Archives for September 2014

Family Law Attorney Plano | Divorce Attorney Plano

On behalf of Megan Rachel

In Everett v. Everett, the Court of Appeals of Texas, El Paso, reversed an order by the trial court which clarified the parties’ divorce decree by increasing the ex-husband’s spousal maintenance payments to the ex-wife. The appellate court stated that the order was not permitted under Texas procedures for clarifying orders pertaining to debt division of marital estates and modification of spousal maintenance awards.

Background and procedural history

The parties were divorced in 2010. Under the terms of the divorce decree, the ex-wife was awarded the marital residence in Trophy Club, Texas, but required to obtain financing to purchase the property within one year after the date of the decree. If financing was not obtained by the stated deadline, the decree provided that the property would be listed for sale.

The ex-husband was ordered to pay the ad valorem taxes on the property for 36 months, but the decree provided that this obligation would cease if during this period the ex-wife either remarried or resided with another man. The ex-husband was also ordered to pay spousal maintenance to the ex-wife for 36 months.

After the one-year deadline expired, the ex-husband brought a petition to enforce the sale of the residence, alleging that the ex-wife had not secured financing for the home. After a hearing, the trial court ordered the house sold, and, if sold within 36 months after the date of the divorce decree, the ex-husband was ordered to continue making monthly payments in an amount equal to one-twelfth of the total annual property taxes due on the property as a form of additional spousal support. The tax payments would only terminate sooner only if the ex-wife either remarried or cohabitated with another man.

The ex-husband filed an appeal in the Court of Appeals.

The Court of Appeals ruling

The ex-husband raised two issues on appeal. First, he argued that the trial court’s clarifying order increasing his spousal maintenance payments upon the sale of the property was an abuse of discretion. The Court of Appeals agreed. The Court of Appeals stated that under Texas law a trial court cannot subsequently amend a previous division of the marital estate after it has been approved in a divorce decree. If the original property division order was ambiguous, the trial court may subsequently issue a clarifying order, but only if the order lacks sufficient specificity to be capable of enforcement in contempt proceedings.

The Court of Appeals ruled that it was an abuse of discretion for the trial court to convert a debt obligation-property tax payments-into spousal maintenance. The trial court’s order improperly went beyond clarification, the appellate court said, by altering the substantive division of property.

The Court of Appeals also agreed with the ex-husband’s contention that the trial court abused its discretion by modifying the amount of his spousal maintenance obligation without providing notice to either party prior to the hearing that the issue of modification of spousal maintenance was being considered by the court.

Individuals facing issues relating divorce and other domestic relations matters are urged to consult with a competent attorney, experienced in such matters for the protection of their legal rights.

Family Law Attorney Plano | Divorce Attorney Plano

On behalf of The Rachel Firm posted in Child Custody on Thursday, August 14, 2014.

Child Custody and Divorce | Plano Family Law Attorney

As summer winds down, Texas parents are getting ready to send the kids back to school. For parents who are divorced, the start of a new school year brings some special challenges. Recently a pair of columnists gave a few tips on how to make this time less stressful for both parents and children.

The first tip is to maintain consistency in the child custody arrangements. If parents share physical custody, the kids may be going to different homes on different weeks. They may need to go to school with a bag packed on days they transition from one home to the other, and it may mean taking a different bus home. It can be hard for a child to stay on top of this, and next to impossible if the custody arrangements are constantly changing.

The second tip is to use technology to share scheduling information. An online calendar shared by both parents can help keep track of homework assignments, after-school activities, doctor’s appointments and the like.

Third, it’s important to keep counselors and teachers informed. Kids can have a tough time dealing with divorce and emotional struggles often manifest themselves in dropping grades or behavioral problems at school. Letting the educators know the child is dealing with divorce can help them assess and deal with any issues.

Texas courts look to the child’s best interest in determining child custody arrangements. Parents who make this their own standard in keeping those arrangements will help their children start the school year with more confidence.

Source: Huffington Post, “5 Back to School Strategies for Divorced or Divorcing Parents,” Cheryl & Joe Dillon, Aug. 11, 2014

On behalf of The Rachel Firm posted in Child Custody on Thursday, August 21, 2014.

How is child custody determined in Texas?

For Texas parents going through divorce, child custody is often the most emotional and stressful issue they must deal with. If the parents can reach an agreement as to custody, it is only necessary to get the agreement in writing for the court’s approval. If the parents are unable to agree, the court will decide custody. Texas courts will always look to the child’s best interest in making a custody determination.

Texas courts use the term “conservatorship” to refer to custody. A person who has custody of a child is known as a “conservator.” Conservatorship includes the right to make important decisions about the child’s upbringing, including medical, educational and religious decisions.

Courts in Texas favor both parents being granted conservatorship. This is known as a joint-managing conservatorship. In a JMC, both parents share the rights and responsibilities of parenting. It is possible, however, that in a JMC only one parent will have the right to make important decisions.

A sole managing conservatorship, in which only one parent gets the right to make important parenting decisions, can be granted in cases where the child’s best interest requires it. An SMC may be granted, for instance, if the other parent has committed domestic violence, has a serious drug or alcohol problem or has been absent from the life of the child.

Even if the court orders a JMC it does not mean both parents have equal physical custody and visitation rights. In Texas, courts use the terms possession and access to refer to custody and visitation. The visitation schedule is called a Standard Possession Order. The parents can agree on an SPO, or the court will order one if the parents cannot agree.

This post is only intended to provide general information, not specific legal advice. A parent with specific questions about child custody issues may want to consult a local family law attorney. They could help them address any family law issues or concerns they have regarding any current child custody agreements.

Source: Findlaw.com, “Child Custody in Texas,” accessed Aug. 17, 2014

On behalf of The Rachel Firm posted in Divorce on Wednesday, August 27, 2014.

Texas, like most states, has no-fault divorce. This means that in order to obtain a divorce a spouse does not have to allege that the other spouse was at fault for the break-up of the marriage. But, some Texas family lawyers see a trend towards alleging both no-fault and fault grounds in divorce petitions.

Texas law provides seven possible grounds for obtaining a divorce, three of which are no-fault and four of which are fault-based. No-fault grounds include insupportability, the ground cited most often. Insupportability means the marriage cannot be maintained due to conflict, with no realistic hope of reconciliation. Other no-fault grounds include the couple living apart for three years or more, and confinement in a mental hospital for three or more years.

Fault grounds include adultery, cruelty, abandonment and incarceration for a felony. For a divorce to be granted based on fault, the truth of the fault allegation must be proved in court. Many spouses who allege fault also allege a no-fault ground as a fallback position.

More spouses are alleging fault because it can result in an advantage in property division, alimony and child custody determinations. If a spouse proves the other spouse committed adultery, for example, the court may take that into consideration in determining how the property is divided or how much spousal support must be paid.

A spouse should probably only allege fault if there is clear evidence to support the allegation. Making an allegation of adultery without any proof can backfire if the court determines the allegation was unfounded. It can also lead to additional litigation expense and diminish the chances of an amicable settlement. If fault can be proved, however, and if it makes strategic sense to plead it, the spouse who has been wronged should not feel guilty about making the allegation.

Source: Texas Lawyer, “A New Trend in Divorce Petitions: Alleging Fault and No-Fault,” Holly Friedman Biederman & Jennifer L. Dauzat, Aug. 25, 2014

Adopting a Child in Texas | Texas Family Law Attorney

On behalf of The Rachel Firm posted in Adoption on Wednesday, September 3, 2014.

Adopting a child can be one of the most profoundly satisfying events in a person’s life. In Texas, there are plenty of children in need of stable homes. Parents who are looking to adopt may be intimidated by the complex legal process required. With the assistance of an experienced attorney, however, the adoption process can go very smoothly.

Texas allows just about any adult to be an adoptive parent. If the child is age 12 or older, the child’s consent will be necessary for the adoption. If the person seeking to adopt is married, the other spouse must join in the petition – except, of course, in the case of a step-parent adoption where the other spouse is already the parent of the child.

Single or unmarried people are allowed to adopt in Texas. Same-sex couples, however, may face some obstacles. Because Texas still bans same-sex marriage, however, some judges may take the position that same-sex couples cannot adopt a child. Same-sex couples who wish to adopt a child would be wise to work with an attorney who is knowledgeable about this issue.

The child must live in the adoptive parents’ home for six months before the adoption will be finalized by the court. This requirement may be waived, however, if justified by the circumstances of the particular case. After the adoption, anyone challenging the adoption has six months to do so, after which the challenge will be barred.

There is a great deal of legal paperwork required before an adoption will be finalized. The prospective parents must go through criminal background checks and studies social service professionals. The final steps are a hearing to approve the adoption and the issuance of a new birth certificate showing the adoptive parents as the legal parents of the child.

Source: Findlaw, “Texas Adoption Laws,” accessed Aug. 31, 2014

Adopting a Child in Texas | Texas Family Law Attorney