not in and of itself justify a modification of the child support order. If you attempt to argue that because your ex-spouse’s mortgage payment has decreased or that their utility bills are lower and that justifies a decrease in the child support obligation, then this case should give you pause.
How are the needs of your child taken into account by a court?
Specifically, to justify an award of child support above the guidelines outlined in the Texas Family Code, your ex-spouse must show that there would be needs of your child that would be unmet but for the higher than guidelines level of support. Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 (Tex. 1993). Note that the needs of your child are not the bare necessities of life, either. Each court will decide as to what the needs of your child are. Like we mentioned earlier in this blog post, the facts of your case will guide the judge in large part.
The bottom line: if you wish to modify a child support order come with plenty of evidence
Whether yours is an out of state child support order or an order that originates in Texas, you need to come to court with plenty of evidence that justifies the modification request A family court judge has the authority to reduce a level of child support that is currently set above the guidelines of your home state, but to earn that decrease in the support obligation you have to submit sufficient proof showing a change in the conditions of your spouse, your children or you. A material and substantial change regarding the cost of living is a trickier argument to make than one based on a change in your income or an increase (or decrease) in the educational or medical needs of your child.
Please consider contacting the Law Office of Bryan Fagan if you have questions about today’s material. Our licensed family law attorneys offer free of charge consultations six days a week where we can answer your questions in a comfortable and pressure free environment.
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Blended families generally consist of a couple and their children from all relationships, and they’re becoming more common every year. According to the 2009 census, upwards of 16% of children live in a blended family, and upwards of 1,300 new blended families form every single day.
Going from being a single parent to being a part of a blended family can be challenging. Here are a few tips and tricks to help make that transition easier to navigate.
8 Tips For The New Step-Parent
1. Remember That It’s a Big Change
Becoming a blended family is a major change for everyone involved. It also ends up being more challenging for children than it is for adults, especially young ones who don’t have any context to help them understand what’s going on. Be patient with everyone and prepare for conflicts. Know how to defuse stressful situations before they get out of hand.
2. Talk About Parenting Styles Before You Move In
Discuss your parenting styles with your significant other before you cross that final bridge and bring everyone together. Figure out where you agree, where you differ and where you need to compromise, as well as who is responsible for things like doling out corrective action. Have that conversation as early as possible so you have plenty of time to iron out all the details.
3. Adapt As Necessary to Manage Age Differences
Different-age children will respond to becoming a blended family in various ways. Teenagers might rebel dramatically, while younger children might have tantrums or act out because they don’t understand what’s happening. All they know is that things are changing. You’ll need to be adaptable in response to this. Deal with issues related to age differences as they come up, and remember to be patient and communicate with both the children and your partner.
4. Be Open About Mental Health
People often consider mental health a taboo topic, but if you’re making your way toward becoming a blended family, you need to keep everyone’s mental wellness in mind. Start the conversation, especially with those who are old enough to use social media.
These sites, and the internet as a whole, are an integral part of our lives, but they can also be detrimental to our mental health. This factor is especially true if other things are happening in your life that could have adverse effects.
5. Don’t Make Your Children Choose
Ultimatums are your worst enemy when it comes to creating a successful blended family. Don’t make your kids choose, whether that means deciding between parents or where they want to live. If you do reach a point where decisions are necessary, have a conversation with your partner first to ensure you’re on the same page with parenting your collective children.
6. Be Ready to Co-Parent
When it comes to blended families, co-parenting doesn’t just mean the relationship between you and your partner. It means being ready to deal respectfully with any living ex-partner that may have had a parenting role in your children’s lives. Co-parenting is a part of any parent/step-parent relationship, regardless of the situation. Don’t make it a battle. Doing this will make your life harder, and it isn’t fair to any kids involved either.
7. Make It About Respect
When you’re bringing together multiple families, not everyone is going to like one another. Some people will butt heads, that’s part of life. While you can’t make everyone like each other, it should always be about respect. You can respect someone you don’t like and building a blended family on this principle is the best choice for everyone. Lead by example and practice this principle with others in every situation you encounter.
8. Take Care of Yourself Too
Caring for your kids and your partner’s kids are challenging. It’s easy to forget one of the most important rules, that you need to take care of yourself too. Don’t let putting everyone else first prevent you from practicing self-care.
Work with your partner so you can take a break, even if it’s something as simple as an uninterrupted bath or a solo trip to the grocery store. Caring for your mind and body allows you to be a better parent and partner, which is why it’s essential to avoid leaving your wellbeing on the back burner.
Be Patient With Each Other and Yourself
Coming together as a blended family is probably one of the most challenging yet rewarding things you will ever do. It’s a significant change that may be difficult for members of your growing family to adapt to, but it is becoming more common with each passing year.
If you find yourself in a situation where you’re going to become part of a blended family, be patient with yourself and your new relatives.
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I wish Elizabeth Barrett Browning had been around long enough to advise us all after the depth and breadth and height our souls had once reached in love and tell us in her grand poetic prose how to fit in after a divorce had forced it all to plummet to the hard-rocky ground!
There are many times I have felt that I should go reside on the island of Misfit Toys since my divorce, in order to feel like I belonged. I am a Baby Boomer and like all Boomers, we come from an idealistic model of relationships.
Our parents had us after World War II and we were a product of those referred to as the Greatest Generation. We straddle between the world of party lines and actual dial telephones to modern techie cell phones and social media communications.
We live with one foot in the world of real people greeting each other directly and shaking hands to the world of visiting your friends and relatives through the lens of social media and sending them a hand waving emoji.
So, why did I feel that I didn’t quite fit in since my divorce?
How has my “fit” changed from married person to divorced person?
Well, let me count the ways. And maybe some of you have experienced this too.
“As your life changes, so will your circle.”
Yunus Chhapra
How To Fit In After Divorce
Friendships
I found that soon after my divorce, my friends changed. My friendships changed. When you are a couple you usually have those “couple friends” … you know, those people that you always go to dinner with, go to concerts with and the movies with.
Those who help you out with your kids because they too have kids the same age.
Those that loan you a tool if you need it.
Those that help you move furniture up a flight of stairs. Or, help to install a new window.
Those “go to” people who were always in your couples’ orbit.
I found out shortly after my divorce that I was soon looked at as the awkward friend. My ex-husband left the orbit altogether. So, I was left to explain why my husband left. In the beginning, they all wanted to know the juicy details.
I didn’t give out the gory particulars, but what I did share was consumed and it served to feed not only their morbid curiosity, it also fed their need for drama at no risk to themselves. I was left to try to tell the story and I was looked at differently from that point forward.
We were the couple that everyone thought had it all. We were the couple that many wanted to be. Once a split happens with “that couple”, you know…the one people look up to, well it makes them question their very own relationships.
Especially if the model husband in their eyes, left you for another woman. I had one person tell me that if it could happen to us it could happen to anyone. It could happen to them.
I also started getting some side eyes from my female friends. I guess now that I was a single woman, I might be a threat. I have had many other women in the time since my divorce tell me that they too experienced this with their friends.
The result is that you migrate away. You don’t get invited anymore. You have children to care for anyway, but you soon realize that you are alone. It felt like I was a rowboat tied to pier and someone came and just quietly untied the rope from the pier, and I drifted away ever so quietly.
When this happened, I came to the knowing that I needed to find my own orbit. My own people. If you are new to being officially defined as “divorced” on your current identifications, do not despair.
What you will find is that the people who are about to enter your new solar system, are deeper and more compassionate. Because that is who you are now, and you will be drawn to those who may have experienced something similar.
Their care and wisdom are much needed as you embrace new friendships that are 100% yours. Those that you have left behind in the wreckage of your marriage hold little value to you.
And those that stayed the course with you and loved you through the whole horrible experience, are golden. Find your own people and celebrate!
“Call it a clan, call it a network, call it a tribe, call it a family. Whatever you call it, whoever you are, you need one.”
British Novelist Jane Howard
Family
If you have gotten a divorce and you are now a single parent, that of course changes a family. It changes the very foundation that you built your family on. If you are lucky, the family that built you, is what gets you through it.
And you find that you rely and lean on your family like never before. But what I also found out through my journey after divorce, is that I had changed. I was no longer that same family member that they once knew.
How could I be?
I had been through such a brutal life experience and as a result, the person I once was no longer existed. I was now a myriad of people.
I was fragile as well as tough.
I was compassionate as well as short tempered.
I was now responsible for an entire family. And they had no idea what that felt like.
Even in imagination, they dare not go there.
So how do you slide back into that role inside your family when you don’t know what that role is?
And even still, how can your family recognize you now and find a common denominator beyond shared parents?
Well, I’m here to tell you that it doesn’t happen overnight and its not easy. But it can happen and, on your terms, too.
I had once written that I felt the most alone when I am with my family at the holidays, get-togethers, weddings, etc. All the family congregations that resembled the model household.
Married couples with their kids who even have kids of their own now. And so, it goes. It is where I come from. It is all that I knew, until the day I was forced to unlearn it.
I think many people feel as I do when they come together. Everyone was completely well meaning and really had no idea how I was feeling. I am good at masking it to “fit in” and make others feel more comfortable than me.
But the truth be told, as I mentioned in the article before, it’s hard to feel whole when you are reminded by all the real wholeness that surrounds you.
It takes courage to speak up and introduce this new you. To represent the person, you are now and expect nothing less than their full support and respect. It’s not your job to keep up a persona that you no longer own.
You are a whole person in your own right, and you have earned the respect of everyone.
So, introduce your new whole self to the family that you know. To the woman, you are both just getting to know. Give them a chance and enjoy the relationship.
And if you determine that you have changed too much, and they can’t accept your new improved version of yourself, then choose your friendships as family.
Because at the end of the day, everyone needs a family, a clan or a tribe they can call their own.
“Being a working mother and a working single parent instills in you a sense of determination.”
Felicity Jones
Work
There is no better reason to work then because you need the money. In some cases, it’s the only reason. After I was divorced, I told a friend that I just wanted to meet a man who would say three things to me.
She said, “Oh, I love you?”
I responded with, “No! You can quit!”
The juggling act of working a full-time job and raising a family alone is unnerving to say the least. There are days that you literally feel like a performer who is spinning plates.
As the plates keep getting added, you are sweating to keep them all going at once and terrified that one will fall, and the rest come tumbling down.
That’s what it can feel like when you are a single mom who is the breadwinner of the family. You handle things completely differently than you’re married counterparts at work.
To begin, you don’t have a significant other whom you can fall back on. I remember I called my ex-husband to help me when my daughter was ill. I had already taken a day off and was nervous to ask for another day.
He responded and said he couldn’t; he had to work. Like I wasn’t working and supporting an entire family?
Like I didn’t need to work more than Good Ole Diamond Jim himself?
This was in the day that most workplaces didn’t have laptops they could bring home. So, what do you do? You take the day off and pray that it won’t come back to haunt you.
You pray that you won’t be revisiting this when you have your performance review.
You pray that your boss leaves and you get a new one who has no idea that you ever took a day off in your life.
And you pray that if none of that occurs, your work ethic as a woman who carries a globe on her shoulders every day of the week and twice on Sunday will receive the respect she deserves. And she does.
Over time, you communicate very little to anyone at work regarding your family and the responsibilities you carry. It takes one person who wants your job, who lets it slip that you left early to pick up your child, or you left early to go to the drugstore to get a prescription for your child, or you came back late from your lunch because you had to go home and pick up a book that your child left at home and they needed for class.
It takes one person to characterize you as less then committed to your job. And it usually comes from someone who has never been married, let alone had children.
If you are wise, you trust only a few. And again, those that you do trust are golden and you need them to lean on every once in a while.
Because the last thing you will be able to cope with, is a job loss.
And guess what?
I eventually did lose my job. So, no matter how old your kids are. As long as you are a single working mom, be cautious with you job. We live in a much better workspace now and employers are much more forgiving and flexible. But, there are no guarantees and you need to always be smart.
You may not feel a complete fit because of the lengths you feel that you have to go to protect yourself, but at the end of the day you do fit because you are doing an amazing job and most people in your work environment would never know what a true Rock Star you really are. But you do!
“The most beautiful people we have known are those who have known defeat, known suffering, known struggle, known loss, and have found their way out of the depths,”
Elisabeth Kubler-Ross
So, who are you now?
You have created a new you through the eyes of your friends, your family, your work colleagues.
Who is this new you?
Well, only you know the answer to that. And it may be a work in progress for a while. But, what I am certain of is that this, “NEW YOU” that you have become and embraced and introduced to the world is someone who will be amazing at all you endeavor.
And you are someone who is full of compassion, humility, and excitement as you venture into this new chapter of YOU. And always remember:
“Be who you are and say what you feel, because those who mind don’t matter, and those who matter don’t mind.”
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