Dallas Divorce Law Blog : Dallas Texas Divorce Lawyer & Attorney : O'Neil Attorneys Law Firm : TX Child Support & Custody Issues

Money (or lack thereof) is characteristically at the top of the list when it comes to reasons for a divorce. But in a depressed economy when people cannot afford to maintain two houses, sell their house, or pay the attorneys, divorce rates slow.

Now, along with the improving employment and job markets, it appears that the number of people filing for divorce is also increasing. Alton L. Abramowitz, a New York City divorce lawyer and president of the American Academy of Matrimonial Lawyers, attributed the recovery of the economy, particularly the stock market’s robust run.

Security that people will be able to take care of themselves, maintain two households, pay child support, and sell their house (often the main marital asset) can give people the confidence they need to get out of an unhappy or unhealthy marriage. If you are considering divorce or just want more information about the process and your rights, contact an experienced family law attorney for a consultation.

To read more about the improving economy and increasing divorce rate, click here: http://lifeinc.today.com/_news/2013/05/14/18250438-til-death-or-economic-recovery-do-us-part?fb_action_ids=10100274343784839&fb_action_types=og.recommends&fb_ref=AddThis_Blogs&fb_source=aggregation&fb_aggregation_id=288381481237582
 

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Requesting your future spouse to sign a prenuptial agreement in Texas can be a touchy subject. Many people are hesitant to obtain a prenuptial agreement for the simple fact that it may damage the relationship. This is a point I understand and do sympathize. However, when I have a client, regardless of their level of wealth, state that they do not need a prenuptial agreement; I have a very simple response.

I first ask the client “Do you have automobile insurance.” The client states “Yes.” I then ask “Do you plan on having a wreck in your automobile.” My client then looks at me curiously and states “Of course not.” I then respond with “a prenuptial agreement is a lot like car insurance; you don’t plan on getting in a wreck but it is there in case you do.” This is usually the point where you can see the light bulb over my client’s head turn on and they are in agreement that a prenuptial agreement is necessary.

The Huffington Post reported last week that “Fox & Friends” had a segment in which they addressed whether or not a couple should have a prenuptial agreement. Dave Ramsey reportedly stated, "Don't do prenups unless someone is extremely wealthy and the person they're marrying is not. Other than that, you'd stay away from prenups." Mr. Ramsey has obviously never spoken to me about the necessity of a prenuptial agreement.

I agree with Huffington Post Divorce blogger Diana Mercer when she states that “a prenup may benefit all married couples.” Prenuptial agreements are not only for the wealthy, they are for all walks of life. Divorce can be a very stressful and sometimes prolonged process. If a couple agrees in a prenuptial agreement as to how assets and debts are to be divided in the event of a divorce, it removes a lot of the bickering back and forth that can occur during a divorce. It can also shorten the length of time the divorce is pending in that the financial issues are already handled and addressed in the prenuptial agreement.

Don’t let a prenuptial agreement hurt a relationship or eliminate the romance. Just like automobile insurance, a prenuptial agreement is there in the event of a crash/ending of a marriage.
 

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References and Reference Letters: During your social study evaluation, you will be required to submit reference letters to the social study evaluator. The number of personal references and reference letters requested can range from 3 or more. The following are some points to keep in mind when deciding who your references should be and what the focus of the reference letters should be.

1. DO NOT have family members serve as all of your references. Although family members as references can be helpful, generally family members are thought to be more biased for obvious reasons. The purpose of providing your references in a social study evaluation is so that the social study evaluator can obtain information regarding your parenting skills and involvement from as many difference sources as possible. Therefore, school teachers, babysitters, neighbors, friends, and/or co-workers can serve as excellent references. They tend to be thought of as more neutral.

2. DO NOT submit more personal references and/or reference letters than requested by the social study evaluator. Doing so would illustrate that you cannot follow instructions. If you have more references that you would like to submit, then advise the social study evaluator that you have more, and request his/her permission to submit more references.

3. DO contact your personal references and let them know that they may be contacted by your social study evaluator. Make sure that your references know the name of the social study evaluator assigned to your case. Generally, the social study evaluator will mail a reference questionnaire directly to the references that you listed in your initial paperwork. However, you do want to let your references know to expect a letter in the mail, email, or possibly a phone call from your social study evaluator.

4. DO make sure that your reference letters are completed and returned to the social study evaluator by the deadline. The social study evaluator will let you and your references know when he/she would like the completed reference letters.

5. DO make sure to inform your personal references that the point of them completing these letters is to discuss your character, but more importantly to discuss your strengths as a parent. In my opinion, this is a task that can be easily completed by having your references write about their personal observations of you interacting with your children. For example, your interaction with your children at soccer games, school functions, medical appointments, etc.

6. DO NOT have your personal references include negative attributes about the other parent involved in the social study evaluation. These reference letters are your opportunity to have people build you up as a parent and to discuss your strengths as a parent. Many social study evaluators will set a page limit for the reference letter. Do not let your references spend their valuable space disparaging the other parent. There is a time and place for everything. You will have the opportunity to discuss your concerns about the other parent during the social study evaluation. However, reference letters are not the time or the place.

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What can you do if you lack an adequate remedy by appeal and the trial judge clearly misapplies the law in your case, violates your constitutional rights, or clearly abuses their discretion? As we discussed in my last blog, the remedy of a traditional appeal is not available to challenge rulings in all family law cases. A petition for writ of habeas corpus is only if a person’s liberty is restrained (which usually means jail). A petition for writ of mandamus in the court of appeals is your answer.

The burden is higher in a mandamus proceeding than in a direct appeal. To be entitled to relief, the “relator” (the party asking for a writ of mandamus) must show that the trial court violated a ministerial duty (like referring a case to arbitration when there is an existing arbitration order in place or refusing to enter an order after rendition of judgment), or that the trial court clearly abused its discretion. In both instances, the relator must also show that they lack an adequate remedy by appeal. Mandamus is also available to vacate a void order.

Most often in family law cases a petition for writ of mandamus is filed to correct a clear abuse of discretion by the trial court. The burden is high in these cases. On fact issues, the court of appeals cannot substitute its judgment for that of the trial court. This means that the relator must show that the trial court could reasonably have reached only one decision in order to prevail. For legal issues, the relator must establish that the trial court clearly failed to analyze or apply the law correctly.

Situations where petitions for writs of mandamus may be appropriate in family law cases include (1) incorrect rulings on standing and jurisdiction (under the UCCJEA or UIFSA), (2) appointment of a receiver in temporary orders, (4) change of the conservator with the right to designate the primary residence of a child in temporary orders, (4) certain discovery disputes, (5) and failure of the trial court to enter an order after rendition (the court’s oral ruling on the record). In these situations, given the issues at stake, it is often appropriate to request that the court of appeals enter an emergency stay prohibiting the trial court from taking any action to enforce or proceed with the challenged order until the court of appeals can decide the mandamus case.

Like a writ of habeas corpus, time is of the essence when it comes to a mandamus. Typically steps need to be taken immediately to try to prevent the trial court from acting on, enforcing, or otherwise proceeding with the order that you are challenging before irreparable damage is done to your family, your property, and/or your constitutional rights. If you think that this remedy might be appropriate in your case, contact an attorney with experience in family law appeals immediately.
 

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PAAO
Parental Alienation Awareness Organization
Founders of
Parental Alienation Awareness Day (April 25)

According to the Parental Alienation Awareness Organization, parental alienation involves the mental manipulation and/or bullying of the child to pick between their mother or father. These behaviors can also result in destroying a loving and warm relationship they once shared with a parent. Parental alienation deprives children of their right to be loved by and showing love for both of their parents and extended family. Parental Alienation can occur in intact families, but is mostly seen in separated and divorced families.

Parents/guardians using alienation tactics to hurt the other 'target' parent have been compared to cult leaders. They deny access to anything that may challenge their view of the other parent, including any photographs, or communication.

Parental alienation syndrome (PAS) is a psychological condition most often observed in children affected by high conflict divorce and/or separation. It is one of the most damaging outcomes affecting children as a result of exposure to PA. The most common symptom of children affected by PAS is their severe opposition to contact with one parent and/or overt hatred toward such parent when there is little and often, no logical reason to explain the child's behavior. The effects of PAS can last well into adulthood and may last for a lifetime with tragic consequences.

Parental Alienation Syndrome (PAS) is different from Parental Alienation (PA). PAS refers to the behaviors of the child, whereas PA describes the abusive behaviors of a parent or caregiver. There are many debates as to whether PAS exists or is 'Junk Science'.

During the crisis of divorce, most parents fear whether their children will emerge unscathed. Any reasonable and empathetic parent sincerely believes in the value of his or her children having a healthy relationship with both parents. Ideally, parents deliberately work on comforting and reassuring the children that no harm will come to them. At the same time, both try to strengthen their parent-child relationships without degrading the other parent or causing the children to feel divided loyalty. They encourage visits, talk kindly of the other parent in the children's presence, and set aside their own negative feelings to avoid causing the children distress. They are sensitive to the children's needs and encourage positive feelings toward the other parent. This outcome is the goal.

However, any number of events can destroy the fragile balance of peace between parents. If this happens, an injured parent may seek comfort by aligning with the children, especially since be or she may feel threatened by the children's love for the other parent. A pattern of alienation usually begins without any malicious or conscious intent to harm or destroy the relationship between the other parent and the children. Though most parents mean well, they are often unaware of how subtle behaviors and comments can hurt the relationship between the children and the targeted parent. Alienating parents however learn how to manipulate and use their children to hurt the other parent on purpose, and with a vengeance. This can include anything from outright telling the children their other parent does not love them and does not want to be with them, to destroying and hiding communication from the other parent, to simply refusing to act as a 'parent' when a child does not want to spend time with, or is rude to, the other, and empowering their child to do as they wish.

Early signs of parental alienation include:

• Children perceive one parent as causing financial problems of the other parent;
• Children appear to have knowledge of details relating to the legal aspects of the divorce     or separation;
• Children show sudden negative change in their attitude toward a parent/guardian;
• Children appear uneasy around target parent - they resort to "one word" answers and fail to engage openly in conversations as they previously have done;
• Children are uncharacteristically rude and/or belligerent to target parent;
• Access time is not occurring as agreed upon or court ordered - visitation is being unilaterally cut back by the other parent;
• Parent undermines the other parent or speaks disparagingly about other parent in the presence of the children;
• Parent starts making reference to other parent as being abusive and a risk to the children with no apparent good reason;
• Allowing children to choose whether or not to visit a parent, even though the court has not empowered the parent or children to make that choice;
• Telling the children about why the marriage failed and giving them the details about the divorce or separation settlement;
• Refusing the other parent access to medical and school records or schedules of extracurricular activities;
• Blaming the other parent for not having enough money, changes in lifestyle, or other problems in the children's presence;
• Rigid enforcement of the visitation schedule for no good reason other than getting back at the other parent;
• False allegations of sexual abuse, drug and alcohol use or other illegal activities by the other parent;
• Asks the children to choose one parent over the other;
• Reminding the children that the children have good reason to feel angry toward their other parent;
• Setting up temptations that interfere with visitation;
• Giving the children the impression that having a good time on a visit will hurt the parent;
• Asking the children about the other parent's personal life;
• 'Rescuing' the children from the other parent when there is no danger.

Participating in parental alienation can be devastating from the perspective of custody litigation. If a judge finds that a parent is attempting to alienate a child, it may result in the alienating parent having custody completely taken away.

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Last week, Kim Kardashian and Kris Humphries settled their divorce case. After seventy-two days of marriage, Kim Kardashian filed for divorce in October, 2011. The divorce had been ongoing for a year and a half. The pair was set to go to a final trial on May 6, 2013 but on April 19, 2013, advised the Court that they had reached a settlement to their divorce.

When going through a divorce in Texas, I always tell my clients at the beginning of their case that there are only two ways you are going to get divorced: 1) is an agreement on all issues or 2) a final trial. Let’s say that there are ten disputed issues and the parties are able to reach an agreement on eight of the ten issues; then we can have a final trial on the two remaining issues. The bottom line is the parties either agree or a Judge will decide the issue at a final trial. This is a concept I remind my clients of not only at the beginning of their case but throughout their pending divorce.

When a person files for divorce in Texas, there is not automatically a final trial date assigned to the case. A person must request a final trial date from the Court and the date that is given is based upon the legal issues, the anticipated length of the final trial and the Court’s availability. Depending upon the Texas County you live in, it could be up to a year and a half before you will have a final trial date.

Kim Kardashian and Kris Humphries are an example of the length of time until there is a final trial in a divorce in any state. It is also an example of settling on your own terms is usually better than a third party (the Judge) making the decisions for you.

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Social Study Evaluators:

Texas courts generally order a social study evaluation at the temporary orders hearing in cases where conservatorship or possession of or access to a child is being contested. If the parties are unable to agree on a social study evaluator, then the Court will appoint a social study evaluator. Once a social study evaluator has been appointed, do your research on the person appointed to complete your social study evaluation. The Texas Family Code contains specific minimum qualifications for social study evaluators in Texas. Most social study evaluators in Texas have a human services/mental health background. The qualifications of social study evaluators in Texas can include licensed professional social workers, licensed professional counselors, and psychologists. It is important to know who your audience is when getting ready to participate in your social study evaluation, so be sure to research the evaluator appointed in your case. You can search the state licensing board that governs the social study evaluator appointed in your case to familiarize yourself with their professional standards and ethics. For example, the Texas Administrative Code contains the professional standards for most mental health professionals. It could also be helpful to search the internet and/or review his or her résumé.

Next week I will outline the documents and information that you need to obtain in preparation of your initial interview with your social study evaluator. I will also provide a list of “do’s” and “don’ts” as it relates to reference letters and your initial social study interview.
 

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Today, I wanted to share an article that I received from Dr. John Zervopoulos, a board certified forensic psychologist and lawyer with Psychology Law Partners.  We often hire Dr. Z to consult with us when we have mental health issues involved in a child custody case.  Dr. Z will help navigate through the mental health issues and steer the attorney in preparing for litigation on those issues.  Because he is a lawyer and a psychologist, he understands the litigation process and how mental health evidence affects a case, especially a child custody case.

So, here's what Dr. Z has to say about the DSM-V coming out in May (read more about the DSM-V at its website):

WILL DSM-5 CHANGE EXPERT TESTIMONY?

Bipolar Disorder. Narcissistic and Histrionic Personality Disorders. These diagnoses from DSM-IV-TR quickly catch a judge’s or jury’s ear—and raise concerns. DSM-5, the next revision, is scheduled to be published in May. Revisions portend changes, and DSM-5 promises them—adding diagnoses, recasting some, dropping others. For example, Narcissistic Personality Disorder is expected to remain; Histrionic Personality Disorder won’t make the cut. Controversy among mental health professionals abounds.

Nevertheless, too many mental health experts will continue to misuse DSM diagnoses in the same way—as broad-brush, professional “stamps of approval” that substitute for clear, trustworthy testimony. The most common misuse occurs when an expert attaches diagnostic criteria to cherry-picked events from a litigant’s life or to selected test responses of the litigant.

Three foundational DSM-IV principles sure to survive in DSM-5 offer useful starting points for questions to experts who insist on basing their testimony primarily on diagnoses rather than on relevant documented behaviors tied to parenting demands or other capacities at issue in the case:

• The DSM-IV-TR was developed for “clinical, research, and educational purposes”—not for legal purposes. (Introduction, at xxiii).

• The DSM-IV-TR requires that mental health professionals exercise clinical judgment when interpreting and counting criteria that comprise a diagnosis. Diagnostic criteria “are meant to serve as guidelines . . . not meant to be used in a cookbook fashion.” (Introduction, at xxxii).

• The DSM-IV-TR cautions about using diagnoses in court, noting that “there are significant risks that diagnostic information will be misused or misunderstood . . . because of the imperfect fit between questions of ultimate concern to the law and the information contained in clinical diagnoses.” Further, “It is precisely because impairments, abilities, and disabilities vary widely within each diagnostic category that assignment of a particular diagnosis does not imply a specific level of impairment or disability.” (Introduction, at xxxii-xxxiii).

Whether DSM-IV or DSM-5, the basics of expert testimony still apply: “It is not so simply because an expert says it is so.” Gammill v. Jack Williams Chevrolet, Inc., 972 S.W. 713, 726 (Tex. 1998). If the expert invokes a DSM diagnosis, challenge the expert to specify why the diagnosis is relevant, the basis for the diagnosis, and how the diagnosis compromises the litigant’s functioning in matters of concern to the court.

Reference: John A. Zervopoulos, How to Examine Mental Health Experts 155-162 (2013).
 

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There was another twist in the Kim Kardashian and Kris Humphries divorce this past Friday. As reported by ABC News, Kris Humphries failed to attend a mandatory settlement conference in the divorce action on April 12, 2013. The purpose of this hearing was to see if the parties were able to reach any kind of an agreement as to the final terms of the divorce before there is a final trial before the Court. As a result of Kris Humphries actions, the Judge on his own motion set a hearing for Kris Humphries to show cause as to why sanctions should not be imposed against him for his failure to attend the April 12, 2013 mandatory settlement conference. A hearing on the sanctions is scheduled to occur April 19, 2013. The case is set for a final trial on May 6, 2013.

During a divorce in Texas, there may be hearings and required conferences with the Court. It is important to communicate with your lawyer to find out whether or not your presence is required. There are many types of hearings where a litigant’s presence is required and a litigant’s attorney’s appearance on behalf of a litigant will not suffice. I always tell my clients prior to any hearing whether or not their presence is required. Even if my client’s presence is not required, I always invite my clients to attend any and all hearings in their divorce no matter what the purpose of the hearing.

Just like in the California court where Kim Kardashian and Kris Humphries divorce is pending, a Texas Court can award sanctions and attorney’s fees against a party for his/her failure to attend a hearing as well as a possible default of the matter that was scheduled to be heard before the Court.

Stayed tune for my future blogs regarding the April 19, 2013 sanctions hearing as well as the May 6, 2013 final trial in the Kim Kardashian and Kris Humphries divorce.
 

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