- General Questions
- Property Division
- Child Custody
- Special Needs Children
- Premarital and Postmarital Agreements
- Collaborative Law
Mental health: “My spouse has lost his/her mind!”
Unfortunately, it is not uncommon to wake up and realize your spouse is a different person than the person you married, due to the onset of a mental health condition. Sometimes a personality disorder becomes more obvious as life’s stressors compound. It is often difficult to identify the mental health condition, and to know the role it is playing in the break-up of the marriage. Because of this, our clients struggle with knowing whether divorce is the right choice, or whether they will “get their spouse back” with the assistance of mental health professionals and medication.
These are complicated and emotional matters that we have seen play out in different ways, depending on the circumstances of the family. In cases where we need a professional assessment of a parent’s relationship with and ability to effectively and safely parent a child, we request a forensic psychological evaluation of the parent in question. We also consider the need for a child to engage in therapy to help with the stresses and strains of transition while their parents are divorcing. We are very experienced in cases where the mental health of one or both parties is an issue, and we are well connected with many mental health professionals in our community with whom we have worked to navigate these situations.
Family Violence: “My spouse has abused me for years and I need to be protected.”
Family violence includes physical abuse (bodily injury, assault, sexual assault) and threats that reasonably place a person in fear of imminent physical abuse. If you or a member of your household have experienced physical abuse or threats of physical abuse, be sure to provide those details to us during your first consultation. Protecting a person against family violence is paramount and dramatically impacts how your case is handled. Whether or not to request a temporary ex parte protective order (which orders a person to refrain from certain acts) will be an important first decision to make. We will devise a safety plan for you and your family members and be mindful of your safety throughout your case.
If you have been accused of family violence, we can advise you of the impact that will have on your case, and provide you with insight on how to navigate that situation. We have negotiated and tried both sides of this issue. We know that just because someone said it, that doesn’t make it so.
Where can I get more information about Texas family law?
You can read the actual text of the Texas Family Code at Texas Legislature Online. You will end up with more questions than answers, so come see us when you’re ready for answers.
Can I still get a divorce if my spouse is in the military and is only temporarily based in Texas?
Yes, a suit for divorce may be maintained in Texas if at the time the suit is filed either party has been: (1) a resident of Texas for the preceding six-month period; and (2) a resident of the county in which the suit is filed for the preceding 90-day period. The residency requirement will also be met when both the military member and their spouse reside in Texas due to the military service.
Can I recover attorney’s fees from my spouse (or former spouse in cases of modification)?
Don’t bet on it. This is a far more complicated question than it seems to be, and it is best to talk specifically about this with your attorney at the first meeting.
Affairs: “I should get everything I want in this divorce because my spouse cheated on me.”
Affairs have a devastating emotional impact on the other spouse. Affairs often push an otherwise teetering marriage over the brink. While the affair may seem to be the most painful and significant thing that has happened in the marriage, it may not play as big a role in the outcome of the divorce as one might expect.
The courts may consider “fault in the breakup of a marriage” as a factor in determining a “just and right division” of property. But the court also recognizes that affairs often happen in relationships that are already in very bad shape for other reasons. The breakup of the marriage—with or without an affair—is rarely the “fault” of only one party. For that reason, the affair might not have a significant financial consequence to the cheating spouse, unless the affair has caused actual financial loss, such as buying jewelry for a mistress, or taking the boyfriend on trips, for example.
If a spouse has spent money on their affair partner, the community estate can claim repayment of those funds before the estate is divided. Those expenditures must be quantified by obtaining bank statements, credit card statements (personal and business), emails, texts and other evidence. The expenditures are tallied up and “awarded” to the cheating spouse as if the money still exists. Thus the property division might look roughly equal, but the non-cheating spouse actually gets more.
An affair is not usually relevant to issues involving the children, but it certainly can be, such as when a spouse has introduced their affair partner to the minor children while the parties are still married. Most therapists agree that this is not good for the kids, particularly if the parties have recently separated. In that event, we can seek an injunction that prevents that spouse from bringing their affair partner around the children again while the divorce is pending. But as a general rule, once the divorce is over, the court is not going to restrict either party from introducing the children to significant others.
Can my spouse and I hire the same lawyer?
No. It is against the ethical rules for an attorney to represent both sides of the same dispute. Even when the spouses claim to “agree on everything,” a divorce is still always considered an adversarial proceeding.
Can my spouse prevent me from getting a divorce?
No. If you want a divorce, you can get a divorce, for any reason. Texas is a “no-fault” state, meaning you don’t have to prove anything to be “allowed” to divorce. The vast majority of divorce petitions simply say that the marriage has “become insupportable due to discord or conflict of personalities.” Note that although your spouse cannot ultimately prevent the divorce, he or she may find various ways to delay the process.
How long will it take?
You can usually expect a divorce to take 4-9 months. More complex and more intensely-contested cases take longer. For a detailed look at the various steps, see our Divorce Litigation Process Guide.
How do you bill? Do you charge a retainer fee?
We bill by the hour, in 6-minute increments (tenths of an hour). We ask that every client make a deposit (retainer) to the firm’s trust account. As we work on your case, we bill against that deposit. We send a bill each month and ask that you pay the bill, such that we start each month with the full retainer amount in trust. For example, if you paid a $5,000 retainer, and then in month one we do $2,000 of work, then your bill will show who did what work, how long it took, and it will request that you then pay $2,000 so that we begin month two with $5,000 in the trust account to cover whatever work will need to be done in that month. Our legal services contract will spell out our policies in (excruciating) detail.
How much will my case cost?
There is truly no way to know how much it will cost to get your case from start to finish. Several things factor into the total cost of the case, including:
- The value of the property involved in a divorce;
- The complexity of the property issues in a divorce;
- The intensity of the dispute over child custody issues;
- The personalities of the parties;
- The personalities of the lawyers.
There are numerous other sub-factors that affect the total cost of a case, but they tend to all stem from one of the five factors listed above.
Good lawyers simplify. Simple is easy to understand. Simple is easy to argue. Simple costs less. Simple is good for clients. But almost no one has a “simple” case—it is contrary to the very nature of divorce. Beware the lawyer who tells you after a one-hour consultation that your case will be simple and cheap. The first glimpse of how the case will proceed doesn’t come until both parties have hired their lawyers and the lawyers have their first substantive conversation about the case.
What you can expect from us is that we look for ways to resolve cases simply and efficiently, to minimize the costs for our clients. And you can expect that we will keep you informed along the way about how various decisions will impact the cost of the case. We will also tell you how best to work with us such that lawyer time and paralegal time is used most efficiently.
Can military retirement be awarded to the non-military spouse upon divorce?
Yes, In Texas, the Court has wide discretion to divide all property, including military benefits, in a manner it sees as just and right, taking into account all assets of the marriage and the needs of the children of the marriage. This can include awarding a portion of the military pension plan to the non-military spouse. This can also include hiring an expert to give a value to the military pension and offsetting the value of this pension by giving the non-military spouse other assets. Military benefits acquired during the marriage certainly need to be addressed in any agreement or by the Court.
Are there special considerations concerning military retirement?
Yes, military retirement is subject to characterization as either separate property of the military spouse or community property. In general, the portion of the retirement benefits acquired before marriage will be confirmed as separate property of the military spouse. The portion of the retirement benefits acquired during marriage will be community property. Therefore, retirement benefits earned from years of service during the marriage are community property and are subject to division by the court in Texas.
How is intellectual property valued?
Generally, an owner of a patent, copyright or trademark has two options at divorce. He or she can hire appraisers to value the property. This can be expensive and speculative. However, this option can allow for final division of property without future entanglements with the ex-spouse. Another option is to negotiate a division of income or royalty from the intellectual property on a go forward basis. Such a division can be complicated in achieving concurrence since the spouse who manages the property and who is responsible for enhancement of the property value should receive compensation for his or her post-divorce labor. This approach also requires agreement on the proportion going to each spouse which can be contentious.
Both options have pitfalls and advantages depending upon the property so it is important to consider the unique attributes of each case. Most importantly, it is crucial for both parties to stay creative and flexible to insure that the value of the patent, copyright or trademark is maximized.
Is intellectual property considered to be “property” for the purposes of community property law in the State of Texas?
Yes. Intellectual property is the set of legal rights to an expressed idea – it is property that results from the fruits of mental labor. Its common forms are copyrights, patents, and trademarks. If the idea was expressed, created or memorialized during marriage, it is the community property of both husband and wife.
In a divorce, there are many questions which must be answered if a spouse has a patent, copyright or trademark. How much is it worth? What if the idea was developed prior to marriage but completed during marriage? What if the project is not finished at the time of divorce? What if the copyright involves film or production rights? Who is entitled to the royalties if there is a sequel? Can the creator spouse maintain control over the property and pay the other spouse if, as, and when the royalties are actually received? Can the royalties be divided disproportionately? For additional information see Intellectual Property Issues in Divorce paper co-authored by Lea C. Noelke and Andrea (Andi) St. Leger.
Are there special considerations in divorces with high-value estates?
Absolutely. When a great deal is at stake, seasoned professional attention is critical given the complexity of the issues and assets, as well as the tax and long-term financial consequences. NMSB attorneys craft divorce agreements intelligently and creatively, addressing financial intricacies and implications that otherwise might not be fully considered. An investment in the right agreement protects the client’s true long-term financial interests, and those of affected children, and pays for itself many times over.
Can I get alimony?
Maybe, but it isn’t easy. In Texas, alimony is called “spousal maintenance.” The court can order spousal maintenance only if the parties have been married at least 10 years, or in cases of family violence. In general, spousal maintenance is ordered only when one spouse has been a stay-home parent for many years AND lacks the ability to obtain a job that would pay enough to cover basic needs AND the spouses do not have significant property and savings. In other words, the spouse seeking maintenance must be able to show true financial hardship.
Are my employment benefits, including retirement funds and stock options, community property?
Employment benefits that you earned during the marriage are community property. It doesn’t matter whose name the account is under, and it doesn’t matter if you began working there prior to marriage—the portion of benefits earned during the marriage is subject to division by the court.
Property Division: Business Owners – “I helped him grow that business and it’s half mine!”
In divorce, a business owned by a spouse (or by the couple) is an asset that is subject to division. But rather than being divided or co-owned, usually one spouse buys out the other spouse.
Basically, one of three things will happen with the business upon divorce:
- One spouse will take the business, and will buy-out the other spouse;
- The spouses will continue to jointly own the business post-divorce;
- The business will be sold and the proceeds split, either by agreement or by court order.
Option (1) is by far the most likely. One spouse or both will usually hire a business appraiser to produce a report showing the value of the business. Then, typically, the business is awarded to the spouse who runs the business. The value of the business is considered in dividing the rest of the estate, entitling the other spouse to assets of equal value (the “buy-out” referenced above). For example, if Husband takes a business worth $500,000, then $500,000 of other community property (house, retirement accounts, etc.) would be awarded to Wife.
Option (2) is rare. Most people do not want to be in business together after the divorce. Likewise, the other business partners don’t usually want an ex-spouse retaining an interest in the business—and often the shareholder or partnership agreement actually prohibits that. Professional practices that are licensed by the state (e.g. doctor, lawyer, dentist, etc.) usually cannot shared with a non-professional. State laws generally say, for instance, that a non-lawyer cannot own part of a law firm.
Option (3) is very rare. The court generally has the authority to divide ownership of the business, or force its sale. And in the right circumstances, the parties might agree to sell the business. But normally the spouse who is running the business wants to continue doing so, and the court does not want to force someone to sell their business, except as a very last resort.
Property Division: “She’s trying to take half of MY retirement?!”
Maybe. It’s not quite that simple, but here’s where we start: the values of retirement accounts and pensions are going to be considered in the property division, just like any other asset.
If either spouse makes 401(k) contributions or earns pension-entitlement during the marriage, it is considered community property.
Determining the proper value of retirement is complicated by the specific characteristics of the different kinds of retirement accounts.
For instance, we need to consider:
- For 401(k)s, 403(b)s, and IRAs—is it Traditional (pre-tax) or Roth (post-tax)?
- For pensions—do we hire an actuary to determine a net present value, or do we simply divide the account in kind?
- Does the retirement benefit also have a survivor benefit?
This is all exactly as fun as it sounds. The partners here have handled division of retirement benefits for clients that work for many of the biggest employers in Austin, including Dell, IBM, Apple, the University of Texas, and various state government agencies.
Come in and talk to us about your situation and we can give you an idea of what to expect.
Property Division: “That other 4-letter word—debt.”
Fact of life: money problems cause people to get divorced.
Maybe you had no idea, maybe you were in denial, but the debt problem comes home to roost when you get divorced.
Dividing debts is a particularly difficult problem, for two reasons:
- Nobody wants debt (especially if it’s the other spouse’s fault that the debt exists), and;
- Lenders who have two people on the hook aren’t going to just let one of them go (despite what your divorce decree might say).
Here’s a great first step: go to www.annualcreditreport.com and print your credit report. (This is the free, government-sponsored site.) Getting your credit report helps prevent the worst kind of debt: the kind you don’t find out about until after your divorce is final.
The second-worst kind of debt? IRS. If you or your spouse owe past-due federal income tax, be sure to tell your attorney at the first meeting.
Debts are not just a negative number on a spreadsheet—come talk to us and start planning for your financial future. We can also help with referrals to bankruptcy attorneys or tax attorneys where appropriate.
Property Division: “I’m keeping the house. Period.”
Your house might be your single most valuable asset, and it may indeed be worth fighting for.
But the smart way to approach it is:
- keep an open mind about it;
- keep your focus on how the house fits in with all the other assets and debts, and;
- keep an eye on the future—especially your post-divorce monthly budget.
From San Marcos to Georgetown, from Lakeway to East Austin—and everywhere in between—the partners at Noelke Maples St. Leger Bryant have helped clients understand the real value of their homes and coached them through the decision to keep, trade, sell, or even co-own their home after divorce.
Come talk to us about your situation and get some deeper insight.
Separate Property: “But my [dad / grandmother / uncle] gave me that [car / dresser / trust fund]!
Generally, three types of assets are separate property:
- Things you owned prior to marriage;
- Things you received as a gift;
- Things you received as an inheritance.
But there’s a catch: you need to have crystal-clear proof that something is your separate property, and that typically means documentation. Talk to your attorney at the very first meeting about assets that might be separate property, even if you’re not sure.
The partners at Noelke Maples St. Leger Bryant work on separate property claims almost daily. We have gone to trial on these issues, and we have seen enough judges’ rulings and juries’ verdicts to know what works and what doesn’t.
Schedule an appointment and we can talk through your separate property issues and point you in the right direction.
Community Property: “Texas is a ’50-50’ state, right?”
Kind of. In a divorce, the court does not have to divide marital property 50-50. Instead, the court will make a “just and right division,” which can mean that one party gets more than the other, based on a variety of factors. What you can usually expect is that you will divide up the assets and debts that you’ve acquired together during your marriage, such that each of you gets roughly half of the net estate, give or take a few percentage points.
While it may sound simple enough, dividing up the property is often more complicated than you would think. There are two main factors involved—value and character:
- The value of property—which is often disputed—can play a big role in what each party gets out of the overall estate;
- The character of property—community, separate, or a combination of both—also plays a significant role in the outcome.
It takes diligence and patience to gather up all the required information to make these determinations, and your legal team will need your cooperation and assistance.
You only have one shot at property division—so it’s super-important to get it right the first time—and that means avoiding the temptation to negotiate with your spouse before you have all the information you need.
The partners at Noelke Maples St. Leger Bryant have all handled big-money cases, no-money cases, and everything in between. Come visit with us in person to learn more about the issues in your case.
Why are the laws so restrictive on grandparents? Is this just a Texas thing?
The Troxel case is the leading United States Supreme Court case concerning grandparent rights. Troxel reaffirmed the principle that parents have a fundamental constitutional right to raise their children as they please, and that the state must not interfere except in extraordinary situations.
A major point of the Troxel decision was that parents have the right to decide with whom their child will have contact—in other words, it is up to the parents to decide whether and how they will allow the grandparents to see the child. A parent’s decision to exclude the grandparents from the child’s life is unlikely, by itself, to result in a finding of “significant impairment.” Additional unique circumstances or serious signs of unfit parenting are usually necessary to bolster a grandparent’s case.
In Texas, can grandparents gain court-ordered conservatorship or access to their grandchildren?
The short answer is yes, it is possible—but the legal standard will be difficult to meet except in rare situations. A grandparent who petitions the court for conservatorship or visitation must meet two consecutive legal burdens in order to prevail: first, the grandparent must establish standing; second, the grandparent must prove that the relief sought is in the child’s best interest. The attorneys at NMSB can help determine whether you have standing to file a suit and if so, assess whether you will be able to meet the legal burdens required.
Child Support: “How soon can I start receiving child support?”
It depends. If you and the other parent are unable to make temporary agreements concerning money and the kids at the beginning of the case, it is very common for a “temporary orders hearing” to be held within the first few weeks of filing for divorce (or an original custody case if the parents are unmarried).
At this hearing, the court can determine: temporary child support (including orders for shared child-related expenses); temporary conservatorship; temporary spousal maintenance (alimony); temporary possession schedule; and orders regarding the use of the home and other property during the pendency of the divorce.
Since income earned while the divorce is pending is community income, it will often make more sense to have orders that address who will pay for which household and child-related expenses while the divorce is pending, rather than traditional “child support.”
Once the divorce is final, child support will typically start on the 1st day of the 1st month following the date of settlement (or the judge’s ruling at trial). It will continue until the youngest child turns 18 or graduates from high school, whichever occurs later.
If you have multiple children, then the amount of support decreases as each child “ages out” – that is, reaches the age of 18 or graduates from high school.
50-50 Schedule: “I really want to have a 50-50 schedule for my child. Is this realistic?”
Maybe. The determination of the possession schedule is based on the specific facts in each case. In some cases, the parents may agree that a 50-50 schedule (truly equal time) is in the best interest of the child, and there are a variety of schedules that can accommodate this split.
The likelihood is that the only way to obtain a 50-50 schedule is to negotiate an agreement. While it is technically possible that a court could order a 50-50 schedule over one party’s objection, that is an extremely unlikely trial outcome. In cases where the parents do not agree on the schedule, many judges simply determine who the primary parent should be (typically, the parent who has been the “primary caretaker” or stay-home parent) and then give the other parent a Standard Possession Order/Expanded Standard Possession Order. Every judge is different, of course, and every case is different, so talk to one of our lawyers about your specific situation and what might work best for your family.
Possession Schedule: “It will be too hard on my child to go back and forth between two homes.”
In the vast majority of cases, possession will be shared, meaning the children will spend part of their time living in each parent’s home. While going back and forth between two homes may be a difficult adjustment for some kids, Texas law presumes that it is in the best interest of the children to have regular and meaningful contact with both parents after divorce, and judges generally agree. In other words, while it may be hard for a kid to have two homes, no longer having a close relationship with one of their parents is believed to be worse.
If you and your spouse can agree on a customized possession schedule that works for you and your child, that is the best path forward. For parents who can’t agree, the Texas Family Code has a default called the “Standard Possession Schedule” or “Standard Possession Order.”
The Standard Possession Order provides for the child to live the majority of the time with the “primary parent” (particularly during the school year) and then to spend specified times living in the home of the other parent. The non-primary parent will have the child every Thursday evening from 6:00-8:00 p.m. during the school year, the first, third, and fifth weekends of each month (from Friday 6:00 p.m. to Sunday 6:00 p.m.), every-other Thanksgiving, half of Christmas Break, every-other Spring Break, and 30 full days in the summer.
Altogether, this adds up to about one-third of the child’s time, outside of school hours. An “Expanded Standard Possession Order” increases this schedule such that weekends begin at pick-up from school on Friday and end at return to school on Monday morning, and the Thursdays become overnight visits. Texas law give the non-primary parent the right to choose the Expanded schedule, and this is typically the most common outcome in court.
Custody: “I want full custody of my child!”
It depends on what you mean by “full custody.” The word custody is a lay term that has no specific meaning under Texas law. If by “full custody” you mean that you want to have your child live only with you and not see the other parent, that’s extremely unlikely to happen. Unless there are horrific circumstances involving the other parent, your child will get to spend time with both parents during and after the divorce. What you may mean, and what is a more realistic goal, is that you want to have your child live primarily with you, and visit the other parent on a more limited schedule. The time that the child spends with each parent is referred to as “possession,” not “custody”, and is discussed below.
If by “full custody” you mean that you want to be the only parent who gets to make important decisions for your child, then we’re talking about what Texas law terms “conservatorship.” Conservatorship involves the right to make important decisions for your children, such as where they will go to school, decisions concerning their medical and psychological care, and other important decisions.
Sometimes there may be true justifications for the desire to be the “sole managing” conservator and have the exclusive right to make decisions for your child. However, Texas law says that “joint managing conservatorship” (decisions made by agreement of both parents) is presumed to be in the best interest of the children and that is the result in the great majority of cases.
Substance Abuse: “My spouse is an addict and I don’t trust him/her with the kids.”
Let’s be specific about this difficult subject:
- Alcohol. Alcohol use is legal. Alcohol abuse is hard to define and often hard to prove. Some people appear to be so-called “functional alcoholics.” Some people are an obvious danger to themselves and others when drunk. Disagreement about a spouse’s use or overuse of alcohol often leads to marital problems and divorce. The court’s foremost concern is the children’s safety. Does this parent’s drinking behavior pose a danger to the children? If so, how? The impact on the children of a parent’s use or abuse of alcohol can be difficult to understand, and difficult to prove. If there is any good news here, it’s this: 1 – the court takes this issue seriously, and 2 – new technology allows alcohol use to be monitored with high accuracy and relatively low cost.
- Prescription Drugs. Prescription drugs are legal (with a valid prescription). Prescription drug abuse is hard to define and often hard to prove. A person may have a valid prescription and be using the drug according to the prescription, and still be impaired. A person may be taking greater doses than prescribed, and not exhibit any obvious signs of impairment. Does this parent’s prescription drug use pose a danger to the children? If so, how? This is a particularly difficult problem because the use of the drug has the approval of a doctor.
- Street Drugs. Use of street drugs is illegal. Illegal drug use is easy to define and fairly easy to prove. Generally the court will not tolerate a parent using illegal drugs. But the circumstances of use certainly matter.
What can the court do about it?
- Testing: The court routinely orders drug tests when credible evidence of use is presented. A positive drug test typically results in that parent’s access to the children being temporarily restricted in some way, and often that parent will be court-ordered to submit to future drug tests and seek rehabilitative services as a condition of access to the children.
- Monitoring: Sometimes the parties will agree, or the court will order, that a person submit to monitoring using a service called Soberlink. Soberlink monitors alcohol use through a hand-held testing device that is connected to the internet and sends real-time updates—usually to both the monitoring center and also the other parent.
- Restrictions on visitation with kids: When the court finds that a parent’s substance use poses a danger to the children, the court may order that the parent’s visitation with the children be supervised by a trusted adult or a professional service. The court might also, or additionally, enjoin (prohibit) a person from drinking during his or her time with the children, and during the 12 hours prior.
We have negotiated and tried many cases that require a parent to submit to alcohol testing using a hand-held testing device managed by Soberlink, or drug testing through a local drug testing facility. These orders are detailed and intricate and require expertise in understanding how the body processes these substances, and how those who use them try to circumvent the tests. We also know that sometimes parties to a divorce or custody case will attempt to gain advantage in court with false or exaggerated claims of substance abuse, and it is critically important to get ahead of such allegations if you expect they are coming.
Relocation Cases: “I’m leaving Austin and I’m taking our kids with me.”
Not so fast. Asking the court to let you move away with the children is a serious uphill battle. Typically the other parent is opposed to the move, and will fight to keep the kids within the greater-Austin area.
When one parent wants to move, especially to another state, it tends to result in the most difficult and contentious kind of custody battle—what lawyers call a “relocation case” or a “move case.”
Our experience has been that the court will often order that the children remain within Travis County and contiguous (adjacent) counties (i.e. Williamson, Bastrop, Caldwell, Hays, Blanco, and Burnet).
These cases are difficult to settle because there is usually no workable compromise position—the kids are either staying or going. The likelihood is that the case will have to go to trial.
You can generally expect one of three potential outcomes:
- The court says no, you cannot move, and you end up staying in Austin;
- The court says no, you cannot move, and you move anyway (or have already moved) but your kids stay in Austin with the other parent; or,
- The court says yes, you can move with the kids, and typically the court also makes adjustments to the kids’ schedule and to child support.
The court is primarily concerned with the quality of the children’s life. Lawyers and judges refer to these cases as being “fact-intensive”—meaning that the specific circumstances of each case are different and the court needs to hear a great deal of evidence about the reasons for the move, and how the move will affect the children. The court considers the following factors (among others):
- Reasons for and against the move;
- Comparison of education, health, and leisure opportunities (between Austin and the proposed new location);
- Whether special needs or talents of the child can be better accommodated in the new location;
- The effect of the move on extended family relationships;
- The effect of the move on visitation and communication with the other parent;
- Whether the non-custodial parent actually exercises his or her possession rights on a regular basis; and,
- Whether the non-custodial parent has the ability to also move to the new location.
Our firm has handled many “move cases,” on both sides of the issue, including cases tried to a judge and cases tried to a jury. If you (or your children’s other parent) are considering moving away from Austin, talk to one of our lawyers about your specific situation to get an opinion backed by real experience.
Very young kids: “My spouse does not know how to take care of my baby on his/her own.”
Perhaps that’s true. But the court will probably give them a chance to try.
Here’s why: Texas law encourages frequent and continuing contact between a child and each parent, regardless of the child’s age. And unless there is credible evidence to the contrary, the court assumes that parents will do an adequate job caring for their children.
If your very young child has never spent significant time alone with the other parent, it is normal to worry. (That’s what parents do, after all.) But except in a very extreme situation, the court will give the other parent a schedule of fairly frequent visits. The specifics of the schedule will depend on various factors, including:
the age of the child;
the amount of experience the other parent has had taking care of the child alone;
how well the child has done during periods of separation from the primary parent.
Every case is different though, and other factors may be very important as well.
We are experienced in crafting detailed possession schedules that take into account the circumstances of your family, including whether the child is breastfeeding, the daily routines of the child and each parent, the needs of the child, and desires of the parents. We have employed consultants who have assisted first-time parents in baby-proofing their homes, transitioning an infant child who is still breastfeeding, preparing ‘baby journals’ to exchange with the child, and accompanying first-time parents during their first several periods of possession.
Special Needs Children
May the Court provide for support of an adult child?
Yes. In certain circumstances the Court may require a parent to provide financial support for a child with disabilities, provided that they existed or were caused by a condition that existed before the child’s 18th birthday.
Each child and family is different. No cookie-cutter approach will work in every case. We have found it essential to carefully consider each child’s needs and abilities, as well as the family’s unique dynamic and situation, then create a plan to suit them over time.
Are special provisions used in Court Orders in cases involving children with special needs?
Yes. A court order in such cases may need specific provisions that address:
- Medical, educational and therapeutic interventions, including “alternative” medicine;
- Treatments not covered by insurance;
- Diet and medication programs;
- Working with schools to implement plans for the educational needs of the child;
- Care outside of either parent’s home, and associated costs;
- Impact of care decisions on parents’ ability to work outside the home; and/or
- Lifetime care and support.
What types of issues come up in cases with children with special needs?
- Special-needs children often have difficulties, which can make typical shared-custody schedules unworkable;
- Parents may not agree about how to address their child’s special needs on a day-to-day basis– for example, maintaining a standard routine;
- Parents may have different opinions about healthcare choices, treatment plans, education and interventions; and/or
- Parents may need to specify tools and methods for how to resolve areas in which they disagree.
Careful consideration must be given to a parenting plan that will meet the family’s special needs.
Does the firm have experience handling cases involving children with special needs?
Yes. All of the attorneys at the firm have experience handling cases involving children with special needs. Keith Maples handles many such cases and is a frequent speaker across the state and the country educating other attorneys and professionals about the unique issues of these cases. Because of the firm’s team approach to handling cases the firm is uniquely qualified to assist families with family law matters involving children with special needs.
Is a mediated settlement agreement that has been signed binding and enforceable like a final order?
Essentially, yes… provided that the agreement prominently states that it is not subject to revocation, is signed by each party to the agreement, and is signed by each attorney who was present when the agreement was signed. The only caveat is for those cases involving children in which a party was a victim of family violence, that circumstance impaired the party’s ability to make decisions, and the agreement is not in the child’s best interest as determined by the judge.
Does the mediator make the final decision?
No, the mediator does not act as a judge who makes decisions for the parties. The mediation process is client-driven and client-controlled. Attorneys are present to guide and give information, but the parties are in control of whether or not the case settles.
When am I required to go to mediation, and can I do this without a lawyer?
In Travis County, the parties must attempt to settle the case at mediation before going to a final trial.
Don’t try to mediate without a lawyer. Mediators are bound by the ethical rules not to give legal advice to the parties. That means the mediator cannot tell you whether it’s a good deal or a bad deal. And once you sign a Mediated Settlement Agreement, it’s over. There’s no undoing it. Marital property law and child custody law are complex, and taking shortcuts can lead to truly awful consequences.
Do I have to mediate?
If you are involved in a divorce, custody or modification case that is going to be set on the long docket (more than 3 hour docket) in Travis County, you are required to mediate before your final trial will be heard by the Judge unless family violence has occurred. Surrounding counties require mediation before all final trials in family law cases unless family violence has occurred. Mediation is often used, but not required, in collaborative law cases.
What is Mediation?
Mediation is a day long process during which the parties and their respective lawyers meet with an agreed neutral third-party, a mediator, who assists them in attempting to resolve their disputes. The parties sit in different rooms at the mediator’s office, who shuttles offers back and forth between them. By having the parties and the lawyers in the same location for an entire day, they are able to focus and negotiate more intently.
Premarital and Postmarital Agreements
"Pre-nups" and "Post Nups"
What is a Postmarital agreement?
It’s like a premarital agreement, but it is entered into after marriage instead of before.
Married persons can agree to change the character of their property and partition or divide it during marriage. Married parties can agree to turn community property into separate property, or turn separate property into community property. Like premarital agreements, there are specific statutory requirements governing the enforceability of such contracts, and legal advice and counsel is highly recommended for both parties.
Do I need a prenup?
To know whether you need a prenup, you have to first know how Texas law will apply to your unique property and income situation. If you have a large separate estate, have children from a prior marriage, or are just concerned about what your property rights will be in the event of a divorce or death of a spouse, come see us. You may need a prenup, or you may find that Texas law works just fine for you.
Are prenups enforceable?
If drafted properly, premarital agreements are presumptively enforceable in Texas, and they are very difficult to challenge. They must be drafted properly, however, and contain required elements such as a fair and reasonable financial disclosure and a waiver of disclosure beyond what has been provided.
What can a prenup do?
Texas Family Code Section 4.003(a) allows parties to a premarital agreement to contract with respect to the following:
- (a) The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
- (b) The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
- (c) The disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
- (d) The modification or elimination of spousal support;
- (e) The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
- (f) The ownership rights in and disposition of the death benefit from a life insurance policy;
- (g) The choice of law governing the construction of the agreement; and
- (h) Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
Essentially, a prenup allows the parties to make different rules for their property rights during marriage, and to dictate how those assets will be treated in the event of a divorce or the death of one spouse.
Why do people get premarital agreements?
There are lots of reasons a person about to get married may want a premarital agreement, or “prenup” – she may have children from a prior marriage and wants to make sure her children’s inheritance will not be impacted by a new marriage, he may be marrying someone who has a lot of debt, and he wants to make sure his assets are protected from her creditors, or he may be marrying a woman with children from a prior marriage, and he may want to make sure that the joining of his estate with a new spouse will not complicate his estate in the event of his wife’s death.
There are many good reasons to get a prenup, and having one does not mean you think you will get divorced. It does mean that the two of you have put some thought and planning into your finances and that you have shared your expectations about money before getting married, and that is always a good thing.
How do I know if my case is a good fit for collaborative law?
In your initial consultation, the attorney will review the potential advantages and disadvantages of collaborative law, and help you decide if your case is a good fit. Your spouse will need to agree and sign a Collaborative Law Participation Agreement in order for your case to move forward collaboratively.
What do the joint collaborative meetings entail?
Each meeting lasts approximately two hours and has a prepared agenda so there are no surprises. In these meetings, the parties gather information, generate options with the help of their lawyers, and work together toward a final resolution. Many collaborative teams include a neutral financial professional who prepares and controls the joint inventory of assets and liabilities and a communications facilitator who helps keep the meetings moving forward in a productive manner.
How do I get all of the information I need from my spouse without formal Discovery?
In signing a Collaborative Law Participation Agreement, the parties agree to make a full and complete disclosure to one another of all relevant information. Collaborative Law utilizes informal discovery, such as the voluntary exchange of financial information, and relies on neutral experts such as tax advisors, financial planners, appraisers, and family counselors.
What if my spouse and I can’t reach an agreement through the collaborative law process?
In the event the parties fail to settle their issues through the Collaborative Law process and mediation, the collaborative lawyers must withdraw, and new trial counsel must be retained by each party. This component encourages parties to remain in the process. We work hard to help parties decide if Collaborative Law is right for them prior to proceeding collaboratively.
Do cases resolved through collaborative law cost less than litigated cases?
Not necessarily. But the money you spend is spent differently. Instead of spending money having your lawyers prepare for trial by using formal discovery and depositions, you pay for your lawyers to sit in a joint meeting with you and your spouse to discuss collecting relevant information and asking questions of each other.
What is Collaborative Law or a Collaborative Divorce?
It is an alternative process to litigation that allows you to resolve your disputes by meeting with your spouse and your lawyers without going to Court.