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?

Custody and Support: Five Simple Answers for Christmas Related Questions

But what if…

  1. Can I count the Christmas presents that I buy as child support?

No.

Generally speaking, court-ordered child support can only be discharged according to the terms dictated in the order. In fact, most orders contain a warning that says:

                No Credit for Informal Payments

                IT IS ORDERED that the child support as prescribed in this decree shall be exclusively discharged in the manner ordered and that any direct payments made by ______________ to ______________ or any expenditures incurred by ________________ during his/her periods of possession of or access to the child, as prescribed in this decree, for food, clothing, gifts, travel, shelter, or entertainment are deemed in addition to and not in lieu of the support ordered in this decree.

  1. If my ex agrees that I don’t have to pay all of my child support this month because I will be buying Christmas presents, is that true?

No.

In 1991, the Texas Supreme Court determined that the Family Code prohibited parents from making agreements to “modify court-ordered child support without court approval.”

Meaning that any agreements with your ex regarding child support, even if in writing, are unenforceable.

  1. If my ex does not let me have the children like he/she is supposed to for Christmas, can I withhold child support?

No.

A standard warning that is to be included in all support orders is as follows:

REFUSAL BY A PARTY TO ALLOW POSSESSION OF OR ACCESS TO A CHILD DOES NOT JUSTIFY FAILURE TO PAY COURT-ORDERED CHILD SUPPORT TO THAT PARTY.

So, regardless of whether the denial of access is a few minutes or the entirety of Christmas vacation, court ordered child support is still due. Whether the court will later put your ex in jail and give you make-up time is another matter for another day.

  1. If my ex is behind on child support, do I still have to give him/her the children for the Christmas possession?

Yes.

Another standard warning that should be in all orders is:

FAILURE OF A PARTY TO PAY CHILD SUPPORT DOES NOT JUSTIFY DENYING THAT PARTY COURT-ORDERED POSSESSION OF OR ACCESS TO A CHILD. 

So, regardless of whether your ex is ten payments behind in child support, one payment behind, or just late with this month’s payment, the court ordered possession is to be allowed. Note, however, that unlike child support, possession can be informally modified by the parties.

  1. If my court order does not contain all of the warnings discussed in this blog, is the answer different for me?

No.

These warnings simply state the law. And the law is the same, whether you have been warned or not.

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

The Importance of Filing First

Being the first to file can give you advantages, regardless of how your divorce, custody, or other family law case proceeds.

If you know you’re about to be in a fight, hit first.

That advice works well on the playground, in a bar, or just about anywhere else you find yourself. It is especially true in the world of litigation, including divorce, custody and just about every other type of family law.

To understand why being the first to file matters, it is important to understand a little bit about the rules of the game you are in.

Texas family law cases are like all other civil litigation. They are governed by the Texas Rules of Civil Procedure.

Under the Rules of Civil Procedure, the party filing first is called a Plaintiff or Petitioner. The other party is the Defendant or Respondent. In family law cases – divorce, custody, modification, child support, enforcement, etc. – the terms Petitioner and Respondent are used.

The Petitioner gets a tremendous number of advantages, if the case goes to trial. The Petitioner gets to conduct his or her portion of Voir Dire (Jury Selection) first. The petitioner gets to make his or her Opening Statement first. The petitioner gets to put on his or her Case-in-Chief first, and when it comes to Closing Argument, the Petitioner gets to speak both first and last.

These advantages are huge. Why? Think about it. When you were a child and in an argument with a brother, sister, or another child, didn’t you want to get your story out to mom or dad first? Why do people interrupt each other when arguing a point to a third party? Because everyone understands the advantage of trying to convince the arbiter of the logic and correctness of his or her point, before the opponent gets a chance to sway the decision maker.

That’s exactly why the rules are in the Rules of Civil Procedure. They are intended to give an advantage. It is understood that the one going first has an easier time of persuasion. And the Rules give the Petitioner this advantage, because the rules were designed primarily for cases in which the filing party is a Plaintiff, such as a car wreck or breach of contract case.

In those cases, the Plaintiff has the procedural advantages provided by going first, because he or she has the burden of proof.

In many family law cases, however, the parties have essentially the same burden. Both are trying to convince the judge that their proposed division of property is fairer than the other side’s proposed division, and/or they are trying to convince the judge or jury that their proposal for the children is more in the best interest of the children than the other sides proposal.

But what if you don’t plan to go to trial? Most people don’t. The reality is that there is no way of knowing at the beginning of a case whether you will go to trial or not.

There are only two ways to finish the case – settlement or trial. To settle, both people have to agree. If the parties cannot agree, there will have to be a trial.

But what if you absolutely believe that you know there will not be a trial? Unless you are one of the incredibly rare people that have complete agreement from the outset, you will still be negotiating something. In that case, being the one that holds the advantage that would be present if you went to trial gives you an advantage in the negotiation.

Finally, remember that even if you believe that none of this applies to you, the case is going to have to be filed at some point by somebody – assuming that the case is going to happen – so it may as well be you. Nothing about this post should be taken as a comment on how to file. That is a topic for a future post, but as a prelude: be aware that there are very non-threatening and amicable ways to file.

Additionally, nothing in this post should be taken as encouraging any case. As the saying goes, “the two worst days of my life were the day I went to court and lost and the day I went to court and won.” Being in a lawsuit of any kind is an emotionally and financially draining proposition – if you can stay out of litigation, do.

But this post ends as it started – if you know you’re about to be in a fight… And litigation, even if amicable, is a form of fighting.

If you need to discuss any of this with the attorneys of the Beal Law Firm call us at 817.261.4333, 214.414.0418, or write to us at lawyers@dfwdivorce.com. Beal Law Firm is www.dfwdivorce.com.

Divorce and Custody: Changed your address? Why ask for trouble

If you have a Texas Divorce Decree involving minor children or a Texas Custody Order, it no doubt has the following language:

Each person who is a party to this order is ordered to notify each other party, the Court, and the state case registry of any change in the party’s current residence address, mailing address, home telephone number, name of employer, address of employment, driver’s license number, and work telephone number. The party is ordered to give notice of an intended change in any of the required information to each other party, the Court, and the state case registry on or before the 60th day before the intended change. If the party does not know or could not have known of the change in sufficient time to provide 60‑day notice, the party is ordered to give notice of the change on or before the fifth day after the date that the party knows of the change.

The duty to furnish this information to each other party, the Court, and the state case registry continues as long as any person, by virtue of this order, is under an obligation to pay child support or entitled to possession of or access to a child.

Failure by a party to obey the order of this Court to provide each other party, the Court, and the state case registry with the change in the required information may result in further litigation to enforce the order, including contempt of court. A finding of contempt may be punished by confinement in jail for up to six months, a fine of up to $500 for each violation, and a money judgment for payment of attorney’s fees and court costs.

You may have never read your decree or order carefully, and you may have especially not read this section. But it’s worth taking a look. Why? Because it imposes a duty on you that, if violated, can lead to jail time.

Is it likely that you will go to jail for failure to provide the notice required by this provision? There is no way of knowing for sure. But why take a chance.

So, in order to help eliminate any chance that this provision will lead to trouble, follow these links to forms that you can use to meet your obligation. – .pdf versionWord version.

If you need legal help with any other Divorce, Custody, or other Family Law related issues, you can call the attorneys of the Beal Law Firm at 817.261.4333 or 214.414.0418. You can also write us at lawyers@dfwdivorce.com or 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 Support: Additional factors for the court to consider

As discussed in a previous blog post, courts generally calculate child support based upon the Guidelines found in the Texas Family Code.

There is, however, a section of the family code that allows a court to determine if it would be “unjust or inappropriate under the circumstances” to apply the Guidelines.

Texas Family Code Section 154.123 provides “Additional Factors for Court to Consider” when determining the appropriate amount of child support.

Per the Family Code, the following are the factors that a court “shall consider evidence of”:

(1)  the age and needs of the child;

(2)  the ability of the parents to contribute to the support of the child;

(3)  any financial resources available for the support of the child;

(4)  the amount of time of possession of and access to a child;

(5)  the amount of the obligee’s net resources, including the earning potential of the obligee if the actual income of the obligee is significantly less than what the obligee could earn because the obligee is intentionally unemployed or underemployed and including an increase or decrease in the income of the obligee or income that may be attributed to the property and assets of the obligee;

(6)  child care expenses incurred by either party in order to maintain gainful employment;

(7)  whether either party has the managing conservatorship or actual physical custody of another child;

(8)  the amount of alimony or spousal maintenance actually and currently being paid or received by a party;

(9)  the expenses for a son or daughter for education beyond secondary school;

(10)  whether the obligor or obligee has an automobile, housing, or other benefits furnished by his or her employer, another person, or a business entity;

(11)  the amount of other deductions from the wage or salary income and from other compensation for personal services of the parties;

(12)  provision for health care insurance and payment of uninsured medical expenses;

(13)  special or extraordinary educational, health care, or other expenses of the parties or of the child;

(14)  the cost of travel in order to exercise possession of and access to a child;

(15)  positive or negative cash flow from any real and personal property and assets, including a business and investments;

(16)  debts or debt service assumed by either party;  and

(17)  any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents.

As illustrated by number 17, this list is non-exhaustive. Per the Texas Family Code, all evidence on the subject is to be considered. In reality, however, whether the court will allow you to introduce evidence of any of these factors depends upon the judge before whom the case is tried, subject to review by an appellate court.

To discuss child support with any of the attorneys at the Beal Law Firm, call us at 817.261.4333 or 214.414.0418, or write us at lawyers@dfwdivorce.com. Our web address is www.dfwdivorce.com.

Guideline Child Support: How does it work?

The Texas Family Code is an amazing legislative work. It covers divorce, annulment, how to divide stock options, rules regarding whom you can marry and when, provisions for child custody, grandparent rights, and more. There may not be any part of the Family Code, however, that causes as much heartache as child support.

For those getting child support, it is often either not enough or far more than necessary. For those paying it, the amount is almost always more than desired.

Texas courts typically award child support using the Guidelines for Child Support found in Chapter 154 of the Texas Family Code.

The use of the Guidelines is “rebuttably presumed in best interest of child.” That means that a court can use the guidelines and will virtually never be reversed by an appellate court for having done so. (For a discussion of Best Interest, see this previous blog post.)

The basics of the Guidelines are this:

  1. Determine the number of children for which support is being considered.

The amount of guideline support varies based upon the number of children in the case being considered. For one child, the starting percentage is 20%. For two, it’s 25%. And it continues to go up by 5% for each child, up to five children. For six or more children, the guideline amount is to be “not less than” it would be for five.

  1. Determine how many total children the obligor is responsible for.

The person paying the child support is known as the obligor. The next step to determine the guideline amount is to determine how many children the obligor has a legal duty to support. That number includes the children in the case for which support is being calculated, and any others that he or she is legally obligated to support, whether the support is currently order or being paid. The number does not include step-children. The percentage determined in step 1, gets reduced if there are additional children for whom support is ordered.

  1. Determine the Net Resources of the Obligor.

In Texas, for Guideline support, only the income or other resources of the obligor are considered. That means that even if the obligee – the one getting the support – is a multi-millionaire and the obligor is making minimum wage, the obligor must still pay. “Net Resources” basically includes all income of the obligor, regardless of the source of the income. There is often a misunderstanding about how “net” resources, as opposed to “gross” resources are determined. In short, the net amount is the amount that the Attorney General’s chart says should be the net, not what the net is in reality.

  1. Apply the appropriate percentage to the amount of the net resources to which guidelines apply.

There is not a maximum amount of child support – a court can order a person making $5,000.00 per month to pay $4,000.00 per month in child support. But, there is a “presumptive max” of child support, and that is the percentage obtained in 1 and 2 applied to maximum amount specified in the Family Code. The maximum number is designed to go up over time.

There are provisions in the code for the court to disregard the guidelines, and for the court to award more or less than what the calculation detailed above would lead to. Additionally, as with virtually everything in family law, this just covers the basics. There is a lot more to it.

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