Dallas Divorce Lawyer Blog

Kaufman County Flat Fee/Payment Plan Agreed Divorces

August 25, 2014 | by Robert Guest

Getting divorced doesn’t have to be expensive. But if you’ve been through one or looked into getting one, you know that it usually is. Sometimes it’s expensive because attorney’s fees are so high. Other times it’s expensive because the parties involved can’t help but fighting over every little thing. But if you and your spouse can come to an agreement on how to split up your property and/or time with your children, we’ll do our part to keep the attorney’s fees to a minimum.

Guest & Gray, P.C. is now offering flat fees for agreed divorces, and we’re accepting payment plans. Here’s how it works. The base fee for an agreed divorce is $1,800.

There may be additional fees if you require additional documents to be drafted so that an interest in a house or a retirement fund can be transferred. But the base fee covers the things every agreed divorce requires: a petition for divorce, a waiver of service (so a process server doesn’t have to serve the other party) and a final decree of divorce. Again, we can do this on your timeline, so the payment plan can proceed at the pace at which you need it to proceed.

Why is the Other Side Asking for Attorney’s Fees? Texas Rule of Civil Procedure 47 Explained

August 20, 2014 | by Guest and Gray Law Firm

I frequently see parties involved in litigation who are furious at the other side for the things they have asked for in their paperwork. Most often this comes up in family law cases when children are involved and one side is asking the court to exclude one party from seeing the child or to severely limit access to the child in some other way like supervised possession. But it happens in more tame situations as well. A request for spousal maintenance or a reimbursement claim can set people off. It can also happen in non-family cases. In civil cases, people are often outraged at the amount of money the other party is claiming they are owed. A request for attorney’s fees in any type of case can be upsetting.

It’s the law’s fault.

The problem is that the law requires a party to a suit to list everything it wants in its pleadings filed with the court. To put it simply, if you don’t ask for it, you can’t get it. Rule 47 of the Texas Rules of Civil Procedure outlines what must be pled for in a civil suit, and section 102.008 of the Texas Family Code does the same for a family law suit. If you want something, or even if you think you might want something depending on information obtained during the lawsuit, you have to ask the court for it in the pleadings.

Violations of Temporary Orders, What Are Your Options?

August 14, 2014 | by Guest and Gray Law Firm

If you have a current pending divorce or suit affecting the parent-child relationship then you most likely have temporary orders in place. If not, in most family law cases you do want to ensure that you have temporary orders granted by the Court so that you know what you should and should not be doing while the case is pending. That is, temporary orders set the status quo of your case and instruct the parties as to their rights and duties with respect to their children, property, debts, and other issues in the case. For instance, you may have been granted exclusive use of the marital residence, your vehicle, and primary possession of the children. These are all essential things to establish in a case without delay, unless you and the other party are working amicably towards a final resolution.

Enforcement of Violated Temporary Orders

Once the Court has granted the temporary orders, they are enforceable against both parties. If any portion of those orders is violated by either party, there are options. The other party may have been ordered to pay child support and they may not be doing that and you may need that support in order to survive. Or, the other party may have been ordered to participate in counseling or drug testing and they not be doing so. It might even be that the other party will not stay away from the property or give you the car you were awarded temporarily. All of these issues are concerning and when you are not getting the results from the provisions the Court put into place it can be very frustrating. But, you do have recourse. Typically, you can file an enforcement action of temporary orders asking that the wrong be corrected and asking for attorney’s fees for having to go back to Court and ask the judge to tell someone to do what they were already ordered to do. If it is a failure to pay child support, the violating party also faces possible jail time. You will have to be able to prove that the temporary orders were put in place, prove the violations, and then the burden becomes the other party’s to state why they did all of those things. Depending upon those reasons, the Court may be a little lenient upon the person. It is always a hope that the Court would at least grant your attorney’s fees for your attorney’s time to draft the enforcement and have the hearing.

I was served with a Petition for Divorce, What is my deadline to respond?

August 13, 2014 | by Guest and Gray Law Firm

You have been served with a Petition for Divorce or any family law petition by either a private process server or constable and you wonder what to do at this point. You have never been through something like this before and you do not know when or if you even need to respond. But, if you were served with anything you must file a response. You cannot allow the case to proceed forward without your response because if you do, you will be setting yourself up for failure. In not filing a response, the other party can secure what is called a “default judgment” against you. If they do this, that means that the judge can entertain and sign any order that the other party presents to the court without further notice to you. You definitely do not want this to happen in a family law case because unfortunately there will not be anything to reverse that awful one-sided order once it is entered because you had ample notice to participate once you were served.

So, to avoid that catastrophe it is important that you, at the very least, file what is called a “general denial” or what some people call an “answer.” This puts the court on notice that you have received the petition (though they will also see that in the return of service filed after your service by the process server and constable) and that you are contesting the case. Therefore, if any additional actions are taken in the case like a hearing or order presented to the court you will be entitled to notice before any of that can occur.

Deadline to Respond – 10 AM on the Monday after 20 Days

Can I Have My Marriage Annulled Because of Fraud?

August 7, 2014 | by Guest and Gray Law Firm

What is the law in Texas on marriage fraud?

The first step in determining whether or not you qualify for an annulment based upon fraud is to ensure that you fit within the parameters of the law on this issue. Specifically, Texas Family Code Section 6.107 states that, “a trial court may grant an annulment of marriage to a party to the marriage if (1) the other party used fraud, duress, or force to induce the petitioner to enter into the marriage; and (2) the petitioner has not voluntarily cohabitated with the other party since learning of the fraud or being released from the duress or force.” Therefore, if someone used fraud to get you to marry them and you stopped living with them after you learned of the fraud, you qualify so far. The next question becomes, what constitutes as fraud? Many Texas Appellate Courts have addressed this issue and have come up with a standard as follows, “Fraudulent inducement is established by proving that a false material representation was made that (1) was known to be false when it was made; (2) was intended to be acted upon; (3) was relied upon; and (4) caused injury.” See Desta v. Anyaoha, 371 S.W.3d 596, 600 (Tex. App.—Dallas 2012, no pet.); Zhang v. Zhang, not reported. Therefore, if your spouse says something to you prior to marriage that is false and you depend upon that false statement to marry them and then you find out and it has caused you injury in any way you might have a strong legal argument for an annulment.

What is an example?

Why Do Family Law Cases Take So Long?

August 6, 2014 | by Guest and Gray Law Firm

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.

What’s the Law in Texas on Challenging Mediated Settlement Agreements?

July 16, 2014 | by Guest and Gray Law Firm

In Texas, if a mediated settlement agreement is properly executed you cannot challenge it. Texas Family Code Section 153.0071(d) and (e) mandate that courts shall issue an order in compliance with a mediated settlement agreement. This is why it is so important to have an attorney attend mediation with you. You cannot go back after the fact and change it. When the mediated settlement agreement is signed and on file with the court, that is it. Those are the terms and they cannot be changed. Many have tried and failed.

Why Would a Party Want to Back Out on a Mediated Settlement Agreement?

Mediations can sometimes be very difficult and long days. You typically do not reach an agreement until the very last hour after you have already been there for eight hours without a break. At this point, you are exhausted and you may not be thinking clearly. So, you might forget something. Also, a lot of parties have what we call “buyer’s remorse” in that you thought it sounded good at the time but now in practice it is not working out. For instance, a visitation schedule for a child—a party may end up wanting more or less time due to demanding schedules and want that changed. Or, a party may want to say that they actually wanted more child support than what they originally agreed to and they want to challenge that now. However, the law is pretty clear that you cannot.

Can I Fix an Error in a Final Decree or Order?

July 15, 2014 | by Guest and Gray Law Firm

If you have a final decree or final order in a family law case with an obvious mistake from what the trial court ordered or the parties agreed, you can get it fixed through what is called a Nunc Pro Tunc. The key is that this mistake has to be a clerical error—did it mix up the judgment of the court. It cannot be one that requires “judicial reasoning and determination” or in other words any thought process on the judge’s part. If it is in fact a clerical error, then under Texas Rules of Civil Procedure, the trial court can fix this clerical error at any time.

What is an Example of a Clerical Error?

In Bernardo Reyes v. Olga Reyes, the Amarillo Seventh District Court of Appeals had to address this issue. In that case, the trial court made an initial order on the record divorcing the parties and making appropriate orders regarding conservatorship and child support. Most importantly, the trial court ordered that mother be the parent who has the exclusive right to designate the primary residence of the children and father to pay child support. The trial court rendered the orders on the record but the final decree was never actually signed by the court until three years later. The problem was that the actual decree ordered mother to pay child support. Mom filed a nunc pro tunc to fix this obvious error. The trial court entered the nunc pro tunc, correcting the error that it was actually father who was supposed to be paying child support. Father challenged that. In reviewing the trial court’s record, the appellate court was able to determine that this was in fact a clerical error and affirmed the trial court’s ruling.

Should You Sign a Waiver of Service?

July 3, 2014 | by Guest and Gray Law Firm

Your spouse has filed for divorce but tells you that you guys can agree on everything and that you do not need an attorney. They also tell you that you do not even have to be served by process server but instead that you can sign a “waiver”. This means that you sign the document, accept the petition informally from your spouse, and you will not be formally served by a process server or constable. Many people just sign the waiver without even knowing what it means or consulting with an attorney. The reality is you probably do not want to sign this. Reason being, when you sign this document you waive citation, filing an answer, and further notice in your divorce. Thus, if your spouse wanted to they could proceed forward with whatever final orders that they wanted to present to the court giving you absolutely none of the property and/or no rights to your children.

An example of just how bad a waiver of service could be is found in Garduza v. Castillo from the 5^th District Dallas County Court of Appeals. In that case, the husband appealed a Dallas trial court’s opinion to allow a default judgment order against husband and in favor of wife. The wife initially filed a pro se (not represented by an attorney) petition for divorce and represented to the trial court that she and her husband would agree on everything. Husband then filed a waiver of service that waived everything—future notice of any hearings, citation, filing an answer, being a part of the case. After that, the wife hired an attorney (because apparently she could not get that agreement) and they filed a couple of amended petitions seeking primary of the children, back child support, and other issues. The wife and her attorney then proceeded forward to the default docket and presented an order to the trial court which was signed because the husband filed a waiver. However, once the husband received a copy of the decree he was not very happy. All of the orders were completely against what he and his wife had initially discussed and he was not in agreement with the trial court’s determinations. Thus, he proceeded forward with an appeal. He still did not get an attorney and filed the appeal himself. The appeal was not properly filed; however, because the appellate court determined that husband was never “served” properly with the amended petitions this was sufficient to grant the appeal. That is, the appellate court did recognize that husband filed a waiver of service. However, the appellate court determined that wife filed two amended petitions and they were never “served” on the husband as required by Texas Rules of Procedure Rule 21a. That is, once you sign a waiver or even if you are served by a process server, if the other party files any additional affirmative pleadings they must give you proper notice of this. This is accomplished through sending the additional affirmative pleadings via certified mail return receipt requested. The appellate court found that the wife did not do this and thus they could overrule the trial court’s orders.

Chances are you will not be as lucky as Mr. Garduza. He genuinely skated by and got another bite at the apple from the sheer fact that his spouse filed amended petitions and failed to serve him those by mail. If they had not filed amended petitions and just proceeded forward with what the wife wanted in the orders, this would not have been a successful appeal. There are actually three morals to this story—always get an attorney to protect your rights and interests; do not sign a waiver unless you are absolutely certain of the orders that will be presented to the court AND you attend all hearings; and you have to be served by a process server with the initial pleading unless you sign a waiver of service and then all future notice goes to you by certified mail. If you are facing this situation, contact an attorney at Guest & Gray today.

Getting an Expunction in Kaufman County When Your Case Is Dismissed

June 30, 2014 | by Robert Guest

You may be entitled to an expunction if you arrested but never tried in court either because you were never formally charged (this is called a no-bill) or the case was dismissed before trial. In those situations, you are entitled to an expunction if a) you are released without there being a final conviction or court-ordered supervision (aka deferred adjudication), and b) the statute of limitations has expired, the case was dismissed for a specific reason or a waiting period has passed.

The first requirement is fairly simple to understand. You can’t be found guilty, plead guilty, or take deferred adjudication and later be eligible for expunction. The only exception to that is that you can take deferred adjudication for Class C misdemeanors (typically traffic offenses) and be eligible for an expunction.

The second requirement is a bit more complicated. Well, parts of it are. The simple part is if the statute of limitations has expired. If you meet the first requirement and you can no longer be prosecuted for the offense because the statute of limitations has run, you are entitled to an expunction. That’s cut and dry. If you’re wondering if the statute of limitations has run, call our office to set up a consultation to see if you’re eligible for an expunction.