Who has the most "DIRT!"

Most client's coming in to see me about a divorce or other custody matter, want to tell me all about the "dirt" they have on the other parent. After 15 years of practicing family law, I have heard it all. Stories about how promiscuous the other parent is, stories about how much the other parent drinks, stories about drugs the other parent uses, how messy the other parent is, how angry the other parent is, even stories about the other parent's eating habits. I had one client that was convinced that the Court had to give him custody because the other parent was a diabetic. I have spent hours listening to client's give me all the "dirt" about the other parent, hoping that I would tell them it was enough to win their custody fight. In the end they are usually disappointed when I tell them, "Well this is all very well and good, but you haven't told me one reason why YOU are the right person for the job."

Unfortunately, most people think that a custody battle is all about who has the most dirt on the other person, when in reality 90% of the battle is telling the Court why they are the best person to have primary custody. Don't get me wrong, it is important to know the bad things about the other parent, and it will be useful in Court, but that should not be the main focus. A parent must be able to show the Court what qualities make them stand out as the person who should be primarily responsible for the upbringing of the child. The standard in Texas is always "what's in the BEST interest of the child" not "what's the least WORSE for the child."

I had a case recently where I represented the wife in a divorce. The husband was on the stand testifying. No matter what question he was asked he always found a way to end his answer with something negative about his wife. If the question was was whether his child took piano lessons, his answer would be, "Yes, but I always took the child she never took the child." If the question was how are the child's grades, his answer would be, "Very good, but she never helps him with his homework." This went on for about seven or eight questions, until the judge, who was very upset by this point, stop the questioning and chastised the father. The Judge said, "This is about you, not your wife, so listen to the questions and stop turning everything into a negative comment about your wife." I think you can guess who won primary custody.

So if you find yourself about to go through an ugly custody battle, first seek out a good family law attorney, and then start making a list of all the reasons YOU are the person who should have primary custody of the child. Only after that should you make your list of "dirt" on the other person. For every negative you come up with on the other person, you should have three positive things that make you the better person for primary custody. In the end it is not about who has the most "dirt" on the other person, it's about who is best for the child.

My kid's don't want to visit their dad/mom!!

Any good divorce attorney will tell you, "For heavens sake, whatever you do don't tell the judge your kids don't want to visit their father/mother!" I have said these words to clients countless times, and I always get the same response, "but its true, they don't want to go!!" In my career I have brought hundreds of enforcement actions seeking to put one parent in jail for failing to allow the other parent to pick up the children during their visitation. In almost every instance I here the same response, regarding how the children don't want to go visit the other parent. There are numerous reasons why a child might not want to go to the other parent's house for visitation, and nearly all of them have to do with the way the primary parent treats the child. Maybe the primary parent drills them with questions when they get back, or maybe the primary parent talks bad about the visiting parent all the time, or it could be as simply as the primary parent's bad attitude as it gets closer to visitation time. The bottom line is its usually not the child that doesn't want to go, its usually the primary parent that doesn't want the child to go.

Nothing upsets a judge more than a parent who says their child doesn't want to go, and if they don't want to go, I can't make them. Really!! So if your 10 year old says, I don't want to go to school anymore, or says I don't want to clean up my room, are you going to say, oh well, if he doesn't want to, I can't make him. I don't think so. Again the bottom line is, its not the child that doesn't want to go, its the primary parent.

So what do judges expect of the parent. Most judges expect the parent to put on a smile and say to the child in a happy voice, "Lucky you, its time to go to your dad's (or mother's) house, your going to have a great time!" To some this may sound rediculous, but judge's expect parent's to be the grown up and act like the grown up. And if they can't, well that parent may just spend some time in the custody of the county jail, or worse the judge may decide that parent isn't the right person to be the primary parent.

Of course all this begs the question, so when does a child get to decide not to go to the other parent's for visitation. The short answer is when the child is no longer considered a child, which is when the child turns 18. However, the Court also understands that as a child gets older (16 or 17) the child will have other obligations, such as jobs, extracuricular activities, social events etc. At this point its best if both parents can communicate and learn to work around these events so that both parents can participate and still have time to see the child. If they can't then the Court will make provisions that neither parent will like. I once had a case where the child was 16 years of age and very active. She had a part time job, was active in dance and competition cheerleding. My client had issues because everytime he tried to see his daughter the mother had an excuse of why the child couldn't come. At the hearing the judge ordered that visitation would be as agreed between the father and the daughter. In other words mother was cut out of the decision making all together. This did not sit well with the mother, and the father was not happy because it did not have any specific times for visitation.

In the end, when its time for the child to go to the other parent, remember, the child's attitude will usually reflect that of the primary parent. So if the primary parent has a good attitude about the child going to the other parent's house, the child will too. But its not all about the primary parent, the parent picking up the child needs to have a good attitude as well. If the parent doing the visitation arrives with a bad attitude (usually because of having to see or deal with the other parent) the child will sense this and think its because that parent doesn't want to see the child. So if you are the parent excercising visitation, forget about the other parent, put on a happy face and show excitement about getting to see your child. Life will be so much better and save you from having to spend money on attorneys and legal fees.

"But it's MY money!" Community Property in Texas

In all my years of handling divorce cases, I never tire of explaining community property laws to my client's. Some have done independent research on the web and know a little about community property law and others are completely blown away when I tell them that their spouse would be entitled to a portion of their retirement, or that just because their car is solely in their name doesn't make it solely theirs.

Texas, along with nine other states, are community property states. All of these states are generally located in the Western part of the United States. Community property laws were derived from the laws of Mexico, who in turn derived them from Spain. Community property law generally means that whatever you acquired during your marriage, belongs to both you and your spouse equally. It does not matter whose name is on the title or deed, if you got it during the marriage it belongs to both of you. This includes, land, vehicles, debts, bicycles, TVs, furniture, retirements, everything. There are three exceptions to this rule. If you owned it prior to marriage, if you inherited it, or if it was a gift solely to you, then the courts will consider that property your separate property, and thus not divisible at divorce. Of course you have to prove you owned it prior to marriage or that it was inherited or that is was a gift. The courts will always presume that all property you own is community property. So if you want to claim something as separate property, you must prove that is was acquired through one of the three ways mentioned.

Retirement is probably the hardest thing for people to swallow when it comes to community property law. Client's are astonished when they find out that their spouse will probably get half of their 401K. "But I am the one who worked all those years, it's my money!" Unfortunately, the State of Texas says its your spouses 401K as well.

"So that means my spouse only gets half, right?" Not necessarily. The laws in Texas governing how the community property should be divided in a divorce state, "In a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage." Tex. Fam. Code Section 7.001. Notice it did not say EQUAL manner. In other words, the courts can give one side more than the other if the judge believes that is "just and right." Why might the court give one side more than the other? There are many reasons, fault in the break up of the marriage, disparity in the earning potential of the spouses, who gets the children, length of marriage, disability of a spouse, cruel treatment by one of the spouses, and so on. Don't get me wrong, most of the time the court divides the community estate as close to 50/50 as possible. However, on occasion, the court will give one side more than the other. Rarely does the court divide the community property more than 60/40. Something really egregious would have had to happen for the court to give one side more than 60%.

So, when you head off to divorce court, remember it's not necessarily "your money." Most of the time it's "yall's money." Unless of course it's separate property, but we'll leave that discussion for another day.

The Uncontested Divorce

Many times in my practice, I interview client's who tell me they have or want and "uncontested divorce." My usual response is, "That's great but what does your spouse want." The truth is there really is no such thing as an uncontested divorce. A divorce in Texas is by nature always contested. That is because no matter what you call it, a divorce is a law suit, in which one spouse is suing the other spouse for a divorce. By nature that puts the spouses on opposite teams. So what do we mean when we say "uncontested divorce?" Well the term is something that has been created by family law attorneys to describe a divorce where both parties are in agreement to getting a divorce, and, more importantly, they are in agreement as to how they will handle what happens in their divorce. I tell client's that if you want an uncontested divorce, it will require three things to happen. First, I will draft a petition for divorce that alleges you and your spouse will reach an agreement as to provisions governing the children, and that you and your spouse will reach an agreement as to the division and assets of your property and debts. Second, I will prepare a waiver of service for your spouse to sign, and she must sign it in front of a notary and return it to me. Third, I will prepare a divorce decree based on what you (the client) tell me you and your spouse have agreed to. Your spouse must sign that as well and when the time comes we will present it to the Judge for signature. I then tell my client's that if any one of the three things does not go as planned, then you are no longer and "uncontested divorce" but rather a contested divorce. That means if your spouse refuses to sign the waiver, I will have to have them served and you are now contested. If your spouse refuses to sign the divorce decree and I have to set it for a hearing, you are now contested. If your spouse hires an attorney who files a answer denying the allegations that you will be agreed on everything, you are now contested.

The good news is an uncontested divorce is cheaper, quicker and provides a means for both parties to exit the marriage in an amicable manner. The bad news is this rarely happens. I have found over the years that three things make it less likely for the uncontested divorce to work out. First, property. I don't mean the furniture, or electronics, I am talking about houses or land. The second is retirement accounts. The third and most common reason uncontested divorces don't work out is children. Anytime you have one of these things, the likelihood of your divorce staying uncontested goes down. Add two or more and the possibility of your divorce becoming contested doubles. Don't get me wrong, I have had many divorces with all three involved, where the parties where able to work every little detail out and the divorce never went contested, but this is rare.

Honestly, I wish every divorce could be uncontested, unfortunately, pride, anger and a variety of other things often get in the way. When client's tell me they want an uncontested divorce, I will usually encourage them to talk to their spouse, before filing for divorce. Make sure you and your spouse are truly on the same page. Make sure you agree as to what each person will take from the house, make sure you agree on who will get the house and how you will split the equity in the house. Talk about retirement accounts and how those will be divided. Maybe one person keeps the retirement and the other keeps the house free and clear. Most important, if you have children, make sure you agree on who the children will live with, what type of visitation each will have, who will pay child support and how much. Who will provide the health insurance for the children and where the children will go to school. When talking to your spouse about these things, leave your feelings behind. Don't start making snide comments or talking about whose to blame for the breakup. This will only lead to a break down in communication and lead to the more expensive, heart wrenching contested divorce. If you and your spouse can agree to all of the things mentioned above, then the likely hood of you having a successful "uncontested divorce" will increase dramatically.

But, I don't want a divorce.

I have had numerous occasions where someone came to me because their spouse has filed for divorce and my client, said, "but, I don't want a divorce." Often times one of the spouses will get to that point where they no longer want to be married. The other spouse, however, is not yet there, and still wants to try to make the relationship work. I have had many client's ask if they can oppose the divorce and make the other person stay married to them. The old axiom, "It takes TWO to make a marriage work" is truer than ever when it comes to divorce. In Texas, if one of the parties wants the divorce, the Court is going to give them a divorce. In 1933 New Mexico became the first state to pass the "no fault" grounds for divorce. Shortly thereafter, every state passed similar laws. In Texas their are seven different grounds for divorce. The most common is the grounds of insupportability. Basically, this means that a person files for divorce and says, "my marriage has become insupportable due to a discord or conflict of personalities that destroys the legitimate ends of our marriage relationship and there is no reasonable expectation of reconciliation." In other words, "I don't get along with my spouse any more and I don't want to stay married to them, and there is no way we can work this out." When I explain this to a client that doesn't want to get divorced, they often tell me, "thats not true, we can work this out if he or she will just try." And there in lies the problem. If the other person doesn't want to try, then its not going to work no matter how bad my client wants it to.

The Court only needs one person to say, "no, I am not going to try, it just won't work," and thats all it takes for the Judge to grant the divorce. Remember when I said it takes TWO. Well it does, and no matter how bad ONE wants to make the marriage go on, it won't, and the divorce is going to happen. Fortunately, there are many support groups out there to help the person that is struggling with the fact that their spouse is divorcing him or her. I always incourage my client who is facing a divorce he or she doesn't want, to seek counseling with one of these groups. Most are offered through various churches and you don't have to be a member of the church to go. In these groups they meet other people who are also going through a divorce they don't want. Many of my client's have been better able to cope with their unwanted divorce by attending these groups.

So, if you are one of these persons whose spouse is divorceing you but you don't want to get divorced, first get good legal representation. I can't tell you how many times I have seen someone who didn't want to get a divorce, give up everything because they were too emotional to think clearly when it came to devidinng assets or decideing what to do with the children. That is why you hire an attorney. The attorney is not there to help you with the emotional side of the divorce, he is there to help you with the decisions you are not emotionally able to make. Second, get envolved in a grood counseling group. They are there to help you with the emotional aspect of a divorce, especially when you don't want to get a divorce.

"I'm a family law attorney."

I can't tell you how many times I have been at a social function, and someone would ask me, "What do you do?" Of course I would tell them, "I am a family law attorney" and then I would get that blank stare or, I would get, "Oh, does that mean you do wills?" So I decided to try to educate the non lawyers out there on exactly what a "Family Law Attorney" does. The area of family law comprises multiple areas such as divorce, child custody, visitation, child support, modifications of child custody orders, adoptions, grand parent rights, paternity, protective orders, prenuptial agreements, and spousal support, just to name a few. When you try to explain this to someone it usually sparks the response, "Oh, your a divorce attorney" to which I usually respond, yes. And while it is true, that every family law attorney is in essence a divorce attorney, it is important to remember that the area of family law incorporates much more than just divorce. Currently the Texas Family Code is comprised of five titles and 266 chapters. Provisions dealing with divorce make up only the first 9 chapters. That leaves 257 chapters dealing with other family law matters. So when someone says, "So, your a divorce attorney" it really leaves a lot out of what the family law attorney does.

Hopefully, this new blog will help shed some light on the area of family law. In future posts I will try to discuss various issues, not only involving divorce, but all areas of family law. Maybe I can give you, the reader, some quality information on issues involving you or someone you know. Check back regularly and maybe, just maybe you can surprise someone with your knowledge of family law at your next social event when someone says, "I'm a family law attorney."