Summertime – every family lawyer’s favorite time of year. As the baseball players are out there fielding balls, we are out there fielding calls (groans permitted).
“He gets how much time?”
“What do you mean I didn’t designate in time?”
“So, I don’t get Thursday nights anymore?”
“This is not fair!”
“This is not good for the kids!”
And, the best of all: “How can I change it?”
Before entering in to arguments with the other parent, take a look at your divorce paperwork. It is a road map to your child’s time with you. It should, clearly and cleanly, set out what time your child gets to enjoy with each parent. Make sure to keep educated and always speak with an attorney in the event of disagreement or misunderstanding with the other parent.
For parents working under a standard possession schedule and who live within 100 miles of the other parent, the following is a snapshot of the summer time schedule. Always be sure to consult with an attorney with questions as to your specific orders:
Extended period of possession for the non-primary parent
– Thirty days, to be elected by April 1 of that year. This period of time can be divided in to two periods of possession with each period being no less than 7 days long.
– If you do not timely elect, your period of possession starts July 1 and ends on July 31.
Weekends and Thursdays for the non-primary parent
– Each weekend commencing at 6 pm on the 1st, 3rd, and 5th Friday and ending at 6pm on the Sunday.
– Thursday periods of possession go away during the summer.
“Stolen weekends” for the primary parent
– The primary parent may visit with the children during one weekend in the 30 day period allotted to the non-primary parent, regardless of whether that is broken up in to two periods of time or exercised in one lump. The primary parent must choose this weekend by April 15.
– Additionally, the primary parent may “steal” one of the non-primary parent’s normal weekend periods of possession – effectively giving the primary parent possession of the child for up to 21 days in a row. The primary parent must elect this period of time by April 15 or, failing that, must give 14 days notice of the election.
Remember, your child’s needs will rarely fit neatly in to the possession schedule. Football camps, stay away camps, grandparent visits, theater camps, and many other activities will not always square away with your schedule. Your possession schedule is – typically – just there in the event you cannot agree with the other parent. You should do your best to work with one another to meet your child’s needs, not your own. Where that cannot and does not happen, reach out to the family law attorneys at Hanshaw Kennedy Hafen for trusted and reliable legal advice.
“I missed you. What did you do? Was mommy nice to you? Who was there? Were they nice to you? Oh, I missed you so much!”
If you are saying any of the above things to your children after they come home from their other parent’s house, then stop. Any good parent should know not to involve children in adult discussions or to disparage the other parent in front of the children. The “your dad didn’t pay for hockey so you cannot do it,” “your dad left me and you for someone else” comments should, clearly, all be off the table for discussion with or around the children. But, all too often, our innocuous questions and comments are interpreted by children in a negative way. While we, as parents, may have every intention on asking these things for good reasons, a child’s ears do not always hear it that way. So, be wary of the listener’s ears.
Broken down below are the things you say and how your child might actually “hear” it:
|What you said||What your child heard you saying|
|I missed you!||When I am with my other parent I am hurting your feelings by being away. That makes me feel conflicted about enjoying my time with my other parent.|
|What did you do? Who was there? Where did you go?||When I come back I have to be able to relay to you everything I did and read your expression as to whether that was a good thing or a bad thing. That makes me feel like I am tattle telling on my other parent, or that I have to lie about what I did.|
|Was mommy nice to you?||Mommy is always nice to me – but now you have asked I am wondering if she really was.|
|Oh, I missed you such a lot!||Now I am really worried that when I go to my other parent’s house you are sad and lonely. That makes me anxious about leaving you.|
So, the next time your child returns home from their other parent’s home, try another tactic:
For those good days: “Hey, buddy, how’s it going? It’s good to see you looking so well! Let’s head home and get some dinner.”
For those not so good days: “Hey, buddy, how’s it going? How about we get you home, eat some food, and hang out?”
And, for those terrible days where the separation from the other parent seems inconsolable: “Hey, buddy. It looks like you’re feeling sad right now. I love you and so does [daddy/mommy]. But how about we head back to the house, grab some food, and you can tell me whatever you feel like telling me.”
There is no one size fits all solution to speaking to any child, regardless of their family situation. That said, all parents – especially divorced and separated one – always need to be wary the listener’s ears. Their minds and hearts are more tender than ours and we need to protect them.Read More
That’s right, folks. The Texas Attorney General has increased their ability to go after delinquent child support obligors: by denying vehicle registration for offenders.
Currently, the Texas Attorney General may already do the following for nonpayment of child support, administratively (without notice or the ability of the alleged offender to defend himself or herself):
- Garnish wages
- Garnish tax returns
- Impose liens against bank accounts, real estate, and other property owned by the obligor
- Suspend driver’s license and professional licenses
Beginning in December 2016, obligor’s who owe more than 6 months of back child support will be subject to denial of registration on their vehicle, in a new attempt to compel compliance with child support orders. Those who are more than 6 months behind on support with registration due in December or thereafter, will be notified of their status by letter approximately three months prior to the due date on their registration renewal.
Those who are flagged to have their registration denied will not be able to have their vehicle registered until they enter a payment plan with the Attorney General. There will be a direct number for those individuals to call to set up such payments, and that information may be listed on the registration letter.
Many who were against this legislation are worried that this will cause problems for those who are truly unable to pay their full support and arrearages, but who need their vehicles to make a living and attempt to pay the support in amounts that they can afford. Additional concerns are already being tossed around about the additional fees that obligors will have to pay to participate in and comply with this program.
And then there is the concern that I know many other family law attorneys have, but may be too politically correct to say – the Office of the Attorney General Child Support Division’s calculations and running totals for child support payments, delinquencies, and arrearages are not always correct (Gasp!). While the system is a good one with a noble and well-meaning goal, errors do occur. These errors already cost obligors much time to correct, and many times they will need to get an attorney involved to fix major problems. In the past year, I have had to get involved in cases to release a wrongfully garnished tax return; stop the garnishing of wages that were being delivered to a biological mother whose rights were terminated prior to the withholding; and correct numerous amounts of total back child support calculations.
Take note that if you owe more than 6 months of child support as your arrearage total, you need to be on a payment plan with the Attorney General as soon as possible, or you may be subject to having your vehicle registration denied beginning in December.
Contact us to speak to an experienced family law attorney and to know your rights regarding this new law, and the enforcement and payment of child support.Read More
In Texas, and across the country, adultery remains one of the main causes of divorce. The Texas legislature has narrowly defined adultery and even more narrowly defined the application of adultery in a divorce proceeding.
Texas Courts have defined adultery as “voluntary sexual intercourse of a married person with one not the spouse.” In re Marriage of C.A.S. 405 S.W.3d 373, 383. This means that there must be sexual contact, even just one time. This also means that “emotional affairs” do not rise to the level of adultery as a ground for divorce. Keep in mind that there is no legal separation in Texas, you are married until you are formally divorced, so post separation sexual intercourse with someone other than your spouse is legal adultery.
Still, many courts in Collin, Denton and Dallas Counties view adultery as a symptom or outlet showing from an underlying problem in the marriage. This means, that they are not given the weight in court that a cheated spouse may feel an affair deserves. I mean, your spouse broke his or her promise to you – at the very least you may feel the court should view this as a breach of contract, right?! Well, the court does have some power to right the wrong caused by an affair, but it tends to only come up in select cases.
What Can Proving Adultery Get in Court:
- Property Division: You may receive a greater share of the community assets in your property division. This is the most common way the Courts compensate a cheated spouse. In general, Courts have a lot of leeway in deciding a “just and right division of the estate.” This means they can consider fault in the breakup of the marriage to determine whether one party should receive more or less of the community estate.
- In addition, if you can prove that community funds and assets were spent on a paramour, you may be able to have a greater claim to additional assets and funds in a property division. An experienced family law attorney can explain this in more detail if this sounds like your situation.
- Spousal Maintenance – if you already qualify for spousal maintenance for another reason, your spousal maintenance award may be increased if your spouse’s affair is shown to be the fault for the breakup of the marriage.
If you have minor children, CUSTODY OF YOUR CHILDREN WILL NOT DEPEND ON ADULTERY. Custody, including conservatorship (Decision-making), visitation, child support, etc. will only be decided on the best interest of the children. Adultery will only be considered in child custody determinations if you can prove that the situation rises to a level that influences the best interest of the child (i.e. the paramour is a felon, uses drugs, or otherwise negatively involved in the child’s life).
Proving Adultery: pictures and videos are not required, but they can be used. You can also use circumstantial evidence such as phone records, social media records, receipts for purchases for the paramour, etc.
When you find out about an affair, it is normal to be angry and hurt, but is it really best to air your dirty laundry in a public forum (where your neighbors, bosses, and kids could find out)? Will going “public” in your divorce papers or in the courtroom really change the outcome of the divorce?
It is best to discuss the pros and cons of filing for divorce on the grounds of adultery with a knowledgeable, local family law attorney. The Frisco family law attorneys at Hanshaw Kennedy, LLP have experience dealing with the delicate issues of adultery and can help minimize the additional turmoil an affair may bring into the divorce process while focusing on the goals of the divorce and your post-divorce life.
If you are considering a divorce, I am sure you have considered the cost to hire an attorney, and at least briefly considered handling your divorce yourself. While you may save some money up front, there can be huge costs to handling your own divorce.
1.You could miss out on property: In a divorce, you are dividing your entire estate. If you do not adequately account for the property in your estate, you do not understand the intricacies of community property, or you just do not understand the law, you could be missing out on large sums in the property division. For example, if you believe that funds earned by one spouse and saved by one spouse belong to that spouse, you would miss out on a portion of those funds. Alternatively, you may offer to give up part of an asset that is really your separate property
2.You miss out on child support or Overpay: Generally, child support is calculated based on the guidelines in the Texas Family Code. However, if you do not adequately account for deductions for health insurance premiums, you may be overpaying child support. Alternatively, if you calculate the average income for the past 3 years, when the last year is much higher and more indicative of future income, you and your children could miss out on hundreds per month in collected child support.
3.Your order may not be accepted by the Court: If the Court deems that any of your order is not fair and equitable or in the best interest of the children, the Court can refuse to accept your agreed order. This happens regularly when the parties agree to $0 for child support. Many courts do not consider this to be in the best interest of the child in mostAn experienced family law attorney can help you properly word your order so it will be accepted by the Court.
4.Your order may not be enforceable. Even worse than the order not being accepted is having in unenforceable order. Generally, when one party does not follow the court ordered divorce decree (fails to pay child support, fails to deliver property as part of the property division, etc.), the court can hold that party in contempt of court and force compliance or even order jail time in some instances. If an order is not written properly, a Judge cannot enforce it. You would need to spend money to have it clarified and redone, properly before you can have it enforced. In the long run, this is generally more costly than having it done properly the first time.
5.You may miss out on spousal maintenance: Many of us are aware that Texas is a “no alimony state.” While the Texas Family Code does not provide for alimony like some other states, there are provisions for spousal maintenance, which acts like alimony to assist a spouse in certain cases. A knowledgeable attorney will help you determine whether you may qualify for this type of support.
6.Added Bonuses: Experienced family law attorneys can give you objective advice and provide strategic advantages in your case whether you are negotiating, going to mediation, or preparing for a highly contested trial. Family law cases can be highly emotional, and it is vital to have a grounded attorney advise you through this difficult
In addition, the attorneys at Hanshaw Kennedy, LLP have experience devising creative support, visitation, custody, and property division agreements within divorce decrees that are specific to individual families and are written in an enforceable manner.
Our attorneys at Hanshaw Kennedy, LLP have experience in Collin, Dallas, and Denton county courts; we have worked with local mediators, and we have relationships with many local attorneys and other resources. Our specialized knowledge could save you money, get you more money, and ensure that you are properly protected in your divorce. We can come up with creative solutions that fit for your family in mediation or informal settlement and we can advise you on what battles are most important in your case. Importantly, our attorneys can give you a cost-benefit analysis at different stages of your divorce process. If you are considering a do-it-yourself divorce, you should truly consider what you may be leaving on the table.Read More
You are single: if you are single and an adult, with no children, your estate will go to your closest biological family member according to Texas law. If you would rather your estate go to young nieces and nephews, friends, etc. you will need a Will to designate the distribution of your property. In addition, your family members may be at odds in making necessary medical and care decisions for you, should you become incapacitated. You should have a durable power of attorney, healthcare power of attorney, and possibly a designation of guardian to ease this process. These documents will ensure that your wishes are adhered to and that your family will not spend time, money, or emotional energy fighting battles over your care. In addition, you may wish to appoint a person to dispose of your remains, or to choose how your remains are disposed, if you do not think your parents will agree with one another on this issue.
You are married: if you are married without a premarital agreement or a partition and exchange agreement, you have community property. If this is a first marriage, and there are no children, all of your property will go to your spouse, including any items that you wish would go to your parents, siblings, nieces and nephews, etc. The only way to dictate how your property is distributed upon your death is with a Will.
You have children: if you have minor children and are married to the children’s other parent, you should name someone to be a guardian and care for your children if something is to happen to you and your spouse. Also, you will want to include a contingent trust in your Will so funds will not be held for your children if you want them to use funds now, and so funds will not be fully disbursed at age 18, if you intend for funds to be overseen for a longer period.
You have grandchildren: if you want to take care of your grandchildren, you will want to have a Will to specify what you are gifting to each grandchild. Special steps need to be taken for minors.
You want to leave a gift to a minor child: if you want to leave a gift to a minor child, you will want to have a simple trust in your Will to allow an adult or institution of your choosing to make financial decisions for the beneficiary. Without a trust in place, the funds will either be held by the financial institution until the beneficiary reaches the age of 18 years, when there will be a full distribution at age 18; or someone will need to apply to be appointed as a custodian or guardian of the estate of the minor. In these circumstance, there will generally still be a full distribution to the child upon reaching 18 years. If you would like to protect the funds for college or until such time as the minor child reaches an age that you deem is more appropriate for such a distribution, you will need a Will with a trust for minor children.
You have a blended family: If you have children from a prior relationship and are now married to a spouse that is not the biological or adopted parent of one or more of your children, you probably need an estate plan, regardless of whether your children are adults or minors. Without an appropriate estate plan in place, you are setting up your children and your spouse to be at odds regarding the distribution of your estate. You may leave your spouse at a disadvantage or you may be leaving assets to a minor or adult child that you intend to take care of your spouse. You will need an experienced estate planning attorney to assist you in setting up your estate plan to accomplish the goals of your family.
You are in a long term relationship, but not formally married: If you intend your significant other to inherit from you or to be able to make medical decisions for you if you become incapacitated, you need an estate plan. If you specifically do not want your significant other to inherit from you or act as your spouse, you also need an explicit estate plan in place. Your significant other may claim that you had an informal, or common law, marriage, which may go against your desires. Our experienced attorneys can assist you in setting up a proper estate plan to protect you, your assets, and your loved ones.
Estate planning is for everyone. In Texas, it is generally less costly to have an estate plan and to probate a properly prepared Will than to attempt to go through the probate courts for administration and distribution of your estate without a Will. Collin County, Denton County, and Dallas County all have very reasonable filing fees that are not based on the size of your estate. Estate plans limit fights between family members and loved ones and ensure your wishes are followed.
Contact the Frisco Family Law Attorneys at Hanshaw Kennedy, LLP to discuss your estate planning needs.
- This is based on Texas law and meant to apply to those who reside in Texas.
When deciding to consult a divorce attorney, many still have emotions running high. Your consultation with an attorney will be limited in time (generally 30 minutes- 1 hour). With that in mind, you will need to try to narrow the issues to discuss at this meeting to get the most information about the divorce process, the possible solutions, and the spectrum of strategies available toward a resolution.
- If you have been served or otherwise delivered papers from your ex, bring all papers with you
- Timeline of events in your relationship
- Prior or current orders involving children of this marriage or previous relationships
- Pre or Post Marital Agreements
- Income documentation for you (and your spouse, if possible): tax returns, pay stubs, etc.
- Assets overview (balances for bank accounts, retirement accounts, pensions, investments, etc.)
- Information regarding land and homes you own (mortgage amounts, values, etc.)
- Information on valuable items in your home (collectibles, etc.)
- Notes about problems in your marriage (regarding both spouses)
Remember, your consultation with your attorney is generally confidential in nature. (See the forthcoming article on confidentiality and attorney-client privilege in family law). You need to be open with your attorney about issues that may come up in your divorce. Your attorney can only advise you based on information you provide to him or her, so be honest during your consultation.
You should also bring a list of questions, to ensure you do not forget anything. Again, this is a stressful and emotional time, so you may also want to take notes on what the attorney is telling you.
Be sure the attorney answers your questions; describes the divorce process in a way you can understand; discusses the pros and cons of your case, as well as possible outcomes (temporary and final); discusses retainer fees and billing practices.
You do not need to have all of your evidence available at the initial consultation. You can discuss those items and produce them as needed at a later time (emails, text messages, photographs, etc.).
If this is an emergency situation, due to family violence or a spouse secreting the children, please bring necessary evidence showing the abuse or abduction issues, as your attorney will need to work quickly to protect you and your children. Please let someone know that this is an issue when scheduling your consultation, so the attorney is prepared to address those issues and begin work immediately, if needed.
Some cases are time sensitive or require special attention. Please seek the advise of a local family law attorney to determine your best strategy. The compassion, knowledge, and experience of the Hanshaw Kennedy family law attorneys will help you navigate this process.Read More
Holidays are generally a time love and family; however, this time can be very stressful and difficult, especially with children living between two homes.
There are some things parents can do to ease this process and hopefully create more peace for the parents and the kids around the holidays.
First, determine whether or not you have orders in place that dictate the holiday possession schedule.
Whether or not you currently have such orders in place, it is best to talk to the other parent or caregiver to discuss plans for the children for the holidays. If you are able to reach agreements for visitation and/or travel that works for your family, that is an ideal situation.
Most Court ordered Possession Schedules are written to allow the parents/conservators to reach agreements on visitation that deviate from the possession schedule set forth in your order to better fit into your family’s plans. Keep in mind that some parents/conservators are required by prior court order to communicate through a certain method or with a third party present. Do not violate your court orders.
Many times parents can work together to continue to celebrate holidays as they have done in the past – or create new traditions as a different family dynamic (i.e. Christmas Eve with one parent and Christmas Day with the other parent).
If you do have Orders in place, read them before meeting with the other parent. Be prepared to follow the orders if you are unable to reach a workable solution. If your current orders are unworkable, long term, you should seek advice of an experienced family law attorney who may be able to help you modify your orders to a more workable solution.
If you do not have orders in place, it is even more crucial to work with the other parent regarding holiday plans. It may be your first holiday to celebrate separately, and you may want to enlist the help of a mental health professional to assist you and the children with the transition in tradition. If you are not able to reach a solution, you need to contact an attorney immediately to try to resolve these issues before the holidays. Don’t wait until it is too late!
If you are traveling out of town –
And have current orders in place: check your orders for any requirements you may have to inform the other parent if you plan to travel out of town, out of state, or out of the country. Many orders require notice and/or consent before you can travel with your children. Make sure you are aware of these and comply with the terms of your orders.
And do not have Orders in place, but have filed a case (divorce, modification, paternity), local Standing Orders may be in place that restrict you from taking the children out of the state while a case is pending. If this is an issue, bring this to the attention of your attorney immediately. Your attorney can try to work with the other parent to allow you to continue with your plans, uninterrupted. Be aware that different counties have Standing Orders, and they may differ on this issue. Be sure you are in compliance.
In general, it is a good idea to let the other parent know of your travel arrangements with the children, even if there is no case pending or your current orders do not require it. You would want the same courtesy.
If you are acting under the Texas Family Code Standard Possession Order, your standard holiday visitation should be as follows:
Thanksgiving: Parent A has possession beginning after school on the day school is released for the holiday (even if this is the Friday before Thanksgiving), and ending at 6:00 p.m. on the Sunday following Thanksgiving.
Christmas: Parent B has possession beginning at the time school is released for the holiday, and ending at noon on December 28. Parent A has possession beginning at noon on December 28 and ending at 6:00 p.m. on the day before school resumes after the holiday.
Be sure to look at your child’s school calendar or the calendar for the public school your child would be zoned, to determine the actual days applied in your case. If you have any questions regarding your possession rights, contact an experienced family law attorney to help you interpret your orders.Read More
What is the job of the Office of the Attorney General Child Support Division?
Attorneys with the office of the OAG can assist with establishing paternity, finding missing parents, establishing child support, and enforcing the collection of unpaid child support. Most important to remember is that the OAG attorney does not represent either parent or conservator of the child or children; this means the OAG does not represent the party who requests services. The OAG only represents the State of Texas. This means that cases with children on TANF (Temporary Assistance to Needy Families, CHIP, and Medicaid) will be prioritized.
Those parents or conservators using TANF or Medicaid for their children are required to apply for OAG child support services. This does not mean the OAG will take the case, will work on the case, and it still means that the OAG does not represent the parent or conservator.
Differences between OAG and Private Attorney
In a case involving the OAG, the OAG can take any action their office sees fit as far as case strategy and reaching agreements. The parents can either hire private attorneys or represent themselves in these matters.
Another big difference is that private attorneys generally have the capability to move your case along more quickly than the OAG. The OAG is bogged down with cases and they focus on those with TANF or Medicaid. If you are not one of those families, and in some cases, if you are one of those families, a private attorney can get child support established more quickly than the OAG.
Custody and Visitation
Federal regulations prohibit the OAG to use child support funding on issues of custody or visitation. While there is limited separate funding available to assist a small portion of conservators with custody and visitation issues, this is not the norm (see www.txaccess.orgfor more information). What this means is that if your case requires visitation or conservatorship to be established (through paternity actions), enforced, or modified, and you request services from the OAG, you will either need a private attorney on the other matters, or you will be representing yourself on the matters of custody and visitation. A private attorney can assist you in combining cases, as allowed by the law, in order to be more time and cost effective.
Even in the few cases where the OAG can assist in custody and visitation, the OAG is still representing the State of Texas and the best interest of the child, not either party/parent.
In general, a private, experienced family law attorney can better use your time and can represent your interests in a way that is consistent with your desires. A private attorney is more suited to represent you and get results in accordance with your requests. You should always consult with a local experienced family law attorney before taking action in your case.Read More
In Texas, most people are aware that there is no legal separation that parties can enter into prior to the divorce proceeding. However, a court can issue temporary orders that address interim issues and put into place enforceable and legally binding rules of play between the parties during the divorce proceeding. There is a requirement that the divorce action needs to be filed and pending in order for the Court to enter any form of temporary orders.
Temporary Orders can be entered by the Court after a hearing in front of the Judge or by agreement of the parties. If a hearing is held on temporary orders, the hearing is generally very short in nature and only addresses issues of immediate concern. You will need to work with your local, experienced family law attorney to determine the best course of action in proceeding with temporary orders in your county. The family law attorneys at Hanshaw Kennedy, LLP are familiar with the rules of practice and the time limitations imposed by Collin County, Denton County, and Dallas County courts for temporary orders hearings.
At a temporary orders hearing, a Judge can issue rulings regarding the use and possession of all items of property owned by the parties. This means that the Judge can allow one party to remain in the residence and require another party to leave the residence, or even the sale of the residence. The Judge will generally order that each party will have the exclusive use and possession of his or her own motor vehicle. Judges can also enter orders that a party pay temporary support to another party to a case. While there are strict regulations on spousal maintenance in Texas, it is much more common to have temporary support ordered between the parties during the pendency of a case.
The Judge can also issue restraining orders during this hearing, restraining either party or both parties from any number of actions (i.e. contacting the other party, entering the other party’s motor vehicle, etc.). Collin County,Dallas County, and Denton County courts also all have standing orders in place. These are restraining orders that apply to both parties from the time the lawsuit is filed until further order of the Court or entry of the Final Decree of Divorce. Most items in the restraining orders are to maintain the status quo and protect both parties’ rights and property. All of these courts include orders that neither party can destroy, transfer, or otherwise harm the property in the estate. This protects the property until there is a final determination on the property division at the conclusion of the divorce proceeding.
Judges may also issue temporary orders regarding any minor child or children involved in the case. Child support, visitation issues, and other issues regarding custody and decision-making for the children can be addressed at the temporary orders hearing. Judges may also order a social study looking into the homes and circumstances of the parties and the children to determine primary custody and/or visitation (to be addressed in a later blog), mediation, counseling and/or psychological evaluations for the parties, and drug testing, among other things.
If, at any time during the pendency of the temporary orders, the parties decide to reconcile, they are encouraged to do so. They can dismiss or nonsuit the divorce proceeding as if it were never filed. If the case continues until a divorce is final, the temporary orders will generally terminate at the time of the Final Decree of Divorce, and the new rules will begin with that Decree.
If you have any questions regarding temporary orders or standing orders in your county or in your case, please contact your local, experienced family law attorney.Read More