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.
If the parties don't agree,
child custody
can be a jury issue. The jury fee in Texas is $30.00. 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.
[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).
Section 153.008 of the Family Code says that in a pending matter
where conservatorship (custody) is to be decided, a child age 12 or older may tell the Court which parent he prefers to live with, by filing a "writing" with the Court. The child's choice is not binding on the Court (or the jury); technically, there is no age at which a child can "choose which parent he's going to live with." However, in cases involving a 16- or 17-year old, the Judge will usually go along with the "child's" wishes, unless there's a strong reason not to do so.
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.
Child Support
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 that 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 $7,500.00 of your net monthly income, if you're fortunate enough to be earning more than that.
How Soon Can I Get Remarried After the Divorce?
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 remarry 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.
What Happens If I Don't Pay Child Support?
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 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.
What Kind of Visitation Will I Get?
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. 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.
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 unitl Monday morning when he takes him to school at 8:15 am (a total of about 59 hours).
What Happens If She Won't Let Me See the Children?
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 almost impossible. 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
§§42.001 et seq. 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.
I Don't Have Any Money for a Lawyer
You may qualify for legal aid. If you're in Dallas, you can call Legal Aid of Northwest Texas at (214) 744-5277 or (888) 529-5277.
Or click HERE for the State Bar of Texas' legal help website. And the Dallas Bar Association offers free legal help
HERE.
Is it Possible to Have a "Friendly" Divorce?
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 I have 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 $250.00 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 28 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?
Joint Custody
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 22 years, I have seen only two divorce decrees that gave the parents 50-50 time with the children.
Eight Tips for Surviving Your Divorce
1. Try to think in terms of resolution, not revenge.
2. Don't confuse what's best for the children with what satisfies your anger. Years from now, your children will get married, and will have children of their own; your ex-spouse will be a part of their lives (and your life) for the rest of your life.
3. If at all possible, keep your divorce uncontested
(Romans 12:18).
4. If you go to mediation (formal or informal), participate in good faith. Be as generous with your spouse as you can stand to be. If you make an agreement with your spouse, you may end up with less than you deserve, but you maintain a high degree of control over the outcome. If you make the judge divide your property, he can do it any way he wants to, and he might make a decision that you really hate. And it doesn't make sense for you to pay me $250.00 an hour so that you can get your fair half of the power tools you bought eight years ago.
5. On the other hand, you don't have to agree to anything.
6. If mediation fails, get ready for trial, and start reaching for your checkbook. Litigation is time-consuming for me, and therefore expensive for you.
7. Early on, start gathering up paperwork such as real estate closing documents, paycheck stubs, old income tax returns, and IRA/401k/retirement fund statements.
8. Be truthful with me.
|
*
|
"Custody" is a word used by judges and lawyers alike, but it's really a colloquialism. The proper legal term (in Texas) is "conservatorship."
|
Disclaimer (the fine print)
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 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.
|