Even after the fat lady sings, it’s still not over. Half of my business is made up of cases where parents need to change their custodial agreements and orders due to changed circumstances. The agreements that worked at the time of divorce won’t necessarily work even 5 years down the road when parents have moved, remarried, had more children, lost jobs and so on. Despite the fact that these life events are common and you would think parents would not have to go back to court over these issues, I find modifications to be the most contentious.
Child support is probably the most obvious reason to modify a prior order. Just today I represented a child support paying mother whose income is steadily decreasing. Although I am sure the father feels that she is intentionally scaling back to avoid additional support, the income was what it was and the Court lowered her support based upon her reduced income. Keep in mind that child support is generally not based on the needs of the child but on a percentage of the parent’s net income up to a certain point.
Another reason why parents end up back in court is because the child decides they would prefer to live with the other parent. After the child turns 12, the court has to interview the child in cases where the right to determine the primary residence is at issue. Although the court does not have to do what the child requests, the child’s input could play a role depending upon the circumstances.
In some cases, the right to determine the primary residence is not at issue but visitation is. When parents can’t agree on their own, they will come to us lawyers and the courts to handle visitation issues. For example, if one parent lives just far enough to make it very difficult to see mom for 30 days in the summer and train for high school football. Or when a daughter wants to spend Thanksgiving doing missionary work and some other time with Dad needs to be arranged. These examples are minor. What gets to be more serious is when mom or dad’s social drinking devolves into alcoholism or other life events that need to be dealt with.
Parents often move over 100 miles from the other parent. When that happens, visitation needs to change from the standard 1st, 3rd, and 5th weekends during the school year for parents that reside less than 100 miles apart to something more flexible or specifically tailored to the family’s needs.
The problem with all these common occurrences is that modification actions can cost quadruple what you paid in the divorce. Typically, divorcing parents just want the divorce done. They disregard a lot of advice from their lawyers advising them to be very specific and forward thinking in their agreements so that they anticipate future problems and therefore avoid costly litigation. But by the time the divorce is being finalized and the documents are being drafted, parents stop caring. They want it DONE.
The reason why these modifications cost so much more is that more than one hearing is needed to walk the court down the road of explaining the basis for the modification. One hearing for child support, one hearing to have the child interviewed, one hearing to argue over what school records are admissible, one hearing to force a parent to go to specific counseling or other parenting classes. This can go on and on and on depending upon the stubbornness of the other side. This of course only hurts children and destroys pocket books. Unfortunately for others though, it is the only way to make a change.
“Does my child get to pick who she wants to live with when she is 12?” I get that a lot. The answer is “yes and no.” I know, I’m a big help.
The Texas Family Code allows a child to be interviewed by the judge in chambers so that he or she can express her wishes, but that does not mean he or she is the decider.
This is a mother’s problem. Fathers don’t worry about this near as much as mothers do. Mothers feel that when their children “live” with dad, that the world must think they are a terrible mother. Think about it. People wonder, “How did she lose her children?” or “what did she do?” If a mother “loses custody,” then she must have been arrested or getting treatment. When a child decides that they would prefer to live primarily with dad, mom does not lose custody. She actually practically gets the same amount of non-school time, weekends, and a long period in the summer.
At the risk of losing my reader’s attention, here is the specific statute allowing a child to be interviewed.
Texas Family Code § 153.009.
(a) In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child, the court shall interview in chambers a child 12 years of age or older and may interview in chambers a child under 12 years of age to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence. The court may also interview child in chambers on the court’s own motion for a purpose specified by this subsection.
(b) In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child or on the court’s own motion, the court may interview the child in chambers to determine the child’s wishes as to possession, access, or any other issue in the suit affecting the parent-child relationship.
(c) Interviewing a child does not diminish the discretion of the court in determining the best interests of the child.
(d) (f) (omitted by author to save attention spans)
If you haven’t stopped paying attention or gone to another article, hopefully I can get you back.
Since everyone knows children need meaningful relationships with both parents, let’s not make this a statement on motherhood. Be informed that when a child wants to “live” with dad, it means he or she wants to be with him more. Since when is it a bad thing for children to want to be with a parent? Sometimes children need one parent more than the other during certain times of their lives. If you and your spouse get along, then most likely your child will never have to be interviewed by the judge. If you can agree that the child should spend more time with the other parent, then crisis is averted.
Yes, if a Court determines that the child should live with the other parent, it could have child support implications. But, if your reason to fight your child’s wishes to live with the other parent is because of child support, you need to re-consider the fight.
Obviously, there are other fact patters worthy of the fight. Let’s say the child gets away with smoking pot or cutting school when he or she is with dad. I’m sure the child will tell the Court all about why dad is better, but fighting that makes sense.
In conclusion, a court must interview a child who is 12 years old or other to hear who they would select as the parent with the right to determine the primary residence and may interview a child to hear their take on possession and access or other issues, but it does not mean that the judge will turn around and order who or what the child selected. It does not mean that the child is in charge. Conservatorship, visitation, parental rights and obligations depend on the best interest of the child. The best interest of the child depend upon countless factors, one of which is the child’s wishes.
It’s important, as a mother, to know the difference between your child genuinely needing their father and a situation where your child wants to go clubbing with dad. Be kind to the mothers who are emotionally evolved and can support their child in wanting to be with dad more. Even if he lives with a homewrecker and her evil children.
Note from Kelly:
A client wrote this blog after her divorce was final, with the benefit of hindsight and (probably) the anxiety of my final bill. This client was one of the most organized clients I have had. She also listened well, especially when I told her things that were difficult to hear. This client is NOT an attorney and the below information is not legal advice.
“Choosing to end a 19 year marriage, or any marriage, is not an easy decision. As Dr. Phil says “you have to earn your way out of the relationship.” Once you have decided that it is the right decision for your life, there are steps you can take to make this excruciating experience a little less painful. First and foremost, make sure you have a good therapist to walk you through the emotional process of divorce. The attorney you decide upon is NOT your family therapist.
Second, prepare before the separation. Scan and save all the important information on an external drive or zip drive and include copies of your tax returns and income for the previous four (4) years. Gather pay stubs, bank statements, 401k statements or any information regarding retirement accounts, documents regarding life insurance, health insurance, titles to vehicles, deeds for your home or other property such as a timeshare or even a burial plot, and copy all household bills. Create a clear spreadsheet of monthly income and expenses. Prepare a list of all household items you own from the kitchen table and chairs to the dishes. These are assets that you have acquired over the years and they will be a part of the division of your marital estate. Be clear about what property was brought to the marriage, what was gained during the marriage and what was inherited during the marriage. Take photos of the house, the household items or any large assets. All of this information should be organized in a logical manner that is easily found by you or the Paralegal for your attorney. (These documents should be saved in PDF format.) Now that you have an asset list, prepare the liability list and include the mortgage, rent, credit card bills, doctor bills, loans and any other debt you may owe including any family members who have loaned you funds.
Now that you have gathered the information, prepare a summary or list of what you want to come away with, best case scenario. Think about not only the present moment, but the future. Come back to this list a few days later, and NOT when you are upset, and then decide what you can let go. What is it that is a deal breaker for you? You had to decide what the deal breaker was when you made the decision to leave the marriage, do it again with regards to your financial future and the future of your children if applicable. Be flexible and creative, trust your gut.
Third, find an attorney that is a good match for you. I have been a Paralegal for 20 years and personally know plenty of attorneys. I learned first-hand through my divorce that finding the right attorney is much like dating or finding a mate. It is important to talk to two or three attorneys to find the right match for you. Prior to meeting with the attorney, review the list of what you want to come away with, the issues that are involved in the divorce, and know that you will not get everything on your list.
Fourth, approach the split as a business decision. We all know that divorce is expensive any way you approach it. However, it can be less painful and less costly if you keep your emotions out of the decision making process. The business and finances are the issues that your attorney is skilled and equipped to help you resolve. Regardless of the reason for the divorce, how mad or hurt either party is, neither of you win (certainly the children lose) by continuing to hurt each other while fighting with your attorneys in the middle. In the end, all you come away with are more wounds and less money, so no matter what, stay focused. Time to time, you will veer of the path, but a good attorney will redirect you.
Fifth, do not use the divorce as a means to seek revenge. While negotiating think carefully about what you and your soon to be ex are arguing over. Every phone call, email, letter or communication with your attorney or staff will cost you and your ex significant money which lessens the amount of money to be divided. Look at it this way, most of us can go to a one hour therapy session for a co-pay of $50.00; however you are most likely paying your attorney at a minimum $250.00 per hour, plus paying the Paralegal $150.00 per hour. Mathematically, you are going to get more bang for your buck if you keep the two issues separate. That doesn’t mean that your attorney doesn’t need to know what is happening. You should contact your attorney if your soon to be ex is sending crazy text messages, emails, showing up at your house or taking money from bank accounts. As always, clear communication is essential, however, the attorney and paralegal do not need to hear a blow by blow detail of your day. Keep a journal and notes of all of the issues at hand. When you do communicate with your attorney stick to the subject, be concise and focused. He or she is most likely billing you in 15 minute increments. Each e-mail and/or telephone call will be billed at a minimum of 15 minutes. So send one concise email bullet pointed with the core matter and do not call to ask if the attorney or paralegal received the email, they will respond when it is appropriate.
Sixth, one of the most difficult decisions you make may be regarding custody and visitation with your children. Think about custody based on the age of your children. It is not only the present relationship that is important, but the one you will have with them long after custody is over. That is the most valuable and longest time you will have with your children. Once your children are teenagers they will have a life beyond mom and dad and, they will have more of a voice in where they go and who they spend time with. No one can force a driving teenager to go someplace they don’t want to be. If you have older teenagers, do you really want to spend the next year or two fighting the other parent over custody, visitation, splitting of assets or money? By the time the issue is resolved, you have spent a lot of money and heartache fighting and the children will be ready to go off to college and live their own life. A wise woman once reminded me that your child’s parent is just that, his/her parent and you can never change that. You couldn’t change him/her while you were married to them and you certainly can’t change them after divorce.
Finally, a divorce decree is a contract and in order to enforce the contract you have to take the offending party to court. Are the issues you and your ex are quibbling over in the decree really something that you would take them to court for and spend thousands of dollars to try to enforce? In the end the chances are most likely not. In the same respect, perhaps you can give in on another matter just to get the divorce resolved. Always trust your gut and be true to yourself. You are not going to get everything you want. Determine early in the process the things that mean the most to you and what you might want, but would be willing to give up, so that your attorney has some items to with which to negotiate.
If you choose to incorporate one or more of these suggestions, your divorce will most likely end more quickly with less money wasted fighting and most importantly, with fewer wounds and scars. While divorce is terribly painful, there is the possibility of happiness, peace and hope in the end. I am living it first-hand.” Anonymous
This article was originally published by Plaid for Women https://www.plaidforwomen.com/read-post/two-regrets-of-a-divorced-woman/
The Family Courthouse is paved with women who claim the system is against them. Many feel that they waited too long and some wish they had tried harder to reconcile. Beyond the emotional wasteland left by a divorce, a divorced woman has many economical regrets. Here are two I have heard over and over again:
1. That they didn’t stay employed.
Some women report being frustrated that they were not entitled to spousal maintenance or did not get as much as they would have liked. This is especially true for the homemaker, but in our changing society where women are increasingly doing the “bread winning,” it can be true for husbands as well. Texas law allows for monthly spousal maintenance (a/k/a support) up to $5,000 or 20% of an ex-spouse’s gross income, whichever is lower, if a spouse can prove that she “lacks sufficient property including the spouse’s separate property, on dissolution of the marriage to provide for the spouse’s minimum reasonable needs” among other elements. Please refer to Texas Family Code Chapter 8 for the entire law which contains other elements and factors not addressed here.
Flushing out what “lacking sufficient property” actually means is difficult. Case law demonstrates that Courts look to a variety of factors including, the community property award in the divorce and the spouses education, separate property, health, employment experience and business opportunities. There is no formula such as monthly expenses are $3,000 therefor the spouse is awarded $3,000. It’s much broader than that.
The practical application of this law makes spousal maintenance quite difficult to obtain. One, the ex-spouse may not have sufficient income to pay what is needed for the spouse to get by and two, minimum reasonable needs are typically shelter and food, not mani/pedis. Much to the disappointment of many women, the standard is not to keep the divorced spouse’s lifestyle the same as her married lifestyle.
A common example would be a spouse married to a hard working executive who chooses to stay home because it’s hard enough on the family that one parent is gone all the time. The hard working executive works too hard and picks up a nasty addiction to alcohol. The alcohol abuse leads to the couple’s cash reserves being used up for rehab, disability, therapy and suddenly, when the alcoholism finally destroys the relationship, the money is gone. Now, homemaking spouse is unemployed with a ton of bills and the hard working spouse is no longer employed at the rate he was. Her best asset is now her resilience, from which she has to dig deep to find and use to fuel moving on.
On the flip side but on the same side of the coin, had the homemaking spouse stayed employed, she would at least have somewhere to start. Any place other than unemployed and broke is better than that. True, a spouse with some employment opportunity would be less eligible for spousal maintenance but at least she would have a paycheck rather than being subject to the court’s wide-ranging discretion. It can take months before spousal maintenance is ordered by the court and actually paid by the spouse. A judge can only enter orders and enforce them. She cannot babysit the parties to make sure it gets done. And can you hear the “cha-ching”? Every time a lawyer has to go back to court for something, it costs.
2. That they kept documents.
The way assets and debts are awarded in divorce requires some level of proof as to the asset or debt’s status. How do you prove you used your inheritance to buy the house if you don’t have any records? How do you show that you funded your 401(k) for years prior to marriage? How much cash does a spouse earn under the table? How many credit cards and lines of credit are out there? The dining furniture was a gift to both of you right?
Keeping original documents regarding important transactions are important for many reasons, too many of which to cover in this article. I will discuss two. One, having documents is important to show when property or debt is separate since the law presumes all property and debt owned by either party belongs to the community. In order to overcome that presumption, a party must submit proof that a particular asset or debt is separate property. Separate property is acquired before marriage, by gift or by inheritance. Proof is usually in the form of bank accounts, check stubs, contracts, paychecks, letters, titles and so forth. Who keeps up with that stuff? Not everyone, but the divorced spouse wishes she had.
Secondly, keeping original documents is important to show the current status of income, debt and other property rights. For example, wife swears husband got a $50,000 bonus and bought a sports car for his girlfriend in her name with the cash. This stuff happens people. I know you know it does. Continuing on, the company that bonused him is now out of business and the $300 an hour lawyer can’t subpoena documents to prove the bonus ever existed. This leads to another topic for another day. Stay involved in the finances. This scenario can be a huge waste of time and money for everyone to prove either the existence of a lie or to disprove a wild allegation impossible to disprove because it never happened.
1. MONEY! If you have become intimately familiar with the billable hour and retainers then you know what I am talking about. Reading billing statements showing entries for lawyer time for discussing who gets “this” or “that” is painful. Clients find themselves asking “I have to pay a thousand dollar bill from my attorney because my ex-spouse’s attorney called her five times to negotiate the china cabinet?” How does that make sense? If spouses are able discuss what assets and debts go with whom, then they will save money. It goes without saying that the attorney’s fees factor can grow exponentially when there are parenting issues.
2. It’s better for the kids. I’m just a family law attorney, but how can children learn to resolve conflict if their parents can’t agree on a pick up time or child support? They may learn how to build walls, ahem, I mean boundaries, but they will not learn how to resolve conflict. I find that those children then exhibit the same behaivor against their parents as their parents exhibited towards the other during the divorce. Talk about backfiring.
3. It will prevent future litigation. When kids are involved, it’s not always over when the divorce is granted. Many issues can arise in the future as the needs of the family change. It is very common for financial and emotional needs to change. For example, a teenager may need more time with the other parent during a certain time of his or her life and if his or her parents don’t get along, all out war will erupt when the child asks to be interviewed by the court.
4. Defamation is tough to prove. If an ex-spouse is prone to blast the other in the community, it’s difficult to tame the loud mouth and courts are not always willing to use their power to get involved.
5. The finale – You will see your child more. Getting along with your ex-spouse means you can squeeze an extra day into your ski vacation or switch a weekend here or there. It could also mean you get more communication about the child’s schoolwork, extra curriculars, a bad breakup and so on.
There are two types of subpoenas that can command two types of actions. Trial subpoenas command appearance at a trial or hearing and discovery subpoenas command appearance to give testimony for the purpose of discovery of evidence. Either way, the subpoena can also ask for production of documents or tangible items for trial, a hearing or discovery.
The subpoena power can reach beyond the parties in a lawsuit. It can also compel non-parties or entities to comply. Although there are some limits, generally speaking, someone can be compelled to testify or produce documents in a case that they are not directly involved in. For example, Denise Richards could have been subpoenaed in Charlie Sheen’s criminal assault case for his alleged attack on Brooke Mueller. In his suit against Kim Kardashian, Chris Humphries (her 72 day husband) subpoenaed Kanye West (her boyfriend) to appear and give testimony at a deposition, purportedly to show she didn’t intend to marry Chris for legitimate reasons.
Oftentimes, the only way to obtain admissible evidence in a case and prepare for trial is to seek information from third parties using a subpoena. Bank records, computer files, corporate books and records, report cards, medical records, phone records and so forth are good examples. Note: Facebook and other social media sites are protected by federal law from the subpoena power.
Failing to comply with a subpoena could result in contempt charges. The statute allows for a court to assess fines or require the non-appearing party to be confined. Texas Rule of Civil Procedure 176.8.
A Webb County District Court refused to admit a mother’s provocative Facebook pictures in a termination case. The County Attorney attempted to introduce Facebook pictures and posts by asking the mother if she in fact had posted provocative pictures of herself. When the mother said no, the attorney sought to use the pictures to show the jury that the mother was a liar and to impeach her character. I’m sure the shock factor of a mother of six posing for nasty pictures for the public to see was only a small bonus.
The mother, whose Facebook pictures and comments were too inappropriate for repeating here, argued that they should be excluded for two reasons. One, because she recanted her testimony that she hadn’t posted provocative pictures, and two, because they were more prejudicial that probative.
The Appellate Court agreed with her first point because the record showed the jury already knew she was liar and the introduction of more evidence that she lied about whether or not she posts provocative pictures of Facebook would be redundant. The Court then cited the proposition that exclusion of evidence that is cumulative is harmless.
I’m not saying there is much of a lesson in this case except that there are situations where Facebook pictures are inadmissible. The mother in this case was accused of many disturbing acts including trying to set her house on fire with her children in it. I don’t think the Facebook pictures were the center of the County’s case.
The 5th District Court of Appeals in Dallas upheld a trial court’s finding that a pre-marital agreement was invalid and awarded the wife $1.39 million on July 3, 2012. Moore v. Moore, 2012 Tex. App. LEXIS 5290 (Tex. App. Dallas July 3, 2012).
There are many lessons to be learned from the Moore case. For example, don’t say you need a pre-nup because you have a lot of “loans, liens and lawsuits” as Mr. Moore did in this case when in reality he was a millionaire. Also, make sure both parties are represented by good counsel.
In Texas, a pre-nup is not enforceable if the party against whom enforcement is requested proves that he or she did not sign the agreement voluntarily. Tex. Fam. Code § 4.006(a)(1).
The following 4 factors are considered when determining voluntariness in entering a pre-nup: 1. whether a party has had the advice of counsel; 2. misrepresentations made in procuring the agreement; 3. the amount of information provided; and, 4. whether information has been withheld. The court may also hear evidence as to fraud.
That being said, claiming you didn’t know what you were signing when you signed it isn’t enough to invalidate a contract in Texas. In fact, Texas law presumes that a party to a contract knows what he signed, the meaning of what he signed and can comprehend its legal effect. There are a number of exceptions to this principle as demonstrated in the Moore case. Each case is different and there are no bright line rules.
The evidence uncovered at the trial court level in Moore showed the wife signed the pre-nup a few hours before the wedding, that she had been incorrectly informed that it was reviewed and approved by her attorney, that it did not disclose husband’s assets and that it had generally been withheld from her until the morning of her walk down the isle. All of these facts influenced the court in finding that the wife did not sign the pre-nup voluntarily.
According to the Dallas Court, “voluntary” means “an action that is taken intentionally or by the free exercise of one’s will.” While the wife freely signed her name to the pre-nup, it wasn’t enough to make the agreement enforceable in this case with these specific facts. Therefore, the pre-nup was invalidated and the Moore assets were divided up according to “just and right” principles. For more information on “Just and Right“, please follow the link.
Child support in Texas is generally calculated by applying a percentage to your net resources. For information on calculating child support, see my blog, Child Support Guidelines in Texas. The following five factors may further affect the calculation:
1. The child’s medical needs;
2. A party’s responsibility for other children as managing or possessory conservator;
3. Each party’s period of possession of or access to the child;
4. Travel costs for exercising possession of and access to the child;
5. Necessary child care expenses to stay employed.
These are merely factors to consider. Every case and court is different.
The following table represents the guidelines for child support in Texas. These guidelines are presumed to be reasonable and in the best interest of the child; however, there are other case-specific factors that may reduce or enlarge one’s child support obligation.
An oversimplified example of calculating child support using this table is as follows:
If Ex-Husband, who earns $5,000 a month in monthly net resources has only one child with his Ex-Wife, his child support would be 20% of his net resources or $1,000 per month.
If Ex-Husband has more than one child; one with his Ex-Wife and one with his current wife with whom he lives, his child support would be 17.5% of his monthly net resources or $875 per month.
For information on what is considered “net resources,” please refer to my blog Net Resources and Child Support.