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Same Sex Marriage: Can a judge stop you from getting a divorce in Texas?

Same Sex Marriage: Can a judge stop you from getting a divorce in Texas?

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

Despite the decision out of our federal Supreme Court a few years ago that legalized same sex marriage across our country there are still some misunderstandings and questions regarding that subject. This is understandable to a degree. The change in laws dramatically altered the landscape of family law in terms of who is and is not able to participate in the family law courts. In addition, some folks I have spoken with in my capacity as a consultative attorney with the Law Office of Bryan Fagan still have questions if marriage and divorce work the same for opposite sex and same sex persons. Today’s blog post will discuss marriage and divorce for same sex couples.

Expected length of time for a same sex divorce in Texas?

There are two roads that your divorce could go down. The first is the path of least resistance- an uncontested divorce. To be considered truly uncontested you and your spouse would need to be in agreement on getting a divorce, have a plan in place for diving up any marital property and if you have children would need to have every aspect of a parenting plan agreed upon as well. This means conservatorship, visitation, support, etc. all need to be decided prior to hiring an attorney. If even one piece of this pie is missing, then your divorce is not uncontested and will therefore require some degree of negotiation.

The second path is unfortunately the more common road that most divorces go down- a contested divorce. All of the above issues that I laid out are in play in a contested divorce. The more substantial your martial property or the more detailed your parenting objectives and plans are the more complicated and longer your divorce will likely take. There is not anything wrong with this as a general rule, but it can get tedious and tiresome for most people who are eager to complete their divorce and move on with the rest of their lives.

Generally speaking, a divorce in Texas must take at least sixty days from the date on which the Original Petition for Divorce is filed with the court. Ostensibly the sixty first date is the earliest date on which you and your spouse can have a judge sign a final decree of divorce. A final decree could be signed and ready the day after your petition is filed but absent extreme circumstances (like family violence being an issue) it is unlikely that a judge would waive the sixty-day waiting period. For those of you wondering, the waiting period exists in order for you and your spouse to make absolutely sure that you want to get a divorce rather than remain married and try to work it out together.

How can you avoid a long and protracted divorce?

The key to a fast-moving divorce is to understand early on that you are not going to get 100% of what you want. I wish there were some way to ensure that all of our clients always got just what they wanted out of a divorce but to this point I have not been able to do the math on how to get there. If any attorney ever does get to that point, then the rest of us may as well give it up and start looking for work elsewhere.

The reason that divorces end up being situations where you and your spouse both give up (and therefore gain) things in order to settle the case is that most family courts in Texas require that you attend mediation at least once throughout your case’s life. Typically, you will attend mediation once before any temporary orders hearings and then again before your trial.

Temporary Orders hearings have everything to do with how you and your spouse will be situated during your divorce from the perspective of making sure bills are paid, the kids are cared for and one another are treated with respect. Mediation involves attending a formal negotiation session with your attorneys in the office of a third-party mediator. The mediator is also very likely a practicing family law attorney him or herself so you will be able to gauge the relative strength or weakness of your arguments with the mediator as well.

In mediating for final orders you will likely be extending much of the temporary orders out into your post-divorce life as well as deciding what will happen with any marital property accumulated by you and your spouse. Texas is a community property state. This means that any property that you acquired during the course of your marriage is considered to be jointly owned by both of you and is therefore subject to being divided up in your divorce case. If it is your contention that something acquired during your marriage is your property separate from your spouse- like a gift of some sort- then the burden is on your to prove by clear and convincing evidence that this is the case.

Tips for preparing for mediation in your same sex divorce case

Attending mediation will be the same for you as it would be for persons going through any other divorce. You and your attorney should come prepared with settlement offers, a list of property that may be in play as far as negotiation is concerned as well as plans and ideas on how to divide up parenting time with your children. The more prepared you are and the more variations you have available to you of the different parenting plans the more likely you will be to reach a relatively pain free settlement.

For instance, it is commonly thought in opposite sex divorces that mothers have the advantage when it comes to being named the primary conservator of your child. Primary conservator means the parent who has the right to determine the primary residence of your child- among other rights. This allows your child to live with you throughout the school year and provides visitation time (mostly on weekends) to your spouse once the divorce has been completed.

In same sex divorces there would not be an apples to apples comparison due to there not being a male and female parent from which to choose from. You and your spouse should have had discussions heading into mediation regarding which of you is better suited to be named as the primary conservator of your children. Having an honest conversation with your attorney about which parent has been more active, more involved, and better acquainted with your children’s day to day needs is a good place to start. My admitting to yourself that your spouse has taken the lead in these areas throughout your marriage or has a work schedule that is more conducive to providing the level of care that is needed to raise a child on a daily basis is not admitting that you are not a good parent. It can, however, help you to eliminate contentious delays in your case and lead to a more developed settlement agreement.

Another aspect of divorce mediation that you need to be prepared for is determining how to divide up your bigger financial assets. Retirement plans, bank accounts, home equity and the like are probably the type of assets that you will have in play for your case. If you have not considered these subjects prior to entering into mediation you will find out that you will need to work through them in mediation. Seeing as how most mediation sessions are only four hours long you will not be optimizing your time by spending an undue amount of time on these sort of brain storming sessions while in mediation. Rather, spend a few weeks prior to mediation using your attorney as a go-between to communicate settlement offers to your spouse.

Finally, it is important to note that what you settle upon in mediation cannot (in most circumstances) be changed. That means that you cannot wake up the morning after mediation and call your attorney in a panic because you think you made a huge mistake in deciding to agree to a geographic restriction for your child when you really want to move back home to Colorado to be closer to family once the divorce is over with.

You can avoid problems like this by asking questions of your attorney about anything that you are agreeing or not agreeing to. If any settlements are reached (either in part or in full) then the mediator will present rough draft copies of what is known as a mediated settlement agreement to you and your spouse. You can and should go over them with your attorney to make sure that you understand everything that is being agreed to. If something doesn’t make sense, or if the wording of what the mediator included does not comport to the agreement as you understood it please raise that issue before mediation is over with.

Will you ever have to go to court in your divorce?

Thankfully you will likely only have one court date that you will have to attend during your divorce. That court appearance will be an uncontested appearance in what is known as a Prove Up hearing. The petitioner (party who filed the Petition for Divorce) will attend a quick hearing with their attorney in court. At the prove up hearing your attorney will be presenting you and your Final Decree of Divorce to the judge for his or her approval. The attorney will ask you questions regarding the divorce decree as a means to show the judge that you and your spouse have come to an agreement and are ready to move forward to close out your case.

In all likelihood your judge will not ask any questions and will send you off on your way. The divorce decree will be signed by the judge later that day and will likely be posted online in the day following. You can pay for certified copies at the clerk’s office shortly thereafter.

One question that I am sometimes asked by clients is how much of your prove up hearing will be heard by the public. It is true that anyone can walk into your courtroom during your prove up hearing and hear some details about your case. If you are at all trying to keep the divorce from becoming an “event” or something like that I understand why you may not be too excited to set foot in court and put your life on display in front of a handful of people.

I cannot emphasize, however, that it is unlikely that anyone in court other than the court report, judge, your attorney and you will be paying attention to a word of what is said. In Harris County, for example, you and your attorney will approach the bench and speak to the judge in a conversational tone. Therefore, a person in the first row of courtroom seats will have problems hearing what is happening in your case. The bottom line is that if you are worried about airing your business for all the world to hear then you should be at ease because a Prove Up hearing is not that kind of court appearance.

Closing thoughts on same sex divorce cases

It could be that you never imagined that you would ever get married in your life. Now you are having to contend with the thought of getting a divorce. This cannot be an easy time for you and your family. However, the attorneys and staff with the Law Office of Bryan Fagan are here to tell you that our office will stand with you throughout your case until your process is complete.

If you have any questions about the material that we have covered please consider contacting the Law Office of Bryan Fagan. We offer free of charge consultations six days a week with our licensed family law attorneys. It would be our pleasure to talk with you and to answer your questions and concerns in a comfortable, pressure-free environment.

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



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Timeline Indicates: Stanford University Professor Michele Dauber Set Up Judge Persky for Recall as Chanel Miller (Emily Doe) Gets 60- Minute Interview and Book Deal

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Cindy Hendrickson  Email – dated December 2, 2016

Timeline Links  Sex Trafficking & Election Rigging to Family Court 

2015: Court Clerk David Yamasaki reportedly met with Orange County DA Tony Rackauckas to study the county’s snitch program  in an effort to mirror that  program for the benefit of Santa Clara County DA Jeff Rosen. 
Jeff Rosen then went to work with his inner circle to move Victim Witness Services under his management and control  with an eye to earning funds from state and federal grant money earmarked for crime victims. 

It is believed that Rosen then designed a scheme with the help of prosecutors in his office to  and to rigging local elections in a manner that would place more prosecutors in family courts where domestic violence cases could feed money to private divorce lawyers and criminal defense attorneys who regularly donate to Rosen’s political campaigns. 

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   Jeff Rosen Eyes Two High Profile Cases for Scheme

        2016- SCHEME TO RIG LOCAL ELECTIONS 

Parents involved in domestic violence cases connected to divorce and custody knew something was amiss. Many women reached out to Michele Dauber, who was gaining fame for her advocacy for a sexual assault victim known as Emily Doe and now known to be Chanel Miller, the woman now known for her 60- Minute interview and a book deal, but before that interview, there were thousands of emails that show Dauber worked with prosecutors in the Orange County and Santa Clara County DA’s office as her effort to see the recall of Judge Aaron Persky that would assure DDA Cindy Hendrickson a spot on the Santa Clara Family Court bench.  

Dauber’s access to the DA’s office and DA Jeff Rosen was unpresented. The DA’s own Public Information Officer Sean Webby even assisted Dauber in attacking protestors who attempted to reveal improper governmental activity surrounding the recall’s press conference that were stacked with Dauber supporters. 

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Dauber Schemes with DA Jeff Rosen to Beat Persky

DA Employees Saher Stephan and Nida Rehman Involved Richmond Police Department Sex Scandal – August 2016 

Whistleblower: David Yamasaki Steals Public Funds and Moves to Orange County to Launch Private Judge Scheme In Family Courts 

Walter Hammon’s Family Law Cases Expose Court and Cop Corruption

 2016 Michele Dauber Worked  with DDA Alaleh Kianerci Draft the Famed Emily Doe Letters 

As mainstream media insisted the Emily Doe letter was written by the victim in the Brock Turner case, emails produced to local reporters in March of 2019 show a different story. Those emails have been provided to academics and journalists and are now being reviewed by the Attorney General and the Department of Justice after it appeared Michele Dauber used her position  as a law professor at Stanford University and her connections to Google and other Silicon Valley Titans to rig views  on You Tube, Twitter and Change.org and create the perfect victim that would result in the recall of Judge Aaron Persky and the placement of Cindy Hendrickson in Silicon Valley Family Courts. 

Following the recall, it is believed that Santa Clara County District Attorney worked with connections in Alabama to perpetuate a human trafficking network across the country  and operating in Santa Clara and Orange County family courts where domestic violence cases involving high profile Silicon Valley tech executives are involved. 

Rosen is rumored  to be working with snitches, moles and family law attorneys to chill speech and discredit journalists willing to report on the county’s family courts. 

Rosen Using Chanel Miller for His Scheme

As Chanel Miller , AKA Emily Doe Appeared on 60 Minuets, Rosen reportedly told his wife, a family court judge, that his plan was almost complete. DDA Alaleh Kianerci is now posed to overtake the AG position  in the next election and Rosen’s snitches and moles are moving in to take out Sheriff Laurie Smith, the only other woman who poses a threat to Rosen’s future political career. 

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Court Watchers Learn County Counsel Ward Penfold, James Williams and Michael Rossi Involved in Sex Trafficking Cases Connected with  Family Courts 

Court Watchers in the Santa Clara County Superior Courthouse on September 24, 2019 overheard mediation discussions involving lawyers Ward Penfold, James Williams and Michael  Rossi who represent Supervisors Cindy Chavez, Dave Cortese and DA Employee Kasey Halcon as well as private divorce attorney Nicole Ford alleged to be involved in a criminal conspiracy that is connected to Orange County domestic violence and family law cases where private judges act under the management and supervision of court clerk David Yamasaki who moved to Orange County in 2016 as part of the state’s private judging scam that has resulted in the taking of thousands of children and the transfer of billions of dollars of private funds to the political campaigns of Democratic candidates including District Attorney Jeff Rosen and 80% of the judges serving in Silicon Valley’s family law and domestic violence cases. 

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best interest of the child

What Does a Judge Taking Into Consideration When Deciding “The Best Interest Of The Child?”

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best interest of the child

 

The judge considers many factors in determining child custody during divorce. Most important is “the best interests of the child.” To determine best interests, the judge may look at the following factors:

When Deciding The “Best Interest Of The Child?”

Home Environments. This refers to the respective environments offered by you and your spouse. The court may consider factors such as the safety, stability, and nurturing found in each home.

Emotional Ties. The emotional relationship between the child and each parent may include the nature of the bond between the parent and child and the feelings shared between the child and each parent.

Age, Sex, and Health of the Child and Parents. Louisiana no longer ascribes to the “tender years” doctrine, which formerly gave a preference for custody of very young children to the mother. If one of the parents has an illness that may impair the ability to parent, it may be considered by the court. Similarly, the judge may look at special health needs of a child.

Effect on the Child of Continuing or Disrupting an Existing Relationship. This factor might be applied in your case if you stayed at home for a period of years to care for your child, and awarding custody to the other parent would disrupt your relationship with your child.

Attitude and Stability of Each Parent’s Character. The court may consider your ability and willingness to be cooperative with the other parent in deciding who should be awarded custody. The court may also consider each parent’s history, which reflects the stability of his or her character.

Moral Fitness of Each Parent, Including Sexual Conduct. The extent to which a judge assesses the morals of a parent can vary greatly from judge to judge. Sexual conduct will ordinarily not be considered unless it has harmed your child or your child was exposed to sexual conduct.

Capacity to Provide Physical Care and Satisfy Educational Needs. Here the court may examine whether you or the other parent is better able to provide for your child’s daily needs such as nutrition, health care, hygiene, social activities, and education. The court may also look to see whether you or your spouse has been attending to these needs in the past.

Preferences of the Child. The child’s preference regarding custody will be considered if the child is of sufficient age of comprehension, regardless of chronological age, and the child’s preference is based on sound reasoning. Louisiana, unlike some other states, does not allow a child to choose the parent he or she wishes to live with. Rather, the court may consider the well-reasoned preferences of a child, at any age. Typically, the older the child, the greater the weight given to the preference. However, the child’s reasoning is also important.

Health, Welfare, and Social Behavior of the Child. Every child is unique. Your child’s needs must be considered when it comes to deciding custody and parenting time. The custody of a child with special needs, for example, may be awarded to the parent who is better able to meet those needs.

The judge may also consider whether you or your spouse has fulfilled the role of primary care provider for meeting the day-to-day needs of your child.

One tool to assist you and your attorney in establishing your case as a primary care provider is a chart indicating the care you and the other parent have each provided for your child. The clearer you are about the history of parenting, the better job your attorney can do in presenting your case to the judge.

Look at the activities below to help you review the role of you and your spouse as care providers for your child.

Parental Roles Chart

Activity Mother  Father
Attended prenatal medical visits
Attended prenatal class
Took time off work after child born
Got up with child for feedings
Got up with child when sick at night
Bathed child
Put child to sleep
Potty-trained child
Prepared and fed meals to child
Helped child learn numbers, letters, colors, etc.
Helped child with practice for music, dance lessons, sports
Took time off work for child’s appointments
Stayed home from work with sick child
Took child to doctor visits
Went to pharmacy for child’s medication
Administered child’s medication
Took child to therapy
Took child to optometrist
Took child to dentist
Took child to get haircuts
Bought clothing for child
Bought school supplies for child
Transported child to school
Picked child up after school
Drove car pool for child’s school
Went to child’s school activities
Helped child with homework and projects
Attended parent-teacher conferences
Helped in child’s classroom
Chaperoned child’s school trips and activities
Transported child to daycare
Communicated with daycare providers
Transported child from daycare
Attended daycare activities
Signed child up for sports, dance, music
Bought equipment for sports, music, dance
Transported child to sports, music, dance
Attended sports, music, dance practices
Attended sports games, music, dance recitals
Coached child’s sports
Transported child from sports, music, dance
Know child’s friends and friends’ families
Took child to religious education
Participated in child’s religious education
Obtained information and training about special needs of child.
Comforted child during times of emotional upset

Domestic Violence. Domestic violence is an important factor in determining custody, as well as parenting time and protection from abuse during the transfer of your child to the other parent. If domestic violence is a concern in your case, be sure to discuss it in detail with your attorney during the initial consultation so that every measure can be taken to protect the safety of you and your children.

The post What Does a Judge Taking Into Consideration When Deciding “The Best Interest Of The Child?” appeared first on Divorced Moms.

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Parents, Protestors & Picketing Activists Focus on Judge Recalls And Indictments

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Contra Costa parents successfully gathered enough signatures to place three judges on a recall ballot, tripling the threat to the security of complicit judges who have been separating and bankrupting families in California’s family courts for the past two decades.. 

Joined by children who are the product of divorce in Silicon Valley, activists are turning their attention back to Santa Clara County to focus on Judge James Towery, Judge Joshua Weinstein, Judge Stuart Scott, Judge Cynthia Lie, Judge Lori Pegg and Judge Roberta Hayashi who have pandered to corrupt lawyers and loyalties over families they are elected to serve. 
Weinstein , who has returned to the family court after corrupting criminal cases is a new focus of social media hit pieces. 
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Check out this link and guest Q post. 

www.blogger.com/u/1/blogger.g?blogID=4920646381212958787#editor/target=post;postID=6491986878894969875;onPublishedMenu=allposts;onClosedMenu=allposts;postNum=0;src=postname
 
San Jose, February 28, 2019- 
Honesty, fair play, search for truth, unbiased application of enacted law, are among the “must have” qualities of a American Judge when they make binding, life-altering decisions on U.S. citizen’s life, liberty and pursuit of happiness.

Complaints against the California judges, and in particularly the Santa Clara County judges, supervised by the California Judicial Council, have grown in recent past.. Lack of transparency, for example;  no recording of court proceedings, judicial immunity, tampering of records, judicial misconduct tactics, cover ups, et al., renders judicial misconduct almost invisible.

However, public has grown increasingly frustrated and began documenting and sharing with the world the crisis of judicial corruption. For example, recent Santa Clara County public filings reveal uncontroverted facts supporting Judge Joshua Weinstein’s misconduct, corrupt acts, fraud on the court, creation of false record, et al.
 
It is such gross judicial misconduct that led to California State Auditor being asked to audit of the hollow California judicial oversight body, the state’s Commission on Judicial Performance

Ironically public had previously complained that Judge Joshua Weinstein routinely cozy up lawyers and “He is especially unfair to self-represented parties” see www.therobingroom.com/california/Judge.aspx?id=22514

Please direct your comments and queries to drainjudicialswamp@gmail.com– news source for collecting complaints on Judge Weinstein. 

Recall Judge Program  Contact : JohnQPublic@Gmail.com

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