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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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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One of the most misunderstood aspects of family law is how alimony is calculated. In some states, there is simply a formula that is utilized. However, in New Jersey, it is much more fact-specific.
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Premarital and Marital Property Agreements are contracts between you and your spouse or spouse-to-be that can have a great deal of importance. A signed, written agreement between the two of you that allocates debts and property into either the community or separate property column will determine how each piece of property is treated in the event that your marriage ends in a divorce. We hear about premarital agreements or “prenuptial” agreements all the time in the media when rich, famous people get married. However, these sort of agreements are not just for the uber-wealthy.
A premarital agreement will go into effect the day that your marriage begins. Most people that enter into these agreements do so to limit the amount of property or debt the community estate will accumulate over the course of their marriage. On the other hand, if you and your spouse were to enter into a similar agreement during the course of your marriage it would be known as a marital property agreement. Essentially both documents are the same, it is just a matter of when the agreement comes into being- before or after the marriage has started.
How a premarital or marital property agreement works in the context of a divorce is that whichever spouse files for the divorce will reference the property agreement within the Original Petition for Divorce. When it comes time for the final orders of your divorce to be filed at the conclusion of your case, a copy of the agreement will typically be attached to those orders as an exhibit for reference purposes.
How is community property divided in a divorce?
If you and your spouse have not entered into a premarital or marital property agreement, then it is the responsibility of the judge to divide your community property and debts. That is, the judge must divide the property in the event that you and your spouse cannot agree to do so in mediation or in an informal negotiation settlement conversation. Keep in mind that although Texas is a community property state, debt and property does not have to be divided 50/50 between you and your spouse. Factors like the size of each of your separate estates, fault in the breakup of the marriage as well as your income will weigh on a judge if he or she must divide your community estate.
In many cases, the community property that you and your spouse own cannot be divided straight down the middle. Let’s consider the most commonly divided large item of property that you and your spouse could have: the marital house. The easiest route that you and your spouse could go would be to sell the house and split up the equity that you would get after the mortgage and other costs of the sale are taken care of. There is relatively little hassle in doing this and allows both you and your spouse to wipe your hands clean of this asset and move on.
However, that is all true when you take the sale of the house in a vacuum. Consider what could change if you and your spouse have a child together. In many cases, a judge will award the family house to whichever parent is named the primary caretaker of your child. Obviously, it would have to be shown that this parent can afford the mortgage payments on their own. The reason a judge would order this would be to allow your child to have some degree of stability and consistency by remaining in the family home after the divorce concludes.
If you are the parent who is not awarded the right to be the primary caretaker of your child then you may be wondering where this leaves you. Would a judge really order you to leave the house, not award you primary responsibility for your child and then not allow you to gain any monetary benefit from the house? The answer to that question is, no.
Many times what a judge will order is that the house should be sold as soon as your child turns 18 and the sale proceeds will be split between you and your ex-spouse at that time. Or, you may be able to exchange any equity in the house for another piece of property in the community estate that could equal the value. For example, if there is a classic car that was purchased during the marriage that roughly equals your equity position in the home, that vehicle could be awarded to you.
The thing to keep in mind is that while a judge will do their best to divide the community estate in an equitable fashion, no judge is perfect. It is an impossible task to ask a judge to learn your family dynamics well enough over the course of a one or two day trial to do a perfect job of dividing the community estate. This is why we encourage people like yourself to do everything that you can to attempt to settle your case in mediation rather than to leave the decision up to a judge.
Will you have to pay spousal maintenance in your divorce?
Simply put, spousal maintenance is a payment that is ordered by a judge to be made from your future income to support your ex-spouse after your divorce has concluded. Although it is not a term that is officially used in Texas, many people know of this relationship as “alimony.” You and your spouse can agree to some degree of spousal maintenance in mediation, so don’t think that you have to go see a judge if you want to push for spousal maintenance payments.
Spousal maintenance is typically ordered towards the benefit of spouses that lack sufficient property to provide for their minimum basic needs. The key is that you and your spouse need to have been married for at least ten years in most cases for a judge to be able to order that you receive spousal maintenance. Other circumstances that could lead a judge to order that you should receive spousal maintenance is if your spouse has engaged in acts of family violence against you in the two year period prior to your divorce or you or your child have a disability that negates your ability to work outside of your home.
How much spousal maintenance can be awarded in your divorce?
A judge has limits to how much in spousal maintenance can be awarded in your case. Additionally, a judge can only order that spousal maintenance payments be paid for certain periods of time depending upon the length of your marriage. Your judge will need to determine how much money you would need to meet those minimum, basic needs that we just finished discussing. Either way, a judge cannot order that you receive more than $5,000 per month or 20% of your spouse’s gross monthly income in spousal maintenance. Your spousal maintenance award will be limited to certain periods of time unless you can present evidence that shows due to an incapacitating injury or physical impairment that you would be unable to earn an income to support yourself.
How issues related to your child can impact your divorce
Your Final Decree of Divorce will be the final orders issued in your divorce case. These are the marching orders that you and your ex-spouse will need to follow until you come back and have those orders changed/modified, if you do that at all. Part of those final orders will be a section that covers a Parenting plan for you, your ex-spouse and your children. The conservatorship designation of both you and your ex-spouse, a visitation schedule, child support, medical support and any other issues relevant to your family will be detailed in this section.
The reason why so much detail is put into a parenting plan is to, in theory, minimize the risk that you and your ex-spouse have as far as disagreements and animosity that surrounds co-parenting in your post-divorce life. Of course, this may not be the case for you and your ex-spouse but the intention is to lay out a clear cut path for your parenting to take in hopes to creating some sense of post-divorce harmony. If issues arise in the midst of that post-divorce life there are steps you can take to correct those issues- more on that in a later blog post.
How long does the parenting plan/child support plan go into effect for?
A family court in Texas has the ability to enforce orders regarding your child until that child graduates from high school or turns 18- whichever occurs later in time. In the event that your child has a physical or mental disability that requires that he or she remain in the home for a longer period of time, the court will likely continue in its authority to enforce child support, custody and visitation orders until a later date.
When we talk about custody of a child in Texas, we are really talking about who is able to get physical possession of your child and on what basis. The word “custody” actually does not come up in the Texas Family Code, but it is a term that is used so much in our society everyone involved uses it with regularity. For the most part, you and your spouse will share in custody rights and duties associated with your child.
If it comes down a trial, the judge will need to make decisions in relation to custody of your child that are in that child’s best interests. A joint managing conservatorship is one where you and your spouse share in the rights and duties of raising your child on an even basis. The only rights that will differ significantly are the rights to determine the primary residence of your child as well as the right to receive child support. Only one of your can do those things associated with raising your child.
In rare instances, either your or your ex-spouse may be named as a sole managing conservator of your child. If there is a history within your family of family violence, child abuse/neglect or a protective order has been issued against either of you, then the sole managing conservator designation would be appropriate. Basically, the sole managing conservator is able to be in physical possession of your child much more and also holds more of the rights and duties associated with parenting your child on a daily basis.
A court would also look to whether or not you or your spouse have been absent for long stretches of time from your child’s life or if there has been a great deal of conflict in your relationship with your child and/or your spouse. The parent who is not designated the sole managing conservator of your child does not lose all of their rights, but their rights are curtailed because it is believed that doing so is in the best interests of your child. The sole managing conservator specifically has superior rights when it comes to making decisions for your child in regard to educational and medical issues.
Questions about divorce in Texas? Contact the Law Office of Bryan Fagan
We were able to cover a lot of information about divorce in Texas today. If you would like to ask us any questions or need us to clarify any of the points that we made please do not hesitate to contact the Law Office of Bryan Fagan today. We offer free of charge consultations six days a week with our licensed family law attorneys. These consultations are a great opportunity to ask questions and receive feedback about subjects that are important to you and your family.
Our attorneys and staff take a great deal of pride in being able to work with clients from across our area in the courtrooms of southeast Texas. We aim to always provide excellent represesntation of our clients while maintaining a strong sense of integrity and customer service. Contact us today in order to find out more about how we can assist you in your family law case.
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Family law cases are among the most difficult of all areas of the law because of how intimate the subject nature is. True, you may not be worth millions of dollars like a multinational corporation but your family case deals with subjects that are more important than money. Your marriage, your children, your personal behaviors and that of your spouse are all relevant in a family case. While an investment banker’s work habits may require some embarrassing information to be disclosed in a trial, nothing compares to having to discuss your marriage to a room of strangers in a divorce trial.
Sometimes the material that is relevant in a family law case is more than just intimate or embarrassing. On occasion there is subject matter that relates to family violence, the safety of your children and even mental health disorders that become a huge part of family law cases. In these situations, you need to be able to know what to expect to encounter when dealing with problems associated with matters that are best kept private but are nonetheless relevant to your current family law case. Whether you are concerned for the well-being of your kids, yourself or even your soon-to-be ex-spouse I want to share some tips on how to handle these sorts of circumstances in your own family case.
What to do when you are worried about the safety of your children
If you find yourself worried about the safety of your children there is no time to waste in attempting to do something to remove those concerns from your life and theirs. Imagine being in a position where you had suspicions or thoughts about a hazard in your child’s life but did nothing to remedy that hazard. The next thing you know, something bad happens to your child and you end up blaming yourself for having identified a problem but having done thing to stop that problem from impacting your child.
This happens all too regularly with family law cases, I am afraid to say. For some reason our instincts as parents are inhibited by all of the hoopla associated with a family law case. This is ironic because at the core of what you are doing, no matter if it is a divorce or child custody case, is a desire to improve the lives of your children. The best advice that I can give to you is that you can improve your child’s life by addressing any concerns regarding safety immediately after you learn about them.
First and foremost, concerns about your child’s safety should be addressed by police and Child Protective Services (CPS). It is probable that the police will contact CPS anyways, but you should see to it that the police are aware of any concerns that you have for your child’s well being. If your child comes home from their mother’s house and tells you that her friend is acting inappropriately, your first step should be to talk to your child about any incidents that have occurred. Next, contact the police if that voice in your head tells you to. Better to be safe than sorry.
You need to know that if your spouse has a history with CPS, that will be an especially relevant bit of information that will need to be discussed with the judge. Family violence is a serious subject as judges want to, above all else, keep your children safe. Any words that you or your spouse use towards one another that could be construed as violent or threatening can and will likely be brought up again.
What does this mean to you on a practical level? Well, for starters, you need to get into the mindset that anything and everything that you say can be recorded and documented. This means those words can be taken out of context, potentially, and used against you and to the advantage of your spouse. Meaning: choose your words carefully. Especially choose how you text and email your spouse. Take a moment before responding to a particularly mean or nasty email to consider how your response can be utilized against you by your spouse.
Next, certainly never put your hands on your spouse for any reason. Even if you are justified in touching your spouse do not do it. Remove yourself from any situation that may rise to violence, animosity or anger. It is not worth it to you to be involved in any discussion that is heated. Use your attorney to convey difficult messages if you don’t believe that your spouse can be respectful of you and your opinions. Even if you are merely defending yourself, it can be a disaster to your case if you were to injure your spouse (especially if you are a man).
One thing that I have seen in recent years is people fighting over cell phones. Grabbing for a phone to see if someone has contacted your spouse or for any other reason can be dangerous. Mostly because those sort of actions can quickly escalate and lead to further use of violence or at the very least coarse language. Nothing contained in that phone is worth potentially losing time with your kids over- or even going to jail for. Be aware of your surroundings and do what you can to de-escalate any situation that you believe could lead to heated tempers.
Is protective order relevant to your situation?
A lot of clients ask about protective orders at the beginning of a child custody or divorce case. The thought being that one could potentially serve the purpose of de-escalating potentially dangerous situations. A protective order can serve a purpose when family violence has occurred in the home recently and that the violence is likely to continue but for the obtaining of a protective order.
If you get a protective order against your spouse that can be severely detrimental to his case in a divorce or child custody matter. You would need to decide whether or not to pursue a protective order that protects you and your kids or just you. While in today’s world we do not ordinarily consider these situations all that often, the fact is that men can be abused, as well as women. Think about all the information we are told about how women are reticent to come forward with details about abuse that they have suffered. The same can be said for men. Men are typically even less willing than women to come forward with details about abuse that they have suffered.
Handling issues regarding mental health in conjunction with a family law case
These are two subjects that come up all the time in family law cases. In some cases they are the primary reasons why there are child custody issues or circumstances that have led to discussions about divorce. Whether your spouse has been diagnosed with having a mental impairment or other mental health difficulty, or you suspect him or her of having a condition like this, mental health problems shine through brightly in many family cases.
Do you suspect your spouse of being bi-polar, having anxiety or being depressed? Some clients of mine in the past have commented that their spouse must be bi-polar considering how hot and cold he/she is. One minute they could be having a conversation together, and the next minute that same spouse could have grabbed a knife to attack our client. Behavior like this that is inconsistent and aggressive can be downright dangerous.
Another problem that clients frequently run into are issues related to a parent’s inability to take their medications as prescribed. The result is comments that relate to how good a parent your spouse might be when he or she is taking their medication, but if that medication is not taken as prescribed your spouse may be the most disagreeable person on earth. It is understandable to not want to take medication when those medicines cause you to feel out of sorts, but that concern needs to be balanced against the desire to keep your safe.
Finally, you need to speak to your attorney about your own history involving drugs and alcohol. The reality for many parents is that if there is a history of drug or alcohol abuse, you probably do not want to share those details with anyone. However, the worst thing that you can do is to keep that history a secret until a mediation or hearing date. Having your lawyer blind-sided by an opposing attorney who disclosed a history of drug and alcohol abuse is not a good plan to have.
Beware of back and forth bickering
Sometimes it is inevitable that you and your spouse will get into an argument. That happens even in the best functioning of marriages. Those arguments usually go nowhere and just leave everyone involved stressed to the max and angry that the discussion was ever started in the first place. Many times, we can see these discussions/arguments happening ahead of time and it takes a little bit of self-control to simply avoid them altogether.
There is nothing more awkward and potentially detrimental to your case to get into an elaborate game of bomb throwing in a courtroom. It typically will happen like this: both you and your spouse have allegations that the other acted inappropriately, was emotionally abusive or generally did something that was harmful to the kids. You then use your time on the witness stand to defend yourself and then hurl a few bombs her way.
What this ends up being is a back and forth game of unsubstantiated allegations. Instead of using your time productively to testify credibly for yourself and against your spouse, you are going to alienate your judge and distance yourself so far from the facts of your case that you may have trouble getting back on track. I have seen this happen many times in other cases and even in my own cases. Emotionally it may be satisfying to fire back at your spouse when he or she makes allegations against you, but in the long run that sort of behavior rarely if ever turns out to work to your advantage.
The people in your life that you trust are there to be your support system
We all have moments in our lives that require the support of others. Whether it is during a difficult family law case, a death in the family or the loss of a job, we cannot always be at our best. It is during those times that we rely on others to prop us up and support us. With that said, keep in mind that there is nothing wrong with doing so. At some point in the future it is likely that you can repay that person by being there for him or her when they need you.
Remember, also, that your mental and physical well-being matters. Staying in a marriage for the sake of your kids is noble, but ultimately self-defeating. Your kids deserve a parent who is at their best. You cannot be at your best when you are involved in a marriage that is emotionally
unfulfilling or worse yet- violent. We will discuss this topic when we pick up where we left off today in tomorrow’s blog post.
Questions about family law cases in Texas? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan would like to express their sincere appreciation for your interest in today’s blog post. We post articles like this every single day in order to share some of the knowledge that we can have gained through serving people in our community just like you.
In order to speak to one of our licensed family law attorneys about your case, please do not hesitate to contact us today. A consultation at our office is absolutely free of charge and can go a long way towards helping you better understand your circumstances and how to help your family and yourself.
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While there are a number of questions that you should ask a family attorney prior to hiring them, below are three things that you must ask before making a decision about your representation.
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The right of first refusal is an issue that comes up in family law cases that can cause even the most creative and experienced family law attorney to scratch their heads on how to proceed. Essentially, the right of first refusal allows a parent who is not entitled to possession for a specified period of possession to be able to take possession of the child if the other parent is not able to do so. Allow me to provide you with an example of how this situation could arise in real life.
Suppose that your ex-husband is scheduled for a visitation period with your son beginning at 6:00 p.m. on this Friday and ending at 6:00 p.m. on the following Sunday. In the morning on Thursday, he receives a phone call that alerts him to the fact that he will need to work this weekend. Since your divorce decree contains a right of first refusal, he must contact you as soon as he becomes aware of this scheduling conflict and provide you with your right to refuse visitation that is offered to you. You have the option to take possession of your son this weekend even though the divorce decree states this is your ex-husband’s weekend for possession of him.
We also see issues that arise when parents like yourself begin dating again after a divorce has concluded. If you are not able to take possession of your child for a weekend visit, you may want your girlfriend to be able to pick your child up from his mothers’ home and then drop him off the following Sunday. Since you are able to designate an adult to pick your child up in the event that you are unable to, what’s the harm in having that same adult care for your child during a weekend that you’re not able to see him? Your girlfriend may really want to see your child, and after all- it’s your weekend so it should be your call, right?
How is the right of the first refusal defined in your custody orders?
This is the first question that we need to ask ourselves in relation to your particular circumstances. If you are considering whether or not to include a right of first refusal in your child custody orders, you and your attorney need to first think about how that term is going to be defined and applied as it pertains to your family. What is the specific period of time that a parent cannot be with the child that will cause the right of first refusal to be triggered?
You may be able to negotiate that if you or your new spouse is unable to be present with your child during a period of possession (sometimes lasting between four and eight hours), then you must contact your ex-spouse and allow him or her to come and pick up your child for that certain period of time. Whenever the predetermined/agreed to amount of time is over, your ex-spouse would then return your child to your home and allow you to complete your period of possession as scheduled.
Even when you get specifics as this handled, you need to consider the effects of including that kind of language in your order. If your ex-spouse gets home from work at 12:00 a.m. do you have to get your son dressed and over to the other parent’s house within the hour? That would seem impractical and not necessarily in your child’s best interests, but strict language regarding the right of first refusal could theoretically make this a necessity. A compromise could be that if the parent were to become available to possess the child at a time after 9:00 p.m., the parent in possession of the child on a temporary basis could wait until 9:00 a.m. the following day to drop the child back off at the other parent’s home.
The other issue that we need to discuss is what your child would be comfortable with as far as a substitute adult to possess him or her when you or the other parent is not available. It sounds ok enough for you to have your mother, father, aunt or girlfriend available to watch your child for half a day when you have to work unexpectedly. However, if your son doesn’t get along with any of those people then it would not seem like it would be in his best interests to leave him with any of those folks. Unless you and your child’s other parent have a group of people that are able to care for your child in these situations then a right of first refusal may not be a wise thing to include in your orders.
How will extracurricular activities be handled?
In this day and age, there are camps, classes, training sessions, and other activities for any sport or extra-curricular event under the sun. Odds are decent that you and your ex-spouse may not see eye to eye on your child’s potential or the role of these activities in the life of your child. For instance, you may believe that your child should only be involved in extracurricular activities to the extent that they can make friends and build their self-confidence. However, your ex-spouse may believe that these additional activities are essential for the development of your child and that he or she has the potential to become a professional ball-player, musician or dancer. How can this fundamental disagreement be solved?
I have seen some families achieve success when each parent is allowed to select one activity for their child to participate in each semester of school. The costs for activities would then need to be divided up in some manner between parents. Additional activities (camps, classes, etc.) would be paid for by the parent who selected that activity. Transportation to and from activities would also need to be determined. If you and your ex-spouse earn similar incomes the costs could be split evenly. Otherwise, a proportionate split may be more appropriate.
Another issue that may be relevant to discuss for your family is whether or not both parents may attend practices or rehearsals. If you and the other parent can be around one another without issue then this is not a problem. However, if you all have shown an inability to be in close proximity to one another you may have to limit attendance to the parent who paid for the camp or activity. Both parents in most cases can attend performances and games, no matter what parent is in possession of the child on that particular day.
How will you be reimbursed for uninsured medical costs?
As a part of any child custody order, you or your child’s other parent will be made to be responsible for providing health insurance for your child. Whether it is insurance provided for by one of your employers, insurance through the private marketplace, Obamacare or Medicaid, your child will need to be covered. One of you will pay for that insurance or will reimburse the one who pays for medical coverage.
However, not every cost that your child will incur for medical treatment will be covered by insurance. These are called uninsured medical costs. Suppose that you take your child to a pediatrician appointment and he orders a test for your child that is not covered by insurance. Once you receive a bill for that test you would need to submit the bill to your child’s other parent so that he can pay you back for the test you paid for (in the event that it is his responsibility to pay uninsured medical expenses).
What I will advise clients to do is to negotiate to include a deadline by which medical bills have to be submitted for reimbursement purposes. For instance, a provision in the order that specifies how much each parent has to pay towards uninsured medical costs, as well as a deadline to submit the relevant bill to the other parent, is a good idea.
I would tell you that it is common to have parents agree to split 50/50 uninsured medical costs. Since it is usually the primary conservator who takes the child to the doctor or for unscheduled visits to hospitals and such, it will be that parent who has to pay the bill upfront. What I tell parents in this position to do is to set up a reminder on their phone to submit bills by the end of the month to the other parent to be reimbursed, However, a good practice is to simply scan and email the bill to the other parent as quickly as you can. That way you have a record that the bill was submitted and you can be paid back as quickly as possible.
Issues related to military parents
If you are the primary conservator of your child and have been deployed overseas as a member of our military, you have the ability to designate an adult to exercise your possession and conservatorship rights while you are overseas.
The law in Texas is there is an order of preference as far as assigning that right. For example, you should first give preference to the other parent. That other parent would not normally have the right to determine the primary residence of your child, but you could allow him or her to act in that capacity for as long as you are overseas and unable to do so yourself. However, if selecting the other parent to take these rights on a temporary basis were not in the best interests of your child, then a nonparent may be chosen instead.
Special provisions for special needs children
When you are involved in a case with a special needs child then you and your attorney will need to pay especially close attention to the rights and duties that you and your opposing parent have in relation to that child. There are likely aspects of your special needs child’s life that are extremely important to spell out in the order. Unfortunately, a “typical” child custody order will not do so. You all need to take the extra step and include provisions to protect that child’s interests and well-being.
Both you and your child’s other parent will need to be able to provide to one another more detailed information regarding the child’s educational, medical and psychological needs. Trading information and updates may be difficult for you all if communication is not your strong suit. As a result, it may be necessary to have some special orders included in the parenting plan that requires you to share updated medical information with the other parent on an as-needed or regular basis.
You would need to come to terms with what your child’s specific needs are and then determine how frequently updates need to be provided to each other. If your child sees the doctor on a weekly basis, and you are the parent who always goes to the appointment, it may be necessary for you to provide a weekly update to your ex-spouse on your child’s condition via email or another electronic means.
More information on special needs children to be provided in tomorrow’s blog post
The issue of special needs children is an important one. As such, we will continue today’s discussion in tomorrow’s blog post. We will introduce additional topics related to special needs children that we have observed in our years of practicing family law in southeast Texas. If this is a topic that is relevant to you or your child, it is a good idea to head back to our blog tomorrow to read more.
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 are available six days a week to meet with you at no cost. These consultations are a great opportunity to ask questions and receive direct feedback about your particular circumstances.
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Going to court to resolve a family law case is not a fun experience for anyone involved. You probably didn’t need me to tell you that, but it is the absolute truth. There is nothing glamorous about it. You will not have the moment in time where you get to call out your ex-spouse for the bad behavior he engaged into the delight of your family watching in the audience and the shock of the judge. If you are after truth, justice, and the American Way, then a family court is not the place to go.
What you are more likely to experience is a judge who is engaged but not sympathetic and an opposing party who is slinging mud at you based on issues that may or may not have ever occurred. Do not expect your ex-spouse to be contrite in response to any of the accusations that you hurl at him. I’ve seen enough men and women who have done bad things go on the offensive against a “victim” ex-spouse enough times to know that family court doesn’t deliver results in the way that you may anticipate.
With all of that said, it would make some sense to attempt to appeal to your spouse’s reasonable side and attempt to settle any family case outside of the courtroom. Mediation is a great resource for parties and attorneys alike when it comes to attempting to reach a middle ground on the important issues of your case. The nice part is that the judge in your case will likely require that you mediate your case at least once before you get anywhere near a courtroom. Odds are good that your case will settle and a potential courtroom drama can be averted.
What happens from the beginning part of your case until you get into mediation can have a lasting impact on the chances of your case settling. When it comes to co-parenting with a person who you may not see eye to eye with, getting along may not be an option. In these high conflict family court cases can you do anything to avoid disagreement and disaster?
Today’s blog post from the Law Office of Bryan Fagan will seek to answer that question. We actually took up the issue at the conclusion of yesterday’s blog post and we will continue to run with it in today’s blog. This is an important subject that you need to know about sooner rather than later. Learn what will work when it comes to co-parenting and avoid problems before they occur.
Be accountable to your co-parent
Whether you were married to your child’s other parent or not, you now have a sizeable amount of history with that person. You should feel some degree of responsibility to be held to your word. Basically, you should do the things that you say that you’re going to do. Just as importantly, you should avoid doing the things that you have said that you will not do. That shows that you take seriously the responsibility you have in raising a child with this person.
Even if you couldn’t care less how your child’s other parent views you, remember that everything you do in this case should be done to benefit the life of your child. Do not put your child in a bad position because you cannot be trusted or because you think it’s unimportant to be held to account for your actions. Taking the easy way out may seem better at the time (especially if doing so could harm your ex-spouse) but remember that in a co-parenting relationship you will often find yourself facing similar circumstances down the road.
Although you cannot control what your child’s other parent will do in response to your actions in the future, you have complete control over how you act at the moment. If you say that you are going to do something- do it. It’s as simple as that. Even if it means going out of your way or doing something that doesn’t seem like much fun if you said something your actions need to back those words up.
Keep a journal of interactions with your ex-spouse
If you are not a big fan of organization you may want to pay particular attention to this section of our blog post. Keeping notes of what you say and what your ex-spouse says in relation to your child is an important trait to pick up. For one, it will help you to remember better what was said so that you do not operate under mistaken assumptions and memories of things that did not occur. We’ve all been there- absolutely sure something happened, but as it turns out nothing close to that having occurred.
Before you consider filing a family lawsuit- whether that is a modification or enforcement lawsuit- I would recommend that you review those notes to determine how your memories line up with the reality of the situation. You may find that your emotions are not justified by past events as they actually occurred. It is a good practice to be able to check yourself by keeping notes of your meetings, interactions, phone calls, etc. Better to know exactly what took place than to run off to an attorney for no good reason.
Mediate, and mediate again (if necessary)
As I noted at the outset of today’s blog post, your case will very likely be decided in mediation rather than in a courtroom. Family court judges in most courts will mandate that you mediate your case at least once before stepping foot into their courtroom. When you and your ex-spouse find yourself facing a situation that is too big for you to resolve on your own, it is a good idea to push your attorneys to schedule a mediation early in your case.
Many times I will encourage clients to mediate their case even if an agreement is in place before the case is filed. Let me explain. Suppose that you and your spouse are getting a divorce. You know that you are getting a divorce- there is no chance to reconcile with your husband and divorce is the only alternative that you can seek at this point. You feel good that you all sat at the kitchen table and hammered out an agreement that will allow you to avoid having to go to court.
The next thing one of you does is walk into our office and tell one of our attorneys that you have an agreement for your divorce. All you are looking to do is have a lawyer draft order based on the agreement and you will be on your way. This sounds reasonable and in many ways is exactly what you should have done before coming to see a lawyer. However, I will add one thing to this discussion that should encourage you to seek advice from an attorney and mediator.
Here is that information- even if you have an agreement with your spouse in place for a divorce settlement, there is nothing guaranteeing that your spouse will stick to their word and honor that agreement. A lot can happen in between the time you all agreed to something at the kitchen table and the time where a judge can sign an order. An order has to be drafted, both sides must review the draft and signatures from you and your spouse must be collected. We’re talking at least a couple of weeks.
In the event that you or your spouse change your mind on the terms of your agreement, there is nothing to protect you. You could come up with an agreement only to see your spouse change their mind at the last minute. As long as he hasn’t signed the divorce decree he can turn his back on the process. This is completely legal and happens all the time. Before you start to worry, here is where mediation can solve this problem.
By going to mediation and resolving your issues there, you assure yourself of two things. For one, any agreements that you reach are going to be memorialized by a Mediated Settlement Agreement (MSA). You, your spouse and your attorneys will sign the MSA along with the mediator. This is significant because once it is signed there is no going back. I will tell clients that you cannot call me the next morning in a panic and tell me that the MSA needs to be tossed out because you realized you made a mistake of some sort. The final decree of divorce will be drafted off of that MSA.
Next, not only will you have an agreement in place that is unbreakable, but you also will ensure that you have accounted for all of the areas that are necessary for a divorce. Divorces can be complicated and touch on a range of issues. By coming up with your own settlement you are possibly missing out on a number of subjects that you had failed to account for. By having multiple attorneys and an experienced mediator look at the MSA you are almost guaranteed of having an agreement that takes into account all the areas you needed to account for.
What happens if you cannot agree on compromises after an order is established?
Once all the parties and the judge have signed off on an order it is set in stone. In the future, if there are any disagreements between you and your ex-spouse you can go back and refer to the order to see what your responsibilities are. That is reassuring to have a guidepost like that, but it can also be frustrating due to the fact that your family may “outgrow” the order.
In the future, you and your ex-spouse are free to resolve issues on your own without even filing a lawsuit. This is what judges assume will happen- the two of you will work together and resolve problems on your own without too much difficulty. You will save money and time by not filing a lawsuit and in the end, you will reach conclusions that are better tailored for your family than anything a family court judge could have come up with.
In the event that you have a problem that cannot be solved by negotiation and compromise, remember that the order is what controls the situation. Think of the order as your fall back provisions. Whatever you cannot agree upon means that your order takes center stage. As long as have a mutually agreed upon solution to a problem, you can go off of that solution. However, once one of you no longer agrees to abide by the compromise you must go off of what the order has to say.
This is important for you to know since you cannot be assured that you will always be able to come up with solutions to your problems on the fly. So, what you should take away from this discussion is that your orders had better be workable for your family- both now and in the future.
Questions about visitation problems? Come back to our blog tomorrow to find out more
As children age, and as your own circumstances evolve it may become apparent to you and your child’s other parent that your visitation orders need to be re-worked. What can you do in situations like this? If you find yourself in this sort of position, I would recommend that you return to our blog tomorrow. We will spend some time discussing this subject and how you can work around problems like this.
In the meantime, if you have any questions about today’s blog post or anything another subject in family law please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys can schedule you for a free of charge consultation six days a week. These consultations are a great opportunity to ask questions of our experienced attorneys and to receive direct feedback about your particular circumstances.
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