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

Approximately two weeks ago a bill sponsored by State Representative Warren Chisum (R) requiring couples to attend counseling prior to filing for divorce died in the 81st legislative session.  Under House Bill 480, the party seeking a divorce would have been required to attend ten hours of counseling in conflict management, communication skills and forgiveness skills.  Representative Chisum sponsored the bill in order to address the state's high divorce rate (upwards of 55% for first time marriages and 70% for subsequent marriages). 

According to the Dallas Morning News the bill was popular among social conservatives and marriage counselors who claimed the bill was designed to save marriages "[t]hat have fallen on hard times."  The bill would require the spouse seeking a divorce to complete the ten hour course before filing court papers; otherwise, the divorce petition would be dismissed.  Further, Representative Chisum's bill would allow to judges to decide child custody issues on whether a parent completed the required counseling.

Despite your political affiliation, I see several problems arising from Representative Chisum's proposal:  (1) Do we really want to enforce the counseling requirement in cases where the spouse filing for divorce is doing so because of domestic violence; (2) what about cases where there is alleged abuse of a child, certainly waiting to file could present issues of child safety; and (3) what if the spouse filing is doing so because of substance abuse issues of the other spouse? 

Although many people walk into our office not wanting a divorce, forcing individuals to undergo an additional hurdle before filing is not the best way to address our state's high divorce rate.  A divorce is one of the most stressful events a person can endure.  Obstacles like the proposed bill would only add to the stress - not alleviate it.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In Collin County, Texas, every divorce that gets filed has the Collin County Standing Order attached to it, which is effective against both parties to the divorce.  The Standing Order replaces the previous procedure to apply for the standard family law restraining orders.  The purpose of the Standing Order is to provide some general rules of behavior for parties during a divorce. It prohibits behaviors such as changing the child's school or day-care, making harassing phone calls, or opening the other parties mail.  It also prohibits either party from changing beneficiaries on life insurance or disconnecting utilities at either party's residence.

As far as enforceability... the Standing Order is not very enforceable.  So, if there's some behavior you are particularly interested in curtailing, the better course of action is to get an order from the court directed specifically at the party to prohibit the action. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Nine Continental pilots have been accused of hatching a divorce scam to take money out of their pension retirement plans. Continental alleges the pilots and their spouses got paper-only divorces while continuing to live together and concealing the change in their marital status from their children and friends. Once a state court approved the divorces, the pilots signed court-issued documents giving their new ex-spouses all rights to a pilots-only pension plan, worth up to $900,000 per individual participant. Then, the spouses presented the paperwork to the Continental pension plan administrator with a request for a lump-sum distribution.

Such pre-retirement payments to former spouses are allowed under the federal law that governs employer-sponsored retirement saving and investing plans that grow tax-free.

But Continental alleges that after getting the money, the couples remarried. It calls the divorces “subterfuges or sham transactions.”  Continental filed a lawsuit against the nine pilots and their spouses to recover the money lost in the scam. Continental suggested in the lawsuit that the pilots — seven men and two women — were afraid of losing major chunks of their pensions because of the financial difficulties the airline industry experienced in 2005. Around that time, Delta Air Lines, United Airlines and US Airways filed for bankruptcy protection, reneged on their pension promises and handed over the plans to a federal administrator to make good on a portion of the pension obligations.

The Pension Benefit Guaranty Corp.’s maximum guarantee is paid in periodic annuity payments instead of lump sums and is far less than a typical airline pilot pension. This year, for a 65-year-old person, the maximum is $54,000.

The Houston Chronicle reported the story this week. And, Good Morning America ran the story this morning as well.

In the GMA story, one of the female pilots accused of the scam insisted that her divorce was real and her reconciliation was real and none of the public's business.  A lawyer for one of the pilots speculated that the pilots would not have been able to hatch such a "complicated scheme" because they weren't lawyers.  (Lawyer snobbery?) 

But, the Chronicle story refers to a request by United Airllines in 1999 about some of its workers that got divorced in an alleged sham.  In that instance, 21 United maintenance workers in Indianapolis were accused of defrauding the retirement plan by following steps laid out in a pamphlet called the Retirement Liberation Handbook, which gave instructions on how to use divorce to acquire benefits prior to retirement.

This story illustrates the desperation some people fees in this difficult time.  Even though the Dallas area has fared better than other areas of the country, people get divorced for various reasons.  During my career as a Dallas Divorce Lawyer, I been aware of the occasional situation where the parties had other motives for a divorce than simply irreconcilable differences.  In each situation, the "sham" divorce backfired on the party that was trying to get away with something.  It just doesn't pay to be dishonest.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Today I was interviewed by Katie Award winning reporter John Council with Texas Lawyer Magazine about the In re JOA opinion issued recently by the Texas Supreme Court for the Video Blog Reversed and Remanded.  Seriously, you should go look at the video -- CLICK HERE.  (I wish I had worn a different shirt!)

The Texas Supreme Court declared Texas Family Code section 263.405(b) unconstitutional as applied in this case. 

263.405 requires a parent appealing the termination of his parental rights by the government (Family Protective Services) to file within 15 days of the signing of the termination order a Statement of Points detailing exactly the issues to be addressed in an appeal. What happens when the lawyer for the parent fails to timely do so?  The law says the parent cannot appeal.

In re JOA holds that, where the trial court lawyer fails to file the statement of points, the appellate court is not precluded by the statute from considering whether the trial court lawyer's failure rises to the level of ineffective assistance of counsel requiring reversal of the termination. To prove a claim for ineffective assistance of counsel, the party must show, not only that the lawyer's actions were deficient (example, failing to file the Statement of Points) but also that the failure was somehow harmful (example, if the lawyer had filed the SOP, the appeal would have been meritorious).  Where, as in JOA, the claim for ineffective assistance of counsel was well-founded, 263.405's prohibition against the trial court from hearing the appeal violates the terminated parent's constitutional right of due process.

This has been a controversial issue in family law appeals since the law was passed.  The various courts of appeals in the state have disagreed over the intersection of the Statement of Points requirement with the United States Constitution.  Now, we have a decision, at least as to these facts.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Recently I came across a blog discussing tips to surviving a divorce.  Interestingly, the blog wasn't written by an attorney but the divorce survival tips all come back to one thing - the importance of hiring a good lawyer.  The blog has some good tips that apply to a divorce in Dallas Texas which I will outline in the order they were presented.

1. Hire a good divorce lawyer.  Hiring an attorney that is compatible with your personality is absolutely critical in protecting your rights and best interests during such a troubling time.  The right attorney serves not only as a mediator but also as an advocate of your interests.
2. Keep written records of everything.  Keeping a journal of who said what and when often shows which of the parties is more organized.  Also, written records of conversations are helpful during the division of community property.
3. Keep your cool.  Although this is a stressful time, keep in mind that everything you say or do is going to be looked at under a microscope.  If you lose your cool, you can stand to lose a lot.  Not only in terms of property, but also in custody determinations. 
4. Read everything.  Obviously, a good attorney will ensure that you understand everything relating to the division of property and custody issues.  However, never assume that just because your attorney reads everything that you are not responsible for doing the same.
5. No guilt trips.  This ties in closely with number three.  Remember, nobody likes a sneaky, passive aggressive person.  Communicate your concerns to your attorney in a direct manner.  Address any problems as they arise - not after everything has built up and is coming to a head.
6. Never use children as leverage.  All to often we see clients who put their interests (i.e. revenge) before those of their kids.  Remember that the divorce is not their fault, and that you have absolutely nothing to gain (but very much to lose) by using your children as a bargaining tool.

Although these may seem like common sense, it is easy to forget them during a divorce proceeding.  A good divorce attorney who clicks with your personality will help you remember them.

Our firm would like to help you with your divorce.  We represent people getting a divorce in Dallas, Collin, Denton, and Tarrant Counties in Texas.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Senate Bill 1838 was signed into law by Governor Perry yesterday.  The new law authorizes the court to order termination of the parent-child relationship if the court finds clear and convincing evidence that the parent has been convicted of a criminal attempt to the murder or criminal solicitation to murder the other parent of the child.

Under current law, the Family Code does not address the issue of parental rights when one parent commits the crime of criminal solicitation of murder against the child's other parent. 

The new law amends Texas Family Code Sec. 161.001. INVOLUNTARY TERMINATION OF PARENT-CHILD RELATIONSHIP. It authorizes the court to order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent has been convicted of, attempted murder or solicitation of murder Under sectiosn 15.01 and 15.03 of the Texas Penal Code, or under similar laws of other states, countries or the military law.  

This law is effective September 1, 2009.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A party in a complicated divorce proceeding has filed a lawsuit claiming his former counsel promised him a favorable outcome because of a “special relationship” with the presiding judge. The attorney and law firm named in the suit vehemently deny that any member of the firm made such a declaration at any time. The divorce involved significant property division issues, according to an attorney for the firm named in the suit.  See the full article at Texas Lawyer (shout out to John Council who wrote the article). 

Bascially, what happened according to the lawsuit (according to the client) -- the lawyer told the client that he had a special relationship with the Judge and therefore could affect the outcome of the case.  There was also a receiver appointed to sell a marital asset, and (again, according to the client), the lawyer said he had a relationship with the receiver and could obtain a favorable outcome from the receiver.  Then, all went badly for the client.  The receiver didn't do what the client wanted and somehow the Judge gave some informal opinion negative to the client, so the client agreed to an outcome that he didn't want.  So, the client blames the lawyer and files a lawsuit.

First, and very obviously, this is a one sided story.  The ethical rules require that lawyers cannot imply they have a special relationship with anyone in a manner that would influence the outcome of the case.  Further, a lawyer cannot guarantee a client a favorable or certain oucome.  IF the lawyer did either of those things, then the lawyer could be in big trouble.  But, again, that's a pretty big IF.  I'd think that the client who filed the lawsuit is going to have to have some corroborating proof of his allegations, beyond just his word that the lawyer made those statements.

This is Dallas divorce law drama unfolding.  It will be interesting to see how it turns out.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Frequently we are asked what recourse is available when one spouse attempts to hide assets of the marital estate during a divorce.  Not only is such conduct highly unethical, it is fraudulent as well.  Typically a forensic accountant is called in to help search for hidden assets.  In our experiences, here are some reoccurring methods used to hide assets:

• Purchasing lavish antiques, artwork or hobby equipment.  Often times property such as this is overlooked and undervalued;
• Collusion with an employer to delay the payment of bonuses, stock options or raises;
• Setting up a custodial account in the name of a child;
• Repaying a "debt" to a family member or friend when such payments were no previously made;
• Salary paid to a non-existent employee if the spouse is a business owner;
• Money paid to close friends or family members for "business" services not actually rendered; and
• Investment in municipal bonds or Series EE Savings Bonds for which no interest is reported on tax returns.

If you suspect you spouse is hiding assets it is a good idea to review all financial records prior to filing for divorce.  If you are responding to a divorce we suggest you retain the services of a qualified forensic accountant.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In a family law case where conservatorship or possession (aka parenting time) of children is at issue, the custody evaluation or social study can make-it-or-break-it.  I've often referred clients to the Separated Parenting Access & Resource Center website and specifically their Guide to the Parenting Evaluation Process.  This guide provides insight, aimed at nonprimary parents, for all parts of the process, such as the initial interview, importance of documentation, psychological testing, parent/child joint session, use of collateral contacts, and other aspects of the process.

Some custody evaluations are performed by a social worker, maybe one employed by the county where the case is pending.  These are often less-expensive than other versions of the evaluation.  If the parties can afford it, the better option is to use a private professional to conduct the custody evaluation.  A private professional can be a social worker that works in private industry.  Or, if mental health issues are a contested topic in the case, another option is to use a forensic psychologist to conduct the custody evaluation so that psychological evaluations will be a part of the process.  Often a court-appointed social study conducted by the county-paid workers will not involve a home study, whereas a private paid evaluation will.

The resulting report of the evaluation will be relied upon heavily by the judge and/or jury in deciding the conservatorship or possession issues.  That's not to say that you can't challenge an evaluation that goes against you, but it does make your case more difficult.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Children are the innocent victims of divorce.  Sometimes they blame themselves for the family's breakup and try to "fix" it.  Children need to be reminded that, just because mom and dad are getting a divorce, that does not mean that they don't both love the children.  Also, they need to be reassured that just because one of the parents is leaving the household, does not mean they are leaving the child.

A Kid's Guide to Divorce is a website that I found from a post from Michael Sherman of AlabamaFamilyLawBlog.  This website is a wonderful resource aimed at children of divorce.  The website says, "Sometimes the feelings kids have about their parents' divorce are so strong that kids have a hard time concentrating on anything else.  When kids are very sad, mad, or worried, they may have trouble paying attention in class..."  Not only is this website insightful, it is especially important because it is aimed at kids on their level.  There's also an article on Living With A Stepparent, Being Adopted, What Should I Do If My Family Fights, and Why Am I So Sad.  For every parent going through a divorce with kids, this webiste is a must read for both the parents and the children.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A client referred me to the website www.colage.org as a resource for LGBT parents.  COLAGE is a national movement of children, youth, and adults with one or more lesbian, gay, bisexual, transgender and/or queer (LGBTQ) parents. I found the website very insightful and wanted to share it with our readers.  Check out this custody resource sheet called Protecting Families: Standards for Child Custody in Same-Sex Relationships.  Also, check out this suggested reading list for LGBT parents.  Issues involving same-sex couples, and especially same-sex couples with children, are increasing in the Dallas, Texas area.  These can be invaluable to anyone with questions about their rights. 

Also see this article in the Dallas Voice about one of my cases: Lesbian Moms in Custody fight.  This case is currently pending in the Dallas Court of Appeals.  Hopefully when it is decided, it will provide additional guidance as to the rights of same-sex partners who decide to have a child.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

A client asks, I’ve maintained a relationship with my former partner’s child after our relationship ended, but I’m afraid that she’s going to cut me off. Is there anyway I can sue to keep the relationship I have with the child even though I’m not the biological parent?

I have four cases in my office right now pending in Dallas County with this exact issue. The Texas Family Code allows a lawsuit to be filed by a person who has had “actual care, control, and possession” of a child for at least 6 months ending not less than 90 days prior to the lawsuit being filed. There is much discussion going on in the court system right now about what constitutes “actual care, control and possession”. It is clear that “possession” does not mean uninterrupted periods, and does include periodic, alternating periods of possession. The current state of the law is unclear as to the meaning of “control” and there is much debate among judges as to what it means.

The law requires 6 months of possession, but it is unclear whether it means 6 months between the first period of “actual care, control and possession” and the last period, or whether the total of the periods of possession by the non-parent must aggregate (add up) to a total of 180 days. Regardless, the last possession period must not be less than 90-days prior to the day the lawsuit is filed. This means that a person who wants to solidify the relationship through a court order must not delay in filing suit.

I’ve had several clients come in with these problems, and each one delayed in seeking legal help. If you have a relationship with the child of a former partner, please do not delay in seeking advice from a lawyer about your situation. Consider confirming your relationship in a court order while the relationship with the other partner is good. If you have any questions about your status, please schedule a private, confidential consultation today.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link