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?
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.
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 claims that the house is his separate property and the court cannot award it to me in the divorce. Is he right?
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.
My Ex-wife has not been following our court orders for visitation. Can I sue her for contempt of court?
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.
Attorney Sean Y. Palmer has over 18 years of legal experience as a Texas Attorney and over 24 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.