Category: Family Law

What is Mediation?

Posted on by Partney Law

In Texas, Mediation is a formal meeting, with all parties and attorneys, where everyone tries to reach an agreement to settle the case. In Mediation, unique and creative solutions can be explored and, if an agreement is reached, then it will be binding (non-revocable) on all parties and finalize the disputes.

Mediation is commonly used in Texas court cases, especially in Divorces and Custody cases. Texas Family Code 6.602 provides that, on a party’s Motion or the court’s own motion, the case can be referred to mediation. If a settlement agreement is signed by all parties and attorneys then it is binding on all parties. This means that the agreement cannot be revoked, changed, set aside, or modified. The only instances of Judges not rendering an Order on a valid Mediated Settlement Agreement are when there are child-safety concerns not adequately addressed in the agreement, or if there is a detail not addressed in the settlement that the Judge needs to clarify. The usual example is when some criminal activity, arrests, or apparent drug/alcohol issues present themselves AFTER the settlement agreement and those issues change the landscape of the case drastically. Vague language in an agreement is subject to interpretation and so it’s importation to be thorough and specific in your mediation settlement details.

Mediation is commonly held via Zoom, Microsoft Teams, Google Meets, or similar virtual platform. In-person mediation session can be scheduled, but it will depend on the mediator. If a party wants to sit with their attorney and log-in together, this is a popular option for clients who want to be in-person with their attorney but not necessarily with the mediator.

Mediation is a private and confidential process. Many mediators do not allow third parties (other family or friends) to participate in the mediation process unless all parties agree in advance. Any discussions had at mediation are confidential and cannot be brought up in court later. Mediators cannot be subpoenaed to testify in court nor can their records be subpoenaed/disclosed to the Judge. The purpose of this confidential process is to allow parties to communicate settlement ideas freely without fear of future repercussions or damaging their position in court. During mediation parties are not usually in the same room or same virtual screen. It is the mediator’s job to be the messenger and communicate settlement offers back and forth between the parties, to minimize interactions and reduce conflict/stress.

Mediation is typically a cost that is split between the parities. Some mediators offer flat fees for a half-day or full-day session. Those costs vary from a few hundred dollars per party to over a thousand dollars. Cost depends on the experience of the mediator, length of the session, and location of the case/mediator. Some mediators offer an hourly rate and, if negotiations are quick, that can save on costs. It is important to choose a mediator who has experience in your type of case. They will be more familiar with the law, the local courts/judges, and what’s typical for similar cases in your area.

It is important to speak to an attorney before attending mediation so you can know more about the process, what to expect, and settlement possibilities for your specific case facts.

Can you Enforce a Temporary Order?

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Is it possible to Enforce a Temporary Order while a divorce is pending, or a custody case is pending? Sometimes, as part of the court process for divorces or custody cases, a Temporary Order hearing is held. A Temporary Order hearing will usually address short-term fixes for issues that cannot wait for a final hearing. Custody issues, child support changes, access to financial accounts in a divorce, use of a house or other property while a divorce case is pending, all are usual topics for Temporary Orders.

Once a Judge makes a ruling in Temporary Orders, those Orders are Enforceable by contempt. See Texas Family Code Sec. 157.001 The Enforcement should be filed in the same court that issues the Order (the court of continuing jurisdiction). Temporary Orders also include Temporary Restraining Orders, local Standing Order violations, Injunction violations, and any other Temporary Order rendered (ordered) by the Court.

If a party is violating the court’s Order, a party will need to quote the language you feel is at issue and then describe how the other party is violating (breaking) the court’s order. A common example is child support non-payments. If a party was ordered to pay a certain amount per month and is not paying as ordered then you quote the child support order language and the fact that payments have not been made for X number of month(s) and the total amount unpaid (arrearages). Same pattern for any other violations. If future violations are expected you can mention that and so include similar future violations for the Judge’s consideration when the hearing is held. The party on the receiving end of an Enforcement may file defenses to an Enforcement, but evidence must be submitted supporting those defenses. Child support defenses (excuses for nonpayment) are very specific and require them to be filed in a pleading before the hearing. See Texas Family Code Sec. 157.008.

If you need an Enforcement of a Court Order, or Defense against a court order, it’s important to consult with a local attorney who knows the law, the local Judges, and can give you good advice on your specific issues.

Can I date someone during my divorce?

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Posted on by Partney Law

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.

Changing child’s primary residence within one year of prior Order

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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.

Visitation and Custody with COVID/Corona concerns

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Parents sharing custody have questions about how Corona Virus/COVID-19 affects their possession and access (custody) order. If there is a shelter-in-place order do the child(ren) still have to go with the other parent or should they stay in one parent’s house? If a school district “extends” spring break, or cancels the school year and now deems it “Summer break” for the students, does that mean a parent’s spring break holiday possession is also extended?

Shelter in place orders being issued by the larger Cities and Counties should not be used to deny custody to one parent. The Texas Supreme Court has issued an Opinion , their seventh opinion during the Corona/Covid crisis, specifically saying any shelter in place order shall not affect a Court-Order possession and access schedule. Parents are free to alter the possession schedule of both parents are in agreement.

Extensions of Spring Break, or cancellation of the school year, by a school district shall not mean a parent who has possession over the holiday then has an extended possession time with the children. Parents should continue to follow the same schedule as before. The Texas Supreme Court has issued a Opinion, their second opinion during the Corona/Covid crisis, specifically saying the school’s original published school schedule shall control. Possession and access shall not be affected by the school’s closure or change in holiday schedule due to the COVID-19 pandemic. Parents are still free to agree to an alternative schedule.

In short, do not deny a parent their time with the children using any COVID-19 or Corona panic. Do not deny a parent their time with the children because of a convenient school schedule change. Follow the same schedule as before. Naturally, on a case-by-case basis, if a confirmed COVID diagnosis has occurred in one parent’s house then denial of custody may be warranted. Fear of “possible” exposure or one parents perception of the other parent’s poor social distancing standards is not enough.

Emergency Motions can be filed requesting changes to the custody schedule, but extreme caution should be taken as Courts have limited availability during this time period. A consultation with a local family law attorney in your area will help you make the determination on whether a visitation schedule change may be warranted in your case.

Stalking and Harassment in Custody/Divorce cases

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What constitutes Stalking and/or Harassment in divorce or custody cases? Stalking and Harassment are both criminal acts, defined in the Texas Penal Code sections 42.07 and 42.072. B

Stalking is defined as when a person, on more than one occasion, knowingly engages in conduct that they know the other party will regard as threatening injury to the person or a member of their family, household, pets, or property. A reasonable person standard is applied, meaning that a reasonable person would need to feel harassed, annoyed, alarmed, embarrassed, or offended.

Harassment is defined as when a person, with the intent to harass, annoy, alarm, torment, or embarrass another, they: made obscene comments; threats of violence; give false details to another of the party’s serious injury; repeated calls/texts/messages that are harassing or annoying; or directs others to repeatedly call/text/message in a harassing or annoying manner. Intent of the perpetrator is the focus, and it can be inferred from their actions alone.

Note: Courts have found social media posts, even though not addressed directly at the other party, to be sufficient to violate these statutes.

Engaging in these activities is usually enough to warrant a police report, possible criminal punishments, and/or protective orders. Those who feel they might be receiving such communications should first warn the offending party that you will report their actions to police. If that does not end the harassing behavior then police, County Attorney’s office, or other law enforcement should be contacted to file a report. These crimes are some of the harder ones to prosecute, so unfortunately it takes a lot or actions that are particularly egregious to warrant more than a report being taken. Document as much as possible, and report as much as possible so the activities will eventually be seen as going to far with local law enforcement. A private Protective Order can also be requested through a private attorney if you feel law enforcement officers are not handling the problem. A Judge may feel a Protective Order is justified, and if that is violated much harsher punishments are levied against the perpetrator.

Does child support have to go through the attorney general?

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A lot of clients and potential clients do not want to send child support through the attorney general’s office. The reasons vary from personal preference, wariness of government oversight, and a desire to maintain control over child support payments going to the other parent.

In Texas, child support must be paid through the Attorney General’s State Disbursement Unit. See Texas Family Code 154.003. A Judge must require the child support to be paid in this manner. Withholding orders taking the funds directly from a paycheck is also required. Depending on the Judge in your case, they may allow parties to agree to no formal “child support” but instead for the parties to share specific child related costs, i.e., daycare, after school care, or extracurricular activities. Some Judges have a distrust of such arrangements. Oversight is less stringent and proof of payment, or lack of payment, is much harder. This is especially true if the parent who would be paying child support is a high earner and the one receiving is a low earner. Such requests make the Judge suspect one side is just trying to get out of paying child support and taking advantage of the lower earning spouse.

Paying child support through the attorney general allows them to track the payments coming in, calculate past-due amounts, and track interest on the past-due amounts. It makes enforcements much easier to have a quick reference for how much is actually owed or not owed. Having formal child support also allows the funds to be automatically withheld from a paycheck through a withholding order, which solves a lot of non-payment problems.

In short, guideline child support is required to be cycled through the Attorney General’s child support office. There are ways around it, but Judges are wary of such games for fear that the custodial parent might be being taken advantage of by the more dominant parent.

Holiday Visitation; When it begins and ends

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I receive many calls when the Holiday season arrives. There is usually confusion when a parent’s holiday visitation starts and ends. Does it start on the day of the Holiday, the day before, the weekend before, the Monday before? There’s no end to the interpretations I hear.

In Texas, the custody and possession orders will define “school” to be the actual campus where the child attends for education. If the child is not of typical school age, i.e., Pre-K or younger, then the visitation schedule follows the holiday calendar of the local school district where the child resides.

Daycare schedules DO NOT dictate the holiday visitation schedule. Yes, a parent can use the daycare while they are at work, but pickups and drop offs would be at the discretion of the parent who has the child with them over the holiday. Most daycares do not have the same attendance requirements as schools.

It is important to check your specific Order and make sure of the terms used. If a holiday starts “when school is dismissed” for the holiday and the holiday ends “at 6:00pm the evening before school resumes,” then you check the school’s calendar to see when school lets out for the holiday and when it resumes. If school lets out on Friday and the following week is a holiday then that’s when the holiday visitation starts, when school is dismissed on Friday, not the following Monday. If school resumes on a Tuesday after the holiday then the holiday visit ends Monday evening.

It is important to review your Court Order, find the holiday visitation section, then review the school calendar for where the child(ren) attend school. Those give you all the information you need to determine you holiday visitation beginnings and ends.

De Novo Hearings from Associate Judge’s Court

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When you have a hearing in front of an Attorney General Judge that’s usually an “Associate Judge.” That’s a Judge who’s been hired by the local County to perform certain tasks to free up the main Court’s schedules for other types of cases. In larger Counties they may have multiple Associate Judges handling a variety of things from Attorney General cases, Protective Orders, or daily short matters like agreements or quick hearings like Temporary Orders.

When you have a hearing it’s important for you to find out whether your Judge was an Associate Judge or one of the usual, elected, County or District Judges. If it was an Associate Judge, and you get a bad outcome, you do have options for another hearing, but you need to act quickly.

In Texas, Family Code 201.1042 and 201.015 layout what steps you should take and the deadlines to take them.

You have “three working days” i.e., business days, to file a “de novo” hearing request. This is your request to have a do-over hearing on the same topics in front of the main Court and not the Associate Judge’s court. You have to file a specific Notice with the clerk and forward a copy of the filing to the other parties (and attorney general if they are involved). The request must specify the issue that will be presented to the referring court. This means the topics you think the Associate Judge got wrong any why. It doesn’t need to be a full scholarly legal article, just a general outline of what went wrong (in your mind) and what the Judge missed, like evidence that was excluded or you feel wasn’t given the proper weight in making the decisions.

Once the Notice is filed the referring court then has 30 days to hold the do novo hearing. This last step is usually where most unrepresented parties fail. It’s up to the party filing the request to get that hearing scheduled (don’t forget to coordinate the setting with the other parties) and get it properly setup.

Check your local rules in whatever County you’re in to make sure you set the hearing and give proper notice to everyone to make sure when you show up you are ready to go forward on the hearing. Don’t forget, this is a brand new hearing so be ready to start from the top and go through it all again with evidence, testimony, witness, etc.

Hiring an experienced local attorney will greatly help you through this process. If you tried to represent yourself the first time and things didn’t go well, it would be a good idea for you to hire someone to represent you and put your best case forward at the de novo rehearing.

Child Support Guidelines Going Up for High Income Earners

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In Texas, Child Support is based on the paying parent’s income. There is a maximum amount of child support that’s presumed to be in the child’s best interests under the Texas Family Code. This “maximum child support” under the guidelines is presumed the highest child support allowed, absent unique medical other other circumstances.

The Attorney General’s office is tasked with analyzing inflation rates every six years and calculating maximum guideline child support numbers. The next maximum child support increase is coming September 1, 2019. See this recent announcement of the income increase posted in the Texas Register by the Attorney General.

The maximum net resources before this increase is $8,550. That’s the maximum monthly net “income” a court should consider when calculating guideline child support. That means that maximum child support for one child, at the 20% rate for one child before the court and no other children for the payor, would be $1,710 per month. Health Insurance is separate and in addition to child support payments. See Texas Family Code 154.125. The more children in a case the higher the percentage grows, by 5% per child.

The new maximum net income amount will go up from $8,550 to $9,200 per month starting with all child support cases decided after September 1, 2019. The new maximum amount for one child, 20% of this new maximum net income number, would be $1,840 per month. That’s an increase of $130 per month!

This means that for those high income earners, i.e., anyone making over $12,100 each month will likely pay more if their child support case is decided after September 1, 2019.

Anyone with an old child support order containing the old “max child support” may be entitled to an increase. Check your old Orders and consult a local child support attorney to see if the cost of returning to court warrant a modification case.

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