Author: beallawfirmblog

This Blog is operated by the Beal Law Firm, PLLC. The attorney responsible for this is Eric Beal, Senior Attorney and Founder of the Beal Law Firm.

New Help for Some Non-Deadbeat Child Support Payors

For over 20 years, Texas law has been clear: Moms and Dads are not allowed to modify their own child support orders without court approval.

Up until now, however, the cases have all dealt with situations where child-support payors have attempted to privately agree with the custodial parent to reduce or eliminate the child support owed.

In those situations, the law is clear that the court cannot enforce a private agreement, or rely on it to reduce the amount obligation.

Recently, a case was decided by the Texas Supreme Court with a distinctly different set of facts — the payor paid even more than he owed, he just didn’t pay it the way that the order directed him to.

The Texas Supreme Court noted that it has never said that courts cannot consider evidence of direct payments that are made in a manner that is different than what is ordered in the support order.

Now, in the case of Ochsner v. Ochsner, the Texas Supreme Court has determined that where the payor has made payments that satisfy an obligation incurred by the custodial parent, the court is permitted to consider direct payments when deciding whether the payor has met his or her obligation to pay support.

In Ochsner, the dad paid tuition to his child’s school. The mom had enrolled the child in the school and incurred the obligation. The dad not only paid everything he owed, he paid more than $20,000.00 more than he owed.

The mom sued him anyway, planning to not only keep the benefit of everything the dad had paid, but get even more money.

The Texas Supreme Court, told the mom, “No.”

While this may be good news for some payers of child support, the court warned:

“Our decision today should be confined to the facts presented. It should not be read to hold that tuition payments always qualify as child support. Further, it should not be read to encourage spouses to make direct payments and thereby bypass the registry or other payment mechanisms set forth in the divorce decree. At a minimum such behavior may needlessly complicate proceedings. It carries risks regarding matters of proof, and under different circumstances a trial court might well be within its discretion in refusing to consider such payments.”

If you believe that you have a child support issue and would like to discuss it with the attorneys at the Beal Law Firm, you can reach us at lawyers@dfwdivorce.com or call 817.261.4333 or 214.414.0418. You can also find us at www.dfwdivorce.com.

For the complete story on the cases discussed above, please see the following links:

Williams v. Patton, 821 S.W.2d 141 (Tex. 1991)

Ochsner v. Ochsner, 2016 Tex. LEXIS 569, 59 Tex. Sup. Ct. J. 1359 (Tex. 2016)

How Do Courts Determine What’s Fair? – Property Division in Divorce

Everyone knows that property gets divided in a divorce. Buy how? What is the outcome based upon?

In a Texas Divorce, the Judge is obligated to make a “just and right equitable division” of the community estate. The Judge is supposed to do what is fair, considering the facts. But what facts can the Judge consider?

Here are a few:

  1. The age of the parties;
  2. The health of the parties;
  3. The needs of the parties;
  4. The income of the parties;
  5. The earning capacity and opportunities for future wealth and income of the parties;
  6. The separate estate of each party;
  7. The debts and liabilities of the parties;
  8. The custody of any children of the marriage;
  9. Any adultery committed during the marriage; and
  10. Any cruelty by either party to the marriage.

What is interesting about many of these factors is the way that they can cut either way. For example, a significantly older spouse can argue, “I need more of the estate, because I don’t have many more years to earn.” With the same set of facts, the younger spouse can argue to the older, “You don’t need as much money as I do, because you are not going to have as many years of life left that you need to pay for.”

Property division can be tough in a divorce. Knowing what facts matter can help you help your attorney.

If you would like to discuss your situation with the attorneys at Beal Law Firm, you can reach us at lawyers@dfwdivorce.com, call 817.919.3616 or 214.414.0418 or find us at www.dfwdivorce.com.

This is what makes it all worthwhile – Thank you!

Practicing Divorce, Custody, and Family Law is hard. I’ve done it for a long time now. The burden of having so many people’s lives resting on what you do and the decisions that you make, day in and day out, gets extremely stressful.

Sometimes the courts are hard to deal with. Sometimes opposing counsel is hard to deal with. Sometimes you run out of toner at 11:30 p.m. when you’re trying to print the last few pages that you need to take with you to court in the morning.

Practicing law, in general, is difficult. Practicing family law is especially difficult. I know of the comparison because I had a general civil litigation practice, which included family law, for about 15 years.

The one thing that I learned years ago is that one of the hardest things to deal with is ingratitude. When anyone, in any line of work, stresses, sweats, and gives their all to help another person, and the recipient of the help is ungrateful, it provides an additional layer of anxiety to an already difficult task.

But maybe that’s why the unexpected surprises like the one I got in today’s email are so extra nice. It was not just gratitude, it was heartfelt uplifting gratitude:

Thank you so much for taking care of me and my children – I seriously cannot thank you enough….you saved us

much love and forever grateful!

[Divorce and Custody Client] and her [Confidential number] kids!

Thank you Ms. [Confidential]!! You just reminded me why we do this!!

EDB

You can reach us at lawyers@dfwdivorce.com or call us at 817.261.4333 or 214.414.0418 or find us at www.dfwdivorce.com.

Off to school – Ready to Learn

Next week is the 42nd Annual Advanced Family Law Course put on by the Texas Bar. Most years, it takes place in San Antonio. Every year it is great.

What’s great about it? It is Continuing Legal Education (CLE) at its finest. We lawyers get to learn. We get to think about the law and talk about changes being made by the legislature and the courts. We get to talk about where the law has been and where it is going.

The course lasts from Monday to Thursday and has 21.5 hours of education available. That’s more education than the State Bar requires attorneys to get in an entire year.

Some attorneys dread CLE. Some of us love it. Those of us that love it a great deal get as much of it as we can.

Lawyers that get at least double the required amount can join the College of the State Bar of Texas. As the College’s website says:

The Texas Bar College is an honorary society of lawyers who are among the best trained attorneys in Texas. Members are qualified attorneys who are interested in both high ethical standards and improved training for all Texas attorneys.

The College recognizes Texas lawyers who attend at least double the Continuing Legal Education (CLE) required by the State Bar of Texas.

What makes a good attorney? One thing is education – and a major part of a lawyer’s education is the continuing education that he or she gets.

Even while some of Beal Law Firm’s attorneys are in San Antonio getting more educated, you can reach us at lawyers@dfwdivorce.com or find us at www.dfwdivorce.com. We will have several attorneys in the office and ready to help every day next week, and even those of us in San Antonio will be available to help via skype, facetime, email, and telephone.

I Want to Move – But I Don’t Want You to Move: Lifting the Geographic Restriction

Relocation cases are difficult. One of the main reasons is that it is hard to find a compromise. If mom and dad get a Texas divorce, and mom wants to move with the children to New York, the compromise of mom moving to Tennessee is not likely to make anyone happy. Since it’s hard to settle a relocation case, they often end up going to trial – and that can be expensive and time-consuming.

Relocation is really the other side of the geographic restriction coin. If the prior decree or order does not have a geographic restriction (also known as a residency restriction or domicile restriction), then theoretically there is no relocation case or battle that needs to be fought.

When there is a geographic restriction, any attempt by the primary parent to move beyond the restricted area, can lead to a relocation case. Relocation cases can be dealing with moves across town or moves out of State or out of the Country.

If tried to the judge alone (a “bench trial”), the issue of relocation is completely within the discretion of the court. The parties in a relocation case have a choice, however, because the issue can be tried to a jury. In fact, per the Texas Family Code, the judge cannot alter the jury’s finding on the issue.

So whether to a judge or jury, the question is: What kind of evidence will you need to win your side of the argument?

The Supreme Court of Texas in the case of Lenz v. Lenz listed a number of factors for courts to consider when making the determination of whether a request for relocation should be granted. These so-called Lenz Factors include the following:

  1. The reasons for and against the move;
  2. A comparison of education, health, and leisure opportunities;
  3. Whether any special needs or talents of the children can be accommodated;
  4. The effect on extended family relationships;
  5. The effect on visitation and communication with the noncustodial parent to maintain a full and continuous relationship with a child; and
  6. Whether the noncustodial parent has the ability to relocate.

When considering whether to file a relocation case or how to defend one, it is critical to determine and gather all the evidence that you can on all of the Lenz Factors.

If you need to talk to someone about geographic restriction (domicile restriction, residency restriction) and how to get it in place, keep it, or fight against it, you can contact us at lawyers@dfwdivorce.com or find us at www.dfwdivorce.com

Joint Custody – What is it?

How does Joint Custody work? That’s a question that family law attorneys get asked all the time. Answering it takes some explaining.

It’s impossible to answer this question without detailing the contents of a Texas “custody order” first.

In Texas, “custody” orders typically include these sections:

  1. Titles
  2. Rights & Duties
  3. Possession Schedule
  4. Child Support
  5. Health Insurance
  6. Miscellaneous provisions (like electronic access.)

The titles that the parents receive in the order used to mean everything. Now they often mean virtually nothing. Almost everyone is named as a Joint Managing Conservator.

The Rights & Duties section is where the fighting takes place in a “custody battle.” The most important right fought for is “primary” – which actually means the “right to establish the primary residence of the children.” This right can be limited by a geographic restriction, which is also known as a residency restriction or domicile restriction.

The other rights that people often fight over are: Who gets to make medical decisions? Who gets to make educational decisions? Who gets to make psychological and psychiatric decisions? These can be designated as joint rights, independent rights, exclusive rights, or exclusive after consultation rights.

Following the rights and duties section, the order details the possession schedule – who has the right to have the kids and when. The presumption in Texas basically boils down to mean that the non-primary parent gets to have possession of the children approximately 40% of the time. But, the presumption can be overcome.

After possession comes Child Support. Child Support is not technically a part of custody, but is generally addressed in orders that most people refer to as “custody orders.” The presumption in Texas is that Child Support will be set according to the Child Support Guidelines found in the Texas Family Code.

Next are Health Insurance provisions. In Texas, the presumption is that the party paying child support – typically the non-primary parent – will also pay for health insurance. Most orders detail that the parents will split the cost of all uninsured medical costs 50/50, although as with everything else, that can be negotiated or changed by the court.

Finally, there can be virtually any parenting provisions that the parents can agree on or that the court decides are in the best interest of the children. These can include provisions for electronic access – skype, facetime, texting, phone calls – choice of caregivers, choice of doctors, details regarding extracurricular activities, etc.

So, with all of that discussion: How does Joint Custody work? It’s really a question without an answer. For most people, when that term is used, it means an order that provides for a sharing of rights and possession to an approximately even degree. That would look like a 50/50 possession schedule – whether that’s week to week or otherwise – and joint or independent rights.

Understanding Joint Custody in Texas is one thing. Determining whether such an order can be obtained in any given cases depends on many factors.

To learn more about custody orders or to discuss your case, contact us at lawyers@dfwdivorce.com or find us at www.dfwdivorce.com

Is Collaborative Divorce the Same Thing as Uncontested Divorce?

Recently, we conducted a very unscientific poll on the @BealLawFirm twitter account. The question asked was, “Do you know the difference between a Collaborative Divorce and an Uncontested Divorce?” The choices were: “1) Yes, 2) No, and 3) Aren’t they the same?” Fewer than 6 in 10 people even claimed to understand the difference between the two – and a huge percentage of the account followers are lawyers, law firms, etc.

So, with more than 4 in 10 people possibly not understanding the difference between the two – or even if there is one, it seems that Collaborative Divorce bears some explaining.

Collaborative Divorce is an alternative to traditional divorce. Traditional divorce is conducted in the litigation model, whereas Collaborative Divorce is an entirely different model.

In the Litigation Model, divorces typically move through several stages until the case is either settled or makes it to trial. The stages are:

  1. Negotiation between the parties;
  2. Negotiation between the attorneys;
  3. Mediation;
  4. Post-mediation negotiation; and
  5. Trial.

Throughout all of these stages, the parties can engage in formal discovery – including written interrogatories, requests for production, requests for admission, requests for disclosure, written depositions, and oral depositions – and/or ask the court to grant various requests in countless motions and hearings.

In a Collaborative Divorce, the parties agree that they will suspend their rights to engage in anything other than formal meetings between themselves and the rest of the collaborative team, which typically includes their attorneys and two neutral professionals. One of the neutrals is known as the Financial Professional (FP) – usually a CPA, CFP, or CDFA – and the other is the Mental Health Professional (MHP). Although the MHP is likely to be a psychologist or licensed clinical social worker, the role of the MHP is not to counsel or analyze any of the participants. Rather, the MHP’s job is to run the meetings and help the parties arrive at an agreement on parenting issues. The FP’s job is to gather the parties’ financial information and help construct current and proposed budgets.

So, with all that being said, what is a Collaborative Divorce? It is a series of meetings in which the parties attempt to arrive at an agreement on all issues in their case. Because the meetings and everything discussed at the meetings are confidential, should the process break down, the parties are free to re-enter the Litigation Model, but both of the Collaborative Attorneys MUST withdraw from representation at that point.

What is an Uncontested Divorce? It is an ill-defined term that everyone uses to describe a case in which the parties to a divorce argue to a lesser degree than the arguing that takes place in a divorce that is referred to as a Contested Divorce.

The terms do not mean the same thing, because typically when an attorney speaks of an Uncontested Divorce, he or she is talking about a case in which the parties are in the Litigation Model, but able to arrive at an agreement fairly early in the process. The term Collaborative Divorce is reserved for divorces that are being conducted in the Collaborative Model and under the rules for Collaborative Divorce promulgated in the Texas Family Code.

If you would like to discuss your needs with respect to a Collaborative Divorce, Uncontested Divorce, or Contested Divorce, please contact us at lawyers@dfwdivorce.com or find us at www.dfwdivorce.com.

Know What You Know and Know What You Don’t Know – Six things you need to know about community property

Most Texans know that they live in a community property state.  The problem for many, however, is that they have no idea what that means. Even worse, many believe one or more of the common misconceptions about community property, and because of their misunderstanding, they may make decisions that cause them huge financial harm.

Here are the top six things you need to understand about Texas community property laws.

Number 1: You may not get half of the estate. 

The most common misunderstanding is the belief that community property means each party in a divorce gets 50 percent of the property that is being divided.  That’s simply not true. Both parties own an undivided interest that is susceptible to division by the Court in whatever proportion the court thinks is fair.

Number 2: Your name on an item does not make it your separate property. 

Many people believe that if the account, vehicle title, etc. has only their name on it, the item or account must be theirs and theirs alone. That thought is completely wrong. The presumption of the court is that everything acquired during the marriage is subject to division by the court.

Number 3: Not everything is community property. 

Many people believe that when the marriage occurs, everything that either party owns becomes part of the community estate. Not true. Your separate estate, if any, survives your marriage ceremony and exists during your marriage.  Separate property includes, generally speaking, anything owned prior to marriage and anything acquired by gift or inheritance. Additionally, certain parts of personal injury claims and anything traceable to separate property is separate property.

Number 4: Income from separate property is community property. 

The important corollary to this is that interest and dividends are income.  That means that the interest on a bank account owned prior to marriage is community property.  While that may not mean much if the marriage only lasts a few months, it can mean a great deal if the marriage lasts 10+ years.

Number 5: Paying for a piece of property does not turn it into community property. 

Many people believe that if the mortgage on a piece of property or a vehicle is paid with community funds, the property becomes community property.  That is not the case.  Once the character – Separate or Community – of the property has been set, it generally requires a gift or formal written agreement to change it.

Number 6: There are exceptions to the rules.

If any of the above stated rules cause you stress, don’t give up hope. Keep in mind that this is just the tip of the iceberg. There are many exceptions to the rules, and many strategies for achieving a division that is fair. For example, although payments on a mortgage do not change the character of the property, they may give rise to a claim of reimbursement.

Remember, understanding the community property system is harder than it appears at first glance. Unfortunately, marriage licenses do not have warning labels. With respect to community property, it’s probably best to know what you know, and find an attorney that knows what you don’t know.

Beal Law Firm – For Almost 25 Years

Beal Law Firm has been helping clients for almost 25 years. Here’s to the next 25!

May of 1992 was a great time. Beal Law Firm’s founder – Eric Beal – was leaving a prominent Dallas law firm and striking out on his own.

With no money, no clients, a mountain of debt, poor parents, a small child, and several other hurdles to overcome, the law firm was begun. Originally, it was known as The Law Offices of Eric Beal, and its first paying client was a termination and step-parent adoption.

The firm began its existence in the Sunbelt Savings building that essentially shared a parking lot with Wet and Wild in Arlington, Texas. At first it was just Eric, his old computer from law school, a brand new laser printer, and the smallest space available in the building’s executive suites.

Within three months, with the help of a lot of great referrals from some great friends, the firm had moved into the largest office in the executive suites, and from there it was off to the races.

Now, almost 25 years have passed.

As of today, Beal Law Firm has eight full-time lawyers, one Of Counsel lawyer, two full time legal assistants, one administrative assistant, one financial assistant, and an Office Manager – Certified Financial Planner® – Certified Divorce Financial Analyst™.

The time has flown by, and it’s exciting to think about what the next 25 years will hold. Thank you to everyone that has helped to make our success possible.