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So, could someone come to your home and take you kids? It is a fear, or maybe depending on a night of unending shrieking, a fantasy of all parents. The answer is, as any good attorney worth his/her salt will tell you, “It depends.”

Are you using hard illegal drugs in front of your children? Are you leaving them at the tender age of 5 alone for hours on end? Are you feeding them only when you remember to on a weekly basis? Are you knowingly letting your children be abused or mistreated by registered sex offenders?

I sure hope you said no to all of these questions. If you did say yes to any of the above, know that there is help. Stop what you are doing right now. Call CPS on yourself immediately. Do it for your children. You are not ready to be a parent, maybe ever (probably ever, but we have other blog posts for you to read).

Divorce cost money, no matter how easy a lawyer and the client try to make the process, one cannot get around the fact that going through a divorce is expensive. There are, however, certain alternatives that couples can partake in to try and reduce the amount of time spent in court and may also help lessen the costs. One of these ways is through family mediation.

Although it is presumed that couples going through a divorce are so completely filled with hate that no agreements can ever be made, this is not always the case. And for clients who believe that they may be able to come to certain agreements on topics such as, child custody and splits of assets or debts, mediation is a great alternative to litigation. Parties that choose to go through mediation are able to make equitable choices of how to divide their assets and debts rather than being stuck with how the court decides to distribute them.

A neutral third party, whose goal is to help couples reach an agreement that satisfies their needs and interests, conducts the mediation. The mediator is not partial to either party, but only helps each party to make decisions that will be beneficial to themselves and each other’s interest.

On June 26, 2015, the Supreme Court of the United States held, in Obergefell v. Hodges, Director, Ohio Department of Health, Et Al., that the 14^th amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of State.

Since the establishment of the Supreme Court in 1789, landmark decisions, similar to the opinion formed on June 26^th, have changed America, and will continue to do so. Whether we agree with the Supreme Court’s decisions or not, they are a part of our history and have shifted America. And whether we agree or not with the decision made on Friday, it will be one that fills the history books for our children’s children to read.

The Court, in this case, points out that marriage is a union that has evolved over time. At one time marriage was an arrangement, made by the parents, that was based on political, religious, and financial concerns. And before women began to gain legal, political, and property rights, a married man and woman were treated by the State as a single, male-dominated legal body.

How do I prove that certain property in my divorce is separate from the community property?

When the court divides property in Texas there is a presumption that the community owns everything, that is both parties will have a right to it. Anything that you or your spouse has received through gift, devise, or descent is your separate property, and you will need to show this to the court. But, if there is some property that you have used your separate funds to purchase, and is your separate property you will have to prove this to the court through clear and convincing evidence. The Fifth District Dallas Court of Appeals case, Slicker v. Slicker, defines clear and convincing evidence as the “measure or degree of proof which will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” So, you and your lawyer will need to bring in enough evidence and proof that will reasonably convince the judge or the jury the property is in fact your separate property.

How does the court divide community property?

In most family law cases children are seldom asked to testify because of unreliability. But, in some cases a teenager may be called to testify in situations such as; when a teenager wants to live with a different parent, where a parent has made serious accusations about the other parent and the only witness is the child, an enforcement action, or a custody or termination where the child wants to testify.

How is a child called to court?

If you know that you will be calling a child to testify in a case, it is good practice to notify the judge in advance. Most of the time lawyers will serve subpoenas to the parent of the child. This is the most common way because the parent will be actually driving the child to the court The judge can be specific about the provisions of the subpoena, providing guidance on who will bring the child to the courthouse, where the child is to go when he or she gets there, and who can talk to the child before giving the testimony.

What steps will my lawyer take to file for divorce, annulment, or to declare my marriage void?

First, the attorney will need to file a petition for divorce to the court. When filing a petition for divorce, the attorney will not have to be specific with the facts, unless the parties are seeking specific property rights. If children will be involved in the divorce, a SAPCR (suit affecting the parent-child relationship) must also be included. The attorney will make sure that all the relief that is sought is filed in this initial pleading. The pleading can be changed as the case goes on. In Texas, the petition will need to meet the fair notice requirement, requiring the party to provide a short statement to give fair notice of the party’s claims. This will give the other opposing party an idea of what the controversy will be about. If you are representing yourself you must sign the pleading, or if an attorney represents you the attorney will sign it.

Jurisdiction

When you are married, you and your spouse accumulate debts together.  Most likely, those debts are either in one or both of your names.  From a divorce attorney’s perspective, it is always best if the debt is in your name or your spouse’s name and it is associated with an asset that you are receiving.  For instance, if you are awarded the car but there is still a note on the car—as long as the note is in your name alone, awarding you the car and the debt associated with it does not create an issue for your spouse.  But, if the debt is in both of your names then the other spouse either wants you to refinance OR sell the asset.  Reason being, if your spouse is ordered to pay a debt that is in both of your names but fails to do so then it affects your credit and the creditor can still come after you for repayment of that debt.

In some instances, people rely upon indemnification provisions within divorce decrees in order to protect them when a debt is in both parties’ names but only one spouse is ordered to pay the debt.  An indemnification provision looks like this:

“Each party represents and warrants that he or she has not incurred any outstanding debt, obligation, or other liability on which the other party is or may be liable, other than those described in this decree.  Each party agrees and IT IS ORDERED that if any claim, action, or proceeding is hereafter initiated seeking to hold the party not assuming a debt, an obligation, a liability, an act, or an omission of the other party liable for such debt, obligation, liability, act or omission of the other party, that other party will, at his or her sole expense, defend the party not assuming the debt, obligation, liability, act, or omission of the other party against any such claim or demand, whether or not well founded, and will indemnify the party not assuming the debt, obligation, liability, act, or omission of the other party and hold him or her harmless from all damages resulting from the claim or demand.

One of the most common questions I receive in family law consults is “How long is a case like this going to take” and the answer that I have to give every client is that it just depends.   Unfortunately, this is the nature of family law cases in that the length of your case depends upon everyone’s calendars (yours, the other party’s, the attorneys’ and the court’s calendar), the facts, the issues, and the steps that may arise in your case.   This is one of highest concerns among my family law clients because they do not want to have their case drag on for months or even years.   I completely understand wanting the case to be finalized as quickly as possible, but it is just not something that is doable due to the circumstances that these fact-driven cases present.  Many people also do not realize there is not a way that we can speed up a case at all and if there is a way, it is very costly.  Therefore, once in the trenches, people typically opt to go with the flow so that they can hopefully achieve the results they are seeking to achieve.

One of the most prominent reasons that a case involving child custody can last long is because the Court or one of the parties requests a social study.  A social study is where a social worker investigates both parties, their respective homes and backgrounds, does reference checks, etc. in order to render an expert opinion for the court as which parent the child should primarily reside with and the visitation the other parent should receive.  I have had several cases where a social study took up to 9 months to complete.  Also, once a social study is completed and if new evidence arises after the social study is completed, a party can request a supplemental social study to be completed.

Even if you do not have a case involving child custody issues, in general, family law cases contain several steps that parties must complete before a case can be finalized.  Typically, you have an interim temporary orders hearing to set the status quo of the case and then other steps can be ordered at that time such as counseling, appraisal for property, drug tests, psychological examinations, mediations, pretrial conferences, depositions, etc.  Also, both parties will want to complete discovery in order to learn about each other’s cases and gather information/evidence as to the issues.  All of this can be very time consuming.  Also, and quite common, the other party may be doing everything within their power to drag out the case and it may all be within the limits to where sanctions cannot be requested.  We have had several instances of people just not wanting a divorce and so there are several temporary orders hearings scheduled and many different steps that must occur before a final trial can be scheduled.