Many people who are interested in seeing a divorce attorney have never been to an attorney before and aren't sure what to expect. So here are three important points about your first meeting with a divorce lawyer. 1. This is a relationship test. The purpose of the first interview in a divorce case is to determine whether the attorney and the client can work together. The relationship between an attorney and his client can be a very sensitive one due to the nature of the personal information that has to be shared. If an attorney and client wish to work effectively together, there must be a good natural feel to the communication flow. You may be required to reveal some very embarrassing information to this person. You should be sure this is a person you feel comfortable with. You have to go with your gut on this one. It is also the attorney's interview as well. If the attorney thinks that your values conflict with his, he will decline to represent you. I have turned down potential clients when I felt the their motives were destructive to themselves or their children. I think most ethical attorneys would do the same. 2. This may not be the right time. Many times clients come in for an interview just to get general information. It is not unusual for a client who has come into my office for information and I will not see them again for a long time- sometimes years. Maybe they just want information to help them make a decision about their marriage. Maybe they just want to be able to tell their spouse that they have been to a lawyer in order to get their spouse's attention. On occasion I am hired to file a suit, but then the client doesn't really want to follow through to the final decree. I try to spot these clients ahead of time and advise them to seek counseling as a first measure. 3. If you are ready- so should be your attorney. There are some clients who come to my office who are ready to file and follow through right away. This may be because they are being forced to respond to a divorce suit filed first by their spouse, or because they have come to realize that the pain of remaining in the relationship is worse than the pain of divorce. Either way, they attorney should be ready to draft responsive pleadings right away and handle any deadlines that exist. If this is your case, you should bring any paperwork you have received from the court or a process server and be prepared for your lawyer to begin the longer process of gathering information and determining your goals and the best way to handle the case. The initial attorney interview may be a new experience for some people, but it should not be viewed as an intimidating thing. It is usually the first small step to a better life. If you have any other questions about your divorce or family law case, you can visit our website at www.mydivorcefirm.com
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Most people think that the divorce rate is 50% or higher in our country, but the rate of divorce has actually been dropping for some time now. Nationwide, there has been a steady decline in divorces and Texas has followed that national trend. In metro Houston, 42.1% of the population over 15 is married. This is lower than both the Texas and the national average of about 50%. The second most common marital status is single and never married at approximately 39%. This is good news for all the romantics and optimists out there. It will soon be high season for marriage ceremonies and it seems like love is in the air. And it is true that as an institution marriage brings many wonderful benefits to couples who choose to enter into it- financially and emotionally. In fact, recent studies have suggested that being married can actually extend your life expectancy. I am glad divorces are down. At my firm, we do not push people towards divorce. In fact if I meet with someone who is unsure about whether they want a divorce, I try to encourage him or her to work things out with their spouse if possible. But sometimes relationships cannot be mended and marriages become so broken they can't be put back together. We are there to make sure that if divorce is inevitable, then the process is fair - and hopefully we can help make it a little less painful. When a divorce is on the horizon, many people will run out and retain an attorney and have that professional do all of the details on the case from the beginning to the end. But this may not be necessary in your case. Instead of retaining an attorney, in many cases it may be best to simply consult with an attorney and do the divorce on your own. If your situation warrants it, you CAN do your own divorce and this article will give you three excellent reasons why you should.
There is no doubt that divorce is a terrible thing to go through. For the thousands who experience it yearly, it is rarely without some pain. Aside from the emotional turmoil, the legal aspects are what create the most stress. Getting the right attorney is essential to reducing your stress- but too many folks think that the traditional reaction of immediately hiring an attorney on retainer is always necessary. I say "MAYBE NOT". If you have the right set of circumstances, it is entirely possible to get a divorce without RETAINING an attorney.- but instead taking charge of your own case by doing your own divorce. So here are three excellent reasons to do your own divorce: #1: Taking Control of Your Divorce Case Can Be Very Empowering. By the time many people are ready to get a divorce, they have been through the emotional wringer. Their self-esteem has been battered and their sense of control over their lives has been bruised. If they then go out and retain an attorney and direct him to take care of everything, there is a good chance that no matter how excellent a job the attorney does, the client will feel that their lives have been manipulated- yet again. Taking direct charge of the process of your divorce can be a great way to get back the control you feel you have lost in dealing with a failed marriage. If you feel you can think things through and make careful decisions about your divorce, you may find that doing so helps you get back your mojo. #2: Involving An Attorney Can Be Like Pouring Gas On An Open Flame. There are some attorneys who market themselves as "bulldog" attorneys. They prey on the fears of their clients by conducting a very aggressive and expensive legal campaign which in the end gains the client nothing more than they would have gotten through settlement and sometimes even gets them less. Aside from that kind of obvious legal combustible, there are a couple of other reasons that getting a lawyer can blow things up. First, if you hire an attorney, that will encourage your spouse to "lawyer up" too. And even if you got a conscientious lawyer who is trying to settle the case on best terms for you, that doesn't mean your spouse's attorney won't be one of those "bulldog" types. If so, then your attorney will have to respond to all the nasty legal maneuvers that will do nothing but increase the cost of the divorce. You can best avoid this by not getting an attorney at all and trying to do this without "lawyering up". Second, even if you both have ethical attorneys who are trying to keep the tension and the costs to a minimum, an attorney's involvement in a case will still complicate it far more than if you did it on your own. The reason is that attorneys are always worried about their own liability in a case. They are in constant fear that at the end of case, a client will sue them for being an ineffective attorney- for not doing all that could have been done to win the case. So if you want to shortcut or speed up some part of a case because you think it doesn't apply to your situation, then the lawyer will either push back or outright refuse to skip certain parts. Take discovery and valuation of property for example. This is the part of a divorce where attorneys send out formal demands for the value of all your property. Suppose you KNOW your spouse will not try to take your grandmother's tea set in the divorce. The attorney will still want to get an evaluation of it JUST IN CASE the issue goes to trial. You may be convinced it will not be an issue, but your lawyer is just doing his job if he prepares for the worst and demands an accounting of it. This will cost you money and complicates the case. If you are in control of your own divorce, then you can take this risk of not valuing all the property if you choose to. #3. Doing Your Own Divorce Is Cheaper. Duh. Lawyers are not cheap. Some are more expensive for good reason- they have expertise in certain aspects of divorce that took many years to come by. Some kinds of divorces need that expertise. But most cases don't require it and you are wasting your resources by buying all that. Some lawyers are more expensive because they have high overhead- they like to surround themselves in large lavish offices and have all manner of assistants and staff that are not necessary in today's automated world. They jack up their bills to pay for all that and the free gourmet coffee you are offered at your first meeting with your lawyer will wind up costing you thousands extra at your last meeting with him. Finally there are attorneys who demand outrageous rates and will nickle and dime you on every minor transaction because they are - well greedy. These type prey on the fact that most people aren't knowledgeable about the services an attorney offers and they don't shop around the way they would if it was any other kind of service. Many people shopping for an attorney will go with the first ad they see in the yellow pages or in the first listing on the internet. Believe me, if you want a good value in your legal services, go to the second page of listings in Google. The bottom line is that you don't have to retain an attorney. If your case is simple and you have basic agreements with your spouse and you are able and willing to stay in charge of your divorce and act as your own attorney (pro se) you can do much of the work yourself. HOWEVER, even the simplest of divorces involve complex paperwork and court procedures that are different from jurisdiction to jurisdiction. People may not need a full service law firm for most of their divorce, but most people attempting to do their own divorce would be foolish not to at least have the consultation of a licensed attorney to give them advice when things get complicated. Books and automated forms on the internet are usually NOT adequate to the task of getting all the paperwork done right the first. If you rely on those you will probably do it wrong and wind up wasting hundreds of dollars and many hours or your time. If you attempt to do your own divorce, you should seek the advice of an experienced divorce attorney who is willing to provide "unbundled" services. These attorneys will do those parts of your case that are too complicated and offer consultation on those parts you can do on your own. This is an innovative way of offering services that just might be the best for your situation. If you have any questions about unbundled divorces, you can check out my firm's website at www.mydivorcefirm.com for more information. If you are divorcing or are recently divorced, it is vital that you keep your children's best interest in mind. It is often easy to loose your bearings as you are caught in a whirlwind of legal activity and emotional distress which all divorces bring. This turmoil can make it hard to determine if you are doing all you can do to for your child. So here are the top seven questions you should ask yourself to make sure you are still being the best parent you can be during a divorce. 1. Are you being there for your child? You will be drained and you will want to withdraw into yourself during a divorce, but your children need to know that you are still there for them and you will continue to provide emotional support during this time. Divorce is stressful on everyone and your child needs to know that you are there to answer their questions and help them process their painful feelings. You do not need to be instantly available 24/7, and everyone needs some mental downtime, but you must make it a point to generally be there when your children need some answers, or just some hugs. 2. Are you giving your kids needed encouragement and approval? Kids of all ages seek out the encouragement and approval of their parents. It is vital to their self esteem to know that you think of them often and are proud of them. Particularly at a time when they are submerged in self doubt over the divorce, you have to show them in both expressed and subtle ways that you think they are great. Be generous with your praise. Carry their pictures in your wallet and their drawings on your desk. Constantly stoke their self-esteem by praising them. Now more than ever, they need to be assured that they are worthy of being loved. 3. Are you treating your kids like people? Your kids are unique individuals with their own personalities, and perspectives. You need to be sensitive to their experience of the divorce and how they can be different from yours. 4. Are you trying to have a positive relationship with the other parent? Even though you feel you would be better off having less contact with your ex, or soon to be ex, spouse, this may not be what is best for your kids. Research has shown that children make the best recovery from divorce when both parents are actively involved in the children's life and the interaction is conflict free. 5. Are you modeling to your kids how to handle stress? Divorce is an extremely stressful time. If you demonstrate your ability to handle the stress of divorce without resorting to becoming violent, verbally abuse, or using drugs or alcohol, you kids will know that it is ok if you occasionally express anger and frustration. Kids need to see you handle stress without losing control. They then won't be fearful when you get angry. 6. Are you maintaining family and community ties? Chances are you kids are experiencing the loss of a full-time parent. They should be allowed to find the comfort of familiar surroundings and support such as scout leaders, church leaders, friends and neighbors. You may feel like you want to get away and start a new life from your old, but your children need the familiar ties of their community especially at this time. 7. Are you making every effort to peacefully resolve issues with your ex, or soon to be ex, spouse? Your kids will be less fearful and stressed if they see you and the other parent working cooperatively. If they observe examples of flexibility, consideration and cooperation, in resolving parenting issues, they will be less fearful that the aftermath of the divorce will be a never-ending battle of wills- with them in the middle. Divorce is one of the most painfully stressful times in anyone's lives - and even the most well meaning of parents can fall into a spiral of emotion where they forget to keep their children's best interest at the front of their attention. When you find yourself in an emotional tailspin from divorce, ask yourself these seven questions to keep your perspective - and your focus on being the best parent you can to your children. A tricky question that will eventually face anyone who is either going through or has recently been in a Texas Divorce is when you should tell others about the break up. As we are looking at the beginning of the new school year, you may be wondering whether to tell your child’s school. So, should I tell my child’s school about my divorce? In this video, we’ll answer that question along with other back to school tips for divorced or divorcing parents. Informing Your Child’s School Experts say that it is not necessary to jump ahead and tell the school until things are actually in motion. My general advice however, is to make your child’s school aware of the divorce once it has been finalized and a custody order has been put in place. This becomes an even better idea if your custody case was or is a contentious one. Making sure the school is aware of the visitation schedule will help ensure your child goes home with the right parent on the right day. Protective Orders However, in some cases, my advice moves beyond “it’s a good idea” to a very pointed and urgent admonishment that if you are involved in a case with a finding of family violence and a protective order, it is absolutely necessary to inform the school of the existence of the order. The school needs to know who and who does not have access to the child. Fortunately most schools are very aware of their responsibilities to keep your child safe. Bringing them a certified copy of your protective order is an excellent way to ensure they can do their job by clarifying their duties as it relates to your child. General Parent Rights on Education Fortunately most cases do not require that amount of vigilance. There are certain conservator rights that are usually granted to both parents in the bulk of all cases, although a Texas court may limit them if it is warranted for some reason. Many of these relate to schools. Unless the court specifically ordered otherwise, under 153.073 of the Texas Family Code both parents have the right to receive educational information about their child and to have access to their child’s school records. Each parent can independently consult with school officials about their child’s educational and extracurricular activities. Each parent can attend school activates, and each parent has the right to be notified by the school in the case of an emergency. If you have a standard custody order in Texas, or if you anticipate no reason the court would limit these educational right in your pending divorce or custody suit, then it is probably a good idea to let the school know what is going on. If the school knows you are living apart, they can take necessary steps such as sending home two copies of report cards, discipline reports, and the like. This will keep both parents in the loop and avoid any potential conflicts. And avoiding conflict will always save you emotional stress, time and potentially litigation costs. One of the largest concerns people have when first faced with the reality of divorce is how much it will cost. Fears may run rampant at this stressful time. Will I lose everything I worked for? Can’t we save money by avoiding lawyers and just work it out ourselves? Believe me, I understand. Money is a very important factor in divorces and being in the dark about what the actual costs are will only make a stressful situation worse. So let’s talk about it. I won’t sugar coat it for you- it is never easy to split up a home into two. Couples divide their assets, and that obviously means that they will have less than when they are together. It is simple math, and I’m amazed at how little my clients have considered it prior to coming to my office. You can be sure that they are much wiser after they leave however. Because I want my clients to have all the facts, so they can make informed decisions for themselves. Obviously, every household income is different, so we can only talk about categories of costs in this video. We have already mentioned the loss of income from the other spouse. In addition to that, there are also new expenses that have to be paid didn’t exist before - as each spouse must set up a new household begin their independent lives. These include rental deposits, storage, and other necessities. There will also be mandatory court fees for your case which include the original filings fees and other service fees. Also, there may be professional service fees such as mediator fees or home appraisers. If you have children you’ll be required to take a mandatory parenting classes. If custody is disputed there may be many more expenses. The court may appoint a custody evaluator to help you resolve custody and visitation issues. In high conflict cases, a social study or psychological evaluation may be called for and the court may even appoint a representative for the child’s interest. These professional expenses will be charged to one or both of the parties in the divorce. A key factor is how much conflict exists between the parties. If there is high conflict, then the case will drag on as the court becomes more involved in settling the issues that arise. Most attorney’s charge on an hourly basis and the more conflict there is during the divorce, the more work they have to do- and this drives up costs. As you can see the cost of your divorce depends on your specific situation. In the face of these costs, it may be tempting to try the many do-it-yourself options out there such as fill in the blank forms. I honestly can’t recommend these. Think about the fact that the outcome of this divorce is going to affect the rest of your life. The advice and counsel of an experience family law attorney is the only real way to ensure that you get the best possible outcome for case and that will be money well spent. In an upcoming video we will discuss creative ways for you the be able to hire an attorney even if you have very little money on hand. If you have any questions about your divorce or family law case, please visit us at: www.mydivorcefirm.com When a husband and wife are facing the emotional and psychological turmoil of a divorce, a question that must inevitably come up is whether the parties should seek and out-of-court settlement or would they be better off taking the matter to trial. This is probably the most critical question you will face in your divorce and there are pros and cons to each approach. Letting the Judge Decide If parties, cannot, or will not settle out of court, then the alternative is to let the family court decide. A family judge is a county judge, but unlike district judges, they only deal with matters that fall under the Texas Family Code. This judge is supposed to act with impartiality and without any preconceived ideas about your case until they have heard the evidence presented by each side. Bringing a case to court has significant risks because you must convince a judge about every aspect of your case that you are trying to get from custody of your children to who gets the lawn mower. Most people have a skewed idea of what court is about. They think it is a stage in which they just have portray their spouse to be the worst human on earth and therefore they should give everything to you – “the good guy”. But the fact is that such unfocused mud-slinging very rarely will sway a family judge one way or the other. Parties really need to present their case in a way that will follow the strict rules of what can and can’t be said and at the same time prove each point in the case you present. When you choose litigation, you are putting all your trust into your attorney that he will present the best case for you and in the court system that they will do the just thing. This may the only option you have if the settlement offers from your spouse are less than what is fair and equitable and are far less than you think the judge would give you in court. On the other hand, if the settlement offer is close enough to what you could reasonably get in court, and the high cost of taking it to court and the risk you face in that “all or nothing” game make it not worth the trouble of taking it to court, then parties should choose to settle it out of court. Communication Is Key To Settlement If you are one of the very rare few spouses who maintain good communication and respect through the divorce process then you may be able to settle matter on your own and perhaps you and your spouse may utilize your attorneys only in an administrative capacity to help make sure the legalities are done correctly. However, in my experience, less than 1% of all divorce cases are resolved in this way. Most couples lack communication and/or respect by the time they file for divorce, or they will lose this ability by the time the case reaches the negotiation phase. For the other 99%, they lack the ability to communicate and cooperate. Under these circumstances it may be nearly impossible to settle your issues and avoid court. Fortunately that does not mean all these couples are fated to have a contested trial to end their case. In Texas, there are a whole range of procedures to help couples who can’t communicate to nonetheless settle their case. These procedures are called Alternative Dispute Resolution. These are private meetings outside court system which are designed to bring about a mutually agreed settlement. In divorce cases, we most commonly use a process called mediation, but there are many other procedures such as settlement conferences, mini-trials and arbitration that can be tailored to your cases’ needs. Which Is Right For Your Case? I believe that each client is an individual with unique needs, and so each divorce case is also unique and will be successful or not depending on the attention to those special details. If you are facing a divorce, you should begin to think about those details. Depending on where you are in the emotional process, this may be hard, but the earlier you begin to think strategically about your case, the better will be the outcome. What are your plans for the future? Will you remarry? Do you plan to have any more children? Will you purchase a new house? Will you start a new job? Money is always a very important issue in considering whether to go to trial or settle. At the earliest stage, many people try to avoid attorneys altogether so save money. What these people fail to understand about settlement and negotiation however is that it will only work if both parties are negotiating from a position of strength. The threat of the other side winning everything at trial is what motivates people to settle before it gets to trial. The only way for you to be able to have that strength is to hire a reputable, experienced attorney who is ready and able to take the case all the way- and win. If you have any questions about your divorce or family law case, you can visit our website at www.mydivorcefirm.com Divorcing can get complicated fast. Along with the legal and financial issues, there is a briars patch of stress and emotions that can quickly snare you and drag you down. Sometimes a client can feel like they need an outlet, and the ready connivance of Facebook and Twitter may make is seem like those would be good places to do a little venting. THINK TWICE. If the end of your marriage is on the horizon, you may want to stop and think about how your activity on the internet can affect you and your soon to be former spouse. According to the president of the American Academy of Matrimonial Lawyers, it is become ever more important to manage your online footprint and is quickly becoming a regular topic in divorce consultations with lawyers. By now, must people should understand that anything put on the internet is, essentially forever. Therefore, if you and/or your ex or soon to be ex spouse use social media frequently, you may try to work out an agreement about what either of you will put on the internet regarding your former marriage. Decide what should not be on there- particularly when it comes to posting photos. Should your kid’s pictures be on Facebook? How about dating sites? These questions may be awkward, or they may seem unnecessary, but a little communication at the front end may fend off conflict and perhaps even litigation. We love our social media and as an attorney, I find that telling clients simply to close their Facebook account is one piece of advice that will rarely be followed. But the fact of the matter is that from the perspective of trying to manage your case, there is hardly anything positive that can come from using social media during the pendency of your divorce, but there is a great deal of the risk of harm to your case. One ugly rant on Facebook could severely damage your case and even require you to have supervised visitations with your children. Social media profiles can a running record of your most highly charged moments. This record can be legally accessed by your spouse’s attorney and used to put you in the worst light possible. Certainly your postings of Facebook, Twitter, Instagram and other sites are not a complete reflection of who you are, but if your are in a contested divorce, particularly if child custody is an issue then social media is like a storehouse of ammunition that your spouses’ attorney can use to severely damage you in court with. You may want to talk with a legal professional about the use of social media and your online profile. In the midst of one of the most stressful occurrences in life, do you really want your private matters to be publicized to the world wide web? As you work through the process of your divorce, and experienced family law attorney can help you understand what data is worth protecting. Generally Texas frowns on the permanent payment of alimony to an ex -spouse after the divorce. There are two forms of "alimony" in Texas. One is temporary spousal support and the other is contractual alimony. For contractual alimony, the parties have to contract and agree to the payment of alimony after the divorce. This is usually only done when a spouse is a high wage earner and there are tax benefits to him or her in paying alimony. The other type of alimony is more common, but still only applies in some narrow set of circumstances and usually only for a limited amount of time. It is designed to help an ex-spouse from a long term marriage temporary support while they gain skills or education so they can be self sufficient after the divorce. Eligibility is narrow an only applies if: 1. The spouse from whom payment is sought was convicted of or received deferred adjudication for a criminal offense that also constitutes an act of family violence under Family Code Title 4 and the offense occurred within two years of the date the suit for dissolution of the marriage was filed OR the offense occurred during the pendency of the suit; OR 2. The duration of the marriage was 10 years or longer, AND a. the spouse seeking maintenance lacks sufficient property, including property distributed under the family code, to provide the minimum reasonable needs, (limited by the Family Code at 8.054), AND b. Is unable to be self supporting because of an incapacitating physical or mental disability, OR is the custodian of a child who has a physical or mental disability that requires the spouse not be employed outside the home, OR the spouse lacks the earning ability in the labor market to provide the minimum reasonable needs for that spouse. Payments shall be for the shortest reasonable time that allows the spouse to obtain a job or skill level so as to reach that spouse's minimum reasonable needs (8.054). The Texas Family Code says that in seeking custody of children and rights of a parent, there should be no bias by the judge based on the sex of the party, or of the child. (Sec. 153.003). That is, the old idea that children should be with their mother in all cases is no longer used in courts. But what is the law and what is really in the minds of family judges are sometimes two different things. Fathers who have fought for custody and won still believe that the cards were stacked against them. One father who won custody still had this to say: "The courts are heavily biased. They made me feel ashamed to ask for custody. Laws seem equitable but are not practiced by older judges as they should be. They stereotype a lot. To get custody you have to head and shoulders above your wife. Fathers don't seem to get custody when the wife is seen as competent." Fathers complain that they have to spend thousands to protect what is theirs and mothers usually have the upper hand. It is many fathers' perception that the courts are biased against because of their gender and are at the mercy of an archaic set of values that, though no longer technically exists in Texas, is still exercised by judges. And the scary part is that these judges have almost limitless power in deciding what is "best" for your children. Here is where an experienced family law attorney can make all the difference for a father seeking a fair custody or child support order. The lawyer is a key player not only in providing legal and emotional support, but in setting the overall tone of the case. With the father's input, an experience attorney can decide which issues to raise in court and how to include the children. The lawyer can offer impression about the judge's hot buttons and soft spots regarding what is best for children. And most significantly, the lawyer can give special attention to the impact of any bias that may be held against the father or against the mother. If you feel you need help or advice with a child custody or child support case in Harris or Galveston county, contact the Palmer Law Firm for a free consultation. Call 832-819-DLAW(3529) or visit us at www.mydivorcefirm.com. At the Palmer Law Firm, We Can't Protect Your Heart, But We Can Protect Your Rights. Handling your own divorce case is like flying to Albuquerque on a banana. It just makes no sense. Here, Burt Likko describes an exchange in a family court: Judge: Petitioner, is your marriage completely and intolerably broken down? Petitioner: Yes it is, Your Honor. Judge: Respondent, do you agree with that? Respondent: I don’t understand, Judge. Judge: The correct form of address is ‘Your Honor.’ Respondent: Oh. Sorry, Your Honor. Yes, I agree that our marriage is completely broken. Judge: Petitioner, will counseling or intervention help you reconcile or reconstruct your marriage? Petitioner: Well, Your Honor, he never really gave it a try. Judge: Petitioner. Will, or will not, counseling or intervention help you and the respondent reconcile or reconstruct your marriage? [Arches eyebrows.] Respondent: No, it won’t, Your Honor. Judge: Thank you, Mr. Respondent, but I need to hear from her. Petitioner: No, Your Honor, nothing will make us reconcile. Judge: Very well. The petition for dissolution of marriage is granted. Are there any personal possessions left to divide? Petitioner: Yes, Your Honor, he still has some of my sheet music. Judge: Is this sheet music particularly valuable? Petitioner: It is to me, Your Honor, it was from my mother’s estate. Respondent: Your Honor, she took everything but my clothing. She’s welcome to come back to the house and take whatever else she wants. Judge: Do you dispute that the sheet music belongs to her? Respondent: I don’t care. She can have it if she wants it. Petitioner: Why wasn’t it there when I came by the house before? Respondent: You didn’t ask for it so I didn’t know to get it for you. Judge: All parties will please address the court and not each other. Respondent will find and deliver the sheet music. Anything else? Petitioner: I would like to address the issue of alimony, Your Honor. If you look at the tax returns, you’ll see that he can make good money when he chooses to work. It’s very suspicious that he decided to retire a few weeks after I filed for divorce, and he claims to have no money and he’s going to get married again in just a few weeks. He can make money if he wants to. Judge: Well, I can’t make him want to work, and I can’t order him to go to work. How old are you, sir? Respondent: Seventy-eight. Judge: There you go. Respondent: I’ve looked everywhere for that sheet music, Your Honor, and I can’t find it. Judge: Once again, sir, I am ordering you to find and deliver the sheet music. Go home and look, hard. Petitioner: I would like you to be aware of what’s in this sexually explicit e-mail he sent me. It was just awful, awful. I haven’t had a decent night of sleep since I received it. Respondent: Your Honor, I would like to be heard about this allegedly explicit e-mail, she’s taking out of context, and– Judge: You know what? I don’t care about the e-mail. I’m here to divide up your property and that’s it. Your sex lives are not my concern. [Departs the courtroom.] Petitioner: [Sotto voce, to Respondent] This isn’t over, you bastard. Face palm. Don't go it alone. If you are facing a divorce, child custody or support hearing, call on an experienced team like The Palmer Law Firm. You can contact us at 832-819-DLAW (3529). And remember, We Can't Protect Your Heart, But We Can Protect Your Rights. Alright then. The first thing to understand is that the court begins with the idea that your property should be divided "fairly and equitably". (Keep in mind this DOES NOT necessarily mean 50/50). So if you want more than fair, it becomes your job to prove to the court that you deserve more than fair. You likely need to tell the court in your first paperwork (called a "Petition") that you are claiming one of the 28 different factors that the court can consider in deciding whether to grant a disproportionate division of what you earned during the marriage (a.k.a. "community property"). You will have to plead that one of these things changed the normal presumption of equal division to your favor. You need justify why you should get the lion's share of the property by claiming one or more of the following: 1. Husband was at fault in the breakup of the marriage; 2. You would have received benefits from the continuation of the marriage; 3. He earns much more than you; 4. Your health is worse than his; 5. You got the children so you should get more property to help pay for them; 6. Your children's needs are great; 7. Your education is less than his and/or your prospects for the future are lower; 8. You are less employable than him; 9. There is a lot of marriage debt; 10. The division of property will put more tax burden on you; 11. The differences in you ages is great; 12. The earning power, business opportunities and abilities favor your husband; 13. You need future support; 14. The kind of property to be divided means it would be fair for you to get more; 15. Your husband wasted your community property; 16. You husband doesn't deserve any credit for temporary support he paid you; 17. Your husband used community funds to pay for out of state property; 18. Your husband decreased your community property because he gave unreasonably valuable gifts during the marriage; 19. You can show that your efforts (time, talent, labor) unduly increased your husband's separate property (which the court has no power to divide) and you should be compensated; 20. Your husband gave so much of your community property away to his separate estate or to the children that it was unreasonable and should be compensated; 21. The community estate should be compensated; 22. Your husband is expecting a large inheritance; 23. You should have more money to pay for attorney's fees; 24. You used up your separate property to create community property; 25. The size and nature of your separate property is much less than his; 26. You disproportionately created community property by your own efforts, whereas he did not; 27. He committed fraud (lied) that put you in a worse financial position than you otherwise would be in; 28. His actions amounted to fraud, even if he didn't technically lied that put you in a worse financial position than you otherwise would be in. These are called to Murff Factors after the original case: Murff v. Murff, 615 S.W.2d696,698 (Tex.1981). It should be noted that requested a disproportionate share of the community property will eventually require you to prove your allegations. Claiming something is easy. Proving it is another matter. If you want a disproportionate property division, you probably will need an experienced lawyer to help you with this. This is actually two separate cases. First you have to terminate your ex's parental rights, then you can proceed with the adoption by your husband. The Texas Family Code conveniently allows you to combine the two cases into one, however, you may not want to do that. If your ex has agreed to sign an affidavit of relinquishment, he cannot change his mind for 60 days. So you want to close that deal quickly and finish the termination before he can change his mind. You can then open the adoption case at your ease. If you tie termination and adoption, together, it may require much more than 60 days to get the social study and other requirements finished. In the meantime ex may change his mind and complicate everything. On the other hand, some judges will not terminate parental rights unless there is an adoption in the works, so you may have to combine the cases. You have to know your judge and jurisdiction. As you can see, this is a complicated matter and you really should find a knowledgeable attorney. After you have won a custody suit, there is often a period of adjustment. You and your children may be in a much better situation now that you have won your suit, but your family will be facing a whole set of new challenges in the days, weeks and months ahead. Here is some practical advice on making that transition easier. Tip #1: Don't try to be be a Super-Father. As much as you want to be, you can't be all things to everyone. Being a single parent means that you are trying to maintain a household with less resources of time and energy. Something has to give. Usually that will have to be work. Whether it was part of your life plan or not, you have accepted the role as a single father. Usually this means that your career path will not be the same. Don't fall into the same frustrating trap that many feminists fell into in thinking you can be a great father and still keep up with men who can devote all their time to work. Something has got to give. Tip #2: Consider talking to your boss. You may want explain to your boss your new living situation. In some cases, this may make things easier for you. Consider your situation before you do so though. There are a few places where the boss will think a single parent makes a bad employee. But you will find this less often than ever before. Convince your boss of your commitment to the job and you may find they will be more flexible if they know you are a single parent. Tip #3: Don't make any major work changes. If you can avoid it, don't make any dramatic changes to your career or work schedule. You should give yourself some time to adjust to your new lifestyle and if your work situation is in transitional chaos, you will feel overwhelmed. Tip #4: Inform your children. If they are old enough, explain to your children about the demands of your work. Assure them that you are there for them and you want to be with them, but you also have to work to bring money in. Explain it to them in a way that will not make them feel guilty for asking for your time. They should understand that you are under pressure, but they should not feel they are the cause of that pressure. Tip #5: Define when you can contact your children. If non-emergency calls are allowed at your work, then you are lucky, and your children can call you when they want. But in any case, you should make your children understand when it is appropriate to call. Explain the what is a real emergency and what is not. If you can call your children at a certain time, such as a lunch break, let your children know you will be calling them to check in. Keep it consistent. Tip #6: Don't reinvent the wheel if you don't have to. Chances are that you are not the only person at your work who is in a similar situation. Talk with your co-workers. Find out how they are handling their child care issues. By asking a few questions, you may be able to tap into a whole network of resources you didn't know existed. Tip #7: Pick your day care -carefully. No matter what your occupation or situation, you will eventually need day care for your child. Your selection of day care is critical. There are many options out there and you have to pick a center that make sense for you. At a minimum, make sure the facility is licensed by the Texas Department of Family and Protective Services: http://www.dfps.state.tx.us/Child_Care/Child_Care_Standards_and_Regulations/default.asp Call the TDFPS to see if there are any complaints about the facility. Ask to speak to other parents who use the center. If possible, take your child there and see what his/her reaction is (although that should not be the determinant factor in choosing). Tip #8: Keep your kids in the loop. If old enough, let your kids know your work schedule and where you will be. Try to avoid last minute meetings or sudden over-time. It will reassure your children to know where you are and when you will be back. Tip #9: Teach your kids how to handle strangers. Your children should know how to deal with callers or visitors when you are not home. For example, they should not tell a stranger that you are not home, simply that you can't come to the phone right now. No one should come to the house when you are not there, and they should not open the door at any time. These rules should be in place even if you have a caretaker in your home. Tip #10: Be Firm, But Be Flexible Be consistent with your rules, but be willing to renegotiate your rules as your children get older. Since 1973, the number of father only families has increased at a faster rate than has the number of mother-only families. Today, 15% of all single-parent families are headed by a father. Fathers facing divorce should consider carefully any decision they make about child custody that is based on old, outmoded ideas of "traditional" roles. And although they are changing somewhat slower than the rest of society, the courts are coming around to the realization that fathers can make just as successful single parents as mothers. So it is time to reexamine some of the old myths about single fathers. Myth #1: Fathers who gain custody were themselves products of single-parent families. There is no evidence to suggest that fathers who are awarded custody of their children were raised in any specific way. Studies in the 1980s show that 80% of fathers who are awarded custody grew up in a two-parent households, but this was likely to be the result of a generational difference because divorces were far less common in the 1950s and 1960s than they are today. Today's single father can come from any kind of background and upbringing. Myth #2: Custodial fathers have high incomes It is well documented that there is an extremely high percentage of mother-only families that are below the poverty level. What is less well know is that more than 18 percent of father-only families are poor. Another 21 percent are just above the poverty line. If there is a custody dispute, the ability to afford a child is indeed one of the factors the court will decide in determining who gets custody. Higher income will give one party and advantage- if combined with other factors. But remember, the amount of income is only relative to the other parent. If both parents receive the same amount of income, even if it is very little, this will not sway the courts. Myth #3: Most Custodial Fathers have remarried. Although custodial fathers are more likely to be married than custodial mothers, the fact is that most custodial fathers (59%) are not currently married. Myth #4: Custodial Fathers primarily receive custody of older boys This myth really has two parts: first, the fathers primarily obtained custody of older children and second that fathers are more likely to receive custody of boys. It is true that the children living in father-only families are older than those living in mother-only families. This may be a hang-over effect of the "tender-years doctrine" which favored women over men for custody of young children. Many family courts followed the doctrine for years, but it has fallen aside with other stereotypes and is not a lawful factor in Texas courts. Still, 17.5 percent of single-father families include children younger than three, and about a third contain a preschooler. Similarly, although children in father-only families are somewhat more likely to be boys, 44 percent of all children in such families are girls. Myth #5: Most custodial fathers are widowers. This may have been true at one time, but being a widower is not were you will find most custodial fathers today. In fact, you will only find 7.5 percent of single father households being widowers today. As a matter of fact, 24.5 percent of single father households are headed by never-married fathers. Many fathers make their decisions about whether to seek custody based on outmoded ideas about what is acceptable in society and in the courts. But these myths need to be busted and fathers need to based their decisions on the real and current facts. If you are a father involved in a custody battle, you need to seek the truth from an experienced family law attorney who will help you separate fact from fiction. For more information, please visit us at www.bayshoreattorney.com My husband and I lived together for about a year before we got married. We were looking for a home and decided on one just before our wedding ceremony. To make sure the loan went through, we applied through my husband's credit (which was excellent- mine was not good due to a recent bankruptcy). He got the loan and we financed 100% of the payments. My husband signed an earnest money contract and we went off to our wedding. When we got back, we closed on the house and I co-signed all the paperwork as the wife. Thereafter, we made all the loan payments from our joint account. Now that we are divorcing, my husband claims that the house is his separate property and the court cannot award it to me in the divorce. Is he right? As odd as it may sound, and as unfair as it may seem, your husband is probably right. All property that is possessed during a marriage is presumed by the courts to be community property and subject to division by the courts. However, this presumption can be rebutted if a party can show that the property was acquired before the marriage. The result is what is called the "Inception of Title" rule, which basically says if you can prove the property became the legal ownership of one party before the marriage, it is considered that party's separate property and cannot be taken from him or her in the divorce. Normally ownership begins in the moment when you obtained legal title to the property, but oddly, not in the case of real estate. For real estate, the court traces the characterization back to the earnest money contract. This was the holding in Wierzchula v. Wierzchula, a 1981 case. However, there are several factors here which should give you some solace: 1. It is your husband's burden to overcome the community property presumption. For example, if he can't produce the earnest money contract in court, the judge may declare the property community anyway. 2. Just because the property is characterized as your husband's separate property doesn't mean you loose out on all the mortgage payments that were made from your joint account. You will still have an equitable reimbursement claim on all that money- which the court may award you. You may not get the house itself, but you can get back a lot of the value of it. Make sure that your pleadings ask for this. 3. The Wierzchula case mentions the fact that the house in question was the homestead of the parties, that is, they were living in it. If your house was not a homestead but instead was, or at some point became, a rental or other investment property, you may be entitled to the income generated from that property. The general rule is that rents collected during a marriage, even if from one party's separate property are considered community property. (McElwee v. McElwee, 1995). So the bottom line is that although your husband can't lose title to the house, under your circumstances, the court is free to reimburse back to the community estate the mortgage payments made on the house, and also any income generated from the house as it deems fair and right. I would also suggest that if you can prove that the house has appreciated in value significantly over the time of the marriage, then you may also be able to convince the court that the appreciation is also community property, subject to right and proper division. However, you would have to investigate this further because in today's depressed real estate market such appreciation is no longer an assured fact. Well, that depends. The Court where you had your original case would have the power to enforce its orders if they are not being followed. There are two forms of contempt- direct (as in, you did something bad right in front of the judge) or indirect, where a party violates a written order. In your case we are probably talking about indirect contempt. Another thing to know about contempt is that there are two types of punishment: coercive and punitive. Coercive is designed to "persuade" the person to stop violating the order. If for example, jail time is involved in the punishment, the person will be released once they start following the order. In essence, they have the keys to their own cell. In contrast, punitive is a situation where you have really P.O'ed the judge and her or she is gonna make you pay for it. You can't get out of this type of punishment. From a lawyer's perspective, the handling of a contempt matter is highly technical and requires a lot of skill and care. Because a finding of contempt can carry some pretty heavy consequences, the law will provide your wife many procedural "outs". There are a lot of ways that your ex-wife can weasel out of a contempt order and thumb her nose at you. Most of these outs for your wife can arise is the underlying order was poorly drafted. If it was in any way vague, or has any technical flaws, the court will not be able to find contempt. I recommend you seek and experienced lawyer with at least several years working exclusively in family law, like myself. Yes, under certain conditions. What you want is generally called a "modification". The Family Code establishes the grounds for modification of custody and visitation orders. The court can change and order if: 1) the change would be "in the best interest of the child", AND 2) the circumstance of the child, you or your ex have "materially and substantially changed since the earlier of: (a) the date the order was signed (rendered); (b) the date the mediated agreement was signed. Another circumstance which would allow a modification is if your child is at least 12 years old and has filed in court, in writing the name of the person they want to live primarily with. Yet another circumstance is if the person who in the old order had the exclusive right to designate the primary residence of the child, gives up that right for at least 6 months. |
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Attorney Sean Y. Palmer has over 20 years of legal experience as a Texas Attorney and over 25 years as a Qualified Mediator in civil, family and CPS cases. Palmer practices exclusively in the area Family Law and handles Divorce, Child Custody, Child Support, Adoptions, and other Family Law Litigation cases. He represents clients throughout the greater Houston Galveston area, including: Clear Lake, NASA, Webster, Friendswood, Seabrook, League City, Galveston, Texas City, Dickinson, La Porte, La Marque, Clear Lake Shores, Bacliff, Kemah, Pasadena, Baytown, Deer Park, Harris County, and Galveston County, Texas.
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