Attorney at Law
101 E. Park Blvd., Suite 600
Plano, TX 75074
FAX: (877) 527-8913
Family Law/Civil Litigation Practice in Dallas County and Collin County (Texas)
I'll need to get a lot of information from you relating to property, retirement plans, real estate, income, and children. Click here for a printable version of the divorce questionnaire (it's in Adobe PDF format).
We initiate your divorce the same way we'd begin any other civil suit: I'll file a petition at the District Clerk's Office and pay the filing fee (in Dallas County, for instance, the filing fee is $282.00 if no children are involved). If we need to get your spouse served, there are extra costs (a service fee); if he's willing to sign a waiver (it's a waiver of service he's not giving up any other rights, and he can decide later to contest the divorce and bury you in paper), then we don't have to get him served.
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The minimum amount of time, by law (Texas Family Code §6.702), is sixty days from the day you file. In other words, if you file for divorce on June 1, the earliest date that you can have a final hearing is July 31, which is the 61st day (if there has been family violence, the 60-day rule doesn't apply). Of course, a contested divorce can take much longer, and can involve temporary orders, pre-trial hearings, written discovery, depositions, drug testing, and psychologists' reports. The longest divorce I've ever been involved in took 19 months from start to finish.
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There are 254 counties in the state of Texas. We file your divorce in the county where you've been living for the previous 90 days. But if you and your spouse have lived in two separate counties during the past 90 days, the divorce can be filed either in his county or in your county.
And remember that if you and your spouse have been living 350 miles away from each other for the past three months, he can file the divorce in his county, and you'll have to drive 350 miles every time there's a hearing.
The other venue requirement is that you must have lived in the state of Texas for at least six months.
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There's no law that says you have to have a lawyer when you file for divorce. If you and your spouse agree on everything, and you have access to a word processor, you might be able to do your own divorce. There are books and websites available, and in 2012 the Supreme Court of Texas even created some standard forms to be used in cases where there's no property involved and no children.
There are risks in trying to do your own divorce without a lawyer. The clerks at the courthouse are helpful folks, but they aren't allowed to give you legal advice. If you forget to include the house, or the IRA, or if the language in your decree isn't right, it can cost you more to "fix" it later, if indeed it can be fixed. In everything you do, whether it's an order that you draft or a courtroom appearance, the rules apply to you exactly as if you were a lawyer. The Judge won't cut you any slack, and won't give you legal advice.
There was a case in Dallas in the 1990's where the decree (some 23 pages long) was 99% correct the one thing it left out was the sentence that actually granted the divorce. Which, as you might imagine, made a huge difference.
I've made a deal with my auto mechanic: I don't work on my own car, and he doesn't do his own divorces. I spend a lot of money on my car, but it runs like it's supposed to. The reason lawyers are so expensive is that they're worth it.
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Dallas-area lawyers charge anywhere from $175.00 to $750.00 (believe it or not) per hour. I charge $300.00 per hour, and I tend to bill conservatively. I have to draft a petition and file it; negotiate a settlement, or go to trial; draft a decree; and in some cases, create a special warranty deed and a qualified domestic relations order (QDRO) to effectuate the division of property. I may have to draft a wage withholding order too.
I'll get an advance retainer from you (usually $3,000.00), and the total fee will depend on things that you and I have no control over Will the other side want to take depositions? Will they pay a jury fee? There are things that the other side can do that we must respond to; we don't have any choice. I have to spend time on it, and I'll send you a bill.
Yes, there are advertisements in the Greensheet and in the TV guide for lawyers who claim they'll do a divorce for $400.00 plus the filing fee. Give one of them a call, and you're likely to find that there are extra, hidden fees. You'll also find that you won't have much luck getting a real lawyer on the phone; you'll only be able to talk to a clerk or secretary. And you may have to go to the final hearing alone.
Remember that some divorces that start out friendly end up being contested. On the other hand, many that start out contested end up being settled by agreement. Statistically, 95% of all divorces are eventually settled ... but I may have to do a lot of legal work to move your case to a point where the other side is willing to make an agreement.
The bottom line is: I can't sit down with you at our initial meeting and say, "This will be a $5,000.00 divorce." I'd either be overcharging you (which I hate) or undercharging you (which I also hate).
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Perhaps you don't trust your spouse. He (or she) has threatened to run off with the children. She's threatened to clean out her retirement account. He's left you with three children to feed, and won't give you any money. Maybe he's been violent with you.
If your divorce is in Dallas County or Collin County, certain temporary orders are automatic (read the Dallas County standing order here; read the Collin County standing order here). In fact, when you file your divorce petition in these counties, you are required to attach a copy of the Court's standing temporary orders. The standing orders prohibit the parties (both of them) from doing things they shouldn't do anyway: running off with the children, cleaning out bank accounts, destroying property, selling property, canceling credit cards, destroying records, making threats, stealing mail.
Certain other matters that could be the subject of temporary orders will require you to make a specific request (in your petition), and set a hearing (which will take place about three weeks later):
temporary custody of children (and temporary visitation);
temporary child support (it can take many months to finalize a divorce);
the exchanging of sworn inventories;
psychological evaluations of the parties and the children;
the exclusive right to occupy the family home.
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Texas law (§3.002 of the Family Code) defines community property as everything that you acquire during the marriage except separate property. The legal presumption is that everything you own at the time of your divorce is community property.
Community property is what you and your spouse will divide.
Nothing in the Family Code states that community property is owned 50-50. "Community property" simply means that you and your spouse are joint owners. It does NOT mean that the property will automatically be divided exactly in half when you get your divorce.
However, as a general policy, the Judges in Texas usually try to divide the property about equally, unless someone gives them a good reason to do otherwise.
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The Family Code really doesn't have any provisions for "dividing" the debts when people get divorced, but the Judge may do it anyway.
Which, by the way, is the best your lawyer can do (as far as decretal language) to make it binding on everybody.
A year later, the ex-wife gets sued by Mastercard. The Mastercard debt (which is in her name) is one of those that's specifically listed in the decree; it was "awarded" to the ex-husband. This won't stop Mastercard from getting a judgment against the ex-wife and recording an abstract of judgment thirty days later.
The provisions in a divorce decree requiring an ex-spouse to pay debts are basically unenforceable. You CANNOT get a Court to hold the other party in contempt for failure to pay an ordinary debt that is "awarded" to him (her) in the decree [Family Code §9.012(b)]. The best you can do is sue the other party and get a money judgment against him ... which you may not ever be able to collect.
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"Separate property" is defined (§3.001 of the Family Code) as
property that you owned before marriage;
property that you inherited;
property that you received as a gift;
a recovery (in a lawsuit) for personal injuries, unless it's a recovery for loss of earning capacity.
Separate property is NOT divided in a divorce. You don't have to share it with your spouse. However, if you are the party claiming that a certain item of property is separate property, the Family Code (§3.003) says that YOU have the burden of proving that it's not community property.
And, as you might imagine, we sometimes have cases where the property is of a "mixed" character, for instance, where Mom inherits $10,000.00 and makes a down payment on a house, and the parties make payments (from their paychecks) for the next eight years, and then file for divorce.
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In a perfect world, every divorce decree would state that "Dad keeps his 401k, and Mom keeps hers." Then we wouldn't need Qualified Domestic Relations Orders (QDRO's). A QDRO is necessary when a 401k or IRA is split maybe it's cut in half, or it's 55-45, or maybe Dad is awarded a flat $4,500.00 interest in it.
Merely stating this in the decree isn't enough ("It is hereby ordered that the Petitioner shall receive and is awarded one-half of the value of Fidelity Mutual 401k #3353008 as of June 2"). There should be a separate order prepared that is (believe it or not) sent to the 401k administrator for approval before it is presented to the Judge for signature. I'll charge you extra for this (I may even contract the job to another attorney), but it's worth it.
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Technically, there's no such thing as alimony in Texas. The Family Code doesn't even use the "A" word ... not even once. The Code
(§8.051 et seq.) calls it MAINTENANCE.
Of course, "maintenance" is the same thing as alimony.
Maintenance can be ordered in temporary orders and/or it can be ordered as part of a final decree. It is much more common to find it in temporary orders.
The first requirement for awarding alimony is that the spouse asking for alimony (we'll assume itís the wife) does not have sufficient property (including her separate property) to provide for her "minimum reasonable needs." This means that if she gets $1,000,000.00 in the divorce settlement, itís not likely that she will also get an award of alimony.
If she does not receive a large amount of property in the divorce (and doesn't have a lot of separate property), she is eligible for alimony if:
1. Her husband
(a) was convicted of a family violenceĒ crime (or received deferred adjudication) and
(b) the offense committed against the wife or her child, and
(c) the offense occurred less than two years before the date the divorce was filed, or it occurred after the divorce was filed and while the divorce was pending.
2. She has an incapacitating physical or mental disability.
3. She was married for at least 10 years and is unable to earn sufficient income to provide for her minimum reasonable needs.
4. She is taking care of a child of the marriage who is disabled, that is, who requires personal supervision because of a physical or mental disability, so that she basically has to stay home with the child 24 hours a day.
Step two is determining how long the alimony will be paid (the duration of the order).
1. Alimony can be ordered for up to five years if:
The parties were married for less than 10 years and the eligibility is based on the husband committing family violence.
The parties were married for at least 10 years but less than 20 years.
2. Alimony can be ordered for up to seven years if the parties were married to each other for at least 20 years but less than 30 years.
3. Alimony can be ordered for up to ten years if the parties were married to each other for more than 30 years.
Unless the alimony order is based on the wife being disabled (or a child being disabled), the court is required to limit the duration of the alimony order to the shortest reasonable period that allows the wife to earn sufficient income to provide for her minimum reasonable needs.
If alimony is based on the spouse's disability or the fact that she's taking care of a disabled child, the alimony can continue for as long as the wife or the child is disabled.
An alimony order is subject to modification if there is a change in circumstances (if the child gets out of the wheelchair and starts running marathons, for instance).
The upper limit on the amount of monthly alimony is (a) $5,000.00 or (b) 20% of the husband's average monthly GROSS income [that's BEFORE taxes], whichever is less.
Alimony ends if the wife remarries or cohabits with somebody - unless it's contractual alimony, which is completely different.
Parties can enter into a contract for alimony ("contractual alimony") to effect a property settlement agreement - where, for instance, the only marital asset is a $500,000.00 business, and Dad wants 100% of it. He would agree to pay contractual alimony of $2,500.00 per month for 9 years to buy out Mom's half of the business.
This type of alimony has nothing to do with disabilities, family violence, or any of the other factors.
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If your case is contested, there's about a 90% chance that you'll be ordered to do formal mediation. This means that you and I (and your spouse and his lawyer) go to a mediator's office and try to settle your case. For a full day's mediation, the mediator will charge as much as $2,000.00 (each side paying half). In other words, it's expensive.
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Adultery is grounds for divorce
(Texas Family Code §6.003), and yes, it still matters. But how much it matters depends greatly on which Judge you end up with (and, sometimes, what he had for breakfast that day).
If you have committed adultery, and your spouse finds out about it, it doesn't automatically mean that your spouse has some kind of powerful weapon that he (she) can use against you in Court. What will make a BIG difference is: Did you buy your girlfriend (boyfriend) expensive presents? Pay her rent? Take him on trips? This is called "dissipation of community assets" and can make a difference in property division, if it can be proven in Court.
And despite what you may have heard, Mom does NOT automatically "lose custody" just because she committed adultery. This isn't the 1940's.
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In most divorce cases, the mother gets * custody of the children, not because she's the better parent, but because the father agrees to it. In Texas law, there is a presumption in favor of joint custody [joint managing conservatorship].
If the parties don't agree, child custody can be a jury issue. The jury fee in Dallas County is $35.00. I've done more than one jury trial over the issue of custody.
And even if you "win" your custody case, that is, if the jury gives YOU the right to determine the child's residence, it's the judge who decides "terms and conditions of access." In other words, he can set it up so that the "losing party" still has possession of the child 50% of the time.
I have seen it happen.
[NOTE: Even if you pay the jury fee, the issue of property division is still decided by the Judge (assuming that the parties are unable to make an agreement). Characterization of property, where there's a dispute about whether it's separate or community, can be a jury issue, but once the jury has told the Judge what constitutes the community estate, the Judge (not the jury) actually divides it.]
The legal fees for a full custody fight can exceed $25,000.00, and I'll get a large retainer ($8,000.00-$10,000.00) up front.
Any custody decision (whether by a judge or by a jury) is supposed to be based on what is in the best interest of the children, per the Texas Family Code. Often the difference between the "parenting abilities" of the two parents is very subtle and is difficult to prove. In a "close case" (which many of them are), you may want to hire a psychologist to testify for you. The psychological report will cost as much as $4,000.00.
To prove what is in the best interest of the child, you want to show (1) what is GOOD about you as a parent and (2) what is BAD about the other parent. Some of the factors are:
1. which parent has participated in the children's activities;
2. which parent attends most of the parent-teacher conferences;
3. any aspects of a parent's past which reflect negatively on him, such as suicide attempts, mental illness, criminal convictions, alcoholism, chronic health problems, family violence, or drug addiction (these would be things that happened SINCE the last custody order, if there is one, not PRIOR to the last order);
4. the ages of the children (very young children may be closer to their mother).
Adultery rarely makes any difference in custody disputes (it depends on the Judge or jury). The question becomes: How did the adultery affect the children? Did they even know about it (did the "wronged" parent tell them about it)? Did the adulterous parent take care of the children properly?
Most judges believe that a person can be a terrible wife (or husband) but still be a good parent.
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Child support is calculated based on the following factors [pardon me for assuming that it is Dad who will be paying]:
1. the net income from all sources including the "second job," overtime, commissions, and bonuses of the person who is paying ("net income" is gross income minus taxes, which are calculated based on a table that is published each year in the Family Code [§154.061]);
2. the number of children for whom he will be paying child support under that particular order; and
3. the number of "outside children" for whom he is legally responsible. "Outside children" means children that aren't "before the Court" in case #1; it includes (a) children for whom Dad is paying child support under another Court AND (b) minor children who are "his" (doesn't include stepchildren) and who are living with him.
For instance, a man who has only one child will pay his ex-wife 20% of his net income (that's AFTER taxes) for child support PLUS he will be required to provide health insurance for the child (unless the parties agree otherwise). For two children, it would be 25%. Three children would be 30%.
If he has two ex-wives, each with one child, he should be paying each ex-wife 17.5% of his net income (a total of 35% of his net income for two children).
Child support ends when the youngest child (in that particular family) turns 18 or finishes high school, whichever happens last. When they're 18 and out of high school (and are able to vote), they're supposed to start supporting themselves.
Child support also ends if a child gets married or dies.
The percentages apply only to the first $8,550.00 of your net monthly income, if you're fortunate enough to be earning more than that.
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You can get remarried on the 31st day after your divorce decree is signed. If you're really in a hurry, the Family Code (§6.802) says that you can get the Judge to waive the waiting period "for good cause shown." We simply insert an extra sentence into your decree: "The Court finds that good cause exists to waive the prohibition against remarriage for 30 days, and it is ordered that the parties may marry third parties at any time after the entry hereof."
Under Texas law, you can, if you wish, remarry your ex-spouse at any time, even if your decree was signed yesterday. Personally, I don't recommend it.
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The most enforceable financial obligation in Texas is Court-ordered child support. Once you're under a child support order, you might as well just plan on paying.
You might not get dragged into Court when you miss the first month. It might not even happen the second month. But eventually, you'll get served with a motion for enforcement. The punishment for not paying child support can include jail time, a fine, a money judgment, an award of attorney's fees (meaning YOU pay for the other side's lawyer), and even loss of your driver's license if it's a "second offense." I have personally prosecuted cases where we put someone in jail for not paying child support (in Tyler, I once convinced a Judge to put a woman in jail for not paying her Court-ordered child support).
The State of Texas even has a special agency (the Child Support Division of the Attorney General's Office) which is funded by your tax dollars, and their mission is to hunt you down, file legal pleadings, drag you into Court, and force you to pay your child support. They have 229 field lawyers in 67 field offices throughout Texas (this doesn't include their bureaucrat lawyers in Austin), and a staff of thousands.
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The typical divorce decree says that Dad gets the children for visitation at any time that the parties agree to for an afternoon, for a weekend, for a week, etc. The decree will also contain "fallback" provisions for the times when Dad and Mom can't agree; in 99% of all cases, the "fallback schedule" is the "standard possession order," a schedule which comes straight out of the Family Code (§§153.311 et seq.) and represents the collective wisdom of our State Legislature.
The basics of the standard possession order are that the visitation parent (pardon me for assuming that it's Dad) gets the children:
1. On weekends, beginning at 6:00 PM on the first, third, and fifth Fridays of each month and ending at 6:00 PM the following Sunday. If Dad's weekend comes near a Friday or Monday school holiday (or a legal holiday during the summer), then Dad gets the extra day.
Dad can elect (the choice is made prior to the order being signed, not on an ad hoc basis) to have his visitation periods begin when school lets out (as opposed to 6:00 pm) and have them end when school resumes in other words, Mom would drop the child off at school on Thursday morning, and Dad would pick up the child from school that afternoon and keep him until Monday morning when he would take the child to school. Mom would pick up the child from school on Monday afternoon.
2. Every Thursday evening during the school year (approximately nine months), from 6:00-8:00 PM, or overnight if Dad chooses (the choice is made prior to the order being signed, not on an ad hoc basis).
3. During Spring Break in even-numbered years. If the parties live more than 100 miles from each other, the father gets the child every Spring Break.
4. For 30 days during the summer (the mother gets one weekend during the 30 days if she chooses). This can be 30 consecutive days, or the father can split it into (no more than) two periods. If the parties live more than 100 miles from each other, Dad's summer visitation is 42 days.
5. The Thanksgiving holidays every other year (Wednesday at 6:00 pm until the following Sunday at 6:00 pm, or Wednesday when school lets out until the following Monday morning when Dad takes the child to school).
6. For part of the Christmas school holidays (about half). The holidays are split into two periods: Period A is from 6:00 pm on the day school lets out for the holidays (or 3:30 pm when school lets out) until noon on December 28; Period B lasts from noon on December 28 until 6:00 pm on the day before school resumes in January (or, in the alternative, at the time school resumes after the holidays Dad takes the child to school that morning). In even-numbered years, the father will have his Christmas visitation during Period A and the next year (odd-numbered years) he'll have his visitation during Period B, alternating back and forth. The dividing point is always the same (December 28 at noon); the starting day and ending day depend on the school calendar each year in the district where the child lives. The effect of this is that the child spends Christmas day with a different parent each year.
7. On Father's Day weekend. The mother always gets the child on Mother's Day weekend.
8. On the child's birthday, for two hours (6:00 pm - 8:00 pm). If the child's birthday falls on one of Dad's days, MOM gets the child for two hours - she comes to Dad's house and picks up the child at 6:00 pm and brings him back two hours later.
Under the traditional setup, a weekend visitation is: Dad comes to Mom's house on Friday at 6:00 pm and picks up the child; Dad returns the child to Mom on the following Sunday at 6:00 pm (exactly 48 hours). Under the alternative setup ("expanded standard"), Dad picks up the child at school at 3:45 pm on Thursday and keeps him until Monday morning when he takes him to school at 8:15 am (a total of about 59 hours per weekend).
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Let's say you have Court-ordered access to your children via (a) temporary orders or (b) a final decree of divorce.
The law says that the provisions of a visitation order that require Mom to "surrender" the children to Dad at the beginning of each period of visitation are enforceable by contempt, just like the child-support part of the order. In actual practice, trying to get a Texas Judge to punish a mother who refuses visitation is somewhat difficult. I have actually seen a case (I was sitting in the courtroom) where a Judge put a mother in jail for refusing visitation (it was a female judge in Angelina County). It isn't right for mothers to get away with refusing visitation, but it's the way things often happen.
This doesn't mean that Dad has to roll over and play dead. The remedies available to him when Mom refuses visitation are:
1. file a motion for contempt and ask the Judge to put her in jail.
2. sue her in tort (for a money judgment) under provisions of Chapter 42 of the Family code. I once filed this kind of lawsuit, took it to a jury, and got a verdict in excess of $200,000.00.
3. if she has previously been to Court and has been found to be in violation of a visitation order in other words, this is her "second offense" you can ask the Judge to suspend her driver's license or any other license issued by the State of Texas [Texas Family Code §232.003(c)]
All three of these require Dad to hire a lawyer.
Mom's refusal to allow visitation is a felony in Texas, but you won't have any luck getting your local DA to accept criminal charges against your ex-wife. I know of only one case in Texas where a woman was arrested, fingerprinted, photographed, and booked for interference with a child custody order (it was in San Augustine County in 1989).
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You may qualify for legal aid. If you're in Dallas, you can call Legal Services of North Texas at (214) 748-1234. Or click HERE for the State Bar of Texas' legal help website. And the Dallas Bar Association offers free legal help HERE.
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YES. In fact, 97% of all divorce cases in Texas are settled without going to trial.
This is a misleading statistic, though. Many of those cases that are in the "settled without a trial" group started off hotly contested, with custody disputes or complicated questions about property. Pre-trial discovery was done, depositions were taken, experts were hired ... and two days before trial, an agreement was made. The case was a "cuss fight" right up to the day it settled. In other words, there may not be much difference between the "settled" case and the "gone to trial" case, in terms of how much work your lawyer has to do. Either way, I could up with a file that's 7" thick, and may send you an invoice every month.
The work that I do has two purposes: (1) to prepare for trial and (2) to push the other side toward settlement.
My philosophy is this: If I can get you what you're supposed to get WITHOUT a fight, it's better than me getting you what you're supposed to get AFTER a fight. In a "good" settlement, each party walks away believing that (1) he didn't quite get 100% of what he deserved, but (2) he didn't completely sell himself down the river.
The one time in your life when you can show true character is when you're dissolving a relationship that was supposed to have lasted your whole life. Go ahead ... be a little bit generous with your future ex-spouse. He (or she) wants the yellow chainsaw? Maybe you can just give it to him.
In other words, YOU tell ME what's important to you. You don't have to agree to ANYTHING. I'll always be looking for the possibility of settlement, but we won't agree to anything unless it's 100% okay with you.
And I'll probably advise you not to pay me $300.00 an hour to fight over lawn furniture.
If we do have to fight it out in Court, I know how to do that too. I've tried cases to Judges, and I've done 31 jury trials. Some cases simply can't be settled for instance, if you believe that your spouse is dangerous to your children. How can you "compromise" on the issue of your children's safety?
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The Texas Family Code [§153.131(b)] says that there is a rebuttable presumption that both parents should be appointed "joint managing conservators" [joint custody]. This is NOT what it sounds like. Joint custody does NOT mean that each parent gets the children half the time. Your decree will (almost certainly) have the children living with one parent, with the other parent getting visitation under a Standard Possession Order (and paying child support). In the past 30 years, I have seen only two divorce decrees that gave the parents 50-50 time with the children.
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|*||"Custody" is a word used by judges and lawyers alike, but it's really a colloquialism. The proper legal term (in Texas) is "conservatorship." The full proper term for the parent who has the children living with him in his home is "the conservator who has the exclusive right to determine the children's residence."|
The information on this website is not legal advice, and it may not be applicable to any specific set of facts ... especially your own personal situation. The perusal of this website by you does not establish an attorney-client relationship. You should consult an attorney for advice regarding your individual situation, and I invite you to contact me; I welcome your calls and emails. Contacting me does not create an attorney-client relationship. Please do not send any confidential information to me. I am an attorney licensed by the Supreme Court of Texas to practice law in all State courts and certain Federal courts, but I'm not board certified by the Texas Board of Legal Specialization.
A divorce decree from 71 CE