Dallas County Judge Clay Jenkins
Dallas County Judge Clay Jenkins press conference
Updated: March 23, 2020 at 10:56 am

March 22, 2020 is a day many Texans and residents of Dallas County will not forget. Shortly after a press conference by Governor Greg Abbott, Dallas County County Judge Clay Jenkins issued his Amended Order of County Judge Clay Jenkins titled “Stay Home Stay Safe” which states in part:

All individuals currently living within Dallas County are ordered to shelter at their place of residence. . . All persons may leave their residences only for Essential Activities, or to provide or perform Essential Governmental Functions, or to operate Essential Businesses. . . .”

The new order takes effect at 11:59 p.m. on Monday, March 23rd.

How does the Stay Home Stay Safe order affect possession exchanges?

The short answer, as it relates to the 301st Judicial District Court of Dallas County at least, is that it does not. Following a tumultuous week last week which saw courts issue multiple Emergency Standing Orders, including five separate Texas Supreme Court Emergency Orders, Judge Mary Brown of the 301st was prepared. By 7:00 p..m. Sunday night, Judge Brown issued her Standing Order Governing Possession and Access During the Amended Order of Dallas County Judge Clay Jenkins Stay Home Stay Safe Order signed March 22, 2020.

This order applies to all possession orders in Suits Affecting the Parent-Child Relationship in the 301st District Court. For purposes of the Dallas County Shelter in Place Order, exchanges relating to the possession and access of children are considered Essential Activities and shall continue as set out in this Court’s current orders. Parties shall follow the provisions of their orders unless specifically modified by further order of this Court.”

Judge Brown does specify that if a person has been diagnosed with the COVID-19 virus, “that person shall communicate with other parent or conservator(s) to discuss actions necessary to protect the safety and welfare of the child(ren).” She also reiterates that this new Standing Order does not prevent parties from altering their possession schedule by agreement, if their court order allows.

Dallas County Family Courts – Joint Statement

On March 23rd, the seven Dallas County Family Court Judges issued a Dallas County Family District Courts’ Joint Statement regarding possession and access during the Dallas County Stay Home Stay Safe Order.


3. For purposes of the Dallas County Shelter in Place Order, exchanges relating to the possession and access to children are considered “essential activities.”

4. The Dallas County Shelter in place order, standing alone, does not modify current Orders regarding possession and access.”

Parents and conservators have had to make significant adjustments over the past 12 days. Not only are parents and conservators having to precisely follow their own court ordered possession schedules, but they are having to make adjustments for circumstances for which they have no control. With schools now closed, work schedules being changed, and the issuance of County Judge Clay Jenkins’ Stay Home Stay Safe Order, parents and conservators are having to make even more adjustments.

Dallas County Family Courts have now made it explicitly clear that possession and exchanges of children are to occur as originally ordered. The Judges have stated that exchanging children is an “essential activity”. The Dallas County Shelter in Place order does not modify or trump current court orders. Even with new emergency orders being issued on an almost daily basis, the courts are communicating that parents and conservators are expected to exchange children pursuant to the orders of the court.


We’ve seen many changes in our courts over the past week including limiting in-person hearings to essential matters only. Over the past two days, many courts have issued Emergency Standing Orders regarding possession for both the “extended Spring Break” period  and recent school closures.

Supreme Court of Texas

The Supreme Court of Texas just issued a Second Emergency Order Regarding the COVID-19 State of Disaster which states in part: “This order applies to and clarifies possession schedules in Suits Affecting the Parent-Child Relationship. For purposes of determining a person’s right to possession of and access to a child under a court-ordered possession schedule, the original published school schedule shall control in all instances. Possession and access shall not be affected by the school’s closure that arises from an epidemic or pandemic, including what is commonly referred to as the COVID-19 pandemic.”

Dallas County

On March 17th, Dallas County issued a Dallas County Family District Court Emergency Standing Order titled Dallas County Standing Order Regarding Possession Schedule During School ClosuresDallas County District Court Judges state: “For purposes of determining a person’s right to possession and access to a child under a court-ordered possession schedule, the original published school schedule shall control in all instances.” The order goes on to give examples regarding Spring Break, Thursday possession, and school closure.

Collin County

Collin County also issued a Collin County District Courts Emergency Standing Order on March 17th titled Collin County District Courts Emergency Standing Order Regarding Possession Schedule During School Closures. The Collin County District Court Judges also state: “For purposes of determining a person’s right to possession and access to a child under a court-ordered possession schedule, the original published school schedule shall control in all instances.”

Denton County

Denton County has not yet issued a standing order for school closures because Denton ISD is currently only closed through March 22nd. However, the District Court Judges have released the Denton County District Courts Joint Statement Regarding Spring Break Possession which states: “The Denton County District Judges take the position that any school district’s additional school closure following the week of Spring Break (whether the district calls it an extension of Spring Break or not) does not  extend a parent’s period of possession beyond the week designated for spring break according to the school’s academic calendar and the possession schedule in the final order.”

Bexar County

Bexar County issued a Revised Statement Regarding Standard Possession Order for Spring Break on March 16th which states any delay in the resumption of classes for public health purposes is not an extension of a vacation period. The judges went on to say that “this Statement does not limit the ability of the court to hear and address emergency matters on a case-by-case basis.”


Galveston County

On March 16th, Galveston County took the step of issuing a Standing Order and Notice to All Galveston County Families with Court Orders Regarding Visitation for Spring Break stating: “For Parents who have NOT returned the children by Monday, March 16, 2020: YOU MUST RETURN THE CHILDREN IMMEDIATELY OR YOU WILL BE FOUND IN CONTEMPT OF COURT AND WILL BE FINED AND SANCTIONED.” This Order was signed by Judge Judge Anne B. Darring of the 306th District Court, Judge John Grady of County Court at Law #1; Judge Kerri Foley of County Court at Law #2; and Judge Jack D. Ewing of County Court at Law #3. No additional orders have been issued at this time.

As the Coronavirus continues to spread and more schools begin to close, it is expected that additional counties will issue Emergency Standing Orders. While courts certainly have the authority to issue standing orders, the impact of these possession specific standing orders is developing. Courts’ standing orders previously limited orders regarding possession to not disrupting the child. The importance of addressing children’s best interest is clear though given that the Texas Supreme Court and multiple counties have now issued emergency orders. The closure of schools on a widespread basis is new territory for parents, conservators, attorneys, and courts. The hope is that the best interest of the child will always be considered as we navigate these new emergency orders together.


One thing we know about COVID-19 (Coronavirus) is that new information develops on a daily basis. The court system had to respond to the situation to resolve many issues that have arisen.

Will there still be family court hearings and trials in Dallas area courts in the state of disaster?

The Texas Supreme Court issued guidance on non-essential matters for the court system on March 12, 2020:

  • If a court deems that non-essential (see below), in-person proceedings may pose an unnecessary or unreasonable risk to participants, court staff, or the public, the court should avoid that risk, when possible, by simple delay or by a telephone or video remote appearance. Our suggestion is that you follow this practice until at least April 1.
  • Essential proceedings include, but are not limited to, criminal magistration proceedings, CPS removal hearings, temporary restraining orders / temporary injunctions, juvenile detention hearings, family violence protective orders, and certain mental health proceedings.
  • Courts should schedule or suspend proceedings to avoid the gathering of large groups of people until at least April 1, including jury trials and large docket calls.
  • Courts should publicly encourage persons with COVID-19 or flu-like symptoms, a fever, or who are coughing or sneezing, to contact the court before appearing. Courts should also publicly encourage attorneys who know that clients, witnesses, or others have such a condition to alert the court in advance. The court should make reasonable accommodations and reschedule appearances and hearings as needed.
  • You may wish to consult with your local health authority for additional guidance on the timing of the suspension of proceedings as conditions in the local community may vary from jurisdiction to jurisdiction.
  • Courts should implement telephonic or video remote appearances for all proceedings which may occur remotely.
  • Please be aware that the Open Courts provision of the Constitution will generally require that the public have access to proceedings. If you hold telephonic or video remote hearings, you should consider a method by which the public can have access.

Then on March 13, the two highest courts in Texas issued joint guidelines for the Texas court system to handle the current situation. The Texas Supreme Court and Texas Court of Criminal Appeals FIRST EMERGENCY ORDER REGARDING THE COVID-19 STATE OF DISASTER is intended to provide consistency and stability among the courts during this time of national disaster. In light of Governor Abbott’s declaration of a state of disaster for all counties in Texas, the Courts direct as follows:

Subject only to constitutional limitations, all courts in Texas may in any case, civil or criminal—and must to avoid risk to court staff, parties, attorneys, jurors, and the public— without a participant’s consent:
a. Modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order, for a stated period ending no later than 30 days after the Governor’s state of disaster has been lifted;
b. Allow or require anyone involved in any hearing, deposition, or other proceeding of any kind—including but not limited to a party, attorney, witness, or court reporter, but not including a juror—to participate remotely, such as by teleconferencing, videoconferencing, or other means;
c. Consider as evidence sworn statements made out of court or sworn testimony given remotely, out of court, such as by teleconferencing, videoconferencing, or other means;
d. Conduct proceedings away from the court’s usual location, but in the county of venue, and only with reasonable notice and access to the participants and the public;
e. Require every participant in a proceeding to alert the court if the participant has, or knows of another participant who has, COVID-19 or flu-like symptoms, or a fever, cough or sneezing;
f. Take any other reasonable action to avoid exposing court proceedings to the threat of COVID-19.

The order took effect March 13, 2020 and remains in effect until May 8, 2020.

Additionally, the area courts have specifically begun canceling dockets and moving to handling only essential matters. Dallas County Judge Clay Jenkins cancelled all jury trials until April 13th (in other words, there will be a jury called on April 13th, as of now).

The Collin .County District Courts also released a statement cancelling all non-essential matters, leaving only emergency matters to be heard between now and April 1st.

Tarrant County has cancelled jury service until April 17th according to an article in the Star Telegram.

But what do we do about exchanging our children under a Texas standard possession order because of the change in school schedules?

In response to the coronavirus (Covid-19) outbreak, schools began to halt in-person classes to contain the spread of the contagious germs. As a result, school officials and their lawyers used imprecise and inexact language regarding the extension. Most school districts called the time off “extended Spring Break” instead of disaster break or whatever. This imprecise language has caused a great deal of confusion among parents as to interpretation of the Texas standard possession schedule. As a result, the area state district courts began responding to the question: “When does Spring Break possession end?”

Judge Dennise Garcia of the 303rd District Court in Dallas County posted on social media: “7 out of 7 Dallas County Family Court District Judges agree that the Standard Possession Schedule follows the originally published school calendar. (No extensions due only to recent changes in the school shutdowns).” In other words, whatever the original school calendar provided is the governing rules for the parents to go by. Dallas is not recognizing any extension of Spring Break just because the schools extended the time period.

The Collin County District Courts also released a statement on Facebook stating: “Some school districts are talking about “extending” spring break, but we believe a Standard Possession Order under the Texas Family Code follows the originally-published school calendar.” Further, they have directed that parents should follow the original schedule as if school remains in session (in other words, the time for exchange should be according to the schedule as if school were in session. Dallas family court judge Dennise Garcia “liked” the post by the Collin County judge, indicating her approval of the statement.

Collin County District Courts directive regarding exchange of children during state of disaster

Following suit, Tarrant County District Courts issued a new policy on March 13th: “It is also the policy of the above courts that even though some school districts are “extending” spring breaks because of COVID-19, spring break possession ends according to the previously scheduled spring break as set forth in the school calendar for the applicable school district.”

Tarrant County judges position on spring break access.

Judge Sherry Shipman in Denton County released a similar statement: “The Denton County District Judges take the position that any school district’s additional school closure following the week of Spring Break (whether the district calls it an extension of Spring Break or not) does not extend a parent’s period of possession beyond the week designated for spring break according to the school’s academic calendar and the possession schedule in the final order.”

Denton County Judges position on spring break

In Rockwall County, the 382nd and 439th District Courts posted the following on the Rockwall County websites: “TO ALL ATTORNEYS AND/OR PARENTS: It is the Court’s policy to follow the originally published school calendar regarding access and possession of children during Spring Break for the purposes of interpretation and enforcement of Court Orders.”

In Kaufman County, Judge Casey Blair of the 86th District Court indicated that Kaufman County Courts would also be following the originally printed school calendar to determine Spring Break possession.

On March 16th, Galveston County took the step of issuing a “Standing Order and Notice to All Galveston County Families with Court Orders Regarding Visitation for Spring Break” stating: “For Parents who have NOT returned the children by Monday, March 16, 2020: YOU MUST RETURN THE CHILDREN IMMEDIATELY OR YOU WILL BE FOUND IN CONTEMPT OF COURT AND WILL BE FINED AND SANCTIONED.” This Order was signed by Judge Judge Anne B. Darring of the 306th District Court, Judge John Grady of County Court at Law #1; Judge Kerri Foley of County Court at Law #2; and Judge Jack D. Ewing of County Court at Law #3.

The effect the Coronavirus is having on our courts is unprecedented. Never before have we seen courts limit in-person hearings to essential and emergency matters only. With the release of new court policies over the past two days, however, it is clear the courts are trying to give parents guidance prior to the previously calendared Standard Spring Break possession ending on Sunday, March 15th at 6:00 p.m. Of course, common sense and co-parenting should prevail. Working things out between two reasonable parents is the best action. Asking which parent is working and which can take off to care for the children would be the most logical thing to do under the circumstances. Unfortunately, many parents are unable to reason with each other, necessitating the courts to provide guidance in this unprecedented time.


As we all know, the State of Texas and public officials are scrambling to stop the spread of Coronavirus or COVID-19. Primary and secondary schools across the state have begun using various solutions to prevent the children from coming to school for the impending weeks. For instance, some schools are “extending spring-break” whereas others are using their snow days. As a parent, your question is: “Do I get (or have to) watch my child until they return to school?”

That answer to that question is: it depends. It depends on a variety of factors.

First, the way your child’s school is dealing with the Coronavirus affects the answer. There may be a stark difference if your child’s school is utilizing snow days as opposed to extending the length of spring break. We will need the specific letter or e-mail from the school in order to ascertain how your child’s school is handling the situation.

Second, what does your order say? Does your order provide specific dates? Does your order include the standard language that you must return the child “at 6:00 p.m. on the day before the school resumes after that vacation”? A copy of the most recent final order in your divorce or suit affecting the parent-child relationship can address this factor.

Third, will the judge view your withholding of the child negatively? Some judges may not appreciate you wielding a technicality over the other parent. This is an answer you need to ask an attorney who regularly practices in your county.

Ultimately, there is a bit of uncertainty floating about regarding the Coronavirus. Unfortunately, that uncertainty has extended to the possession schedules that affect our children’s lives. If you are unsure of how your child’s situation will affect your possession and access schedule, we encourage you to reach out to an attorney with a copy of the letter or e-mail from the school and your most recent final order.

Luck favors the prepared, especially in divorce proceedings.

If you are considering a divorce, there are some important steps to take beforehand. By preparing ahead of time, you can cut down on much of the stress and uncertainty that people often face during and after the divorce process. Planning ahead allows you to save time and money during the process, and will enable you to start preparing for your life after divorce.

Below are some things to think about as you begin preparing for a divorce.

Consult with an attorney.

One of the most important decisions you will make will be to hire an attorney.  The relationship between a family law attorney and his client is unique in that the relationship is both business and personal. They will represent your interests in court, so you want to be sure you can trust that they know what you want and are willing to work hard to achieve it. Building a personal relationship of trust between the attorney and client is very important.

On the other hand, you have the right to represent yourself. However, the divorce process can be complex so anyone who can afford representation should seek it out from a professional. Issues such as dividing marital property, deciding child custody, negotiating alimony and determining child support can have long-lasting consequences if not handled properly. A qualified family lawyer can help you become informed about your legal rights and responsibilities, discuss what your options are, and provide tailored advice to help further prepare you for an eventual divorce. Lastly, it is best to find an attorney who practices primarily in the field of divorce or family law.

Get organized.

You are going to have to gather and organize a lot of information for your attorney early on in your divorce case. The amount of information can seem overwhelming, so it makes sense to begin gathering information and understanding where you stand financially as soon as possible. Start gathering and copying all documents, including documents that relate to your children, income, real estate, financial accounts, title information, marital debts, and communications between the parties. It helps to have tax statements for the last three years, as well as pay stubs and employment information.  Once you’ve gotten organized, your attorney can help create a plan of action designed to help you to succeed at the end of the divorce process.

Plan an exit strategy.

Possibly the most important thing is planning your exit strategy for leaving the relationship. After you to decide that you’re going to get a divorce, it is imperative that you spend time developing a plan for moving forward. Pre-divorce planning is not about sabotaging your spouse. It’s about making intelligent, sensible choices. It requires thoughtfully planning all facets of your life from where you are now to where you hope to be. Consider where you’re going to live, your financial situation, and what is best for your children, if there are any. If there are children between you and your spouse, it is important to prepare to help your children through this process.

Also, after a divorce, it can be difficult to purchase a home or a car if you shared credit with your spouse for several years. It’s important to establish your own credit and build up a good credit score. If you don’t have any credit in your name, you may want to establish some before you file.

Take it one day at a time. Try to control only those things within your control. Make a plan and go to work on it. Getting organized and having a plan of action is how you will take control of your divorce and avoid letting it take control of you.

Take the high road.

Lastly, it’s important to remember that you will be under a microscope during the divorce process. As such, before and during divorce proceedings, you may want to be hyper-vigilant regarding your behavior. Anything that could be interpreted as inappropriate behavior could be used against you in court so it’s important to exercise a lot of caution. This is especially crucial if child custody is an issue in your case.


According to the Centers for Disease Control, about 1 in 4 women and nearly 1 in 10 men have experienced a form of family violence by an intimate partner during their lifetime. See generally Centers for Disease Control and Prevention, Preventing Intimate Partner Violence (Feb. 26, 2019), https://www.cdc.gov/violenceprevention/intimatepartnerviolence/fastfact.html.

In Texas, victims of family violence who qualify for protective orders include current and former spouses; people who have or had a dating relationship; anyone involved through marriage or dating relationship or with a third party who has or has had a dating or marriage relationship; parents of the same child or foster child; members or former members of same household or dwelling. Tex. Fam. Code §§71.0021, 82.002.

Texas offers three types of protective orders to help the victims of family violence:

  1. Magistrate’s order of emergency protection;
  2. Temporary ex parte protective order; and
  3. Final protective order.

A Magistrate’s order of emergency protection is typically issued by the criminal court after the abuser is arrested and can last anywhere from 31 to 91 days, depending on the severity of the crime. Tex. Code. Crim. Proc. art. 17.292(j).  A temporary ex parte protective order and a final protective order are ones typically issued by family court and fall under the Texas Family Code. A victim can apply for one or both types of orders through the family court at the same time.

Even if a victim of family violence has a protective order through the criminal court, the victim should still try to obtain one through the family court as it will give the victim an opportunity to obtain a final protective order that could last for two years or more, depending on the severity of the family violence that occurred. Tex. Fam. Code §85.025(a-1) (1).

Temporary ex parte protective order.

A temporary ex parte protective order is available through family courts and protects the victim (or “applicant”) and the applicant’s family members. An applicant can obtain a temporary ex parte protective order without the presence of the alleged abuser in court, so long as the court believes the alleged abuser presents a clear and present danger of family violence to the applicant and/or the applicant’s family members. Tex. Fam. Code §83.001(a).

A temporary ex parte protective order is especially helpful in situations when the victim and the alleged abuser live together as it orders the alleged abuser to remove themselves from the residence shared with the applicant. Tex. Fam. Code §83.001(a)(1). The temporary ex parte protective order will automatically expire in twenty days, unless the court extends the order. Tex. Fam. Code §83.002(a).

Final protective order.

An applicant for a temporary ex parte protective order can simultaneously apply for a final protective order. An applicant is not required to apply for a temporary ex parte protective order before they can apply for a final protective order. A final protective order may be effective for up to two years. However, the court may issue an order longer than two years under limited circumstances.

Unlike the temporary ex parte protective order, the applicant for a final protective order doesn’t need to show a clear and present danger of family violence. The applicant only needs to show that family violence occurred and is likely to occur in the future. Tex. Fam. Code §81.001.

Court is just like television.

Reality: If you are prepared, there shouldn’t be any shock and awe moments though you can expect to testify in court.  Texas requires “fair notice” in pleadings. As a result, you must properly plead in advance of trial everything you are requesting in terms of relief such as a disproportionate share of the marital estate, a fault ground for divorce, custom possession schedule and/or restrictions on possession.

My spouse knows this asset is my separate property so I don’t need to be worried about it.

Reality: Separate property is not considered in the overall property division. So, for example, if your retirement account before marriage was significant, don’t assume your spouse will concede and admit your spouse will say it’s community property. As community property, they could receive a portion of it as part of the just and right division of the marital estate. As your separate property, the court lacks the authority to award them any of your separate property. It’s your burden to prove each asset that is your separate property by clear and convincing or evidence.

The account is only in my name so it’s mine.

Reality: Texas is a community property state. Everything you and your spouse owns is presumed to be community property subject to division between you and your spouse upon divorce. Community property is basically all assets that are not separate property. Separate property is assets owned prior to the marriage, gifts or inheritance received during the marriage and certain proceeds from a personal injury lawsuit as set forth in Texas Family Code. Even if the account is titled “Jane Smith separate property”, the account is community property until Jane proves by clear and convincing evidence it’s her separate property.

Letters can be used as evidence instead of a person testifying in court.

Reality: A letter can only be used in court as evidence for limited purposes. Most likely, the reason you want to use a letter is “for the truth of the matter asserted”. If so, the statements contained in the letter will not be admissible in court due to hearsay. Furthermore, each party has a fundamental right to be able to cross-examine and ask questions of a witness. So, while letters, which are witness statements, can be useful in other ways, you should plan on your friends, experts, or other witnesses testifying in court.

The outcome of my case will be fair.

Reality: Fair does not determine the outcome of your case. If children are involved, the best interest of the children controls the outcome. When dividing property in a divorce, the court calculates a just and right division of the marital estate. A just and right division is a subjective test does not mean it will be fair to you. In Texas, a just and right division can mean an even 50/50 split. A just and right divisions can also mean a division that favors one party over the other.

When clients come in to meet with a divorce attorney, they are often recently separated and very emotional. Our clients often latch onto preconceptions to help them through this difficult time. From our initial consult, it is our job to help you through this emotional and challenging process and provide you realistic expectations for the outcome of your case. With that said, these are a few misconceptions we often have to discuss:

  1. I was the stay-at-home parent; therefore, I will get most of the parenting time with them now that we are separated.

Reality: A judge will not punish the working parent who did not stay home with the children in the divorce. Usually, that parent will at least get a standard possession order, which results in that parent getting the 1st, 3rd, and 5th weekends of the month, and at least two hours during the week, if not more. The judge will give the working parent an opportunity to become significantly involved in their children’s lives. It is up to that parent to take it!

  1. I am going to get everything since my spouse cheated on me.

Reality: This is a biggie for many clients. A spouse’s infidelity is emotionally unbearable; however, it often has little impact on a judge’s division of the property. The primary way infidelity becomes a problem in Texas’ divorce cases is when a spouse spent exorbitant amounts of money on their paramour. In Texas, we call that “Fraud on the Community.”

  1. I was the only working parent. Everything we have is mine.

Reality: Nope. Everything you acquired after you were both married is community property (except for items acquired by gift, devise, or inheritance). That means a judge can split it in a “just and right” manner. The judge will consider many factors ranging from how much separate property to who gets primary custody of the children.

  1. It is in my name; therefore, I own it.

Reality: Not necessarily. In Texas, the person who has the title of the property does not necessarily own it. There are a variety of rules that help attorneys and judges determine if the piece of property is their separate property or part of the community estate.

  1. When we divorce, the judge must split everything equally.

Reality: Nope. In Texas, a judge will make a decision based on a “just and right” division. There are cases in Texas that set forth the various factors a judge will consider. Judge’s can award a 90/10 split, 50/50 split, 30/70 split, etc. The power to make the property division lies with the judge, it is our job to explain to the judge why you deserve the division you are asking the judge to give you.

  1. I can handle my own divorce.

Reality: I once heard a Judge tell a party representing themselves: “A lawyer went to law school for three years, took a two-and-a-half-day exam, and sees these things everyday…and even they can’t get some things right.” The shortest, simplest marriages can often be some of the most difficult to handle. Being represented by an attorney, who understands the minutia of Texas Family Law is the best choice.

Start on January 1

The month of January is known as “divorce month”. Courts all over the country see an uptick in divorce filings in January. But, why do people get divorced in January more than any other month?

Website statistics show an 84% increase in searches related to divorce in January.

The holidays mark a festive period for families, one where memories are made and couples try to rebuild or fix their failing relationships. But while the holidays can be a joyous and happy time for families, they can also represent a turning point for couples who are experiencing problems in their marriages. This period can be full of overwhelming stress, familial tension, and financial burdens – all of which can put even more pressure on already strained relationships. And it is this pressure which can expose flaws in a marriage.

Most couples wait until the holidays are over before starting the divorce process. This could be because they want to protect their children and allow them to enjoy the holidays. It could also be a couple’s last-ditch effort to see if the marriage can work itself out.

In most cases, though, when the holidays are over, couples who tolerated each other during the festive period decide to take the plunge and file for divorce – which is why January sees such a sharp spike in divorce rates.

The arrival of the New Year not only marks the end of the festive season, but it also brings hope for change and fresh beginnings – and in some cases, the end of a marriage. And once the dust from holiday commitments settles, the first change many people look to make is in their marriage. This is just one of the reasons why January is such a popular month for divorce inquiries and filings.

“You have the right to remain silent. Anything you say can and will be used against you in a court of law.” True – you do have the right to remain silent and anything you say can and will be used against you. But what about the things you don’t say? Can your silence be used against you in a family case?

The United States Supreme Court and Texas Supreme Court agree that your silence can be used against you in a civil, family law case. This means that if you assert your 5th Amendment privilege in a civil case, the judge has the ability to make a negative inference against you in regards to that topic. For example, if you are asked at trial whether you use illicit drugs, you have the right to assert your Fifth Amendment privilege. The judge, however, can take your refusal to answer to mean that you do, in fact, use illicit drugs. As Justice Brandeis declared in United States v. Bilokumsky, speaking for a unanimous Court, “Silence is often evidence of the most persuasive character.” 263 U.S. 149 (1923).

The implications of the Fifth Amendment extend beyond trial testimony to the rules of discovery. The purpose of discovery is to allow the parties to obtain full knowledge of the facts and issue prior to trial and to prevent trial by ambush. West v. Solito, 563 S.W.2d 240, 243 (Tex. 1978); Gutierrez v. Dallas ISD, 729 S.W.2d 691, 693 (Tex. 1987). This principle applies to all discovery, including items subject to the Fifth Amendment privilege. A party may not “use the Fifth Amendment as a shield in discovery and a sword at trial, which would result in “trial by ambush.”” Alief Independent School Dist. v. Perry, 440 S.W.3d 228, 242 (Tex. App—Houston [14th Dist.]). In the Alief case, a party asserted his Fifth Amendment privilege against self-incrimination twice during discovery. He later decided he wanted to testify regarding these issues. He withdrew his privilege only eight days prior to trial. By waiting to waive his privilege until the eleventh hour, the opposing party effectively lost their ability to do any type of discovery on the issue. For that reason, the Court of Appeals agreed with the trial court’s decision to preclude that party from putting on evidence about the issues he asserted his Fifth Amendment privilege to.

This is not to say that if you assert your Fifth Amendment privilege it can never be waived. If you assert your Fifth Amendment privilege in discovery, but decide you ultimately want to testify about these issues at trial, you must timely withdraw your privilege and amend or supplement your discovery. Case law has not defined “timely,” however, Texas Rule of Civil Procedure 193.4(c) states that: “a party may not use—at any hearing or trial—material or information withheld from discovery under a claim of privilege, … without timely amending or supplementing the party’s response to that discovery.” To be safe, you should waive your privilege in advance of trial enough so that the other side has time to conduct discovery on the matter.

The purpose of these rules is to prevent trial by ambush and provide a constitutionally meaningful trial to all parties. Because pleading the Fifth in a family law case can carry hefty implications, it is important to speak with an attorney, who can help you navigate and decide which route is best for your case.