Category: Mediation

A New Judge for the 360th District Court

Does it matter who the Judge is?

As of January 1, 2017, the Judge of the 360th District Court in Tarrant County, Texas is the Honorable Patricia Bennett. Judge Bennett replaces Judge Michael Sinha, who had been the Judge of the 360th and, the prior to that, the Associate Judge of the 360th for years.

Judge Bennett has chosen Matt Riek to be her Associate Judge, and Judge Riek will take the bench on or about January 16, 2017. Judge Riek replaces Judge Cynthia Mendoza.

Both Judge Bennett and Judge Riek are Board Certified in Family Law by the Texas Board of Legal Specialization, and each has years of experience in divorce, custody, and family law. Additionally, Judge Riek was one of the most sought after and well-respected family law mediators in the Dallas-Fort Worth Metroplex prior to agreeing to accept the position of Associate Judge.

So, with these changes, one might ask: Does it matter who the Judge is?

The short answer, particularly in Family Law is Yes!!!

Family law – meaning divorce, custody, grandparent rights, child support, spousal support, alimony, etc. – is an area of the law that, unlike most areas, is governed by the “discretion of the court.” Under Texas law, the trial court judge has wide discretion in determining a number of items in family law. What that means in simple terms is that you are not entitled to have a jury make the decision, it has to be the judge, and your chances of getting an appellate court to overturn the trial court’s decision are extremely small.

Some of the things that a family court judge gets to decide with little chance of being overturned are:

  1. How the property will be divided in a divorce – Will the property be divided 50/50 or 60/40 or 80/20 or in some other ratio?
  2. What happens to the property in a divorce – Do you get to keep the house? Or does your soon-to-be Ex? Or is there a Court Order to sell it?
  3. Who gets to live in the house while the case is pending?
  4. Who has to pay which bills while the case is pending?
  5. Who gets custody of the children while the case is pending?
  6. How much child support will be paid and by whom to whom?
  7. How much temporary spousal support will be paid, if any, while the case is pending – even if it’s for years – and by whom, to whom?
  8. Does anyone deserve Spousal Maintenance – the Texas version of court-ordered alimony – and if so how much and for how long, within some limits?
  9. What will the rights and duties be with respect to the children? Do you have a say in who the children’s doctor is? Dentist is? Surgeon is? Will there be surgery? Will the children go to a psychiatrist?
  10. On what days and at what times will you be allowed to see your children?
  11. Will you be able to Facetime with your children? Call them? Email them?

These are just a few of the things that family court judges get to decide, and as long as that Judge stays on the bench and as long as the children stay in the county, the same judge will keep deciding these issues regarding your children until they age out of the system.

So what do you think? Does it matter who the judge of your court is?

The Many Parts of a Texas Divorce

In a previous post, we discussed the procedural parts of a Texas Divorce. In this post, the goal is to identify the substantive parts of a Texas Divorce.

Divorces are interesting types of cases, because unlike most cases, they have discrete parts, each of which needs their own jurisdictional analysis. That is, a court may have the power to deal with one part of the case, but not with another.

Not all cases are the same, so some of these parts may not be present in your case, but since there is a great deal of misunderstanding about how divorces work, it is a good idea to at least be aware of them, to be sure that they don’t belong in your case.

1. The Status of the Marriage

The Status of the Marriage is both the most important and least important part of the case – it is the judicial determination of whether the parties are divorced. As long as one or both parties is a resident of Texas, the court generally has the power to make this determination. Since Texas is a “no-fault” State, the court can grant the divorce without reference to either party being at fault. But, either or both parties can allege that the divorce should be granted on “fault” grounds, such as adultery or cruelty.

2. Division of Property

This part of the case involves how the marital estate is divided. The court does not have the power to take either party’s separate property as a part of the division of property. The court does have the power to divide the community estate, as long as the court has personal jurisdiction over the parties. Understanding personal jurisdiction can be tricky, so if either party does not reside in Texas, it is important to get competent legal advice on this topic.

As a part of the division of property, the court may assign the payment of debts, but it is important to note that the court cannot adversely affect the rights of third-party creditors. That is, if the creditor could sue you before the divorce if the debt was not paid, then the creditor will be able to sue you after the marriage if the debt is not paid – there is nothing you can agree to or that the court can order that can change that.

3. Custody

Custody is a legal word with a fuzzy definition. Basically, if there has been a child born or adopted during the marriage that is still a minor or disabled, or both, the court will need to deal with issues of conservatorship, geographic restriction, rights, duties, and possession of the child.

There are a great many presumptions that aid in the predictability of this section, but unlike property division, a jury can be used to decide the ultimate issues of custody, i.e. Primary Conservatorship and Geographic Restriction.

The analysis of whether the Court has the power to issue a valid, binding custody order can be very confusing. The answers are found in a complicated piece of legislation known as the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”).

4. Child Support

Although often even courts treat Child Support as though it is a simple mathematical analysis, under the family code it is not. The statutory presumption is that guideline child support should be used, but there are a great many other factors that the court should consider.

See this previous post for a discussion of those other factors.

5. Spousal Maintenance

Texas has had contractual alimony available for a long time, if not forever. Contractual alimony, however, is only obtained when one party or the other agrees to provide cash flow to the other after divorce.

Spousal Maintenance is the term that is used for the type of post-divorce, non-child-support, non-property division payments that the court can order over the objection of the soon-to-be-paying party. In order to get Spousal Maintenance, the party seeking it must prove a great many things, but the starting point is that he or she must fit in one of three categories:

  1. Be disabled;
  2. Be the victim of domestic abuse; or
  3. Be married for over ten years and not be able to provide for his or her minimum reasonable needs.

6.Tort or Other Cause of Action Against Your Spouse

Although many people don’t realize it, you can sue your spouse, in addition to divorcing him or her. To do so successfully, there must be a valid cause of action. That is, the spouse must have done something that amounts to a Tort or other type of cause of action.

Viable causes of action include assault, battery, false imprisonment, breach of fiduciary duty, and intentional infliction of emotional distress (also known as intentional infliction of mental anguish).

Whether one spouse should sue the other is a very complicated question, and competent legal advice is critical in making a decision on how to proceed.

To discuss your case with the attorneys 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.

Custody: Airline Pilot Possession Schedule

Pilots and Crew Members often need unique possession schedules, if they are going to spend quality time with their children.

Parents who are not together often have court orders detailing the times during which they each have possession of their children. These orders arise in Divorce and Custody cases.

Texas has a Standard Possession Schedule, an Expanded Standard Possession Schedule, and rules regarding what type of schedule a court should give for children under the age of three. All of these are laid out in the Texas Family Code, Chapter 153.

But, these standard concepts are not the only schedules available for the court or parties to choose from. When one or both parents have a job that does not allow for set possession times, the parties can agree to use an alternate schedule that is tailored for the lifestyle associated with the job. If the parties cannot agree to use such a schedule, one of the parties can ask the court to order a flexible schedule.

One such schedule is that used by Airline Pilots and members of Airline Flight Crews.

A typical Airline Pilots schedule or Air Crew schedule may include language that includes a “finding” by the Judge that the pilot/crew member is “unable to exercise predictable periods of possession occurring on the same days of each month” because of his or her “work and flight schedule.”

The order may go on to describe how and when the Pilot or other Crew Member receives his or her schedule and what the schedule contains.

In order to have a system that allows for consistent possession of the children by the parent with the inconsistent schedule, the Judge can order the airline-employed parent to deliver a copy of his or her schedule to the non-airline employed parent within a reasonable amount of time after receiving it, and to elect which weekends and weekdays the Pilot or Crew Member will be exercising. Although there may be a designated method that the parties are supposed to use to try to resolve any conflicts, since the Airline parent’s schedule is likely less flexible, an order would typically give the Airline parent’s choice priority.

If an Airline or Pilot’s Schedule is used, it is typical to include language that the unique terms will only apply “until such time as” the Airline parent “is no longer employed as an airline pilot [or crew member].” The order can then include terms for possession that will begin at that time, whether a Standard Possession Schedule or otherwise.

One thing to keep in mind, however, is that there is no requirement that a Trial Judge give an Airline Parent a unique Airline Possession Schedule that meets all of his or her needs. In fact, in one Texas case several years ago, a Fort Worth Judge awarded a pilot a Standard Possession Schedule, despite evidence that the pilot would not be able to effectively exercise the schedule and would thus be denied the ability to frequently and consistently see his children. Fortunately for the pilot, the case was reversed by an Appellate Court on other grounds.

To discuss the unique needs of your situation with the lawyers of the Beal Law Firm, please 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.

Custody: Electronic Access to your child

Court Orders for phone Calls, emails, and video-chat with your child

Spending time with your child is important. Everyone knows that. But when parents are not “together,” courts often have to get involved to tell each parent when they are allowed to exercise their possession time. If the parents can agree on a schedule, courts will usually approve it.

Sometimes the non-primary parent gets a standard possession schedule, as described here, and sometimes the non-primary parent gets an “expanded” standard possession schedule, as described here. Sometimes parents get something altogether different, like a week-on/week-off schedule or other 50-50 arrangement.

But, in addition to all of that, one other option that parents have to maintain a relationship with their children is through electronic communication.

In 2007, the Texas Family Code added Section 153.015, entitled Electronic Communication with Child by Conservator. The term “conservator” is used for virtually all parents of minor children that go through the court system, whether in a divorce or custody case.

The code defines electronic communication as “any communication facilitated by the use of any wired or wireless technology via the Internet or any other electronic media…[including] communication facilitated by the use of a telephone, electronic mail, instant messaging, videoconferencing, or webcam.”

Unfortunately for parents that can’t agree on the terms of the custody order and have to get the court to decide the terms for possession and access, the statute does not provide much guidance.

Per the code, if a parent is seeking Electronic Communication access, the Judge must allow evidence to be introduced concerning:

  1. Whether electronic communication is in the best interest of the child; and
  2. Whether equipment necessary to facilitate the electronic communication is reasonably available to all parties subject to the order.

The Code goes on to state that any court order for Electronic Access shall require both parents to:

  1. Provide the other conservator with the e-mail address and other electronic communication access information of the child; and
  1. Notify the other conservator of any change in the e-mail address or other electronic communication access information not later than 24 hours after the date the change   takes effect.

Perhaps most interesting in the statute, the Code provides that in virtually any Electronic Access order the Judge must require the parties to:

accommodate electronic communication with the child, with the same privacy, respect, and dignity accorded all other forms of access, at a reasonable time and for a reasonable duration subject to any limitation provided by the court in the court’s order.

What exactly does that mean? It probably means whatever the judge hearing the case thinks that it means, since there is no case law defining the terms used.

So what should you do if you are in a divorce or custody case and want Electronic Access with your child?

  1. Ask for it;
  2. Be ready to put on evidence of why the access you seek is in the Best Interest of your child;
  3. Be ready to put on evidence of the availability of the specific type of access you seek.

If you would like to discuss this or any other custody issues with the attorneys of the Beal Law Firm, please 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.

Mediation: How does that work?

Mediations happen all the time in Family Law, whether divorce, custody, grandparent rights, or another type of case. Most cases settle and many if not most settle at mediation.

So what is Mediation?

Mediation is a process whereby the mediator attempts to get the parties to reach an agreement. Typically, during a modern Family Law mediation, the parties begin and end in separate rooms. Often they never see each other during the entire mediation.

The mediator is a neutral 3rd party that goes back and forth between the rooms until the case settles, an impasse is declared, or the end of the scheduled mediation is reached. Most mediations are scheduled as either “half-day” or “full-day” mediations, although some are scheduled for shorter or longer periods.

While in the rooms with the parties, the mediator discusses the pros and cons of the case and often points out weaknesses in each party’s case. Usually, the mediator focuses on discussing the weakness of a party with that party. In other words, the mediator is not a cheer leader for either party when speaking with him or her. Many times, each party will believe that the mediator is on the other party’s side, because the mediator only focuses on the weakness of the party with whom he or she is speaking.

Mediations are a part of most family law litigation, if the case is not settled at an earlier stage. (Click here to ready more about the stages of most family law cases.)

The court can order the parties to mediation, and often does, prior to allowing the case to come to trial. In some cases, the court will order that the case be mediated more than once. Some cases mediate based on an agreement of the parties, without a court order.

Although some people mistakenly believe that mediation or hiring a mediator is something that is only done instead of hiring an attorney, the reality is that having an attorney is the only way for a party to properly obtain legal advice.

In its ETHICAL GUIDELINES FOR MEDIATORS, the Texas Supreme Court has stated clearly that a mediator “should not give legal or other professional advice to the parties,” meaning that if parties try to mediate without having attorneys there is no one present to give them advice as to what their rights are and how they should proceed.

Moreover, although there are some non-lawyers that claim to be competent family law mediators, if such a mediator gave any legal advice to either party, he or she would not only be acting contrary to the Ethical Guidelines for Mediators, but engaged in the Unauthorized Practice of Law.

For the most part, divorce and other types of family law are zero sum games – what one party gets, the other does not, and vice versa. Being in a mediation without a trained legal expert who is duty bound to advise as to what one is entitled to and how best to achieve it can have devastating consequences.

One of the most important aspects of the law for which a party needs competent legal counsel is the wording and meaning of any proposed Mediated Settlement Agreement – the MSA. Once an MSA is fully executed, it is virtually written in stone. If a party signs one that contains critical errors, he or she may make a deal that cannot be undone…ever.

To discuss your situation with the attorneys of the Beal Law Firm call 817.261.4333 or 214.414.0418 or write us at lawyers@dfwdivorce.com. We can be found on the web at www.dfwdivorce.com.