Family Law

 

Divorce (or dissolution of marriage) is the termination of a marital union, cancelling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties. The legal process of divorce may also involve issues of spousal support, child custody, child support, distribution of property and debt. Like every major life change, divorce can be a stressful experience. It affects finances, living arrangements, household jobs, schedules and more. If the family includes children, they may be deeply affected.

 

Effects of divorce on children

Okay, you may not have been good spouses or award winning partners. But you can still be fantastic parents and the divorce is where you start. Realize that you are stressed, possibly struggling financially and not great at masking your feelings on certain days. But you love your children and so does their other parent. A “good divorce” is the place to start making great parenting happen.

 

Studies show that children may often mistake the divorce of their parents as their own fault. Older children experience feelings of anger, grief, and embarrassment. Post-separation parenting is exceedingly difficult. You will have all of your own problems and emotions to deal with along with those of your children. And there is nothing worse, for most children, than for their parents to denigrate each other.

 

Although not the intention of most parents, putting children in the middle of conflict is particularly detrimental. Examples of this are: asking children to carry messages between parents, grilling children about the other parent’s activities, telling children the other parent does not love them, and putting the other parent down in front of the children. Poorly managed conflict between parents increases children’s risk of behavior problems, depression, substance abuse and dependence, poor social skills, and poor academic performance. Fortunately, there are approaches by which divorce professionals can help parents reduce conflict. Options include mediation, collaborative divorce, co-parent counseling, and parenting coordination. A professional divorce attorney is trained to help you with these issues and to connect you with services in your community that will enable you to deal with this Brave New World of Divorce. 

 

Collaborative divorce

Collaborative divorce is a method for divorcing couples to come to agreement on divorce issues. In a collaborative divorce, the parties negotiate an agreed resolution with the assistance of attorneys who are trained in the collaborative divorce process and in mediation, and often with the assistance of a neutral financial specialist and/or divorce coach. The parties are exposed to the processes of negotiation and communicating. They are empowered to make their own decisions based on their own needs and interests, but with complete information and full professional support.  The collaborative divorce is an excellent tool for learning cooperation, negotiation and agreement in a relationship that may never have had these qualities in the first place.  These new skills become indispensable skills in parenting in the post-divorce family.

 

Once the collaborative divorce starts, the lawyers are disqualified from representing the parties in a contested legal proceeding, should the collaborative law process end prematurely. Most attorneys who practice collaborative divorce claim that it can be more cost-effective than other divorce methods, e.g., going to court. Expense, they say, has to be looked at under the headings of financial and emotional. Also, the experience of working collaboratively tends to improve communication between the parties, particularly when collaborative coaches are involved, and the possibility of going back to court post-separation or divorce is minimized. In the course of the collaboration, should the parties not reach any agreements, any documents or information exchanged during the collaborative process cannot be used in court except by agreement between the parties.

 

Neither can any of the professional team retained in the course of the collaboration be brought to court. Essentially, they have the same protections as in mediation. The parties are in control of the time they are prepared to give their collaboration. Some people need a lot of time to complete, whereas others will reach solutions in a few meetings. Collaborative practitioners offer a tightly orchestrated model with meetings scheduled in advance every two weeks, and the range of items to be discussed apportioned in advance of signing up as well as the more open ended process, the clients decide.

 

Arbitration

There is a process where by an Arbitrator acts as judge.  It is usually less expensive but rarely used in Texas as the decision is final and cannot be appealed.

 

Mediated divorce

Divorce mediation is an alternative to traditional divorce litigation. In a divorce mediation session, a mediator facilitates the discussion between the two parties by assisting with communication and providing information and suggestions to help resolve differences. Mediation sessions can include either party’s attorneys, a neutral attorney, or an attorney-mediator who can inform both parties of their legal rights, but does not provide advice to either, or can be conducted with the assistance of a facilitative or transformative mediator without attorneys present at all. Divorce mediators may be attorneys who have experience in divorce cases, or they may be professional mediators who are not attorneys, but who have training specifically in the area of family court matters. Divorce mediation can be significantly less costly, both financially and emotionally, than litigation. The adherence rate to mediated agreements is much higher than that of adherence to court orders.

 

Rights of spouses to custody of children

Child custody policies include several guidelines that determine with whom the child lives following divorce, how time is divided in joint custody situations, and visitation rights. The most frequently applied custody guideline is the ‘‘best interests of the child’’ standard, which takes into account the parents’ preferences, the child’s preferences, the interactions between parents and children, children’s adjustment, and all family members’ mental and physical health.

 

Unless, you have clear and convincing proof of wrong doing you and your former spouse will be sharing custody of your children.  It is up to you to make the Divorce a learning experience.  Ask questions of your attorney and all those you come in contact with regarding positive parenting practices. 

 

Suit Affecting Parent-Child Relationship

In Texas, when court orders need to be entered to address the needs of a child, the law suit is called a Suit Affecting the Parent-Child Relationship or (“SAPCR”). This occurs when the parents of a child have been co-habitating or not and wish to dissolve their relationship.  The responsibilities for and the needs of the child/children of the relationship have to be addressed, just as though their parents were married.  

 

A SAPCR can be used when there is no possibility of a common law marriage or when there is doubt as to the paternity of the child/children. It deals with the same issues of a divorce such as custody, how decisions will be made for their child, how visitation will be addressed, whether or not the child’s residence will be subject to a geographic restriction, who will pay child support and how much, and how medical support will be provided for the child.

 

Who can file a SAPCR?

  • You are the child's parent, guardian, conservator, or legal representative.
  • You are the child's alleged father.
  • You had physical custody of the child for at least six months.
  • You have lived with the child and the child's parent, guardian, or conservator for at least six months and the child's parent, guardian, or conservator has died.
  • You are the child's foster parent.
  • You are the child's close relative and the child's parents have died.
  • You are the child's prospective adoptive parent.

 

Timeline for Family Court Actions

Understand that this timeline is based on your not with-holding or providing false information to your attorney. It is also affected by holidays and/or problems which arise from weather or civil crisis. But is does give you an idea of the events and the manner in which they will happen.

  1. File the petition or request for relief- Your attorney will draft a petition asking for relief on the immediate issues, takes it to courthouse and pays a filing fee. The first person to file is called the Petitioner and person who files second, is named the Respondent.  Strategically, the Petitioner gets to go first in hearings and is the one with primary pleadings on file.

For Divorce- 61 days later, if the other side has been properly served, you can finalize if the other party does not respond or enters into an Agreed Final Decree of Divorce.

For Suit Affecting Parent-Child Relationship- The Monday after 20 days have passed since service of opposing party, you can finalize.

 

  1. Serve the petition upon the other party- 20 days to answer; You will need a valid address to serve the other party or a Waiver of Citation. If you have a Waiver, meaning the other party does not contest the divorce/SAPCR then you can proceed without having to pay a third party to serve the other side. Once the other party has either been served by a constable or process server or signed a Waiver of Service, then they have entered a general appearance in the matter. This ensures due process, meaning the opposing party has notice and knowledge of what you are asking the court to do.


If you are the one receiving the Citation it will tell you that “if you or your attorney do not file a written answer with the clerk who issued this citation by 10 o’clock a.m. on the Monday next following the expiration of twenty (20) days after you were served this citation and petition, a default judgment may be taken against you.” 

 

  1. Temporary Orders- 2-3 weeks after you have filed and have the other party served in either a Divorce or Suit Affecting Parent-Child Relationship or Modification, the Court will set Temporary Orders. The following are the issues addressed at Temporary Orders’ hearings by the judge:


Child Support/How much and who pays - This is a formula pursuant to the guidelines in the Texas Family Code. This is a formula established by law so adjust your expectations accordingly.


Access- “visitation” – Visitation is also established by law so you must adjust your expectations on this issue as well.  Standard visitation is first, third and fifth weekends and Thursday evenings from 6:00 p.m.-8:00 p.m. and alternating holidays. If the other side has committed family violence, child abuse/neglect, or has an underlying drug/alcohol problem, then supervised access is recommended. Children under the age of three (3) years are given special consideration and “standard” often does not apply.

 

Parenting/ Conservatorship - Conservatorship refers to duties and rights of the parents/parties are established; one is either Joint Managing Conservator or Sole Managing Conservator; The default is Joint Managing Conservator, which is essential equal rights and duties. However, if there has been family violence, child abuse or neglect, the presumption is that the other party who has not engaged in those behaviors is the Sole Managing Conservator

 

Temporary Spousal Support - Only in divorce, and only under specific conditions. The Court looks to factors such as the disparity of income of the parities, placement of the children with the requesting parent, and household expenses to determine an amount for a set period of time that is quantified as “spousal support” until the final divorce.

 

Drug/Alcohol Testing - The party that asks for the test pays for the test. If there is a question of the other spouse’s addiction to drugs or alcohol, your attorney will request testing at the first hearing. Beware: don’t live in a glass house. You may be asked to test, so tell your attorney the whole truth- even if it is not pretty.
 

Mediation- You can mediate any issue or the entire case. See mediation for explanation. It can cost between $100 per half-day and $1000 per half-day; each service establishes their own rates.
 

Final Trial- Trials happen according to the Court’s calendar. Some jurisdictions in Texas require a pre-trial in order to obtain a trial setting; and in some cases where there is a great deal of contention or unresolved issues you may be required to attend mediation before obtaining a final trial setting.

 

Top ten things to say to your attorney at once: Yes, you are embarrassed; but you will be less embarrassed telling him in the privacy of his office then you will be when the bombshell goes off in court.  If the issue is bad and the other party knows it, they will use it.  Telling your attorney in advance gives him the chance to; keep it out of court or to diminish it in some manner.  For example a drug conviction when you were young can be mentioned up front and a clean and productive record since can be promoted.  This is preferable to the other side introducing it and your attorney has no balancing information at the ready.

 

1. What is the worst thing that somebody would say about you, even if it weren’t true?

2. Do you have any friends in common with the other party? Would they testify against you?

3. Do you have a criminal record?

4. Have you ever been treated for mental illness, addiction or placed in a treatment center for mental health issues?

5. Have you ever had another lawyer for this case? If so, why are you sitting in this office? Have there been any other filings on this matter?

6. Do you have a CPS history?

7. Do you have any other children that either a) don’t live with you and/or b) you are not financially supporting?

8. Have you ever been involved in other litigation? What was the result?

9. Are you telling the truth?

10. Have you forgotten to tell me anything that would be integral in representing you or understanding who you are?


What you need to file for Divorce/SAPCR

There is great importance to obtaining key documents while they are still accessible.  Meaning while you are in early stages of the marital dissolution you can still get the Social Security or Driver’s License number of your spouse.  Information he/she might well not want to part with so amicably after the separation.  Below is a checklist of documents/information that will help us to file a true and correct Divorce/SAPCR for you.

  • Real estate, deed copies and/or appraisals
  • Pension plans: Name of administrative company and account numbers
  • Retirement funds: Name of administrative company and account numbers
  • Stock options
  • Personal property
  • Any pre-nups that were signed by either party
  • Any police or arrest records: on either party
  • Cell numbers and contact information on the other party.  If our office has to look for them it will increase your costs.

 

Contact Us

Law Office of Kenneth Newell, PLLC


3420 Roberts Cut Off Rd
Fort Worth, Texas 76114


Phone: (682) 708-3494

E-mail: kenneth@kennethnewell.com

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