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

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

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

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

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

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

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

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

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

  • Responsive

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

  • Caring

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

  • Strategic

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

  • Knowledgeable

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

  • Timely

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

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

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

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

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

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

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

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

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

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

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

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

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

Last week I wrote about standing orders, specifically Dallas County’s. This week we’ll continue to discuss the provisions of the Dallas County Standing Orders, and what they mean for your case.

We last left off on section four of the orders. As previously mentioned, these provisions deal with community property and how it is to be handled during the divorce. In addition to preventing spouses from liquidating and selling off community assets, section four also prohibits the destroying of financial records, electronically stored information relating to the case, and any data or content from social media. That means you cannot go and scrub all of the pictures of your soon to be ex just because you are divorcing them. You are also prohibited from terminating or changing the limits on credit cards and opening or redirecting your spouse’s mail.

Section five deals exclusively with personal and business records. Its provisions are very simple. Don’t destroy, hide, or forge any records relating to you are your spouse during the case. Section six concerns insurance policies. During a case you cannot withdraw or borrow money from life insurance policies on either you or your spouse. You also cannot change your beneficiaries from your spouse or children while the suit is ongoing. And finally, you cannot cancel or alter your auto, life, or health insurance policies.

Section seven provisions are important, because they are specific authorizations to what you can do during a divorce or suit affecting the parent child relationship. You are allowed to engage in acts reasonable and necessary to conduct your usual business and operation. Meaning that if you run your own business and you have a bank account for that business, you can continue to spend as necessary to ensure your business continues as normal. You are also allowed to pay reasonable living expenses. The key word here is reasonable. So, things like food, clothing, shelter, medical care, and transportation are ok. Things like a new boat or 80-inch OLED television are not. And lastly you are permitted to use community funds to hire an attorney to represent you.

There are four other provisions at the end of the orders that I won’t cover. That’s not to say they aren’t important, but they don’t lay out the automatic do’s and don’ts like the other provisions. If you would like to examine a copy of the Dallas Standing Orders they can be found dallascounty.org. If you are currently involved in a divorce or case concerning your child in Dallas County and would like to know how the orders apply to you, feel free to give me a call or shoot me an email, I’ll be happy to explain further.

When you file for divorce in Dallas County Texas a set of orders come into effect. Neither you or your spouse need to file anything else or request that the orders, they simply exist because your divorce case exists. These orders are called Standing Orders, and they relate to children, pets, property, and the conduct of the parties to the suit.

The Dallas County Standing Orders are in effect automatically for every divorce suit and suit affecting the parent child relationship that is filed in Dallas County. Most of the orders are injunctions, meaning that they tell the parties to the suit what they are not allowed to do while the suit is in progress.

The first two sections deal with the children and pets related to the suit. As you could imagine, it orders that the parties refrain from fleeing with the kids to another state, talking negatively about the other party in front of the children, talking about the case in front of the kids, or harming or threatening to harm to family pet.

Section three further concerns the conduct of the parties. It is more geared towards how the parties need to behave towards one another. For example, it prevents using vulgar or profane language with the other party. It also prohibits threatening or harassing the other party in any way, as well as prohibits parties from harming one another. The above injunctions are important and are usually obeyed without issue by anyone not wanting to tank their case. But there is another important and often overlooked provision, the prohibition of illegally intercepting or recording the electronic communications of the other party. You cannot under any circumstances obtain electronic information by way of hacking, extortion, fraud, or any other illegal means. Even something as simple as logging into the other party’s email and taking information is a surefire way to get both yourself and your attorney in serious trouble.

And finally, section four concerns how you are to treat property during a divorce. Once a divorce is active you cannot go and liquidate all the bank accounts, rack up a large amount of debt, sell your real estate, or damage or destroy your property. This is very important. Don’t do it. It will only backfire on you when the court divides the marital property. This includes what you would consider to be your separate property. A good rule of thumb is to treat everything like its community property until it is agreed or adjudicated that it’s not.

In my experience many do not know about standing orders or that counties other than Dallas have them as well. They are an important part of a case, as they will provide you protections from the Court without request. Next week I will touch on the rest of the provisions in the Dallas standing orders. Provisions such as, insurance, party authorizations, and business records.

                In my field of practice there are certain types of cases that I take very seriously, they are protective orders. Now this is not to say that I do not take a divorce, or child custody case seriously, but when a protective order is filed someone’s life may be at stake. This week I want to talk about what protective orders are and what you need to prove to get one.

                A protective order is an order signed by the court to protect victims of abuse from their abuser. Under the Texas Family Code a Code a person is entitled to a protective order when the court finds that family violence has occurred and is likely to occur again in the future. Of course, in order to determine if you qualify for a protective order, you must know the definition of family violence under the code. The more obvious portion of the definition is physical acts by a member of a family or household against another member of the family or household. This covers things such as bodily injury, physical assault, sexual assault, and physical harm. However, the family code goes on to include threats from the abuser that would reasonably cause you fear of imminent physical harm.

                There is an important exception to note under the defining statutes for family violence, and that is physical harm or bodily injury that you inflict will not be considered family violence if it is done in self-defense. For example, if a spouse comes home after a night a drinking and grabs the other spouse by the throat to choke them, then the other spouse will not have committed family violence if they punch the assaulting spouse in the nose. 

                The Family Code also has provisions for people who aren’t married but are just dating. The term is called “Dating Violence” and it has the same standards as family violence. A dating relationship is defined as a romantic or intimate relationship between individuals. The existence of that romantic relationship is determined based on the length of time, its nature, and how often the individuals interact in a way that would signify a dating relationship.

                If a protective order is granted the abuser will be prohibited from directly or indirectly hurting, threatening, or harassing you or your children if applicable. They will be under orders to stay away from you, your family, your home, workplace, and the children’s school. And they will no longer be permitted to carry firearms. The order will generally last for two years, however the judge can set it for longer. This usually occurs in orders protecting against stalking and sexual assault. If the abuser violates the protective order, they have committed a crime. Call the police, show the responding officer the order, and have them charged. If they violate multiple times, felony charges can be applied.

Today marks one year of practicing family law and being a member of O’Neil Wysocki. Over the course of this year, I feel as though I can honestly say that I am doing what I am meant to do. Coming out of law school I knew I wanted to be a litigator, and at the time I thought I wanted to practice in the field of personal injury. But after ten months and two different firms I quickly found out that was not where I belonged.

At my first firm, I was hired onto the talc docket in the mass torts department. During my five months with the firm, I felt like I was an attorney in title alone. In reality I was not practicing law, or even doing work that required a legal degree. I was cold calling clients regarding their medical records and entering data into excel spreadsheets.

Then my second firm came calling and let me tell you they promised me the world. I was told that I would receive top notch litigation training from seasoned attorneys and get experience drafting and filing various legal documents. Unfortunately, it turned out to be a lot of talk with very little action. The training consisted of giving us a phone that had to be answered 24/7 so that to be sent out to various places in the city to sign new clients. There were more than a few times this put us in dangerous positions. I was sent to places you wouldn’t want to be in a suit during the day, let alone at 10 PM. Of the seven of us hired at the time, one remains. The rest of us figured out that after six months the litigation training promised to us, wasn’t coming.

And just when I was ready to accept my fate as a cog in a corporate machine, here comes O’Neil Wysocki. When I was interviewed, I’ll admit I was skeptical after being burned so badly by my previous firm. But it turned out I had no reason to be. Since day one they have kept every single promise they made. In my first four months with the firm, I drafted several legal documents, had multiple hearings, and sat in on a week-long jury trial. I’ve been taught how to draft more persuasively, how to argue more effectively, how to handle opposing counsel, and how to maneuver the politics of the legal profession. From the paralegals to the partners themselves I’m learning from every single person in the firm.

When I was at my second firm I barely had time to go to the gym, let alone network. I knew one judge and that was through family connections. Now, I know every family court judge in Dallas County, and they know me. I have several in firm and out of firm mentors, I’ve met a Texas Supreme Court Justice, and I have my own column in a local newspaper (check out Elite News every Friday). It hasn’t been since my professors in law school that I have had people care about my professional and personal development to this level. People outside of the office ask why I always speak so highly of where I work, and it’s simply because it’s deserved.

What I know now compared to what I knew a year ago is like night and day. When I graduated law school I wanted nothing to do with family law, and now I honestly don’t know how I could practice in any other field. It’s been a great year and I’m looking forward to what I will learn in year two.

All fifty states offer an option for no-fault divorce. But only seventeen are considered true no-fault divorce states. A no-fault divorce is exactly what it sounds like. It is both parties deciding they no longer want to be married, and agreeing to end the marriage without having to prove that one or both spouses engaged in some conduct that would warrant a divorce. In the remaining 33 states, you can plead for a no-fault divorce, but you can also attempt to get divorce based on various grounds of fault depending on the state.

In Texas, the grounds for a no-fault divorce are that the marriage and living together has become “insupportable because of discord or conflict of personalities…that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation”. As you can see this is very vague and open, making it the easiest and most common argument for divorce.

Under the Texas Family Code, there are six fault-based reasons to seek a divorce. They are cruelty, adultery, conviction of a felony, abandonment, living apart, and confinement in a mental hospital. These grounds are listed under sections 6.002 through 6.007.

The language in the sections regarding cruel treatment and adultery is fairly open. They simply state that “the court may grant a divorce in favor of one spouse if the other spouse is guilty of cruel treatment…” and “the court may grant a divorce in favor of one spouse if the other spouse has committed adultery”. This is intentional as it allows the facts of the case to be laid out before the Court so that the judge or jury can make the appropriate decision.

The other grounds in the family code require that a certain amount of time be met before the Court can grant a divorce. In order to receive a divorce in your favor based on conviction of a felony, the other spouse must have been convicted of a felony, be imprisoned for at least one year in the Texas Department of Criminal Justice, a federal penitentiary, or the penitentiary of another state, and has not been pardoned. To have a divorce granted on abandonment, the other spouse must leave with the intention of abandonment and remained away for at least one year. For living apart, the spouses must have lived apart without cohabitation for at least three years. And confinement in a mental hospital requires that the other spouse has been confined in a state mental hospital or private mental hospital for at least three years and it is likely that the mental disorder is of such a degree and nature that adjustment is unlikely or a relapse is probable.

How you chose to file for divorce will be based on the individual facts of your case. The importance of these six fault-based grounds is that each one can be used by your attorney to argue why you deserve more than half in the divorce.