It’s not a secret that children are expensive. Making the effort to make sure their needs are met can often mean that you as a parent must go without. In a situation where parents are unmarried or divorced, it is even more important to make sure that both of you are on the same page when it comes to providing for the children involved.

Your children have a right to adequate support. If you are the parent that your children live with and you need a help providing for them, you can request the court to intervene. You can take the other parent before a judge with either an original suit affecting the parent child relationship or a modification to a prior order, and request that they pay you child support on that child’s behalf. If the court finds child support appropriate, a ruling for child support will be made based on a percentage of the net wages of the other parent. You will then be granted the exclusive right to receive that child support on behalf of the children until further orders from the court.

But what do you do when the other parent refuses to pay, or refuses to pay on time? There is an action you can take called an enforcement. What it allows you to do is petition the Court, to hold the party not obeying the order responsible. If they still aren’t willing to comply with the order, they may be held in contempt of court which can result in fines and/or jail time depending on the judge’s discretion.

But what if you’re paying child support and you suddenly lose your job or receive a substantial pay cut? You will need to file a modification and request that the court lower your child support obligation. Inversely, should the other parent get a significant increase in pay you can file a modification and request that the Court increase their child support obligation. Either way the Court will weigh the facts, and determine whether a decrease or increase is in the child’s best interest.

Your children deserve the support that is their legal right. If you are in a situation where the other parent is refusing to pay you child support do not let them deprive your child. Find an attorney who is ready and willing to fight for you and your family until the final bell rings.

So, you’ve popped the question, walked down the aisle, said I do, and celebrated those closest to you. Time ticks forward, the honeymoon phase passes, and you come to the unfortunate realization that you and your spouse may not be right for each other. Soon after you hear those four dreaded words “I want a divorce”.

While I hope none of you find yourselves in that position, the fact remains that it is very much a possibility. My own family has been plagued with divorces. It just seems to be one of those things that is prevalent in every community. But what do you do when you find yourself suddenly in the middle of one? What should your next steps be when you decide you want out or when your spouse slaps the papers on the dinner table? The short answer, call an attorney.

The long answer, find a competent attorney who will help you end things amicably, if possible, but will also fight to defend your rights if things go South. Personally, I’m of the belief that while divorce isn’t a fun process, it doesn’t have to be a terrible one.  So my priority is handling things as amicably as possible. Just because you and your spouse feel you are no longer meant to be together, does not mean you have to be bitter enemies through the process. An amicable divorce is the best way to make sure both sides get out without racking up large amounts of legal fees.

However, things can’t always go according to plan. Divorce is a very emotional time for people and sometimes no matter how hard you try to keep the peace, things can become contested. If that happens, I cannot stress enough the importance of having an attorney in your corner. If you can help it, don’t represent yourself. Ever. Just don’t do it. Without an attorney looking out for your interests, you risk signing off on a decree that serves your spouse much more than it serves you.

If you feel you need to consider the option of divorce, please don’t hesitate to contact me. Depending on the circumstances I may be able to facilitate your divorce amicably and keep the peace. But if not, O’Neil Wysocki and I will be on the front lines for you to make sure you aren’t taken advantage of.

Texas is one of the few states that recognizes common law marriage. Also known as an informal marriage, it allows a couple to be married without having to go through a marriage ceremony. Unless there is a declaration of marriage signed, there are set requirements that must be met to be apart of an informal marriage.

First, the couple must agree to be married. I know this one seems obvious, but it is a requirement that can be misconstrued by a party to the relationship. For instance, an engagement does not constitute a present agreement of marriage, but that the couple will be married in the future. The key difference being that the agreement to an informal marriage must be that the agreement is present and immediate. If a party tells others they are married, but the other party does the opposite, there is no present agreement. If a party uses the last name of the other party without the other party’s permission, there is no present agreement. The key is that there must be evidence that both parties to the relationship agree to be married to each other at the time of the agreement.

Second, the couple must live together as spouses. You cannot claim a common law marriage if you live in an apartment in the city, and your significant other lives in a townhome in the suburbs. There needs to be some evidence that they live together. Things such as shared names on the lease/mortgage, personal property of both parties present at the home, and a single bed for the couple. It is important that it is proved that the couple lives together as spouses and not just as roommates. If the party who denies the existence of a common law marriage can show that they slept in a separate bed in a separate room, it will help their claim. As a side note, contrary to popular belief the couple does not have to live together for a certain amount of time to be considered informally married.

The third, and arguably most contentious, requirement for common law marriage is that the couple must hold themselves out or represent themselves to the public as married. The most important part of satisfying this requirement is that the marriage cannot be in secret. Calling each other husband and wife in private will not suffice. Spoken words will help prove the existence of an informal marriage, but they are not required. On the other hand, actions and conduct alone will be sufficient to satisfy the holding out requirement. For example, if a couple claims each other on their taxes as their spouse, list each other as a spouse beneficiary on their insurance, or list the other party as a spouse on their mortgage, it can be said that they are representing themselves to be married. However, it’s important to note that one of these examples alone may not be enough. This is where telling family members, friends, and all of social media that you are married will tip the scales in favor of common law marriage.

These days more and more people are beginning to see and treat their pets as though they are their four legged or winged children. But no matter how much you love them and treat them like family, according to the state of Texas they are property and thus an asset to be divided during a divorce.

Unlike for your children, the Court is not going to set a possession and access schedule for your pets, at least not by default. If your pet is separate property, meaning it was adopted before the marriage, then you will likely be awarded the pet in the divorce. However, if it is determined that the pet is community property, meaning it was adopted during the marriage with community funds, things can become more complicated.

This doesn’t mean that the Court will decide the fate of the family dog the same way as the dining table. Judges are people too who are likely to understand that strong bonds form between people and their pets and vice versa. There are factors that a judge will consider when determining which spouse gets to keep which, pets. These factors include questions such as: Who actually takes care of the animal? Has a spouse been accused of neglecting or abusing the animal? Which spouse will have more time for the animal?

Additionally, if children are involved in divorce the Court will take into account how the pets factor into their best interest. For example, the Court may decide that the children have a very strong bond with the pet, thus the pet should go with the primary parent. Because no matter what, when children are involved their best interests are always the Court’s primary concern.

As I previously mentioned, a judge isn’t going to give a visitation schedule for your pet. What a judge will do is enforce any agreements you and your ex-spouse have regarding them. Meaning that if you have a prenuptial agreement, a postnuptial agreement, or a provision in your divorce decree regarding arrangements between your ex-spouse and the pets, a Court can enforce them against your ex-spouse.

If you want to make sure the dog, cat, lizard, bird, fish, or horse is coming home with you after a divorce, then  you need a competent attorney in your corner. One who will fight for you on any issue big or small.

From the time I was a personal injury attorney till the present day, there is one message that I strive hard to hammer into my clients. BE CAREFUL WHAT YOU POST ON SOCIAL MEDIA. In all honesty I can end the article there and be satisfied that you got the message, but I’m going to continue to make sure the point drives home.

There is a surefire way to mess up your case, and that is posting something contrary to your claim or defense on social media. Fortunately, my clients seem to listen to my warning (at least for the most part). But there have been multiple times I have been able to get ammunition against the opposing party simply because they are not watching what they post. Recently, I tried a case against an abusive husband. He stated on the stand that he never broke or damaged his wife’s property. After a few set up questions on cross examination I hit him with his Facebook post which not only stated that he broke his wife’s cell phone, but why he did it. In another case, opposing party made claims of having no money or assets to pay his child support. Yet his Facebook and Instagram photos showed his extensive gun collection and wads of cash. Needless to say, when it came time for mediation he folded before lunch.

I tell my clients that if they insist on using social media during their case, it is imperative that they use all privacy settings. Set your Facebook and Instagram profiles to private, turn on protected tweets on Twitter, and limit your Snapchat to only people you approve. Even after these measures have been taken review your friends list. Are some of your friends also friends with the opposing party in your case? Do you think they would turn over screenshots of your post to the opposing party? If the answer to either of those questions is yes unfriend and/or block them.

You also need to be very wary about what pictures you are posting, sharing, and retweeting. Anything that has to do with drug use, alcohol, gambling, or any other potentially negative vice needs to be nowhere near your social media pages. Especially if there are children involved.

Which brings me to my final point, don’t post anything negative about your children, even if done in a joking matter. Because if it is presented as evidence, the Court is going to have to take that isolated post an examine it in a vacuum regardless of context. We all know a joke can be received differently when written instead of spoken because of the lack of tone and voice inflection. So, a joke about your seven-year-old son being “a pest” or how you’re going to “cut” the opposing party needs to be kept to yourself when you’re online. Because when your words are being read to you plainly on the stand in front of a judge and jury, they likely won’t seem like a joke at all.

Why I Do It

            From the day I decided that I wanted to go to law school I started to hear all the jokes. Things like “I hope you know how to lie.” and “How much will it cost to talk to you now?” But they’ve never really bothered me. Even when I was practicing personal injury and people would call me an “ambulance chaser” I never felt offended. Because from the time I started my journey to becoming an attorney I knew it was my purpose. And I decided, that no one was going to knock me off course.

I’ve been asked by just about everyone I know, why did I become and attorney and more specifically why did I choose family law? Usually, I’ll give a joke answer like “Because I want an Audi R8.” or “I didn’t choose family law, family law chose me.”. But in reality, I do this because it makes me feel good. There is something about when someone puts their trust in you, then you come through for them that makes the hard days and long nights worth it. I do this for the moments when you get the smile, handshake, or hug in appreciation after helping someone through one of the roughest times in their life.

My family has been plagued with divorce. From the time I was a kid till present day it always seemed like someone was splitting up. When I was younger, I would feel helpless. I wanted to do something about it, be able to help my aunts, uncles, siblings, etc. but there was nothing I could do. But now, I can. I may have been too late to help most of my family, but I’m right on time to help others in the city. Despite my jokes it’s not about the money for me, it’s about doing what I wish I could have done way back then. It’s about protecting single mothers against abusive husbands and boyfriends. It’s about helping fathers who just want to be in their children’s lives, when their mothers do everything they can to keep them out. It’s about keeping a divorce as amicable as possible, so children don’t have to see their parents fight. But most importantly it’s about inspiring the next generation of black attorneys.

prenups postnups and problemsIn this course, we cover premarital agreements, postmarital agreements/partition and exchange agreements, conversion agreements, and nonmarital conjugal cohabitation agreements. What are the differences? What are the similarities? How do you get in one, stay in one, or get out of one?

Watch the live video here: Prenups, Postnups, and Problems Facebook CLE

Download the ppt here: Prenups Postnups and Problems




Today I presented on The Anatomy of Trial Preparation — a free continuing legal education on Facebook for Texas Lawyers. Want to watch my live presentation, click here.

Anatomy of Trial Preparation live Facebook CLE

What is the difference between “getting ready” for trial and “preparing for trial”? To me, the difference is in evaluating and planning strategy for all of the eventualities that could come up. This is playing the chess board in advance of trial. I love the show Queen’s Gambit. Remember how she played through the games on the ceiling while she laid in bed? This is the kind of preparation that I’m talking about.

Outline of Proof

The first step in preparation is to prepare an outline of the issues and method of proof involved in the case. While this step may start early on during the case, usually it is not super effective until much of the discovery has been conducted. I do this outline on a white board and begin by listing the claim – affirmative and defensive – that are on the table. Then, list the elements of proof of each claim. Add under each claim the witnesses and exhibits that are relevant to proving those claims. From here, evaluate what production you have or need to meet the proof on each element. If you know there is a conflict of opinion on the law, identify where those are during this process.

After going through this full analysis, then reverse the analysis into the roadmap for trial, listing the witnesses you’re going to call, the issues you need to address with that witness, and the exhibits you will use with each.

Sometimes there are specific legal issues or skirmishes that you expect to have during the trial. When you can anticipate a particular objection being contested, then write out the objection and the statutory or case law authority on the point so you don’t have to think about it in the heat of the battle; you can just turn to that page in your notebook and read it into the record. You can also prepare trial briefs on particular legal issues to bench file when the issue arises to provide the judge with the legal authority in a short, bite-size document.

From this process, you can begin to prepare your pretrial designations of fact and expert witnesses as well as the list of exhibits.

Notebooks for Trial

I am a big notebook lawyer. When I’m in trial, I like my presentation to be “buttoned-up”, neat and tidy. I detest the pile of paper that ends up being a mess on many lawyers’ trial tables. I also don’t like large notebooks as they are bulky and difficult to maneuver in court. Smaller notebooks are easier to handle and can be put away when you are done with that part of the trial.

Master Notebook

The Master Notebook will contain information that will be needed throughout the trial and usually is less substantive than the rest of the notebooks. Here’s some items that may be in this notebook:

  • Players list with contact information for witnesses, parties, or court officials.
  • Travel information
  • Outline of Proof (above)
  • Master witness chart – I do a spreadsheet of all of the fact and expert witnesses listed by any party and where the reference to that witness is.
  • Master exhibit list
  • Discovery index listing each party’s produced documents
  • Timeline of events, if needed
  • Current printed docket sheet
  • Pretrial Disclosure list with fact/expert witnesses and exhibit lists for both parties

Pleadings Notebook

The main Pleadings notebook will contain generally the important pleadings and orders in the case. I always include every petition/counterpetition, even if amended out. All of the temporary orders throughout the case will be included. Any scheduling orders, major discovery rulings, and partial summary judgment orders should also be in this notebook.

You might also have a separate notebook that contains transcripts from various important hearings for reference.

Discovery Notebook

The discovery notebook should contain the pleading portion of all of the live discovery responses. So, if something has been amended, then I’d leave out the prior version, but keep everything that can be relied upon. So, responses to all written discovery as well as document production indexes (repeated from the master notebook). I keep a copy of the master fact and expert lists and pretrial disclosures in this notebook too (also repeated from the master notebook). You might want a master list of audio and video produced for reference.

As to the full document production, you will want to have access to this, just in case you need something that isn’t planned in the exhibit lists. Anymore, having this electronically is probably the best option instead of printing to paper, especially if you have a staff member in trial with you who can quickly access items when needed. Keep in mind that internet at the courthouse is spotty, so have this on thumb drive where you can access it. Also have a Plan B and Plan C for how you will use this information.

You might also want one place where you have all of the deposition transcripts taken in the case for reference.

Outstanding Motions Notebook

If there are pending motions that need to be heard at the beginning of trial and ruled on, I keep those in a separate notebook. At final trial all issues that aren’t ruled upon are set. Most of the pending motions at final trial will relate to evidence that each side wants to keep in or keep out of the trial. Include either side’s motion and all responses, supporting affidavits and declarations. This is also a good place to keep any trial briefs or specific legal arguments that will be made during the trial. If you cite a lot of case law authority, you might have a separate notebook that just contains the case law.

Argument Notebook

I like to have my notes for opening statement and closing argument in one notebook, separate from the rest of the preparation so that it is easily used and put away when not needed. I also like to have a place to keep notes in that notebook for thoughts about things that need to be argued in closing.

If it’s a jury trial, this notebook will house my voir dire outline, notes about perfect juror qualities, a jury seating chart (created in consultation with court staff about how the venire is laid out), motion for jury shuffle, and notes about challenges for cause if I need them.

Also in a jury trial, this will be a good place to keep the proposed jury charge of both sides as well as your tender submission at the ready. Note, in formatting your proposed charge, I always start with a cover sheet that references the proposed charge. Then on each page of the proposed charge I include reference to the PJC or case law authority that supports the wording of definition or question as well as a place where the judge may indicate whether the submission is approve, denied, or modified. You can also use these individual pages as your official tender during the formal charge conference on the record. When the final charge is prepared, hopefully using your version, the processor can simply remove the additional language after the court’s ruling is received.

Witness Notebooks

My preference is to have a separate notebook for each witness that contains everything about that person in one comprehensive place. Some witnesses may be short and can be combined into one notebook with other short witnesses.

I like to have everything about a witness in one place so I don’t have to fumble around with papers. Each witness should have the outline of questions, executed and filed subpoena, highlighted and tabbed deposition, records or documents relevant to that witness, and discovery designations.

If you are calling a witness by deposition, you will need to decide if you are going to read the testimony into evidence or if you will use clips from a video of the deposition. Either way, have the page and line references for the court reporter and opposing counsel with a highlighted copy of the deposition transcript. If you plan to use video clips, have multiple copies of the clips on thumb drive to give the court reporter and opposing counsel.

If you are asking for attorneys fees, remember to prepare a notebook for yourself as a witness with all of your relevant exhibits (contract, cv, and billing statements).

Regarding exhibits, in a short hearing, I will keep the exhibits to be used with a witness in that witness notebook. My copy of the exhibits will be under tab and extra copies will be in a folder for use in the hearing (or in the electronic folder if a remote hearing). However, in a final trial, I usually gather all of the exhibits into a master notebook which can be more easily reproduced for the judge/jury, court reporter, and opposing counsel. In that event, I will have a list of exhibits that I plan to introduce with that witness contained in the witness notebook with reference to the master exhibit notebook tabs.

Don’t forget to plan for the other side’s witnesses. You may have to do some educated guesswork about who they plan to call.

Exhibit Notebook

As stated above, in a temporary or interim hearing I like to have the pre-marked and numbered exhibits with the witnesses notebooks or tabs and extra copies in a folder with that notebook so everything is contained in one place. In a final bench or jury trial, I like to have master exhibit notebooks where each exhibit is under a tab and corresponds to the number. With the Exhibit Notebook I like to have a master list of exhibits (repeated in the Master Notebook) and a column to note admission of the exhibit as well. Having another copy of the pretrial disclosures of either party would be helpful here also.

If using audio or video exhibits, you will want to have a list of the minute references for those exhibits and have a method of using these types of evidence that isn’t dependent on the internet.

If you have exhibits that are important originals (like certified copies of records or other documents) you might keep a folder for these documents if you need to reference the original copy for some reason.

Final Thoughts

Finally, during trial, I like to use a new yellow pad each day for notes during trial. I also like to have a separate yellow pad for closing argument notes. Or, you can have a section in the Argument Notebook to keep these notes so you have it all in one place when it is time for the final argument to take place.

To download to the white paper The Anatomy of Trial Preparation, click here.

The El Paso Court of Appeals issued a meaningful opinion this week on the rights of same-sex married couples to be found a parent of a child born during the marriage. The case is styled In re D. A. A.-B. — it does not have a case cite yet but the Westlaw cite is 2002 WL 3758574.

In re D.A.A.-B., 2022 WL 3758574 (Tex. App. – El Paso 2002, no pet. history).

Here’s the takeaways:

In that case, the two women were legally married in New Mexico. During the marriage, Andrea became pregnant through informal artificial insemination and gave birth to a child during the marriage. Although Cristina’s name did not appear on the birth certificate, the child was given a hyphenated last name that included hers. The parties operated as parents during the marriage. In the divorce proceedings, the parties did not name the child as a child of the marriage and did not address the parentage issues but continued to operate as co-parents. Thereafter, Cristina filed a SAPCR proceeding seeking adjudication as a parent and orders regarding the child.

The important legal conclusions from this opinion are as follows:

A married same-sex spouse is entitled to the same opportunity to assert parentage to a child born during the marriage as an opposite-sex spouse.

The U.S. Supreme Court held in the Pavan case that all of the benefits of opposite-sex marriage apply also to same-sex marriage. Pavan v. Smith, 137 S.Ct. 2075 (2017).  In D.A.A.-B., the El Paso Court concluded that Christina was conclusively a parent of the child:

“The UPA includes a section stating that the “provisions of this chapter relating to the determination of paternity apply to a determination of maternity.” TEX.FAM.CODE ANN. § 160.106. The unambiguous and plain language of this statute make it clear that the legislature intended to allow female spouses to establish their parentage just as male spouses are allowed to do. When read alongside the U.S. Supreme Court’s holding [in Pavan] that states must extend equal benefits to spouses in same-sex marriages, we reach the inexorable conclusion that the Family Code gives spouses in same-sex marriages the same opportunity to assert their parentage to a child born during the marriage, as it gives to spouses in opposite-sex marriages. This interpretation not only gives effect to all relevant portions of the Code, as written by the legislature, but also avoids an interpretation of the Code that would render it unconstitutional under the U.S. Supreme Court’s holdings.

Id. at *7 (internal citations omitted, emphasis added). The El Paso Court further provided that a parent has a fundamental liberty interest in being recognized as a parent and a same-sex spouse cannot be denied the right to seek parentage based on gender-specific definitions in the Texas Family Code. Id. at *8. Given the conclusive evidence that the child was born during the marriage of the parties, Cristina is considered the presumed parent of the child. Id.

The marriage parental presumption for fathers applies to non-gestational mothers as well.

The Texas Family Code provides that a married father is presumed to be the parent of a child born during the marriage. That presumption applies to maternity as well. Tex. Fam. Code §160.106. The Treto case first applied the parentage presumption to a same-sex couple. Treto v. Treto, 622 S.W.3d 397 (Tex. App. – Corpus Christi 2020). Thus, the El Paso Court confirms that the marriage presumption also applies to same-sex couples:

“We agree with the court’s analysis in Treto in applying the presumption of parentage to same-sex spouses, and add the observation that applying the presumption promotes the long-standing principle that the “best interest of the child is always the primary consideration of the court in determining issues of conservatorship and possession of or access to a child.” And in turn, it is presumed to be in a child’s best interest for parents to be appointed joint managing conservators, and to allow a child to have ‘frequent and continuing contact with parents who have shown the ability to act in the best interest of the child, and to encourage parents to share in the rights and duties of raising their children after the parents have separated or dissolved their marriage.’”

Id. at *8 (internal citations omitted, emphasis added).

Where a child is conceived during a marriage through formal or informal assisted reproduction, the spouse is the parent of the child (not just presumed parent).

When a same-sex couple seeks to have a child, assisted reproduction methods are used. With a lesbian couple, the spouses may use medical providers to formally conduct artificial insemination procedures. On the other hand, oftentimes couples use informal methods of artificial insemination to become pregnant. Likewise, a couple may sign a formal written consent to the procedure or a couple may consent informally by treating the child as their own. The Texas Family Code clearly provides that a spouse is the parent of a child that results from assisted reproduction where consent occurs either in writing or by conduct. Tex. Fam. Code §160.703(a), 160.704(b). The El Paso Court conclusively applies this provision to same-sex couples despite the gender-specific language in the statute:

“As set forth above, the Code provides that a husband who has consented to ‘assisted reproduction’ by his wife—either formally or informally—is considered the father of the ‘resulting child.’ Id. § 160.703. And, in turn, the Code defines ‘assisted reproduction’ to mean ‘a method of causing pregnancy other than sexual intercourse,’ to include, among other things, ‘intrauterine insemination.’ Id. § 160.102(2)(A).”

Id. at *9.

“…under the plain language of the statute, if both spouses have signed a written consent document agreeing to the insemination, or if they have openly treated a child born through that method as their own after its birth, the trial court may still find that the non-gestational spouse is the parent of the child born in this way. Id. § 160.704(a), (b).”

Id. at *10.

What is the remedy?

What is the remedy for a failure to find parentage in this situation? Suit may be brought as part of the divorce/SAPCR cause of action. Or, an independent suit for adjudication may be brought under the parentage statutes.

“The UPA provides that a party may bring an independent civil suit seeking the adjudication of his or her parentage of a child. See Tex. Fam. Code §160.601(a).” Id. at *13.

Alternatively, the D.A.A.-B. opinion supports the legal theory that the divorce decree between the parties is either void or lacks finality for failure to adopt the parentage finding. First the El Paso Court opens the possibility of the voidness of the decree in this circumstance:

“In fact, at least one court has held that the parties’ failure to follow the Code’s mandatory joinder requirements renders a divorce decree void. See, e.g., Soliz v. Soliz, No. 13-02-010-CV, 2003 WL 21025900, at *2 (Tex.App.– Corpus Christi–Edinburg May 8, 2003, no pet.) (mem. op.), citing Daniels v. Daniels, 45 S.W.3d 278, 282 (Tex.App.- -Corpus Christi 2001, no pet.).”

Id. at *14, fn 16. Further, the El Paso Court opines that the decree is interlocutory and cannot be final absent the mandatory joinder of the SAPCR:

“A divorce decree that mistakenly states that no children were born during the marriage, or which fails to include all of the children who were born during the marriage, cannot be considered final.”

Id. at *15.


Read the opinions here:


Pavan v Smith

Treto v Treto