Category: Child Custody

Custody: What is the Extended or Expanded Standard Possession Schedule?

As discussed in a previous blog post, Texas has a Standard Possession Schedule that is part of the Texas Family Code. The Standard Possession Schedule (“SPO”), for the most part, limits the time that the non-primary parent has a right to see his or her children during the school year to 1st, 3rd, and 5th weekends from 6:00 p.m. Friday to 6:00 p.m. Sunday – and very few months have 5 weekends.

The good news for non-primary parents that want to see their children more than the SPO provides is that the Texas Family Code Section 153.317 provides for “Alternate Beginning and Ending Possession Times,” that can create what is commonly known as an Extended or Expanded Standard Possession Schedule.

The Code states, in part:

“If elected by a conservator, the court shall alter the standard possession order. . . to provide for one or more of the following alternative beginning and ending possession times for the described periods of possession, unless the court finds that the election is not in the best interest of the child:

(1)  for weekend periods of possession. . . during the regular school term:

(A)  beginning at the time the child’s school is regularly dismissed;

(B)  ending at the time the child’s school resumes after the weekend; or

(C)  [both] beginning at the time described by Paragraph (A) and ending at the time described by Paragraph (B);

(2)  for Thursday periods of possession [during the school year]. . .:

(A)  beginning at the time the child’s school is regularly dismissed;

(B)  ending at the time the child’s school resumes on Friday; or

(C)  [both] beginning at the time described by Paragraph (A) and ending at the time described by Paragraph (B);

(3)  for spring vacation periods of possession . . ., beginning at the time the child’s school is dismissed for those vacations;

(4)  for Christmas school vacation periods of possession . . ., beginning at the time the child’s school is dismissed for the vacation;

(5)  for Thanksgiving holiday periods of possession . . ., beginning at the time the child’s school is dismissed for the holiday;

(6)  for Father’s Day periods of possession . . ., ending at 8 a.m. on the Monday after Father’s Day weekend;

(7)  for Mother’s Day periods of possession . . .:

(A)  beginning at the time the child’s school is regularly dismissed on the Friday preceding Mother’s Day;

(B)  ending at the time the child’s school resumes after Mother’s Day; or

(C)  beginning at the time described by Paragraph (A) and ending at the time described by Paragraph (B); or

(8)  for weekend periods of possession that are extended . . . by a student holiday or teacher in-service day that falls on a Friday, beginning at the time the child’s school is regularly dismissed on Thursday.”

As important as the optional extra time is, possibly the most important part of the Code provision is that the choice of getting the extra time belongs to the non-primary parent, as long as the election is made properly and timely, unless “the court finds that the election is not in the best interest of the child.”

That means that if a non-primary parent is denied any of the extra time he or she seeks, the court can be made to explain its denial, and the denial is subject to review by an appellate court.

Different people measure time spent with children differently – some count the nights, some count the hours, some count the “quality time.” The real good news with the expanded schedule provided by 153.317 is that by some measure, even the “loser” of a custody battle can get to have his or her children for almost 45% of time – depending upon how it’s counted. Whether the parent can actually exercise the time depends in large part on the distance between the parents – which to some extent is governed by whether a geographic restriction exists. For more on that, see the prior blog post.

To discuss your custody issue with the lawyers of the Beal Law Firm, call us at 817.261.4333 or 214.414.0418, or write us at lawyers@dfwdivorce.com. You can find us on the web at www.dfwdivorce.com.

Divorce: Five Things to Think About before it happens

Divorce attorneys are often asked, “What should I do before I file my case?”

Or, “I know my spouse is about to file for divorce, what should I be doing?”

The question is asked, sometimes, assuming that the attorney will give some super-secret advice about how to effectively hide assets or destroy evidence. An ethical attorney won’t give that type of advice, because each party in a divorce is obligated to disclose everything he or she knows about the assets, their value, and where they are. If they have been disposed of improperly, the result can be bad for the one that did the disposing.

Additionally, destroying evidence can be considered spoliation or obstruction of justice, both of which can lead to very bad results.

So what should you do, if you know that a divorce is on the horizon? Consider these five things.

  1. Check for Spyware.

In this day and age, if anyone has had access to your computer, cell phone, iPad, etc. he or she can download software that will allow him or her to know everything that you are doing on your devise or computer. What that means is that changing passwords after the Spyware has been loaded won’t do any good to keep your spouse from knowing everything you and your attorney say to each other. So, if you believe that a divorce is on the way, a good first step to think about is getting all of your devices to a computer expert to have them checked for Spyware.

  1. Change passwords.

Don’t get confused by Step One into thinking that changing passwords is useless. Changing passwords on anything and everything is a great Step Two. Before you do though, make sure you prepare to do it right by getting a password keeper set up on a device that you know is secure. Then, set up strong, unique passwords for every account and device that you have.

  1. Get records of all of your assets and keep them in a safe place.

This is good advice for everyone, all the time – but especially someone about to go through a divorce. Keep in mind that “all your assets” means everything, regardless of whose name is on it. Get copies of all records for all accounts, whether they are checking, savings, money market, CD, 401(k), IRA, or other. Get all records for any and all pensions. Make a list of all significant property that you or your spouse have any ownership interest in. Take photos of everything that matters, including collectables, guns, coins, art, etc. Get records of any safe deposit box or storage facility. Get records of everything, and if you can’t get records of everything, get records of everything that you can.

  1. Stop posting things on Social Media.

Social Media posting may be the single worst thing that people do in divorce. Nothing good can come of it, and plenty of bad can. So stop. You have no right to privacy in a divorce with respect to things that you’ve posted, whether publicly or just to your close friends. Whether you can delete things that you have already posted is a matter of when you do it, why you do it, and what it is. The law is clear, however, that if are in a divorce and you delete postings in an effort to destroy evidence that could be used against you, you are committing spoliation and possibly obstruction of justice – both of which are bad.

  1. Think about Moving assets.

As long as you are not under any court orders that state otherwise and you are not committing fraud, you are entitled to protect your property by moving things like keepsakes and other irreplaceable things to a place where they can’t be destroyed. Whether you should move money and other assets is a tougher call. You may be legally entitled to do so, but you may create a problem that you otherwise don’t have. On the other hand, if you don’t make sure that you can survive, if your spouse moves, disposes of, or hides everything that he or she has access to, you may regret it later. This subject is a good one to get specific legal advice on from a good attorney that you can trust.

To discuss any of this with the attorneys at the Beal Law Firm, call us at 817.261.4333 or 214.414.0418, or write us at lawyers@dfwdivorce.com. You can find us on the web at www.dfwdivorce.com.

Divorce and Custody: Possession Schedules for Children Under Age Three

When couples go through a divorce with children or just a custody case, one of the most important things to be determined is the possession schedule for the children.

If the parties cannot agree to a schedule that is in the Best Interest of the Children, the court will order a schedule.

As discussed in a prior blog post, Texas has established a Standard Possession Schedule (SPO) for use by divorce and custody courts in ordering the possession of children. By law, however, the SPO is designed to be used for children age three and over.

So what about children under the age of three?

Neither the Texas Family Code nor case law establish a standard schedule for children under the age of three.

For children that young, the Family Code states that “The court shall render an order appropriate under the circumstances” and then gives a non-exhaustive list of factors that courts are obligated to consider.

The factors detailed in the Code are:

(1)  the caregiving provided to the child before and during the current suit;

(2)  the effect on the child that may result from separation from either party;

(3)  the availability of the parties as caregivers and the willingness of the parties to personally care for the child;

(4)  the physical, medical, behavioral, and developmental needs of the child;

(5)  the physical, medical, emotional, economic, and social conditions of the parties;

(6)  the impact and influence of individuals, other than the parties, who will be present during periods of possession;

(7)  the presence of siblings during periods of possession;

(8)  the child’s need to develop healthy attachments to both parents;

(9)  the child’s need for continuity of routine; and

(10)  the location and proximity of the residences of the parties.

The code also states that the court shall consider “the need for a temporary possession schedule that incrementally shifts to” an appropriate schedule beginning at age three, with the incremental shifts based upon what would be appropriate, given the child’s age, and any evidence of “minimal or inconsistent contact with the child” by either parent.

Finally, the Code mandates the Courts consider “the ability of the parties to share in the responsibilities, rights, and duties of parenting” and “any other evidence of the best interest of the child.”

So what does a “a temporary possession schedule that incrementally shifts” (a “stairstep schedule” or “stairstep possession schedule”) look like?

With respect to Weekday and Weekend Possession, it may provide that the non-primary parent’s possession schedule is as follows:

  1. Tuesdays – On Tuesday of each week, beginning at 5:00 p.m. and ending at 8:00 p.m.
  1. Thursdays – On Thursday of each week, beginning at 5:00 p.m. and ending at 8:00 p.m.
  1. Saturdays Until the Child’s Second Birthday – Until the child reaches two years of age, on the first, third, and fifth Saturday of each month, beginning at 10:30 a.m. and ending at 5:00 p.m. on that same day.
  1. Sundays Until the Child’s Second Birthday – Until the child reaches two years of age, on the first, third, and fifth Sunday of each month, beginning at 10:30 a.m. and ending at 5:00 p.m. on that same day.
  1. Weekends Beginning on the Child’s Second Birthday-When the child reaches two years of age, on weekends, beginning at 10:30 a.m. on the first, third, and fifth Saturday of each month and ending at 6:00 p.m. on the following Sunday.

In addition to these terms, it would likely have additional time for holidays and the child’s birthday.

But, remember that stairstep schedules like that above are not mandatory. Even after considering all of the factors found in the Family Code, the Court may order that the non-primary parent have a standard possession schedule or even a 50-50 schedule, such as a week-on, week-off schedule.

If the parents don’t agree, it is up to the discretion of the court. Just because an SPO or more is not presumed the correct choice, does not mean that a court cannot decide, in its discretion, that it is the best choice.

There is a lot to know about possession schedules, as well as all of the other components of a custody order. To discuss any of this with the attorneys at the Beal Law Firm, call 817.261.4333 or 214.414.0418, or write us at lawyers@dfwdivorce.com. You can find us on the web at www.dfwdivorce.com.

Divorce | Custody | Support: What do I have to do if I get served?

Many divorce and custody cases begin amicably. Some stay that way.

Even some of those that begin amicably have one party or the other served with papers at the beginning of the case. Sometimes it’s a strategy move, sometimes it’s a miscommunication between the attorney and the client, and sometimes it’s a mistake.

Most of the time it’s none of those. Most of the time the service is done because the filing party does not want the case to be amicable or is not sure that it can be.

Service of Process means service of the Petition that has been filed along with a Citation from the court. The Petition plus the Citation equals Process.

In Texas State Court, if you are served with Process, you have a certain amount of time in which to answer the suit. That amount of time is until “10:00 a.m. on the Monday next after the expiration of 20 days from the date of service.”

This time period is different for cases filed outside of Texas, and for Federal Cases. Virtually everything in family law – divorces, custody cases, child support cases, grandparent cases, etc. – is done in State Court.

So, if you get served with a Texas divorce or custody petition, even if you are outside of Texas, your deadline to answer is 10:00 a.m. on the “Monday next after the expiration of 20 days from the date of service.” Failure to answer by that time can put you in default.

If you are in default, you are subject to a default judgment. A default judgment is like losing by forfeiture in a sporting event.

In sports, if you are scheduled to play and you don’t show up, you lose by forfeit. In law, if you have been served and you do not answer, you can lose by default.

If you lose by default, it means that only the opposing party is presenting evidence to the court. In a divorce, a person in default could end up with little or none of the assets of the marriage – including his or her own 401K or pension. In a custody case, including a custody case within a divorce, a defaulted party may end up with little time with the children, higher than ordinary child support, and few rights.

It doesn’t take much to not get defaulted. If you have been served, all you have to do is answer the suit. An answer is basically any filing with the court that puts the court on notice that you do not want to have a default judgement taken against you.

If an answer is filed, it must be filed with the court in which the case is pending, and should be served on any other parties to the case or their attorneys. To serve it on the other party, if he or she has an attorney, all you have to do is fax it to them. Keep your proof that you sent the document by fax.

But, there are times when you don’t want to file an answer. There are times that you want to file more than an answer. And there are times that you need to file something prior to your answer and then an answer. It can get confusing.

If you need to discuss your situation with an attorney, contact the Beal Law Firm, PLLC at lawyers@dfwdivorce.com or call 817.261.4333 or 214.414.0418. You can find us on the web at www.dfwdivorce.com.

Child Custody: What is a Standard Possession Schedule?

A key part of any custody order is the possession schedule. Understanding it is the key to understanding when you have the right to have possession of your children and when you don’t.

In Texas, Family Code Section 153.312 specifies what the Standard Possession Schedule is.

By law, the Standard Possession Schedule (also known as the SPO) sets out the minimum amount of time that is presumed to be reasonable for a fit parent to have with his or her children. Meaning that unless evidence is introduced proving why it would not be in the Best Interest of the Children to spend at least that much time with a parent, a judge must give a parent at least that much time. For a discussion of the Best Interest standard, see this previous blog post.

At the outset of virtually any possession schedule, whether it is an SPO, Modified SPO, or something else, you will find a statement that “the parties may have possession of the child at times mutually agreed to in advance by the parties.”

If the parties don’t agree on something different, then the terms of the possession schedule in the order control. The basics of the Standard Possession Schedule for the non-primary parent – when the parties live within 100 miles of each other – are this:

  1. First, Third, and Fifth Weekends.

In an SPO, the non-primary parent has the right to have possession of the children on each of the 1st, 3rd, and 5th weekends, from 6:00 p.m. on Friday until 6:00 p.m. on Sunday. The number of the weekend in a month is determined by the Friday. So the 1st Friday of the month starts the 1st weekend of the month. There are usually only four 5th Weekends per year, and often two of them get “trumped” by holiday or summer schedules.

  1. Every Thursday evening, during the school year.

It is critical to note that the Thursdays are only during the school year, even if the child does not attend school. In that case, the calendar of the school in which the child primarily resides is used for the dates of the beginning and ending of the Thursday night possessions. In the SPO, the times for the Thursday evening are 6:00 p.m. to 8:00 p.m.

  1. Every other Thanksgiving and Spring Break.

The parents alternate the Thanksgiving Breaks and the Spring Breaks each year. In the past, some schools only allowed Wednesday, Thursday, and Friday off for Thanksgiving, but now most schools appear to take off an entire week. Regardless of the length, the parent that has the children for Thanksgiving gets them for the entire time that they are out of school, per the SPO.

  1. Christmas Break alternates 1st part and 2nd part.

Under the SPO, Christmas break is divided into two parts. The first part is from the time school is out until noon on December 28th, and the second part is from noon on the 28th until school starts again. In years past, the SPO provided the dividing line on December 26th. Regardless, one parent gets the 1st part in even-numbered years, and the 2nd part in odd-numbered years and vice versa.

  1. Summer Break.

In the summer, the SPO provides that the non-primary parent keeps his or her weekends – subject to some other rules – loses their Thursdays, but gains an extra 30 days. The 30 days have to be exercised in no more than two groups of no less than seven days each. If the non-primary parent fails to give notice of what days he or she wants the children for the summer, there is a default provision, which is basically all of July.

Keep in mind that there is a lot more to it than this. And the terms talked about above do not include the Expanded or Extended provisions, which will be covered in a future blog post. Additionally, be aware that the Standard Possession Schedule only applies to children age three and over.

If you need to discuss any of this with an attorney, you can contact the Beal Law Firm attorneys at 817.261.4333 or 214.414.0418 or write us at lawyers@dfwdivorce.com. Our website can be found at www.dfwdivorce.com.

Collaborative Divorce: Fast Five Questions and Answers

There are lots of things about Collaborative Divorce that are misunderstood. These Five Questions and Answers should clear up some of the more common misconceptions:

1. Can my spouse and I do a Collaborative Divorce without lawyers?

No. The term Collaborative Divorce does not mean the same thing as Amicable Divorce, Agreed Divorce, or Uncontested Divorce. A Collaborative Divorce may in fact be amicable. If it ends with an Agreed Decree, then it is an agreed divorce. And a Collaborative Divorce may be more or less uncontested – for more on that see this earlier Blog post.

But, a Collaborative Divorce in Texas is by definition a case that is conducted pursuant to the Collaborative Family Law Act, which is Title 1A of the Texas Family Code. Section 15.052 of Title 1A states that a Collaborative Divorce is one “in which parties: (A) sign a collaborative family law participation agreement; and (B) are represented by collaborative family law lawyers.”

So, when a potential client comes to an attorney and says, “I have been doing a Collaborative Divorce with my husband/wife and his/her lawyer, but now I think I need to get a lawyer,” the potential client is at best mistaken as to what is going on, and at worst being defrauded.

2. Do we have to use Neutrals in our Collaborative law case?

The traditional Texas model for Collaborative Divorce is two lawyers, plus two neutrals – a Financial Professional and a Mental Health Professional.

The Financial Professional is tasked with gathering and assembling the financial information of the parties, helping the parties work on budgeting, and offering expertise on various financial matters.

The Mental Health Professional is not a part of the process to psychoanalyze the parties. His or her job is to help the parties develop a parenting plan, if there are children involved, conduct the meetings that are a part of the Collaborative Process, and offer suggestions for matters that will help meet the parties’ personal goals, e.g. closure with step-children.

But, there is no requirement that neutrals be used. Or that both neutrals be used. If the parties and the attorneys agree, a Collaborative Divorce can proceed without one or both of the traditional neutrals.

3. Do I have to use an attorney from the list that my spouse gave me?

No. Although many Collaborative Divorce attorneys are members of “Practice Groups,” not all are. Moreover, there is no requirement that a husband or wife choose a Collaborative attorney from the list provided by his or her spouse.

There is no requirement to choose an attorney from any Practice Group and the choice of an attorney is completely up to the party.

4. Will a Collaborative case be faster than a non-collaborative case?

There is no way of knowing. A collaborative divorce may be faster than a litigation case, but it may also take more time. A non-collaborative divorce must last for at least 60 days, unless a waiver is obtained based upon family violence. How much longer a case lasts depends upon whether the parties are able to settle and when. For more on the stages of a divorce, see this prior blog post.

It is unlikely that a Collaborative Divorce will take less than 60 days, but many Collaborative cases end far earlier than many hotly contested divorces.

5. Will a Collaborative Divorce be less expensive than a non-collaborative divorce?

Once again, there is no way of knowing. Collaborative Divorces involve a series of meetings with at least two attorneys, and probably two neutrals billing at hourly rates.

Prior to each meeting, there may be some telephone calls between the attorneys and their clients and between the Team of attorneys and neutrals – all billed at hourly rates. There may be pre-meetings of the Team before the Joint meetings of everyone, and there is typically a Team debriefing period after the meeting – all billed at hourly rates.

Given that it is unlikely that a Collaborative Divorce would be wrapped up without at least three or four lengthy meetings, it’s not hard to see that there may be considerable cost to a Collaborative Case.

But, given that a non-collaborative case can involve lengthy hearings with a considerable number of hours spent in preparation by both sides, and can sometimes involve both parties hiring financial and/or mental health experts, it’s easy to see that in some cases Collaborative Divorce is much less expensive than non-collaborative divorce.

Bonus Question:

6. Is Collaborative Divorce only appropriate if there is no conflict?

No. Collaborative cases can have much of the same angst that traditional cases have – sometimes more. A Collaborative Divorce has many benefits that traditional cases do not, and they can be successfully completed even where the parties have serious disagreements and issues.

To discuss your case and whether it would be a good candidate to handle in the Collaborative Model, call us at 817.261.4333 or 214.414.0418. You can also write us at lawyers@dfwdivorce.com or find us on our website www.dfwdivorce.com. We are Beal Law Firm, PLLC.

Stages of a Divorce, Custody, or other Family Law Case

All family law cases with opposing parties are lawsuits. That applies to divorces, custody battles, child support cases, grandparent rights cases, child support cases, modifications, and others. It doesn’t really apply to uncontested matters like an adult name change or adult adoption.

All lawsuits end one of two ways, either a settlement or trial. If the parties can agree on all issues, the case can settle. If the parties cannot agree on all issues, the only way to get to the finish line is to go to trial. There is no way to make the other side agree with you, if he or she doesn’t want to.

Most cases settle, and some settle quickly. Some settle immediately, some settle after a couple of weeks, some don’t settle until the parties are right outside the courthouse door waiting to go in for trial, but almost all cases settle.

The closer that the parties get to trial, the more the case has cost, almost invariably. The further down the litigation highway the parties have traveled, the further their attorneys have traveled as well. Getting down that highway takes work, and attorney work takes attorney time. Attorney time is paid for with client money. So going to trial, or even getting close to it can be expensive.

One thing that can help a case settle is for the parties to understand how a case progresses. If the parties know what is next, if they don’t settle at the stage they’re in, it may help them decide to go ahead and resolve their differences. So, here are the typical stages of a family law case:

  1. Negotiation between the parties.

This is sometimes known as a “kitchen-table” settlement, e.g. a “kitchen-table divorce.” The parties simply come to an agreement on all issues and have an attorney write up the paperwork to make sure that their thoughts get translated into reality by using the correct legal language.

  1. Negotiation between the attorneys.

If the parties are unable to resolve the case themselves, they will typically authorize their attorneys to negotiate on their behalf. The attorneys may negotiate via letter, email, or telephone. Sometimes, the attorneys prefer to send “bullet-pointed” offers back and forth. Sometimes they send entire orders or decrees back and forth in an attempt to reach an agreement. Sending a proposed full agreement is good sometimes, but not always, as discussed in this prior blog post. If the attorneys can reach an agreement, they may enter into a “Rule 11” agreement or a Non-revocable Settlement Agreement. It is important to know the revocability of those, prior to relying on them.

  1. Discovery.

If the parties cannot reach an agreement after some period of time, one side, the other, or both may decide that it’s time to engage in formal discovery. Discovery can be written or oral, and it can be addressed to the parties and other witnesses. Settlement talks may be taking place during the discovery stage. Discovery can become very expensive, but can also be almost invaluable in some cases.

  1. Mediation.

In this day and age, almost all cases are ordered to Mediation prior to trial. Sometimes, the attorneys will agree to go to mediation, even without a court order. Sometimes, the parties will agree to go, then enter into an agreed order of mediation, to be sure that the other side does not back out at the last minute, and to be sure everyone is clear on the deadline and payment of the mediator. Mediation is not arbitration, and it is just one form of Alternative Dispute Resolution intended to help the parties settle.

  1. Post-mediation discovery.

If the parties are not able to settle in mediation, they will often engage in further discovery post-mediation. Sometimes, depositions are saved until after an attempt at mediation, since the cost of depositions of the parties can be extremely high in contentious cases. Often during this stage there will be Motions to Compel, meaning the parties will file motions alleging that the other has not fully answered the discovery questions, and asking for a court to order that they do. Sometimes parties will seek or the court will order another mediation after the first has failed.

  1. Trial.

If all efforts at settlement have failed, the parties end up in trial. In Texas, most family law cases are tried to the Judge alone – a bench trial – but some are tried to juries. Family law trials can take anywhere from 1 hour to weeks to try. The length of the trial depends upon the issues and the court. Even during trial the case can settle, and what is surprising to some people is that a case can even settle after trial, based upon the threat of a Motion for New Trial or appeal.

That’s right, even if your case makes it all the way to trial, it may not be over. Although rare, cases can be set aside and ordered to a New Trial or appealed, which can sometimes lead to an order to go back and retry some or all of the case.

To discuss your case with the lawyers at the Beal Law Firm, call us at 817.261.4333 or 214.414.0418 or write us at lawyers@dfwdivorce.com.

Divorce, Custody, and Family Law: How long will my case last

Trying to guess how long a case will last is very difficult for attorneys. The answer depends so much on what the parties do. It also depends, to some extent on what the court does.

Most clients’ cases could be over with very quickly, but the client may not like the outcome. That’s because almost any case can be settled in a matter of days or less, if one side is willing to give the other everything he or she wants.

Although there are many uncertainties, there are a few things we know. In Texas, unless a waiver is obtained based upon Family Violence, a divorce must be on file for at least 60 days before the court can sign the final decree. The 60 day clock begins on the date of filing, not on the date of service or the date that the other party knows about the case.

While the 60 day waiting period is important, there is a great deal of misunderstanding about it.

The 60th day only matters if the parties have reached an agreement on all issues. If not, the 60th day just comes and goes and the court does not even pay attention to it.

In a Suit Affecting Parent-Child Relationship (a SAPCR), there is no waiting period. So for an original action between two parents that have never been married or a modification of custody or child support, the case can be filed and finalized in the same day, if the parties agree.

Every divorce and every SAPCR is a lawsuit. It may be the friendliest lawsuit in the world, or it may be the most acrimonious. Either way, it is going to end in only one of two ways: Settlement or Trial.

Some people say, “There’s no way we can settle.” And then, when asked about trial strategy, they say, “Oh, I don’t want a trial.” Unfortunately, those are the only two choices – Settlement or Trial.

If the case settles, whether it settles by negotiation, mediation, or some other way, it will end whenever the two sides come to an agreement. If the parties can’t settle, and the case goes to trial, it will end when the court is ready for it to.

Twenty or thirty years ago, in Texas’ big cities, it was fairly common for cases to last for years – sometimes four years, sometimes five, and sometimes longer than that.

Now, in 2016, cases tend to get resolved sooner. But to most people, still not in a fashion that they would consider fast. In smaller counties, sometimes the courts can set a case for trial more quickly than in larger counties. Sometimes, however, that’s not true, because the courts in the smaller counties are often handling family, criminal, and civil-non-family matters, while courts in the larger counties may only be handling family law matters.

In their “Rules of Judicial Administration – Updated With Amendments Effective March 22, 2016,” the Texas Supreme Court sets forth fairly short periods of time in which case should be resolved, “so far as reasonably possible.” The Court states, however, that “It is recognized that in especially complex cases or special circumstances it may not be possible to adhere to these standards.”

In reality, if not settled, a party to a family law case needs to count on the case lasting one to two years – maybe a little less, maybe more. Simply put, there are many things that can slow a case down, but very few that can speed it up…short of settlement.

If you would like to discuss the complexities or circumstances of your case with the attorneys of the Beal Law Firm, you can call us at 817.261.4333 or 214.414.0418 anytime, or write us at lawyers@dfwdivorce.com. We are on the web at www.dfwdivorce.com.

What if I don’t like the way it is? The basics of Child Custody Modification

In Family Law, children’s issues are very different than property issues. When dealing with children’s issues, Courts are allowed to redo their orders over and over and over again. With property, pretty much once it’s done, it’s done.

Issues involving a child are decided in what is known as a SAPCR. That stands for Suit Affecting Parent-Child Relationship.

SAPCRs can be stand-alone cases, e.g. if two unmarried people have a child together, or they can be a part of a divorce.

Children’s issues include:

  1. Custody – Joint Managing Conservator, Sole Managing Conservator, and Possessory Conservator
  2. Residency
  3. Rights to make medical decisions, educational decisions, and psychological decisions
  4. Possession schedule, including holiday schedules, summer schedules, etc.
  5. Rights concerning extracurricular activities
  6. Electronic access, including texting, phone calls, Face Time, and Skype
  7. Child Support
  8. Health Insurance payments
  9. Payments for uninsured healthcare expenses

The results of a SAPCR case – whether a stand-alone SAPCR or a SAPCR that is a part of a divorce – can be re-litigated repeatedly. Either party can file for a modification of the orders, if certain criteria are met.

In order to properly seek a modification of any non-support issues, one of three things needs to have happened:

  1. There must have been a material and substantial change in circumstances; or
  2. A child for whom modification is sought must be over the age of 12 and ready to tell the judge that he or she wants to move to the other parent’s house; or
  3. The conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another person for at least six months.

Texas Family Code Section 156.101.

In addition to having at least one of these three things, in order to win, the person asking for the change must prove to the court that the change is in the best interest of the child.

As you might guess, there is a lot more to it than this. Keep an eye on our blog for more information, and if you would like to discuss your case with the attorneys of the Beal Law Firm, you can call us at 817.261.4333 or 214.414.0418 anytime, or write us at lawyers@dfwdivorce.com. We are on the web at www.dfwdivorce.com

 

Residency Requirements: How Long Do I Have to Live in Texas to Get a Divorce in Texas?

That’s a pretty simple question, with a somewhat complicated answer.

The short answer is this: If you or your spouse currently reside in Texas, either of you can file for divorce in Texas immediately.

Period.

There is a great deal of misinformation floating around. Some espoused by attorneys. Many attorneys believe that in order to file for divorce in Texas, one of the parties needs to have lived in Texas for over six months. That’s just not true.

Texas law states that in order to “maintain” a suit for divorce, one of the parties must have been “a domiciliary of this state for the preceding six-month period; and a resident of the county in which the suit is filed for the preceding 90-day period.” That’s Section 6.301 of the Texas Family Code.

The key word in that law is “maintain.” Courts have long held that if a divorce is filed prior to the time that the six month – 90-day requirement is met, the proper remedy is to abate the case – put it on hold – not dismiss the case, except in certain circumstances.

Those circumstances are when neither party has met the six month – 90-day requirement, and neither is going to meet it in the foreseeable future.

Moreover, if there are children of the marriage, and both spouses and the children have moved to Texas, there is no waiting period to file for the “custody” portion of the case. You can literally move to Texas Monday morning and file Monday afternoon.

Keep in mind that there are a number of other considerations involved in a complete jurisdiction and venue analysis, but the bottom line is: If you or your spouse reside in Texas and anyone tells you that you cannot file your divorce case here, they are wrong.

For a thorough discussion of the law on this topic by the First District Court of Appeals in Houston, see the case of Willig v. Diaz, 2016 Tex. App. LEXIS 5362 (Tex. App. Houston 1st Dist. May 19, 2016).

If you need to discuss your situation with the experienced attorneys of the Beal Law Firm, you can reach us at lawyers@dfwdivorce.com or call us at 817.261.4333 or 214.414.0418. Or check out our website at www.dfwdivorce.com.