Let me start out by saying that I in no way shape or form advocate for not paying your court ordered child support. If you have been ordered to pay monthly child support for the benefit of your children, you need to pay it. But, there are situations where legally you may be required to pay but requiring you to do so would not be equitable. An example of one of these situations is when the other parent engages in voluntary relinquishment.

Voluntary relinquishment is when the other parent has been awarded primary possession of the child as well as the right to receive child support, but leaves the children with the non-primary parent to raise and care for them. Under the Texas Family Code, the parent required to pay child support has an affirmative defense to a child support enforcement when the primary parent has voluntarily relinquished actual possession and control of the child for more time that is court ordered. It is also important to note that in order to raise this affirmative defense, the possessory parent must actually care for and support the children while they are in their care.

Recently I had a case where our client had an enforcement action filed against him for not paying child support going all the way back to 2016. As you can imagine the amount owed in arrears was large. However, from the time the order was entered in 2016 the children had been living with him, despite the fact that their mother was awarded primary possession. She willingly let the children live with him and made no effort to take possession or control of them. So, instead of paying her child support he used that money to provide for the children while they were in his care. We were able to show evidence of this to opposing counsel by way of school records, bank statements, medical records, and texts from the mother acknowledging that the children lived with our client. Once they saw the evidence to prove our affirmative defense, the enforcement was promptly non-suited.

Granted, a better course of action for our client would have been to file a modification instead of simply withholding the child support, but that is for a different article. What’s important here is that even though he had a legal obligation to pay child support every month, the law provided him an equitable defense to not fulfilling that legal obligation.

In my short career there is one thing that I’ve seen consistently derail both my cases as well as the opposing party’s. Text messages. For one reason or another people involved in contentious family law cases simply cannot stop sending text messages to the other party. I realize that that texting is standard for 2023, I also usually send text instead of calling. The problem isn’t necessarily texting itself, but what you are sending over text.

I have touched on this multiple times in several articles, but I feel like it is important enough to warrant its own separate piece. Written language loses many of the contextual notes that spoken language has. There is no voice inflection, it’s much harder to detect tone, and sarcasm can easily go over someone’s head. For example, remember that show The Honeymooners? The husband would often joke “One of these days, pow right in the kisser!” Now when watching the show, you could tell from his mannerisms and tone of voice that he was joking (joke being subjective). But if it was 2023 and he sends a text to his wife saying the same thing, it’s not going to be so funny.

At the end of the day, it comes down to self-control. If you are in a highly contentious case and you know the other party gets under your skin, don’t text them. Call them if you must communicate, but don’t create evidence against yourself because of a flared temper. I understand doing things in the heat of the moment, but for the sake of your case you need to put the phone down and step away. Find a distraction to bring you back to a calm place, because text angry is not going to end well.

I have also seen situations where parties will send text for no other purpose but to harass the other side. Please, please don’t do this. If you are texting when angry that can be spun and mitigated, but if you are texting for no other reason other than to be a jerk to the other party that is unredeemable. You are an adult in a lawsuit, not a middle schooler on the playground. No judge is going to look at those texts and think they are cute or funny when they have been submitted as evidence. And trust me the other side will submit them as evidence.

When it comes to the topic of divorce people’s first thoughts often go to things like: How will it effect the children? Who will get the house and the cars? How much am I going to have to pay in child and/or spousal support? Will I have to part with half of my stock portfolio? But for those who own their own business, there are additional things to be considered.

  • Your Business Will Be Treated Like Any Other Property in Marriage.

As you are probably aware, Texas is a community property state. Which means that half of the marital property belongs to you, and the other half belongs to your spouse. So much like the marital residence and joint bank accounts, your business will be justly and rightly divided by the Court if it is deemed to be community property.

  • Is It Separate or Community Property?

When it comes to categorizing your business as community or separate property there are two key words that must be examined: when and how. Timing is everything when it comes to property division. When your business was established directly determines how much of its worth is your separate property. There will need to be an analysis of how much this business was worth before the marriage, and how much it was worth after. The increase in value during the marriage may be considered community property. Next you must determine how that business came about. Did you start it up on your own, or did you inherit your position? A business inherited will likely be considered separate property, regardless of whether it was inherited before or during the marriage.

  • How Will It Be Divided?

This is the question that you’ve been waiting for and unfortunately for you, the answer depends. If portions of or all of your business is classified as community property, it will be divided by the Court. That’s it, end of story. Where things can vary is how. For example, if before marriage you built the business and now you run the business, profit from the business, and put your name on the business, it’s not likely you’re going to have to transfer ownership after divorce. What may happen is that the Court will order you to pay half of the community property portion of the business to your spouse. However, if you started the business during the marriage, and gave yourself X number of shares, you could have to split those shares in the divorce. Then there’s a scenario where the Court could simply order that your shares/the business be sold and the profits split between the spouses.

  • Can You and Your Ex-Spouse Continue to Run the Business?

There are certain situations where it’s best for all parties and the business as a whole to avoid division and to continue as it was prior to divorce. This, however, is a special situation. One that occurs when both spouses equally built the business together, equally managed the business, own equal shares in the business, and the business would suffer without the contributions of either one of them. If you truly believe that you and your spouse can coexist as just business partners, without harboring any ill will towards one another, this may be an option for you.

  • Prevention of Division

As the saying goes, “the best offense is a good defense”, or is it the other way around? Regardless, prenuptial and postnuptial agreements can help protect your business interests from every being in the community property pile in the first place. A well drafted premarital agreement will keep your separate property yours, whether it’s your dog or your fortune 500 company. And should you decide to start a business during the marriage, a postnuptial agreement can set you up to keep all the profits, as well as the risk, to yourself.

If you are a business owner, and you see a pending divorce on the horizon, reach out to us at O’Neil Wysocki Family Law. We will put what’s important to you first and treat your business like our business.

It’s no secret that being involved in a lawsuit is an extremely stressful process. It doesn’t matter if it’s a divorce, a custody battle, or a child support case. The one thing that unites everyone in a family law case is the stress it brings. Unfortunately, that stress can manifest itself in many ways, some of which can be a detriment to your case. This week I want to give you some methods to help manage that stress and for the well-being of both your case and your mental state.

One thing that the stress of a case can bring on are paranoid thoughts. You’re in a fight with the person who at some point thought you could trust the most, but now they’ve taken legal action against you, and you don’t trust a thing about them. I’ve seen clients start to believe they are being watched by the other party, that their electronic devices have been compromised, and that the other side is hiding large amounts of money from them. These things do happen in family law cases, so getting these feelings isn’t unusual. But the managing partner at the firm has a saying “focus on what we know, not what we feel” and what he means by this is that a lawsuit is decided on the facts of the case. We cannot simply go to a judge and tell them to rule our way because a client feels that they are being stalked. Without facts to substantiate the feelings, relief won’t come.

So, my method for dealing with those intrusive thoughts is to focus on what you know to be true, not what you think could be true. If you worried if the other parent is going to abuse or neglect the children while in their care, think about if they have ever done so before. If they haven’t, remind yourself of that whenever the thought pops up. If you’re worried about your spouse hiding assets tell your lawyers and they will use their resources to find the truth. Should your lawyers provide you documents showing that there is simply nothing to hide, trust that they have done their due diligence.

The stress of a case can also cause you to lash out at the other party when given the opportunity. This is a big one for your case, if you can help it do not do this. I understand that sometimes communicating with the other party is necessary, but if doing so causes you to fly into a fit of rage alternative methods need to be taken. For example, you can simply tell them to speak through your lawyer instead of you directly. You can expressly inform them that you will only be speaking with them regarding co-parenting for your children. If necessary, you can request that a co-parenting app be used in your temporary orders. This allows the attorneys of the parties to monitor the conversations, which could help it become more civil. The important thing is, if they attempt to pull you offsides, don’t take the bait.

What I want you to take away from this article is that stress in a case is normal. You aren’t crazy, you’re hurt. Anytime you find yourself in one of those high stress moments, take a step back, put the phone down, take a few deep breaths, find a lawyer you can trust, and focus on your goal.

Last week I discussed enforcements and how they are used to make the other party fall in line. However, while filing an enforcement action is all well and good, it’s only part of your available relief. Because what good is simply ordering someone to comply when they have already refused to do so previously? Requesting the Court to find the other party in contempt gives your enforcement the extra weight needed to make them think twice before disobeying again.

As mentioned last week, contempt of a court order occurs when a party violates or directly disobeys an order of the court. In the field of family law these violations are usually failure to pay child support and/or withholding visitation. To get an order for contempt granted you must, like everything else, prove that certain elements were met. These elements are that the other party had knowledge of the order, had the ability to comply with the order, and that despite having the ability to comply they didn’t.

I always tell my clients that want to seek an enforcement with the request for contempt to make sure they have kept a record of the other parties violations. Because if you want the other party to be found in contempt you will need to be specific when showing their violations. That includes what order was violated, how they violated the order, where the order was violated, and when (both time and date) the order was violated. If you don’t have this specific proof, it is possible that the judge will not hold the other side in contempt.

 There are two different types of contempt: civil and criminal. However, the difference between them is not as obvious as you may think. For example, both civil and criminal contempt can include fines as well as jail time. The difference is criminal contempt is meant to punish the disobeying party, whereas civil contempt is more meant to make the harmed party whole again. Because of this, if a party is ordered jail time over civil contempt it may just be until they pay their child support, whereas if they are found in criminal contempt for not paying, they will have to serve their sentence.

Not everyone plays by the rules. Some people will look at a court order, wad it up, and toss it in the trash. They will go on about their lives ignoring the fact that they have an obligation to pay child support. They will continue withholding your court ordered possession time. They will throw a restraining order to the ground and continue to harass you. The question is, what can you do about it? This week I’ll be discussing enforcements and how they can help you get what you are owed under the law.

An enforcement is what you would file when the other party in your lawsuit is not following the orders of the Court. Say they have been ordered to pay $600 in child support every month but haven’t paid anything in 5 months. You would need to file an enforcement against them requesting they pay the outstanding child support balance and/or be held in contempt for noncompliance with a court order. But what if they have been ordered to pay $600 and pay $200 one month, $400 the next, $100 the third month, and $600 the fourth, can you still file an enforcement? Yes. Just because you were paid what was owed in the fourth month does not mean that they complied with the order for months one through three.

You can also file an enforcement when you have been denied your court ordered access and possession. It doesn’t matter if the other party says they have a good reason for denying you possession, if they do not go through the proper legal channels to modify possession they are not complying with the order. As with an enforcement for child support, you can request the Court order the other party to comply and/or seek contempt for their violations. Whether they withhold your possession for a week, a month, or a year. You can file an enforcement action to ensure you get what you have been awarded.

More often than not when it comes to a family suit involving children, who has primary custody of them is the most contested and important issue to my clients. Which makes sense as their property can be replaced but their children cannot. Sometimes parents can work together well after divorce and can take care of their children in different yet harmonious ways. But sometimes a parent in the relationship is unfit to make serious decisions and needs to have their role in the children’s lives limited.

In Texas what many refer to as custody is known as conservatorship. When children are involved in a family suit each parent is considered a conservator, of which there are two types: the managing conservator and the possessory conservator. Managing conservators are further broken down into two sub types: joint managing conservators and sole managing conservators.

When a Court sees that parents can work together, and neither are a detriment to the children they are named joint managing conservators. They share the rights and duties of raising a child and must co-parent to see it done well. Being a joint managing conservator does not by itself mean you will have no exclusive rights. For example, a joint managing conservator can be designated the primary parent with the exclusive right to designate the residence of the child, and in turn have the exclusive right to receive child support. However, most of the time when it comes to things such as medical treatment and education the parents must confer and sometimes agree with one another before making a decision.

When a client comes in saying they want sole custody, they want to be the sole managing conservator. This is usually granted when a Court finds that the other parent for one reason or another is unfit to have control over the child. The sole managing conservator is the parent with the exclusive right to make important decisions in the child’s life. Decisions such as where the children will go to school and what kind of medical treatment they will receive can often be made without approval of the possessory conservator. A sole managing conservator will also be the parent who the child primarily lives with and thus will be the parent with the right to receive child support.

The possessory conservator is the parent who has the right to have possession of the children under the conditions specified in the Court’s order. So, if one parent is named sole managing conservator and the other parent is the possessory conservator with one weekend a month for visitation; then the possessory parent does not have those exclusive rights concerning the children, but does have the right to possess the children for that designated weekend.

Let’s face the facts, divorce attorneys are all over the DFW metroplex. However, they are not all created equal. There are those who practice in a multitude of legal fields and there are those who practice family law exclusively. There are those who work pro bono and those who don’t. But most importantly, there are those who you should put your trust in and those who you shouldn’t. In this article, I’ll give you five qualities you should look for in your divorce attorney so that you will be better able to pick the firm that’s right for you.

  • Responsive

Did you know that most client complaints about their attorneys are that they do not properly communicate? It seems like a simple thing, but the truth of the matter is not every attorney will give you the responsiveness you need. A good divorce lawyer knows that cases are stressful on clients and will do all they can to put you at ease. A good attorney won’t just read your questions and concerns in an email, but will do their best to address them as soon as they can.

  • Caring

There are attorneys who forget that counselor is a part of their job description. Tensions run high in a divorce, which means emotions often do as well. There will be times when you will need someone to give you general advice in addition to legal advice. That’s where a good divorce attorney comes in. Any attorney can callously handle your case. However, a good one will get to know you and treat you like a person instead of a case number.

  • Strategic

A good divorce attorney also knows when to be aggressive and when to show restraint. If you have someone who is constantly chomping at the bit for a fight, you run the risk of getting in a drawn out case, spending more than you need to, and potentially getting a worse outcome. On the other hand if you have an attorney who bows down to opposing counsel, you could find yourself being left out to dry in a bad settlement. It’s imperative that you find a divorce attorney who knows when it’s time to fight, and when it’s time to settle. Not an attack dog, not a bunny rabbit, but a fox. You want someone who has your best interest in mind, and will work for it in the most efficient way possible.

  • Knowledgeable

It sounds like a no brainer, but a good divorce attorney knows the law. There are attorneys who take divorce cases, but do not practice family law exclusively. This does not mean they are bad lawyers, but it can mean they may not understand all of the nuances in the Texas Family Code and the relative case law. An attorney who does nothing but family law will be best to represent you in a divorce, because it greatly reduces your chance of being blindsided in Court due to a misinterpretation of a statute.

  • Timely

The difference between the success and failure of your case could be one minute. If your attorney misses an important deadline by just one minute, there is a significant risk that you won’t be able to make certain objections or worse you won’t be able to present evidence at all. A good divorce attorney will plan out and monitor all of the deadlines in your case, regardless of whether they apply.

If you ever find yourself in need of an attorney for your divorce or for any family law matter; use these five traits to help you discern who is worth your time and money. During your consultation, ask their policy for emails and call backs. Ask if they are willing and able to help you settle a case or take it to trial if necessary. Ask them how much experience they have practicing family law specifically. If you find an attorney with these five qualities, you will be in good hands; and if you need help finding an attorney with these qualities reach out to O’Neil Wysocki Family Law. I will be happy to show you these qualities in action.

Let’s say, hypothetically, you’ve gone through a divorce. The judge grants your ex-spouse primary possession of the kids, grants you standard possession, and orders you to pay $1,000 a month in child support. But what do you do when this situation is no longer workable? What do you do when your ex-spouse begins neglecting the children or your employment changes and you can no longer afford the $1,000 monthly payment? The answer, file a modification.

A modification does what it suggests. It allows you to go back before the court and request that the judge change a part or all of the controlling order. There are several reasons to bring a modification in a suit affecting the parent child relationship. But regardless of that reason, in order to be successful, you must show that there has been a material and substantial change in the circumstances of either the children or the parents involved. You must then show that the modification you are requesting is in the best interest of the children.

The next question is, what counts as a material and substantial change in circumstances? Fortunately, Texas courts have construed the definition broadly. For example, if you were to lose your primary source of income, that would substantially effect your ability to pay child support. If your ex-spouse gets remarried and the new step-parent starts to physically abuse your children, that would substantially effect their wellbeing enough to warrant a modification. Even something as simple as your former employment didn’t allow you to have overnight possession of your children, but your new employment does would be substantial enough to request a modification.

In general you will need to wait at least a year after your divorce before attempting to file a modification. However, should there be a compelling reason to file a modification, you should do so. However, do not file a modification that is meritless and intended just to make life hard for your ex-spouse. If the judge determines that you filed a frivolous motion you will likely be punished and ordered to pay the other parties attorney’s fees.

If you have gone through a divorce where kids are involved, and neither you nor your former spouse was a bad actor, it’s likely one of you received a standard possession order in the decree.

A standard possession order is what is used by the courts as default when parents cannot agree on a possession schedule of the children. It creates a black and white, set schedule to adhere to in situations where something like week on week off possession isn’t feasible for whatever reason. Under the Texas Family Code a standard possession order is presumed to be in the best interest of a child over the age of three. However, it does not lock in the parents. Should they agree to something later down the line (usually in writing) they can deviate from the set possession schedule.

There are two types of standard possession schedule based on the distance of the parties. They are the standard possession order for parents that live within one hundred miles of each other, and the standard possession order for parents that live more than one hundred miles apart.

For those that live within one hundred miles, a standard possession schedule gives the non-primary parent possession of the children every first, third, and fifth weekend of every month. It also allows for every Thursday evening during the school session, an extended summer possession of thirty days, and alternating Christmases, Thanksgivings, and spring breaks.

The only major changes for those that live more than one hundred miles apart is that there are no Thursday visits, the summer possession instead is forty two days, and the non-primary parent gets every spring break. It is important to note that there is an alternate provision for parents more than one hundred miles apart. Instead of every first, third, and fifth weekend, the family code allows for the non-primary parent to have possession one weekend a month.

Both have additional language for the extended summer possession periods as well. For example if the primary parent provides notice by April 15th of a year, they are permitted to have possession of the children on any one weekend during the extended summer possession.                

The standard possession order, can be modified by a judge. If the court makes findings that a standard possession order is too much, a parent may get sub-standard or supervised possession. If they finds that a standard order is not enough, a parent may receive an expanded standard possession order. And if the court needs to fine tune it, a modified possession order will be issued.