Dallas Divorce Lawyer Blog

Can the court change or modify a mediated settlement agreement in a family case?

August 30, 2013 | by Guest and Gray Law Firm

When you seek to modify a mediated settlement agreement that is an original determination of parent-child relationship matters, does a trial court have to enter an order that meets the terms of the mediated agreement? The Dallas Court of Appeals considered this issue in a recent decision and found that because modification suits apply a different set of rules than the rules that apply to original agreements about the child-parent relationship, a modification of child support suit may result in a ruling that does not comply with the terms of the agreement produced by mediation between the parties.

A mediated settlement agreement reflects the agreement of the parties about the child-parent relationship, including matters like child support, possession, and conservatorship. Child custody is called conservatorship in Texas. Texas courts and laws put a heavy emphasis on mediation and encourage alternative dispute resolution in a lot of situations. Mediation is supposed to encourage problem-solving and cooperation as well as reduce the financial burden on families and the court system. Many courts actually require mediation before allowing litigation to begin. Because of this emphasis, courts are likely to respect mediated settlement agreements unless a compelling reason exists that indicates that the court should ignore the agreement. Sometimes, statutes provide that required compelling reason.

In this recent case, the parties’ mediated settlement agreement was the original determination of conservatorship, possession, and access to the children. An original determination arises under § 153 of the Texas Family Code. As long as the mediated agreement met the rules of § 153, the court would enforce the agreement as written if a suit was brought seeking enforcement of the agreement. However, one of the parties sought a modification of child support suit. This type of suit is brought under § 156 of the Texas Family Code. This section requires different policy concerns than § 153, namely the need for stability for the child and the necessity of preventing constant litigation in family law cases. Because the policy concerns are different, the law has a different standard the court must use when applying the law. The Texas Family Code’s § 156 legal burden requires the court to determine if there has been a “material and substantial change” in the circumstances of the parties as well as to consider whether the requested modification is in the best interests of the child. So, when there is both a “material and substantial change” in circumstances and the modification sought is in the best interests of the child, the court only has to consider these facts and is not bound to enter an order that strictly complies with the mediated settlement agreement.

My husband is having an affair, can I use that against him in a divorce case?

August 29, 2013 | by Guest and Gray Law Firm

This is such a hard issue that so many of my clients face. A divorce alone is emotionally and mentally draining, but when you add in an affair, it makes it such a hard case. In Texas, there are two different kinds of divorces, no-fault and fault. Fault divorces have specific statutory grounds, adultery being one of them. However, you must be able to prove the adultery in order to get the ultimate relief requested. This, sometimes, requires us to go so far as to have the person within whom your spouse is having the affair with to come and testify about the affair. This is accomplished through a subpoena to testify.

Most of the time, the purpose of pleading fault divorce is to ask for a disproportionate share of the community estate. The courts have a wide discretion in separating and awarding community property between the parties because they are only bound by the Texas Family Code to do a “just and right division.” Most of the time, the parties get a pretty even split of the property. However, in cases of fault, the court could examine that and as a way to compensate the other party, give them a little more assets than they would have before. It can also be used to the non-cheating party’s advantage in cases where they meet the requirements to request spousal maintenance.

Therefore, the answer is yes but ensure that it is going to be worth it–do you have a lot of property/assets or debts that you want to ensure that you (a) either get more of; or if it’s a debt issue (b) you get less or none. Our family law attorneys at Guest & Gray, P.C. would be happy to work with you to determine what the best avenue is for you to take.

This divorce is not my fault. Can I get attorneys’ fees paid by my spouse?

August 29, 2013 | by Guest and Gray Law Firm

As a divorce attorney, I hear this question so often. So many couples are split down the middle in that it is one party asking for a divorce that the other party absolutely either does not want or feels as though they had no part in the breakdown of the marriage. As a result, they feel that the other party should bear all of the costs of the divorce. Attorneys’ fees is a frequent and albeit automatic request in all divorce pleadings from both sides.

If you plead for and have the evidence of a fault divorce (ex. your spouse committed adultery and you can prove it), then the recourse could be that the court orders your spouse to pay attorneys’ fees. There is also a different scenario when the attorneys’ fees are pled for as debt of the community and the court is ordering who should pay those attorneys’ fees. This would be when an attorneys’ office does not receive the compensation for their services and then intervenes in a divorce suit to ensure that their fees are paid by one or both of the parties. However, there was a recent important Texas Supreme Court decision rendered in Tedder v. Aldrich LLP where the Court held that the trial court erred in ordering the husband to pay the wife’s attorneys’ fees because those fees are not necessaries and therefore not a community debt that the husband could be held liable for. This has changed the practice of family law in such a dramatic way.

Therefore, there is no short answer here. Family law cases are determined on a case-by-case basis and with this new Texas Supreme Court decision (which the legislature might overturn in the next session), family law courts are going to be scrutinizing the award of attorneys’ fees and the burden upon which party the payment is placed. However, this is an issue that Guest & Gray, P.C. is familiar with and deals with quite frequently. Contact us to assist you in navigating the best route to take in your litigation.

I have been served with divorce papers, what should I do next?

August 29, 2013 | by Guest and Gray Law Firm

The reality is that most people get served with divorce papers and stick their heads in the sand because they are in denial. You cannot let this happen to you. If you fail to file a response, hire an attorney, or show up to the hearing, then you are facing a default judgment against you which results in your spouse getting everything that they want and a final decree being entered that could completely rock your world (sometimes more so than the divorce itself).

You need to set up a consult with a family law attorney and eventually hire an attorney who can represent you in this matter. So many clients come to me after they have been a part of a pro se divorce (they were not represented by legal counsel) and they want me to fix what they have screwed up. Once you hire me, we will either file a counterpetition (if there are certain specific things you want to ask for as a part of the divorce such as a disproportionate share of the community estate, have your separate property confirmed, temporary spousal support, etc.) or file a general denial. More than likely, if you have been served, you were not only served with the original petition for divorce but you were also served with a notice of hearing that you need to prepare for. You will need to make sure you have any of your necessary witness’ information for your attorney and any evidence that you want admitted to refute either your spouse’s claims or support yours.

As a family law attorney, I know how shocking and overwhelming it can be when served with divorce papers. Contact Guest & Gray, P.C. to help you make the best decision in this legal battle. Our family law team is ready to help.

Crandall Texas Divorce Lawyer

August 26, 2013 | by Robert Guest

If you live in Crandall and need help with a divorce, I can help you through the process. I understand this can be a difficult experience in many ways, emotionally, mentally and financially. But as your Crandall Texas divorce lawyer, it’s my job to make the process as hassle-free as possible for you and to make sure you get what you need and are entitled to out of the divorce process. I practice primarily in Kaufman county and am familiar with the system there, the judges, and many of the attorneys who could be hired by your spouse.

A divorce always starts with one spouse filing a petition for divorce. Once the petition has been filed, the other spouse must be served with the papers. Once that has been done, a temporary orders hearing is often the first major step in the divorce process. Temporary orders are sometimes necessary to determine what will happen while the divorce is pending. For example, if you have children, it will need to be decided who the kids will live with primarily during the divorce and when the other spouse will have visitation. And it usually needs to be decided who will be the spouse to have exclusive use of the marital home. Who will pay certain bills? Who will drive what car? These are a few of the common questions addressed through temporary orders.

From there, it’s simply a process of trying to decide how to finalize the divorce. The three main issues that come up in divorce are children, assets and debts. These issues can frequently be resolved by the parties outside the courtroom. There are several advantages to settling outside of court. First of all, you and your spouse get to decide what it best for you and your kids instead of leaving it up to a judge who doesn’t know you from Adam (or Eve). Second, the sooner an agreement can be reached, the sooner you can stop paying attorneys to try and resolve your case. And if an agreement can’t be reached through an informal process, there are tools such as mediation to help you come to an agreement. Mediation is a process in which an uninvolved third party speaks to each party individually and tries to help them work towards a resolution. In my experience, this is a highly effective tool.

Dallas Court of Appeals Rules on Proper Notice for Child Support Cases

August 26, 2013 | by Guest and Gray Law Firm

IN RE: IN THE INTEREST OF A.A., A CHILD

The Texas Family Code requires notice for a hearing on the petition for confirmation of a non-agreed child support review order, but does not specify the notice requirements. So, what must be included in such a notice to satisfy the due process rights of the parent on whom it is served? On August 23, 2013, this question was addressed by the 256th Judicial District Court in Dallas County, Texas.

Appellant Pedro Albarran was served with a Form #329 Notice (“notice”) and the petition for confirmation of non-agreed child support review order. The notice stated that a hearing had been set and provided the location of the hearing, but failed to include the date and time of the hearing. Mr. Albarran did not respond to the notice. The hearing took place over six months after service; during the hearing an order was confirmed by the trial court that established paternity of the child and ordered Mr. Albarran to pay child support. Mr. Albarran contended that the notice did not satisfy due process and was therefore insufficient to confer jurisdiction upon the trial court.

Dallas Court of Appeals Rules of Child Support Modifications

August 26, 2013 | by Guest and Gray Law Firm

IN THE INTEREST OF B.E.V. AND B.J.V.

Can a court modify child support obligations when the parent seeking modification provides no historical financial data and asserts only the most general justification for the increase? The answer is no, according to an opinion from August 23, 2013, by the 302nd Judicial District Court in Dallas County, Texas.

In order for the trial court to conclude that there has been a material and substantial change in circumstances warranting a modification of a parent’s monthly child support obligation, the movant must present at least some testimony or other evidence sufficient to enable a trial court to compare the circumstances at the time of the order to be modified with the circumstances existing at the time modification is sought.

Forney and Kaufman County Family Law Resources

August 22, 2013 | by Robert Guest

Guest & Gray has offices in Rockwall, Forney and Kaufman and serves family law clients in counties all over the Metroplex like Kaufman, Rockwall, Hunt, Ellis, Van Zandt, Smith, Dallas, Collin, Denton, and Henderson. We have experience with a wide variety of family law issues including but not limited to divorce, child custody, child support, paternity, adoptions, grandparent rights, family violence and child custody and support modifications.

The most common family law issue is divorce. This can be a difficult experience and confusing process. If you have questions about how to start the process of getting a divorce, what the process of getting a divorce is like, and the possible outcomes for a divorce, please read this post that discusses each of those questions: Kaufman County Divorce. One part of the divorce process is the division of property. In Texas, there are two kinds of property in a divorce, separate and community property. For an explanation of separate property, please read this post: Kaufman County Separate Property.

One of the big stages of a divorce proceeding is the hearing for temporary orders that usually takes place within two to three weeks after filing for divorce. As the word temporary belies, these orders are not permanent but are designed to set a status quo while the divorce is pending. Check out this post to get a better understanding about this step in the divorce process: Kaufman County Temporary Orders.

Kaufman County Divorce Lawyer: Common Law Marriages aka Informal Marriages

August 5, 2013 | by Robert Guest

Most married couples go through the formalities associated with marriage. They get a marriage license, they have a ceremony, and the person who officiates the ceremony signs the license, which then makes the marriage official. But other people choose not to go through that process, and it’s not necessary to go through that process to be considered married in Texas. Texas also recognizes informal marriages which are more commonly known as common law marriages. As a guy who has been dating a woman for a year and a half, I would certainly like to go the common law route and avoid the the cost associated with all the formalities. But I doubt I’ll be so lucky.

The problem with common law marriages is that it is often difficult to prove their existence. With formal marriages there is paper trail, and there are witnesses from the ceremony. There’s never a doubt about whether a marriage occurred in those instances. But for those who are informally married, it can be difficult to prove there was actually a marriage. Why does it matter that you be able to prove a common law marriage? Unless you can do so, you can’t get a divorce. This can be a problem for people who are in a relationship that they consider to be a marriage because in the event that the relationship ends, the parties are not entitled to half of the marital estate unless they can actually prove that there was a marital estate. This can result in parties losing out on assets that they would be entitled to in a divorce action such as home equity, retirement accounts and more.

Texas law has three requirements for proving a common law marriage.

Kaufman County Divorce Lawyer: A Checklist to Go Through for an Agreed Divorce

July 30, 2013 | by Robert Guest

The best way to save money when getting a divorce is to agree on everything. If you do that, it’s just a matter of paperwork and a little bit of court time for the attorney(s). When spouses can’t agree, that’s when a divorce can get drawn out and expensive. So if you and your spouse are considering getting an agreed divorce in Kaufman county, go through the checklist below prior to calling an attorney. The more stuff you can agree upon, the cheaper your divorce will be. Call me, Brett Talley, at (972) 564-4644 to discuss your uncontested divorce.

Assets

Below are the most common assets involved in divorces. You need to decide who will be keeping what in the divorce. It’s important to note that anything that you acquired after getting married is considered what we call community property and is as much the husband’s as it is the wife’s. Division of all community property is usually split 50/50 by courts. But any asset that either spouse came into the marriage with is considered their separate property and not subject to division.