Dating while a divorce is pending is a common question. Can I date while going through a divorce? Is it OK to date someone even though the divorce is not final? Can I start dating if my spouse and I are separated but not yet divorced?
In Texas, there is no “legal separation” step in the divorce process. Just because you are living apart, will be living apart, have been living apart, does not mean you should start dating.
The best advice is to not date, at all, until the divorce is finished. Even if everyone “is on the same page” or “he/she knows the marriage is over so what’s the big deal?”
Dating while going through a divorce usually stirs up emotions. Emotional reactions/decisions in a divorce are usually the wrong ones. New parties start getting involved in the divorce and trying to influence the outcome. Parties may be agreeable when first separating, but when a new dating partner is thrown into the mix that sometimes changes a party’s priorities.
Dating while going through a divorce can also prolong the divorce process and complicate property divisions. Waste claims start appearing and tempers flare when new paramours are brought around children. That leads to other overly emotional behavior and poor decisions.
Do not start dating until after the divorce is finalized. Keep your focus on that process. Dating while divorcing usually leads to more trouble than it’s worth, in the end.
If a parent is trying to go back to court to change primary custody within a year of the last order they better have a good reason. When there is a Court Order that designates the primary residence for a child, and a parent wants to quickly go back to court to change who designates that primary residence, there is a high threshold to get into court if the modification is filed within 12 months of the last Order. This is to prevent a party from jumping back into court quickly after prior agreements or rulings and costing everyone more time and money. Sometimes these immediate modifications are done out of spite, so a law was created to sift out the harassing re-litigation but allow truly needed quick changes if new problems arise after the last Order.
In Texas, if a suit seeking to modify who has the exclusive right to designate the primary residence of a child within one year after the earlier of the date of the rendition of the order (when the Judge signed the Order) or when the parties signed their mediated settlement agreement, then an affidavit alleging certain facts must be included with the filing. See Texas Family Code 156.102
If a parent is wanting to swap who is the primary parent, i.e., where the child primarily lives, soon after the last Order/Agreement then they have to comply with this section of the Texas Family Code. The law says the parent wanting the change/modification of the primary residence designation must include in their filing an affidavit stating (1) the facts the parent believes show the child’s living with the other parent is endangering the child’s physical health or is significantly impairing the child’s emotional development; (2) that the other parent who has the right to designate the primary residence in the old Order agrees with the change in primary custody; OR (3) that the person who has the exclusive right to designate the primary residence has voluntarily relinquished the primary care and possession of the child for at least six months and the modification is in the child’s best interest. Tex. Fam. Code 156.102(b)
Failure to include an affidavit with these facts might result in the court denying to schedule the case for a hearing (or a party to object to the scheduling). Courts have dismissed cases after finding affidavits insufficient. The other parent can request a hearing on the sufficiency of the affidavit to meet these requirements. The affidavit is the focus of that hearing so it needs to meet the requirements of the statute.
What constitutes an environment that would endanger a child’s physical health or impair their emotional development? The easy answer is: physical abuse, usually shown with a parent or other household members getting arrested or CPS is involved; drug or alcohol use by the primary parent that is having a detrimental effect on the child (marijuana is still illegal in Texas and many Judges have a zero tolerance policy while others are more lenient. Best to consult local counsel who knows your Judge’s tendencies.); or significant emotional abuse that’s affecting the child to an extent where they’re suffering in school or showing sever signs of depression that can be tied back to that primary parent’s actions/inaction. Other situations might be enough, but they are fact dependent. You should consult a local attorney who can review these with you and give an opinion on sufficiency to meet the statute.
Keep in mind that the relevant facts need to have occurred AFTER the last Order/Agreement. This is not a chance to re-litigate a case on evidence/facts already considered.
When people call for the initial consultation they want to know what the usual steps are for a custody case, divorce case, or Modification/Enforcement case. This above flow chart is the best visual to show what comes first, what’s next,and what to expect. Some steps are optional and sometimes steps get repeated. It depends on the facts of your case and what is happening while the case progresses. A consultation with an attorney will give you a more precise projection of where your case will go.
Most Texas State Courts have been conducting virtual hearings since the COVID-19 pandemic began. In the Spring and Summer of 2020, Courts, Attorneys, and Litigants had a steep learning curve to get acclimated to virtual hearings.
Courts have continued with virtual hearings since the COVID-19 pandemic began, through 2020, and now through most of 2021. Most major cities in Texas have stayed virtual, while many medium and smaller cities have started transitioning back to in-person hearings. Most courthouses have continued working, in some form or another, throughout the pandemic. Once the vaccines were approved, and a critical amount was administered, courts felt comfortable transitioning back to in-person hearings. Some in-person hearings began occurring in the large and medium sized cities in the Summer of 2021.
As of the date of this post, the COVID-19 Delta variant has spiked cases and some courts are either going back to virtual hearings or slowing/stopping their expected transitions back to in-person hearings. Each county courthouse makes decisions on in-person vs virtual hearings with each Judge having authority over their own courtrooms for details of mask wearing (or not), physical barriers in the courtroom (or not), and other accommodations.
In Texas, the Texas Supreme Court has issued many Emergency Orders regarding the COVID-19 State of Disaster. This has guided the courts, attorneys, and litigants on what special, short-term changes have been approved for Texas State Courts.
As the pandemic continues to unfold, and new rules and recommendations are promulgated by the Federal, State, and Local governments, the status of virtual vs in-person hearings will continue to be in flux. Local attorneys in your jurisdiction, through the efforts of their local bar associations and courthouses, will know the status of your court and your hearing.
When child support is unpaid it builds up as an arrears. In Texas, the Attorney General’s child support division keeps track of these child support arrears and the past-due balance. This includes child support and any cash-medical-support owed for one parent paying the other for monthly health insurance costs.
In Texas, sometimes child support builds up because the custody schedule has changed and parents agree between themselves to start sharing custody or flip custody. When this happens they assume child support will automatically stop. This is not the case. You need a new court order changing the child support before anything will stop or change from the old order.
If you have this situation, where custody was changed but child support was not, you might be entitled to offsets on that child support that built up during the changed possession time. The credit is only available for those changed months and you only get a credit for the amount due under the old order, not the other parents theoretical child support they might’ve owed due to the change in custody. You need to go back to court if you want child support from the other parent following a custody switch.
Sec. 157.008. AFFIRMATIVE DEFENSE TO MOTION FOR ENFORCEMENT OF CHILD SUPPORT.
(a) An obligor may plead as an affirmative defense in whole or in part to a motion for enforcement of child support that the obligee voluntarily relinquished to the obligor actual possession and control of a child.
(b) The voluntary relinquishment must have been for a time period in excess of any court-ordered periods of possession of and access to the child and actual support must have been supplied by the obligor.
(d) An obligor who has provided actual support to the child during a time subject to an affirmative defense under this section may request reimbursement for that support as a counterclaim or offset against the claim of the obligee.
(e) An action against the obligee for support supplied to a child is limited to the amount of periodic payments previously ordered by the court.
This means that, as long as you file a claim putting everyone on notice that you will argue this in court, that the other parent agreed to the custody change (you didn’t just take off with the child(ren) over their objection), and you’ve supplied care for the children while with you. Proof can be school records showing the change of address, doctor bills or paperwork showing the new address, and care can be any type of financial support, i.e., food, clothing, shelter. This means the children have to actually live with you, not with another family member, friend, or on their own.
These claims and providing proof in the right way during a hearing can be tricky. It’s best to enlist the help of an attorney if this is a factor in your case.
In the next few months I will get the question, “I want to give our children the new COVID vaccine but the other parent won’t let me. Can I just give my kids the COVID vaccine without their father’s/mother’s consent?” Once vaccines roll out there is likely to be initial wariness about their safety and effectiveness until the full medical reviews are known. Concerned parents will want the experts to weigh in on the studies. They will want to know the consensus of the medical community on the various options.
If you have a Texas court order you should have specific rights and duties spelled out in the paperwork. In most Court papers those are in the first 5-10 pages. Look at your court orders to see what is specifically awarded to you and the other parent. If you have no court orders then the general law would apply.
Independent vs joint vs tiebreaker language
Texas Family Code 151.001 lists the usual rights and duties each parent is awarded. The one that would pertain this this question is the right to make invasive medical decisions. Court orders have this right spelled out specifically. Usually this right is an “independent” right, meaning the parent that has the child with them can make invasive medical decisions without the express consent of the other parent. They just have to inform the other parent afterwards. Sometimes the right to make invasive medical decisions must be “jointly” made by agreement of both parents. If this is how your Order reads then you must have the consent of the other parent. A more sophisticated Order will say these medical decisions must be jointly made, but if the parties cannot or will not agree then you follow the advice of the doctor. This would be “joint with tiebreaker” language. That would cover you if the doctor recommends something but the other parent will not consent.
If you are stuck and cannot get the other parent to agree then your option would be mediation or a court filing requesting the Judge give approval (or deny approval) for the vaccine. It will be a battle of the experts for the Judge to decide the best course of action. This could be an expensive and lengthy battle depending on your area’s court availability and the particulars of your case. It is best to consult with an attorney who is familiar with your local courts/judges and make a recommendation based on your specific facts.
The Texas Supreme Court has issued a new Emergency Order, number 26, on September 18, 2020. It goes into effect October 1 and extends many of the provisions of prior orders. These Orders must be followed by all courts in Texas until they expire or are modified by another Order.
“In determining a person’s right to possession of and access to a child under a court ordered possession schedule in a Suit Affecting the Patent-Child Relationship, the existing trial court order shall control in all instances. Possession of and access to a child shall not be affected by any shelter-in-place order or other other restricting movement issued by a government entity that arises from the pandemic. The original published school schedule shall also control, and possession and access shall not be affected by the school’s closure that arises from the pandemic. Nothing herein prevents parties from altering a possession schedule by agreement if allowed by their court order(s), or courts from modifying their orders on an emergency basis or otherwise…this Order expires December 1, 2020.”
This means that if you already have a court order in place then you need to follow that schedule. If your court order says visits start when “school begins” or when “school ends” then you need to follow the the published school schedule for when school starts and stops. Judges are undecided on those Fridays under an expended standard schedule. Should a non-primary parent have the ability to home-school at their house on the Friday instead of dropping off back to Primary parent’s house for the “school day” and picking back up from primary parent at the end of the “school day”? Your Order’s specific language is going to be key in this situation. Review it and see what says to make sure you are following it as best as possible.
Parents are strongly encouraged to cooperate and assist each other. The last lines of the Order says that. Judges in the central Texas counties have strongly stated that if one parent steps up and starts helping but then uses that as a reason for a future modification (or child support change) once COVID fears have subsided, the Judge will not look favorably on that parent. They want parents to help each other without fear of it being used against them later. For Example; if a Mom can’t stay home and has to go into work and Dad steps up and does the home schooling/virtual learning because his schedule can handle that, then Dad tries to later cancel child support or change custody based on the kids being with him every school day during the Fall, the Judge is not going to be impressed by that. This is an unprecedented pandemic and Judges are expecting parents to pitch in and help each other for the good of their children. We’re going to have to get to the other side of this and then take stock of what’s the new “normal” schedules for the kids before filing modifications.
Texas Family Code 3.401 – 3.410 deal with reimbursement claims. Reimbursement claims come up in Texas Divorces when a spouse owns property before marriage and still own it when the divorce happens. Yes, you can trace sold property into other purchases, but that’s a tracing issue and beyond the score of this article. The separate property owned before marriage is likely to stay “separate property” and so not divided as party of the Community Estate. However, the separate property may have been enriched by the community estate, and so, a spouse can ask for the separate property to repay the community estate.
The increase in the separate property is not a market value increase. It is only the difference in the secured debt attached to that property. The decrease in the value of the debt (reduction in principal) and increase in value any improvements (increase in market value to the property not out of pocket cost of improvements made).
DECREASE IN SECURED DEBT
How this usually plays out in a divorce is: a house owned prior to marriage, a few years go by, and now a divorce happens. Community funds were used to pay down the mortgage all those years. That’s a valid reimbursement claim, the reduction in the mortgage during marriage. That’s NOT the value of every mortgage payment! Mortgage payments are payments of principal, interest, and usually escrow/insurance all rolled into one. Reimbursement is JUST the different in the old mortgage amount at the time of marriage to what the balance is now, at the time of divorce. Vehicles owned before marriage, but paid down during the marriage, follow the same idea; value of loan at time of marriage vs. value of loan at time of divorce, difference is reimbursement claim.
INCREASE IN VALUE
Increases in the market value of the house are not considered in reimbursement claims unless the increase is based on improvements made (with community funds) during marriage. New pools, remodeled kitchens, large improvements, not paint and curtains. Even then, the reimbursement is based on how much the house’s value changed based on just the improvements. Usually an appraiser or realtor is called to give two values, one with the improvements and one if the improvements had not been done. That’s the number used for reimbursement claims not how much was actually spent in materials and labor on the projects. One person’s home makeover masterpiece is another person’s design fail. Beauty (value) is in the eye of the buyer.
Spouses can ask for offsets to reimbursement claims, but “use and enjoyment” is not an allowable offset if it relates to the primary or secondary residence. You can’t say a reimbursement claim is bogus because the spouse “would’ve been paying rent somewhere else so it should be even!” Family Code 3.402(c) forbids that.
Reimbursement claims are tricky, so it’s important to consult with a local attorney to know how to value the claims as well as how they ultimately affect division of the remaining community estate.
What happens to the visitation schedule when or if schools switch to a virtual learning schedule? Do children still follow the same schedule? Where do pickups and drop offs happen if not at school? Where would the child be if they’re not “in school?”
In most family law cases there is a court order the specifies the times and locations of pickups and drop offs. Texas cases have very detailed exchange days, times, and locations. If you have an existing court order, review it and make sure the answers are not already there.
Where the children will have virtual “school” time is not as clear. Some court orders provide that a parent’s time ends when they drop the child off for school in the morning, but the other parent’s time does not “start” until school is dismissed. Judges have not weighed in on whether the dropping off parent can keep the child at their house or if they need to go to the other parent’s house for “school” that day. Some parents may fight and want school only at one house. Others may not be able to work from home and so neither can have the young child alone at their house during school hours. Find a solution where school responsibilities are shared. Adjust the schedule as necessary to find the best fit as the schools and teachers work out the bugs in the system. Change is the only certainty. Expect modifications as the school year gets closer.
Parents are encouraged to think of creative solutions to their unique problems. Other family members, daycares, neighborhood resources/friends, all can be coordinated to assist those parents struggling to find coverage. The parent(s) who are solution oriented will avoid costly litigation and court. Do not think of it as you against the other parent. Think of it as both of you, as parents, against the problem. Solve it together.
Be fair, be equal, and work together. You don’t want the Judge, a stranger to your family and your children, at the courthouse deciding what’s best for your child(ren).
Over last week and weekend (May 8 – 15) the Texas Appellate Courts and Texas Supreme Court have been the target of a ransomware hack that disabled their systems. See article on Law.com
The Appellate Courts have setup a temporary site at www.txcourts.net to assist litigants and maintain functionality while they sort out the issue. The courts have assured the legal community that trial courts were not affected, just the appellate courts. The appellate courts and staff are continuing to work on cases and conduct court business while the IT staff handle the issue.