Child custody evaluations play a crucial role in determining the best interests of a child during divorce or suit affecting the parent child relationship. These evaluations are conducted to provide the court with an impartial assessment of each parent’s ability to meet the child’s needs and make decisions in their best interest. This week, we’ll discuss the key aspects of child custody evaluations in Texas family law, including their purpose, process, and factors considered.

The primary objective of child custody evaluations is to ensure the child’s well-being and promote their best interests. To determine the best interests evaluators, like the courts, weigh the Holley factors. These factors are, the desires of the child, the emotional and physical needs of the child now and in the future, the emotional and physical danger to the child now and in the future, the parental abilities of the individuals seeking custody, the programs available to assist these individuals to promote the best interest of the child, the plans for the child by these individuals, the stability of the home, the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one, and any excuse for the acts or omissions of a parent.

Child custody evaluations are typically conducted by mental health professionals or social workers with expertise in child psychology and family dynamics. Courts may appoint an evaluator or require the parents to mutually agree on a qualified professional. Once selected the process takes place over a period of months.

First there is the initial assessment. Here the evaluator gathers relevant information by interviewing the parents, the child, and sometimes other individuals involved in the child’s life, such as teachers, caregivers, or healthcare providers. They may also review medical and school records. Additionally, the evaluator will also conduct home visits to assess the child’s living environment, observe the parent-child interactions, and evaluate the overall suitability of the home. Beyond the initial assessment, there will be multiple interviews and observations performed by the evaluator. These interviews may be done individually with each parent or jointly with the parents and the child.

After this process is complete the evaluator will prepare a detailed report that includes their findings, observations, and recommendations regarding custody arrangements. This report is submitted to the court and is considered as expert testimony. Should the case continue to trial, the evaluator may be called as an expert witness to explain why they made the recommendations they did.

Divorce proceedings can often lead to contentious battles over asset division. For the most part, parties go through the process and play by the rules. But every now and then, some individuals attempt to hide assets to gain an unfair advantage. This week we’ll talk about the potential consequences of such behavior and why you shouldn’t engage in it.

As usual when I’m writing about one of the shady parts of family law, I want to stress do not do this. You will be found out, and it will lead to your case going South faster than a goose in November. Hiding assets during a divorce involves various deceptive tactics. Common methods include undervaluing assets, transferring assets to third parties, creating complex ownership structures, or utilizing secretive offshore accounts and trusts are other techniques used to mask wealth. Additionally, some spouses may dissipate assets or incur hidden debts to reduce the overall marital estate available for division.

Concealing assets in a Texas divorce carries severe legal consequences. Parties involved in divorce proceedings have a duty to provide full and accurate financial disclosures. Should the Court find out that you have lied about your assets you will be punished. Consequences include giving the innocent party the full value of the hidden assets, holding the guilty party in contempt, and imposing sanctions on the guilty party and their attorney if they knew about it. Also should the divorce involve children, the party hiding assets can forget about the judge favoring them on that front.

The potential for hidden assets is why it is so important to have an experienced and skilled attorney on your side. Discovering concealed assets requires thorough investigation which includes but may not be limited to gathering financial documentation, employing forensic accounting techniques, and using discovery. In certain cases your attorney may even call in an expert who can trace the financial information of the guilty party.

It’s important to note that the burden for proving hidden assets is on the innocent party. It is essential to gather compelling evidence and present a strong case to the court. Cooperation between spouses and their legal representatives can expedite the process and lead to a fair resolution. Expert testimony and judicial discretion play important roles in evaluating the credibility of claims and determining appropriate remedies.

Spousal maintenance is a legal concept designed to provide financial support to a lower-earning or non-earning spouse after a divorce. In Texas, spousal maintenance is governed by specific laws and guidelines that aim to balance the financial needs and abilities of both parties involved.

In Texas, eligibility for spousal maintenance is not automatic and requires meeting specific criteria to qualify. The spouse seeking maintenance must demonstrate that they lack sufficient property or income to meet their reasonable minimum needs following the divorce and they must meet one of the following conditions: the marriage lasted for at least ten years, the spouse seeking support has a disability,  the spouse seeking support is the custodian of a child with a disability, or the spouse who would pay the maintenance has been found to have committed family violence in the last two years.

The duration and amount of spousal maintenance are determined based on various factors. The Court evaluates the financial resources and needs of both parties by considering the length of the marriage, the ability of the receiving spouse to earn a living, and the impact of the marriage on the recipient’s earning potential. In Texas, the maximum duration for spousal maintenance is determined by the length of the marriage, with a cap of 5 years for marriages between 10 and 20 years. If the marriage lasted for 20 to 30 years, the cap raises to 7 years. If the marriage was longer than 30 years, spousal maintenance caps out at 10 years. However, should the maintenance be ordered on the grounds of a disabled spouse or disabled child of the marriage the Court could order maintenance for as long as the receiving spouse is eligible.

Spousal maintenance orders can be modified or terminated under specific circumstances. If the spouse receiving maintenance remarries, the support automatically terminates. Additionally, if there is a significant change in either party’s financial circumstances, such as a substantial increase or decrease in income or the inability to pay, the court may modify the maintenance order. It’s essential to note that spousal maintenance can also be terminated if the receiving spouse cohabitates with another person in a romantic relationship, as this is seen as a potential means of financial support.

Last week I touched on what you should do in a deposition, this week is all about what not to do. The list of don’ts gets a little bit longer than the list of do’s, and it’s also a tougher list to follow. But with the right preparation and practice, it can be done.

To begin, DON’T guess the answer to any questions. As mentioned last week, a deposition is under oath and on the record. This means that incorrectly guessing the answer to a question is just as bad as lying. If you don’t know the answer to the attorney’s question say “I don’t know” or “I can’t remember”. DON’T make up something that sounds good at the time, only to remember what actually happened later down the line.

Next, DON’T argue or get angry with the opposing attorney. At the firm we call it “getting pulled offsides” and trust me when I tell you that is not where you want to be. When angry you’re less likely to think clearly about your answers and when you’re argumentative it looks like you’re hiding something. Either way if you get to that point the other attorney successfully done their job. If you feel yourself starting to boil request a break, talk with your attorney, and cool down before proceeding.

DON’T give extra information. What I mean by this is listen closely to the question being asked, and answer just that question. If they ask you where did you go to high school, just tell them where. Don’t tell them where you went and that you dropped out because you had a substance abuse problem at the time. If you are asked a yes or no question, respond with yes or no. Don’t try to overexplain and end up giving more information than necessary. By doing this you can give up information to the other attorney that they would never have thought to ask about. Don’t do the other attorney’s job for them.

DON’T answer the questions immediately after they’re asked. You need to give your attorney time to object to the questions in order to preserve the objections for court. If you rapid fire answers before your attorney can even begin to say the word objection, then it is too late. Take a breath and gather your thoughts before answering. This gives your attorney the two seconds they need to raise an objection.

Finally, DON’T let your guard down. Remember, no matter how friendly the other attorney acts or how conversational they may seem, they are not your friend, and they are not on your side. They want to lure you into a false sense of security in the hopes that you’ll slip up and give them something they can use or dig into.

Here’s a link to my video presentation about the new laws and legislation affecting Texas Family Law and the lawyers that practice it resulting from the 88th Regular Legislative Session that just ended.

I also prepared a powerpoint detailing the new laws and their effective dates. Note that many of these have wonky effective dates, so it’s worth paying attention. Download the powerpoint here: New Laws 2023

Whenever I tell a client that they will have to sit for a deposition, I get the same two questions each time. “What are they going to ask me?” and “What do I do?”. Unfortunately, I can’t answer the first question exactly because every attorney has their own style. They may ask you every possible question they can think of going all the way back to your childhood, or they may hyper focus on a very specific issue in the case. Either way I can’t really say. But what I can do is help you prepare to have your deposition taken. This week we are going to look at the things you should do when you are being deposed, and next week we’ll discuss what you should not.

The absolute first thing I tell my clients when they ask what do to in a deposition is to tell the truth. Your deposition is taken under oath just as if you were testifying in court. The only difference is there is no judge present. Everything you say will be put into the record. If you lie in your deposition and it comes out that you lied in court, you’re going to be looking at perjury.

Next, if you don’t understand the question, DO ask the attorney to rephrase or repeat it. You don’t want to inadvertently answer a question incorrectly because you didn’t understand what the other attorney was asking. Every now and then a trick question will get tossed at you. If you don’t ask the other attorney to be clear, it may trip you up.

DO ask for a break when you need one. Statutorily the other attorney can depose you for six hours by default. However, that does not mean they can keep you stuck in that seat for six hours straight with no breaks. If you need to get some air, have a snack, or go to the bathroom, simply ask the attorney conducting the deposition for a break. This has multiple benefits, it gives you a chance to recollect yourself as well as a chance to speak with your attorney in private for additional advice.

Lastly, DO maintain your composure and treat the other attorney with respect. The last thing you want to do is show the other side that you are rattled or upset. If you get asked a question and your demeanor changes, that is a signal to the other attorney to press the issue. Remember, no matter how friendly they act towards you they are not your friend, and they are not on your side. If you show them that a particular topic bothers you they will take advantage.

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.