Many people do not know the power of Certified Mail. If you need to prove that someone actually received a letter, package, or document, then this method is the best way to confirm that. It will cost about $6.00 to send a regular sized envelope through the U.S. Postal Service. Your local post office can help you find the right stickers that you need to place on the envelope. See USPS.com for more details on Certified Mail.
Why do you need to send something Certified Mail, Return Receipt Requested? Because when a Judges asks you whether the other side got “Notice” of a hearing setting this is the sure-fire way to prove that someone did receive your letter with the notice inside. The return receipt card comes back in the mail with the recipient’s signature on the card. If you are lucky, it is the signature of the same person you were trying to reach and not a secretary, assistant, or spouse. However, even that might be enough to show the Judge that it did get there. Make sure to save a copy of the letter that was in the envelope so you can show everything to the Judge to prove not only that you sent something but also what you actually sent.
The Texas State Board of Education has new standards for the TEKS (Texas Essential Knowledge and Skills) test relating to social studies curriculum. The additions to the State’s government and history curriculum include knowledge of certain landmark court cases. Middle and High School students are now required to analyze them and be tested on their main points.
The State Bar of Texas has made a website to assist teachers and educators in their efforts with this civics portion of the TEKS test. The website contains interactive components, case summaries, curriculum materials, videos, and other multimedia materials. You can visit http://www.texasbar.com/civics/index.html for more information. They have videos and interactive portions as well as printed materials. The materials are divided into middle and high school classifications to keep things accessible, approachable, and easy for all levels of students and educators.
Our State Bar President, Bob Black, has led this civics educational initiative. “Civics Education is critical to fostering engaged citizens who understand our democracy and the liberties the rule of law protects,” Black has said in the October 2011 Bar Journal. The cases will expose students to very important events in American history. Some of the videos available include introductions from Retired Supreme Court Justice Sandra Day O’Connor and the Texas Supreme Court Justice Wallace B. Jefferson.
The best advice for someone, attorney or not, when going for a final divorce hearing is this: make a list of all the property you want the Court to divide. I suggest hiring an attorney who can help you with your divorce, regardless of how many assets or debts you have. But if you want to go it alone then preparation and organization are your best tools.
I see people make the mistake of assuming the Judge knows everything about their case down to the last nickel. If you have your case together and are well prepared then the Court will give you more weight (believability) on other issues, like which person is better suited to keep the house or establish where the children live.
Travis County and Williamson County divorce courts have what’s called “local rules” addressing the topic of what lists to create and bring to a final hearing. In both counties everyone is required to bring in a list of all the property and what each party’s preference is on how to divide everything. In most cases, you MUST give this list to the other side a couple weeks before the final hearing. My advice is, if you forget to do this, at least bring a list with you to the hearing. Something is better than nothing and the Judge might take pity on you and allow that list to be discussed. Judges want YOU to create this list because it speeds things up and keeps everyone on topic. You should check the local rules for your county and see if there is a similar requirement in your case. Even if there is not something firm on the subject, you should still make a list and pass it around. It is good for everyone to be on the same page and you want to establish that it is YOUR page everyone should be on.
Regarding the list itself, you should include all debts, like mortgages, loans, and credit cards, as well as all assets, like the house, cars, bank accounts, investments, and other large pieces of property. If you want to list out the entire contents of your house, go right ahead, but do not expect the Judge to divide every fork and footstool. I would suggest at least naming the big items of furniture like couches, tables, bedroom furnishings, TVs, computers, tools, and collectibles. Once you have a working list of all these items, put down how much each is worth and any debts attached to them. For example, if your car is worth $10,000 and you have a loan on it with a balance of $3,000 then your car has equity of $7,000. Put down both the value and the debt so everyone is aware of both amounts.
Making this type of list will impress the Judge hearing your case and make him or her more inclined to see things your way. This is not to say that all the other problems in your case will go away with you drafting this list, but it is one step that puts you in the good graces of the Judge. A happy Judge is more likely to rule in your favor and a list makes it very easy for them to do that.
The most common question I am asked is whether past due child support can be taken off someone’s account with the Texas Attorney General. The answer is, sometimes you can.
Many parents fall behind on child support payments and then have a hard time catching back up. Those unpaid amounts sit as a negative in the account and slowly gather interest. If payments are not made for long periods of time then the outstanding balance can be quite substantial. The Texas Attorney General’s office will eventually come knocking for its money if it can’t collect it through income tax refund withholding or other means.
To reduce the amount of past due child support you need the agreement of three persons: (1) the other parent to whom the child support is owed. It is important to note that if the other parent is unwilling to waive the back owed support there are only limited ways to reduce the arrears; (2) the Attorney General working the case; and (3) the Judge signing off on everything. If the other parent agrees to waive his/her portion of the outstanding fees then an attorney general may go along with this decision. The other parent can agree to take away parts of the outstanding balance or wipe away all of it. It’s their decision since it’s technically money owed to them, which they have the authority to decline. The attorney general attending to the case can then draw the paperwork up for all the parties and mention a reduction in the past-due balance. If the Judge follows this agreement made by everyone then the amounts will be taken out of their computer system.
Keep in mind that in many cases the principal AND interest owed to the parent can be waived, however, there are medical costs that usually cannot be waived. These are debts owed to the state and they typically never agree to reduce these amounts.
If you are going to a court hearing for an Attorney General Child Support case, you need to be careful what you agree to and what you sign away. The right moves can result in a very favorable case for the parent who has a substantial past-due child support amount.
This question comes up a lot in Change of Custodyor Divorce cases, not just in in Austin Divorce cases and Georgetown Divorce cases, but also in many Texas Divorce and custody cases. The Texas Family Code, Section 153.009 is the law dealing with this question.
Many children express a desire to live with one particular parent over the other. This is common during the divorce process as well as down the line after the divorce has been completed for some time.
The old law used to allow a child over the age of 12 to sign a waiver designating which parent they wanted to live with. The law was recently changed to allow the Judge to interview the child in chambers to take their opinion in to account. This is only available where you have asked for the Judge to make a final decision in your case. If you have asked for a jury trial this interview is not an option.
If your child is over 12 years old then the court shall interview them upon application. However, if your child is less than 12 years old then it’s up to the Judge as to whether they want to interview your child.
In order for your child to speak to the Judge a request should be made with the Court. Any parent may make the request, but it is strongly advisable to file the request and then speak to the Judge to setup a time for the child to come meet with the Judge. The Judge is free to discuss issues regarding possession, access, and any other issues affecting the parent-child relationship. Do not bring your child to the courthouse when you are filing the application and expect to immediately be seen by the Judge. The attorneys can be present during the interview, at the discretion of the Judge. However, if you request that a record of the interview be made by the court reporter, then it must be made and be included as part of the case record.
Keep in mind that the Judge is not required to follow the child’s wishes, if they determine it is not in their best interests.
Texas Family Code Section 153.254 was changed in the 2011 legislative session. Please note that the link is to the old law. The new language goes into effect September 1, 2011 but will not be posted until the website updates. The new language has been published elsewhere but the changes might not be well-known yet.
Under the old language a Judge was authorized to “render an order appropriate under the circumstances” for children under three years of age and to make provisions for possession and access once the child turned three.
Under the new language the Judge can consider many relevant factors including caregiving provided before the suit, effect of separation on the child; availability of either party as caregivers, needs of the child, impact on others who will be present during periods of visitation, the need for continuity of routine, the need for the child to develop healthy attachments to both parents, location and proximity of the residences of all parties, and to provide for incremental shifts in visitation to match standard visitation schedules.
These factors should provide Courts in Austin, Georgetown, San Marcos, and all other Texas counties with a new reason to grant equal access to both parents. All Divorce or Custody suits filed in Texas after this September 1, 2011 date will be able to utilize these new expanded factors. Being a divorce lawyer, these new factors will provide welcome relief to parents going through a difficult divorce and custody battle with a young child involved. Families with older children will keep stronger ties with their younger siblings. In much the same respect, Grandparents and other caregivers also stand to benefit under the new law. Courts have been hesitant in awarding equal time to a parent who might have been out of the house more during the first years of the child’s life but who also contributed just as much time and affection in the after-hours portions of their day. This will prevent a parent from losing out on visitation just because their schedules are not conducive to the intricate and demanding schedules of younger children. Courts can point to this new law as a progressive benchmark in giving visitation schedules that match the shared duties of modern parents, which are in stark contract to domestic notions of prior years.
The real-world details of your case should be described to the Court as they fit within these new factors. A Court should be able to apply these to your case and maintain a level of contact for each parent that’s in keeping with this new law. I hope this new law offers the stability and calm necessary to protect the interests of young children and make sure no parent is left out of important initial phases of the child’s development. Equality for all now has a firmer footing in Texas Divorce cases.
Jason Partney has received the distinction of “Rising Star” from Texas Super Lawyers Magazine for the third year in a row! Only 2.5% of lawyers in Texas achieve this honor. To be eligible for inclusion in Rising Stars, a candidate must be nominated and younger than 40 years old or in practice for 10 years or less. While up to 5% of lawyers in a state are names to the Super Lawyers list, no more than 2.5% are named to Rising Stars. Congrats to Jason and Katie at Partney Law for receiving recognition for their great work for their clients!
Many people come to me with large amounts of past-due child support. The interest alone can represent a large portion of their amount owed. I have seen lots of people go to jail due to their failure to pay child support. In most cases, the non-paying parent has paid nothing for months or years and now their past payment history (or lack thereof) is being used against them to show their true character.
Many people assume that if they don’t have the full amount then they should not pay anything. Please note that child support is different than other consumer debt. Child support gets sent to a centralized office where the amount you pay is noted in your computer file and then the money is passed along to the receiving parent. Note that you can either send the payment in as a check or make a payment online through a credit card or bank account transfer. See the Texas Attorney General Child Support Webpage for more information on where to mail or make the payments.
If you cannot make a full payment on your child support, it is in your best interests to send something, anything, in rather than not pay at all. If you ever have to go in front of a Judge they will be more likely to give you a second chance if they say you have been sending in something every month as opposed to seeing months and months of zero payments. Judges hate to send people to jail (at taxpayer expense) and want to give delinquent parents as many chances as they can. Let your payment history be the best evidence of how you have been paying something, not nothing. That shows the court that you are at least attempting to comply. Keep in mind that if you have a reduction in wages, either through a layoff or move from full to part time, you might qualify for a reduction in your child support. Call an attorney (preferably me) to discuss whether a reduction is proper in your case.
I get calls asking, “If my spouse and I agree on the terms of our divorce, can we just sign an agreement now and do the paperwork later?” My answer is usually, “it depends.” What the caller is usually wanting to know is whether the agreement will stick if things go sideways before the divorce finalized.
Parties who want something quick and fast can sign an agreement, called a “Rule 11 agreement,” and file that with the divorce/custody case at the courthouse. Rule 11 agreements are hard to enforce, but a good way of outlining a tentative deal. Rule 11 agreements are very brittle. One side can revoke their agreement at any time before a final agreement is signed by the Judge. That negates the whole reason for getting something signed and moving on. Judges will of course review Rule 11 agreements and a party’s reason why they revoked their consent (new issues sometimes crop up, like drug use, violence, and other bad situations). If the agreement was revoked for a reason that the Judge does not like, then there is likely to be an unfavorable outcome for that party revoking the agreement when the case does to a contested hearing. Revoke your consent to a Rule 11 only if you have a very good reason for doing so, or it might come back to haunt you later in the case.
What’s the solution? How do you reach an agreement and have it stick? The sure answer is to go to mediation. The more affordable, local mediation office is called the Travis County Dispute Resolution Center. It’s located off I-35 and Hwy 290 intersection in Austin. There are many other mediation options to fit all prices and match the complexities of your case. Having a mediator who is also a family law attorney is usually helpful as they will have a better understanding of the issues. Getting a signed mediation agreement is the best way to get an enforceable agreement that cannot be undone, except in extreme danger-to-children situations. Mediation is always the best way to made a divorce agreement enforceable until the final paperwork can be submitted to the Court/Judge.
The next-best alternative is a little known statute, Texas Family Code 6.604. These are known as Informal Settlement Conferences or Informal Settlement Agreements. It allows parties and their attorneys to sign off on agreements and for them to be almost as unbreakable as a mediated settlement agreement. The requirements are that, (1) it must be in writing, (2) it must be signed by ALL the parties involved in the lawsuit, (3) it must be signed by ALL the attorneys involved in the lawsuit, (4) it must have a bold and capitalized statement that the agreement is not subject to revocation, and (5), it must be filed with the Court. A party is entitled to then draft an Order that matches this agreement and can set a hearing for the Judge to sign that Order after showing that it follows the terms of the agreement.
Informal Settlement Agreements are a little better at holding up than Rule 11 agreements. Informal Settlement Agreements can be set aside, in limited situations. If the Court finds that the “terms of the written informal settlement agreement are not just and right, the court may request the parties submit a revised agreement or set the case for a contested hearing.” Tex. Fam. Code 6.604((e). That means that if there was intimidation, deceit, other “sketchy” behavior in getting the agreement done, AND the agreement is totally lopsided, a party can have this long-shot chance to show the court how the agreement they signed is not “just and right.” In my opinion, that would mean it is not fair because one side got the vast majority of the assets, or was given the vast majority of the debts, or there was a vastly unfair visitation schedule thrust on someone. In my opinion, this does not mean that slight imbalances will result in setting the agreement aside. Slightly higher than normal child support, slightly skewed visitation schedule, or now wanting the sofa instead of the love seat and recliner would likely not get the agreement set aside. It would have to be a very blatant unfairness to justify the Judge to not uphold the informal agreement. This is where speaking to a family law attorney about your situation is helpful. They will be able to advise you, based on your specific facts, whether such an agreement might be set aside by the Judge if contested.