What is conservatorship in Texas?

FAQs

Frequently Asked Questions

This is another post in the Super Simple FAQ series…

What is conservatorship in Texas?

Conservatorship is the term used in Texas and most other states to address the legal and physical aspects of sharing children when the parties are no longer or have never been married. Some people say “custody” which is a loose term for conservatorship. The term “custody” actually does not exist in Texas law. The first part of conservatorship in Texas regarding children, the parents will have a title. In Texas, either both parents will have the title “joint managing conservators” or one parent will be called “sole managing conservator” and the other parent will be called “possessory conservator”. In Texas divorce and suits regarding children, the parents start with a presumption for joint conservatorship. Only when there are big negatives, such as domestic abuse, drug/alcohol use, or a pervasive inability to get along, will the sole/possessory titles apply.

Second, the rights and duties regarding the children will be allocated. There are certain rights which are inherent that every parent has regardless of conservatorship titles. Then there are certain rights that may be either shared or allocated to one parent or the other. The main example of a right that must be allocated is the “right to establish the child’s primary residence”. Under Texas law, this right must be given to one parent or another. In rare circumstances, parents may — only by agreement — designate a geographic area as the child’s residence. Sometimes this may be a specific school district or maybe more specifically a particular school feeder zone. Also, the right to receive child support on behalf of the child is usually allocated to one parent. Other examples of rights that may be allocated to one parent would be the right to make educational decisions, the right to make medical decisions involving invasive procedures, or the right to get mental health treatment for a child.

A third aspect of conservatorship is deciding what time the child will spend with each parent. In Texas, this discussion begins with the Texas Standard Possession Schedule, which is presumed to be in the best interest of a child. There are certain expansions that can be requested to the standard possession schedule in Texas, such as the right to pick up the child from school when the period of possession begins. A court can vary from the Texas standard possession schedule based on the circumstances of a particular family.

The fourth aspect of conservatorship is the financial support of the child. This includes regular child support as well as medical support. For child support, Texas has standard child support guidelines for a percentage of net income of the obligor to be paid with a cap on the amount of income considered at $8550/month. The court has some discretion to award in excess of the standard child support guidelines based on the circumstances of the child. For medical support, one parent will be required to provide health insurance for the child. Sometimes providing the health insurance is allocated to one parent, while reimbursement for the cost of the insurance may be allocated to the other parent. Then the uninsured expenses are split between the parents, usually 50/50 or alternatively based on earning capacity.

How do you file for divorce in Texas?

FAQs

Frequently Asked Questions

This post is first in a series of super simple FAQs related to Texas divorce topics…

How do you file for divorce in Texas?

A Texas divorce follows basically the same process whether you have attorneys or represent yourself, whether you have children or not, whether you have a lot of assets or little.

  1. Step One: jurisdiction. If you have lived in Texas for more than 6 months, you can file for divorce in Texas.
  2. Step Two: venue. Determine what county either you/your spouse or your children live in for at least 90 days. If not the same for all, the county the children live in will control.
  3. Step Three: petition. Prepare a petition for divorce. This is the document that opens the court’s file and begins the process. The petition will tell the court what your position is regarding the issues in the divorce. This may include whether a no-fault divorce or fault-based divorce is alleged, who should have conservatorship of the children, and whether any separate property exists that should be confirmed to a spouse. The petition must remain on file at least 60 days before finalizing the divorce – called the “cooling off” period. A contested divorce may last much longer than 60 days.
  4. Step four: service. Notify your spouse of the filing of the petition. If it is an agreed divorce, then the spouse can sign a waiver of service. Otherwise, the spouse must be formally served with citation of the divorce. The clerk of the court will issue the citation and it should be served personally upon the opposing spouse by a constable or private process server.
  5. Step five: temporary orders. If the divorce is not agreed, temporary orders may be necessary to set out some operating rules while the divorce works through the process. This could include seeking temporary orders on conservatorship or custody of the children, temporary child support, temporary spousal support, determination of who will live in the marital residence, how the marital bills will be paid, and how the attorneys will be paid.
  6. Step six: discovery. Written discovery can be sent to the other spouse if information is needed prior to resolving the issues. This may include standard questions in a request for disclosure, written questions in interrogatories, request for document production, oral questioning in a deposition, or request documents or information from third parties. In most divorces, agreed or contested, the parties will exchange sworn inventories listing that spouse’s opinion about the nature, character, and value of the marital assets and debts.
  7. Step seven: settlement negotiations. The parties should make a good faith effort to settle their case prior to a contested trial. Settlement negotiations can be attempted either between the parties or through the attorneys. Some find success in holding a settlement conference with the parties and attorneys all in one room together. If that is not successful, the parties should attempt mediation. Mediation is required by most courts prior to having a final contested trial. Mediation is a process where the parties and attorneys meet with a neutral third party to try to reach a settlement. If settlement is reached, the parties will sign a mediated settlement agreement, which is irrevocable once signed.
  8. Step eight: final trial. Finally, if the parties cannot settle their differences between themselves then the case will be submitted to a judge for decision on the contested issues after presentation of evidence and trial.
  9. Step nine: divorce decree. The divorce is concluded with the entry of a final divorce decree, signed by the judge, which addresses all of the issues regarding the marriage, children, and property division.
  10. Step ten: closing documents. Certain closing documents may be necessary to complete the divorce process. The most common extra document is a child support withholding order so the child support amount is automatically withheld from the obligor’s paycheck. Other closing documents may be necessary to divide real property, retirement accounts, or cars, especially when such items are held jointly.

How does premarital cohabitation affect division of marital property

premarital cohabitationThe New Hampshire Supreme Court ruled that a court must consider time that a couple lives together prior to marriage as a factor in division of assets. The ruling, a landmark decision in New Hampshire, does not require a court to alter the division that the court seems fair in a divorce, but asks the trial judges to consider time that a couple, in this case a same-sex couple, lives together prior to getting married. In the case before the court, two women began living together in 1993 and were formally married in 2011 when same-sex marriage became legal in New Hampshire. One spouse filed for divorce, arguing that the marriage was a short-term one, but the relationship was a lengthy 21-year ordeal. This factor, the spouse argued, should be considered in reaching an equitable distribution. (New Hampshire has equitable distribution laws regarding marital property compared to Texas community property laws.) The Supreme Court stated that the New Hampshire law permits the court to consider “any other factor it deems relevant”, which in this circumstance should include the premarital cohabitation; however, the Supreme Court fell short of holding that the division or property or alimony awarded must change. The Supreme Court’s decision is not limited to same-sex couples, but any couple who had a lengthy premarital cohabitation.

Texas laws differ from New Hampshire in that we operate under a community property system. However, under the Texas standard, the court must make a division of property that the court deems “just and right”. Within that standard, the court can consider any number of factors to determine the appropriate division of the community property (property gathered together during the marriage). In this vague, nebulous standard could be the length of premarital cohabitation. Much as the New Hampshire Supreme Court points out, the vague standard allows for such consideration even if the consideration does not cause a change in the actual division of property.

 

Read: N.H. Supreme Court says divorce courts should consider premarital cohabitation

O’Neil and Wysocki recognized among best divorce lawyers in Dallas area and Texas

Michelle O'Neil and Michael Wysocki Super Lawyers

O’Neil and Wysocki — 2016 Texas Super Lawyers

Michelle O’Neil and Michael D. Wysocki, Shareholders of O’Neil Wysocki, P.C., have been named to the 2016 Texas Super Lawyers List for family law. Only 5% of lawyers statewide are recognized. O’Neil was also named as one of the Top 50 Women Super Lawyers in Texas for all practice areas, Top 100 Texas Super Lawyers for all any practice areas, and one of Top 100 D/FW Super Lawyers for all practice areas, recognizing her as one of the best lawyers of any kind in the State of Texas. This is the 5th year of recognition for O’Neil and the 6th year of recognition for Wysocki.

Super Lawyers is one of the most prominent and respected rating services in the industry. Each year the organization’s patented selection process is used to identify the most accomplished and trusted legal counselors in every state and major region in the country.

The Super Lawyers selection process includes:

  • Nominations from peers or the Super Lawyers research team
  • Independent research on candidates by the Super Lawyers team
  • Peer evaluation by a blue ribbon panel of notable attorneys
  • Final selections based on these findings

Ultimately, the Super Lawyers lists represent a mere 5% of all licensed attorneys practicing in each state. Attorney O’Neil’s additional honors mean that Super Lawyers has determined she is among the best of the best lawyers in Texas.

For both Attorney O’Neil and Attorney Wysocki, this is not the first recognition from Super Lawyers. Attorney O’Neil has been chosen for the Texas Super Lawyers list each year since 2011 – five years straight – and has been named to the Top 50 Women Texas Super Lawyers, Top 100 Texas Super Lawyers, and Top 100 D/FW Super Lawyers lists for three years in a row.

Attorney Wysocki has received recognition from Texas Super Lawyers organization for six years, three on the Texas Rising Star list in family law by Texas Super Lawyers, and three additional years as a part of the Texas Super Lawyer list in family law. The Rising Star list only recognizes about 2.5% of young lawyers statewide.

These are not the only accolades for the O’Neil Wysocki firm. Attorney O’Neil has also been named among the Best Lawyers in America for 2016 and 2017. Attorneys Eric Navarrette, Ashley Russell, and Chrysandra Bowen have been named to the 2016 Texas Super Lawyers Rising Star in family law list, which is given to only about 2.5% of young lawyers in the state. (Note: Of the 2.5% of young lawyers recognized statewide this year, 3 work at our firm!) Navarrette has maintained this honor since 2013, Russell since 2011, and Bowen since 2015. Attorney Jere Hight has previously been named to the Texas Super Lawyers Rising Star in family law list as well.

The trend of shared parenting laws

The young traveler boy with a suitcase. Isolated over white background. Vertical view

The young traveler boy with a suitcase. Isolated over white background. Vertical view

A new law went into effect Sunday in Missouri to give fathers a more equitable starting point in divorce court.  The “shared parenting” law aims to make court-driven divorce custody decisions equal between moms and dads in terms of time spent with children. The law not only forbids taking the gender of the parent into account, which has been prohibited nationwide for many years. It changes the way a judge approaches dividing up parenting time. Where the prior Missouri law said that the judge must award “significant but not necessarily equal” periods to each parent, the new law requires the Court to maximize to the highest degree the amount of time the child may spend with each parent.” Missouri is the fourth state to pass shared parenting laws that help fathers start on equal footing. Utah, Minnesota, and Arizona have also passed such laws. The science behind the law shows that children do better when both parents are actively involved in parenting. This runs afoul of the traditional mindset in family law that a child would do better with one primary parent and main caregiver – shared parenting is actually more vital to healthy child development. This is the latest step in a national trend respecting the increased role of fathers in their children’s’ lives.

The law still allows the judge discretion to reduce time with a parent who shows significant adverse behaviors such as spousal abuse or drug addiction.

Read the article here New Missouri law pushes divorce judges to establish equal child custody time.

In the last session of the Texas legislature, a law was introduced to change the standard for assessing parenting time (2015 House Bill 2363). The law sought to make an equal schedule the presumption in Texas law. Critics of the bill felt that the provisions were too stringent, not allowing for discretion of the court depending on the circumstances of each case. The bill was highly controversial and did not pass, but proponents vowed to come back in the next session.

As the law stands currently in Texas, the presumption starts with a primary parent and grants the secondary parent access to the children according to the Texas Standard Possession Schedule (1st, 3rd, and 5th weekends, Thursdays during the school year, 30-days in the summer, and split of holidays). Many families agree on an equal schedule when that works best for their situation, most using either a week-on/week-off schedule or a 2-2-3 schedule (two days to one parent, two days to the other parent, then every other weekend). But absent agreement, few courts in Texas will impose an equal schedule over the objection of either parent. That’s when you get in a situation where you have a “winner” parent and a “loser” parent in a custody battle. And really in that scenario, no one wins.

 

Is there a divorce season? New research says Yes!

divorce season

Divorce filings peaked consistently in March and August over a 14-year period. University of Washington

A new study from sociologists at the University of Washington suggests that there is definitely a divorce season — two per year actually. The researchers found the first quantitative evidence of a seasonal, biannual pattern of divorce filings. They analyzed filings in Washington state from 2001 and 2015 and found that the new divorce filings peaked in March and August, following winter and summer holidays.

The findings were presented at the American Sociological Association’s annual meeting in Seattle on August 21, 2016. Winter and summer holidays seem culturally sacred for families — such that it may be considered inappropriate or taboo to file during the holiday season. Holidays can be seen as a time to stay together for the family either for Christmas or for the summer family trip.

The two that performed the study set out to evaluate the effects of the recession on divorce patters. They found that the pattern held even during the recession period, although there was more volatility during those years.

The study has turned to other states to see if the pattern holds true. They have examined four other states — Ohio, Minnesota, Florida, and Arizona — all states that have similar divorce laws to Washington, but differ in demographics and economic conditions. The pattern shown in Washington held to be the same in the other four states as well.

Read the article from the University of Washington website Is divorce seasonal? UW research shows biannual spike in divorce filings by .

FROM MICHELLE: This pattern is something that Dallas Texas divorce lawyers are well familiar with. We wouldn’t need scientific research to know the trends exist. I have been a divorce lawyer in Texas for 25 years and have seen the divorce rates start to rise significantly in mid-January with a peak usually in mid-March. About the time Spring Break starts, the filings slow down and continue to slow into the summer holiday period. Then, new filings peak again just after school starts in August and stay strong through October, slowing down in November and December for the holidays. These trends have been consistent year after year of my entire career. During the 2008 recession, the trends went a little askew, with filings over all slowing down. Right now, we have entered into the second season of the year. Divorce filings are up for the month of August and should continue to stay strong through October.

 

 

Strategies for contested family law and divorce hearings on a time budget

time runningHave you ever wondered about counties that have time limits on the presentation of evidence at contested hearings. The Dallas Bar Association featured an article by O’Neil Wysocki Senior Shareholder Michelle O’Neil in its September 2016 issue on Dallas Texas family law and divorce cases. The article is reprinted below. Dallas Bar Association Headnotes September 2016

Our court system is busy and dockets are crowded. Some judges manage this issue by placing time limits, sometimes severe restrictions, on litigants’ presentation of evidence. Handling these time restrictions can make the difference between effective presentation of a case or losing. This is one instance where it is imperative to be familiar with the judge’s preferences and local rules before venturing into unknown territory.

How does an effective attorney handle getting all of the evidence forward in the face of a time crunch in a hearing or trial? Here are the Top 5 Strategies:

Request for Relief

A one-page summary of the rulings that you are requesting from the court at the end of the hearing is essential. This is where you tell the Judge what you want in a fashion that is easy to understand. The request for relief also serves as an outline for all of the presentation of evidence in your case. This is especially true when your client testifies, as you can simply follow the request line by line to efficiently expand on the points you want to make.

Summary of Voluminous Documents

One of my favorite tricks for keeping the presentation efficient is to provide a summary of the point you are making on top of the voluminous exhibit. So, for example, if you are offering bank records to show certain transactions for purchase of jewelry for a paramour, prepare a summary page to go on top of the exhibit with date and page references and quotes from the exhibit. Assuming the summary is accurate, this can speed up presenting the information.

Stipulate as to the admissibility of evidence

When dealing with a professional and courteous opposing counsel, often you can reach an agreement regarding the admissibility of certain exhibits. Financial statements of the parties, medical records, bank statements, photographs, and other common types of evidence can be admitted by prior agreement without having to take the time to cover admissibility predicates.

Be prepared and organized

Preparation in advance is a key to effectively presenting a hearing or trial on a time limit. You should meet with your client and other witnesses in advance to review the time limits and how that may affect the way they answer questions. Also, provide an outline or roadmap to highlight the essential points of the client or witness’ testimony. In my experience, some witnesses tend to be long-winded, maybe because of inexperience testifying or being nervous. This can really hurt a time limited presentation. So, helping the witness understand how to efficiently answer the questions will give back essential minutes. I have even been known to object to “nonresponsive” as to my client’s own testimony if the client goes too far afield. If the witness’ testimony is something that cannot be presented quickly, consider taking the witness’ deposition. This will allow you to present the deposition as an exhibit in evidence and a summary on top (see point #2) without spending time out of your budget to make the point. Another organization tip involves preparing a notebook of exhibits to provide in advance to the Judge, court reporter, and opposing counsel to save time in walking exhibits around the room.

Keep it simple and focused

Staying focused on what is really important to achieving the goal of the hearing or trial is a key to effective presentation. Know how much time you want to budget for each witness, including direct and cross, leaving some extra time in case the other side calls an unexpected witness. If an opposing witness isn’t important or has only a minor contribution to the case, don’t be afraid to ask zero questions and pass the witness. Don’t waste time on non-essential witnesses or issues. Don’t go down rabbit trails that aren’t essential to the goal.

In summary, when presenting a case on a time budget, using every way to get to the point efficiently will increase the effectiveness of your presentation. Judge Doug Robison in Denton County uses the acronym B.L.U.F. for “Bottom Line Up Front”, to illustrate the need to tell the judge from the beginning what the hearing is about. In other words, get to the point quickly.

Tips for fathers in Dallas Texas custody disputes

fatherWhat does a father do when a custody battle looms? The answer is NOT “nothing”. Divorce changes the roles for everyone, especially in traditional families. So fathers who may have relied on the children’s mother to take on certain roles must learn to be involved in those activities as well. Where once the father may have relied on the mother to fill him in on the children’s orthodontist appointment and the size of the child’s shoes, now the father must learn to do those things for himself. Some divorced parents refuse to exchange this kind of information post-divorce, forcing each parent to fend for him or herself even more.

If a custody case is looming, where the parents cannot reach an agreement about co-parenting their children after they are no longer together, the father in a traditional relationship must quickly get up to speed on the details of the children that the mother used to address.

Here are some tips for fathers in custody disputes from Tips for Fathers from Divorcemag.com :

Get familiar with your children’s school. This can be done at anytime. Start tomorrow if you can.

  • Know the name of your child’s teachers.
  • Visit your child’s school.
  • Meet with their teacher.
  • Arrange to meet the teacher monthly if your child needs additional attention and you want to stay abreast of progress.
  • Know how they are doing in school…are they turning in homework, are they doing well, how are they getting along with the other kids, Do they seem happy or sad or quiet now that things are changing at home?
  • Let the teacher know that they can call you at anytime at that you are 100 percent interested in how your child is doing.
  • Sign up to be a chaperone on a field trip… just one if it’s not really your time or you don’t have time. It gives the teachers a chance to know you in a more child centered social setting and gives you an opportunity to shine as a parent to both the teachers and your child.
  • Make sure the school has your address and contact info if it has changed.
  • Make sure you are on the emergency contact list.
  • Make sure you are set up in their system to get report cards, notices etc.

Medical Providers

  • Know the name and location of your child’s doctor’s, dentists, therapists etc.
  • Try to attend routine checkups if you can. If Mom is still the primary scheduler, ask her to schedule the annual checks ups at a time when you can both attend.
  • For appointments that occur during your parenting time, plan to take them to the visits yourself as often as you can.
  • Purpose to introduce yourself to all of their providers even if they do not have check ups in the near future.
  • Let their providers know they can contact you anytime and that you are 100 percent interested in how your child is doing.
  • If your child has ongoing scheduled treatments, ask questions and get up to date on the treatment plan and follow your child’s progress.
  • Make sure the medical provider has your address and contact info if it has changed.
  • Make sure you are on the emergency contact list.
  • Make sure you are set up in their system to get appointment notices etc.
  • Some medical providers do not like to be involved in bitter custody battles so keep them out of the fighting. You just want to be an informed, involved Dad. You don’t need to bad mouth Mom to do this. Just be your best you!

Agreed Upon Extracurricular Activities

  • Know what activities they are signed up for.
  • Meet the coaches and the ballet teachers and the tutors.
  • Take them to practices that occur during your parenting time.
  • Attend their activities, games and performances whether they occur during your parenting time or not. This is an an awesome opportunity to see your kid outside of your regular parenting time and enjoy their football games or their recitals. To avoid the tension between you and Mom, introduce yourself to other lone Dad’s at the games and still cheer your child on. By doing this you communicate that your child STILL has his or her two biggest fans and that you are both still on their team!

Shared Custody – Superpowers of Shared Kids

superhero kidsMore and more children are being raised in split homes. For some children, having different rules in the two homes causes anxiety and difficulty adapting. The two homes may be different with new lives and new families of their own. Where one home may emphasize academic achievement with quiet intellectual conversations; the other home may prioritize family time and bonding.

In Texas, and especially in Dallas County, divorce court judges prioritize keeping the parents in close geographic proximity to encourage frequent contact between the child and both parents. This geographic restriction is placed on virtually all families who seek court intervention in their reliationship, whether married and divorcing, or not married and seeking definitive court orders. These geographic restrictions permit both parents to attend ball games and dance recitals and remain involved in their child’s activities even when it is not that parent’s period of possession.

But as these children grow into adults, going between the two parents’ homes helps develop important skills for adults. One of those qualities instilled as a byproduct of shared custody may be the desire for stability. The instability of their childhood creates adults that value and want stability. Also the grown-up children have a knack for agility – adapting, switching gears, blending in. Families need to be strong but flexible to accommodate the changes in lives.

Some people may view shared custody arrangements as a negative, providing that the child never has a sense of “home” in any one spot. But, viewing the positive side, children can benefit from experiencing different environments, adapting to new rules, shifting from one set of priorities to another. These experiences can build skills that help adults adjust to life experiences that others who had different upbringing might not be prepared to deal with.

Hat tip to Rachelle Bergstein’s The Secret Superpower of a Shared-Custody Kid from the New York Times Well Blog.

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