Susan’s practice includes, but is not limited to:
- ♦ Divorce
- ♦ Child Custody
- ♦ Child Support
- ♦ Premarital Agreements (“Prenups”)
- ♦ Property Agreements Between Spouses (“Postnups”, Postmarital Agreements)
- ♦ Restraining Orders
- ♦ Protective Orders
- ♦ Adoption
- ♦ Termination
- ♦ Child Protective Services
- ♦ Paternity
- ♦ Wills
- ♦ Powers of Attorney
- ♦ Directives to Physicians (Living Wills)
Divorce is an overwhelming experience for parents and children. If you are considering divorce or are staring in the face of a divorce, a divorce attorney can guide you through the process and assist in making the process go as smoothly as possible.
A divorce can last a relatively short time period, or it can drag on for many months. In Texas, it is required that the parties wait 60 days after they file for divorce before they can have the court sign an order finalizing the divorce. In that time period, many events can happen, and your attorney can speak with you about the options you have during that period.
Texas allows for a no-fault divorce, as well as traditional divorce “fault” grounds where one spouse is responsible for the failure of the marriage. If there is domestic violence or fraud, you should consult with an attorney to learn your options in addition to the divorce itself.
A relatively new area of Texas divorce law is called collaborative law. Collaborative law is a process where all parties commit to resolving their differences fairly instead of through what can be an emotional and expensive process involving many courtroom appearances and a divorce trial. The process is much more informal and private. In collaborative law, the goal is for the divorce to be settled by agreement without going to court, or threatening to go to court. Both spouses are asked to disclose information voluntarily and to verify it with documentation and tax returns. The parties and their attorneys work together to ensure a fair resolution. One significant aspect of collaborative law, however, is that if the parties are unable to reach a settlement through the collaborative process, the collaborative lawyers must, as a matter of law, withdraw from representing the parties. The parties can then hire different trial attorneys to pursue the matter in court.
The custody of children is one of the most hotly contested issues in family law. In divorces, joint custody is usually found to be in the best interest of any children from the marriage. Joint custody divides parental rights and duties but does not necessarily provide equal periods of possession. Texas does have a standard possession order where the parties cannot agree on custody, but the parties in a divorce are free to agree on a different custody arrangement.
In Texas, after a divorce, both parents usually have access to their children if they were involved as parents during the marriage. The judge orders a visitation schedule that is often tied to a standard possession order. The visitation schedule is designed with the guidelines of what would be in the best interest of the children.
“Who gets the children?” is often a question that many people ask when going through a divorce. The answer to the question depends on the facts of each individual situation, but typically courts look to factors such as the needs and characteristics of the child, the home environments of the parties seeking custody, the characteristics of the parties seeking custody, the parents’ ability to provide for the needs of the child, the relationship between each parent and the child, the relationships between children, the effect of custody issues on the child, the preference of the child (if the child is of sufficient age and maturity), and the reports and recommendations of any expert witness.
There are guidelines in Texas statutes for what child support payments should be, and Dallas area courts are very hesitant to allow for anything different than the guidelines. However, if the needs of the child require more than the guidelines provide for, then the court may order more child support to be paid.
After a person has been awarded child support in a divorce, the amount awarded can be changed, but only under limited situations. There must be a change in circumstances such as an increase in income, or an increase in the cost of expenses for the child. Child support orders generally continue until the child is 18 or graduates high school, whichever is later. Texas law does not address child support during college or the payment of college expenses, but parties may agree to payment of these expenses by contract. However, if the child marries or becomes otherwise emancipated, child support does not continue. Also, if the child is disabled, it may be possible for child support to continue for an indefinite period.
For people who are concerned about the possibility of divorce down the road, premarital agreements or “prenups” are a reasonable consideration. Prenuptial agreements are most popular with people who have large assets prior to marriage. This is becoming more and more common as people begin working and accumulate assets before they even meet their partner. These assets may not be easily divisible, such as an interest in a family owned business or a large tract of real estate. The Texas Family Code provides that these agreements are valid unless successfully attacked on some limited grounds.
Spouses may want to consider a prenuptial agreement if both parties have financial independence before marriage, and want to continue to have such during marriage. Prenuptial agreements are also created when the spouses have different financial situations, and want those interests protected. This latter reason often occurs when one of the spouses is significantly younger than the other, or when social suspicions and stereotypes are a concern.
A number of issues may be covered in such an agreement. The agreement can give a description of the property that each spouse is bringing into the marriage, to clearly define the property as separate property. This is important because, in the even of a divorce in Texas, the separate property of each spouse is given to that spouse at the time of the divorce, and community property is divided between the spouses. Prenuptial agreements can also contain provisions to deal with what happens to the income from a spouse’s separate property, such as stock dividends or interest. Under Texas law, income from separate property is community property, but a prenuptial agreement can change that effect. Further, the agreement can specify how a spouse’s personal earnings during the marriage will be treated. Typically, these earnings would be community property, but the Texas Family Code allows that parties can agree otherwise.
In a divorce, it is common for one or both of the parties to seek restraining orders. A temporary restraining order can be issued without notice to the opposing party, but it is not effective for very long, but it is one way to preserve the marital estate and protect the parties. A more permanent restraining order can be issued by the court, but this cannot be done without notice to the opposing party.
All of the Family Courts in Dallas County have issued a standing order, meaning that the order applies to each and every divorce filed in Dallas County, that takes care of many of the issues that would typically be addressed in a restraining order. The order lists out the things that parties cannot do with their assets during the divorce, and the judges regularly enforce this order.
In situations involving family violence, protective orders are issued by the courts. These are temporary orders, but they can help to restrain violent acts or threats of violence committed by members of a family or household against one another. These can be filed during a divorce suit. Protective orders typically allow for a court to keep an abusive spouse away from the parties’ home and give local law enforcement authority to follow through with the eviction. They can also order one spouse to stay away from the other spouse.
To get a protective order, a document must be filed with the court. This document must allege acts of family violence as grounds for the order, such as an act by a member of a family against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault, or that is a threat that reasonably places the family member in fear of imminent physical harm, bodily injury, assault, or sexual assault, other than defensive measures to protect oneself.
The document can also allege abuse towards a child. Importantly, if a party makes a report of child abuse by another party, and the reporting party knows the report is not true, the court is required to deem the report to be “knowingly false.” If the court makes this finding, the court is required to impose a civil penalty of up to $500. Also, the court may impose any civil sanction permitted by law, including attorney’s fees and costs of experts.
Although it is possible to attempt an adoption alone, an attorney can greatly increase efficiency and expedite the time-consuming paperwork process involved in adoptions.
There are many times when paternity can be addressed. A mother may need to establish the paternity of her child born outside of marriage in order to seek child support from the father. One parent may need to establish paternity in order to consent to or block the adoption of a child. A man may wish to prove that he is not the father of a child so he does not have to be financially responsible for the child. A man may try to prove that he was coerced into marriage under false pretenses when a child conceived before the marriage was not his; he may believe he has grounds for annulment on the basis of fraud if he can prove that the child is not his. Or, a father who is not married to the mother may want legal confirmation that a child is his in order to seek visitation rights.
The Texas Family Code gives parents, both the mother and the father, specific rights and duties, including:
- ♦ the right to have physical possession, to direct the moral and religious training, and to establish the residence of the child;
- ♦ the duty of care, control, protection, and reasonable discipline of the child;
- ♦ the duty to support the child, including providing the child with clothing, food, shelter, medical and dental care, and education;
- ♦ the duty to manage the child’s estate (unless a guardian of the child’s estate has been appointed);
- ♦ the right to the child’s earnings and services;the right to consent to the child’s marriage, enlistment in the armed forces, medical and dental care, and psychiatric, psychological, and surgical treatment;
- ♦ the right to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;
- ♦ the right to receive child support payments and to hold or disburse funds for the child’s benefit;
- ♦ the right to inherit from and through the child;
- ♦ the right to make decisions concerning the child’s education;
- ♦ and any other right or duty existing between a parent and child by virtue of law.
Texas has very specific laws about estate planning, and an attorney can ensure that your wishes are legally enforceable.
Dying without a will can be complex and expensive. Texas law provides for a process and lists what family members would be entitled to a share of the estate. If you die without a will, your desires are not taken into account, under Texas law. Further, many other problems can arise if you do not have a will.
Everyone can benefit from having a will, even if you do not have very much property. A simple will can handle a normal disposition of a moderately-sized estate.
A will contains provisions about how a person’s estate will be dealt with upon their death. The will can spell out how you want your assets divided, and can also address how your debts are to be paid. Your will can also place conditions upon specific gifts to specific individuals. You can also provide for guardians for any of your minor children.
In a will, you can also choose who you want to handle your final affairs after your death. Similarly, should you ever become incapacitated, a will can designate the person you want to have appointed as your guardian. You can also specify people who you do not want to be your guardian, and that can help prevent their appointment as such.
In Texas, a medical power of attorney for health care authorizes the person you name to make health care decisions for you in the event you are unable to make them. A durable power of attorney for property authorizes the person you name to handle your financial affairs when you are incapable of doing so.
These clearly express, to your doctors and others, your wishes regarding the use of life-sustaining medical procedures when death is imminent.