McKinney Adoption Lawyer

Many options are available for couples who wish to expand their family through adoption, including the following:

• Agency adoption
• Independent/private adoption
• International adoption
• Stepparent adoption
• Relative adoption
• Open adoption
• Closed adoption
• Foster parent adoption

For the most part, laws are oriented toward protecting the rights of parents and guardians, along with the best interest of the child. Our lawyers offer legal guidance to help prospective parents navigate the complexities and legalities of the adoption process.

To arrange a consultation with an experienced Texas Family Law specialist please contact us by clicking here.

Alimony is the term commonly used in reference to payments one ex-spouse is ordered to make to the other after a divorce. In Texas, there are two forms of post-divorce payments – alimony and spousal maintenance.  There are distinct differences between those forms of payment and how they come into being.

Alimony, on the other hand, can be put into effect only by agreement of the parties. Unlike spousal maintenance, alimony can be set at any number the parties agree upon and can last for any term that fits the circumstances. The agreement can provide that the amount of alimony can be changed if circumstances change or terminated if a given event occurs. Alimony is a helpful tool in settling divorce cases in which one spouse earns a considerable amount more than the other spouse. Payments are tax deductible to the paying party and included as income by the receiving party, which makes the payments less expensive to the paying party and provides the receiving party with more spendable cash.

More information is available on our page “Alimony & Spousal Maintenance.”

Call our Frisco office at 214-387-8501, or our McKinney office at 972-387-9955, to arrange a consultation with an experienced Texas family law specialist.

Alimony – Texas Spousal Maintenance

Alimony is the common term used in reference to post-divorce payments from one former spouse to the other. In some states there are several forms of alimony; i.e., temporary alimony, rehabilitative alimony, permanent alimony, etc.

In Texas, there is only one possible form of post-divorce payment obligation – “spousal maintenance”. If a party to a divorce meets the qualifications set forth in the Texas Family Code, the judge can enter orders for spousal maintenance.

“Contractual alimony” is entirely different from spousal maintenance. The Internal Revenue Code outlines the requirements for contractual alimony payments. As evidenced by the label, contractual alimony must come about through an agreement of the divorcing parties – it cannot be ordered by a Texas court.

Spousal Maintenance

Until recently, Texas was the only state without some form of post-divorce spousal support statute. The term commonly used to refer to post-divorce payments is “alimony” but the Family Code refers to those payments as “spousal maintenance.”

The spousal maintenance is similar to what other states refer to as “rehabilitative alimony”. It is limited in duration and amount with the intention being for the support to continue only for the period necessary for the former spouse to acquire education and employment that will allow him/her to become financially self-sufficient. Since that is the underlying purpose for the payments, there are rather narrow parameters for eligibility.

Eligibility Standards

The eligibility requirements for spousal maintenance are:

• A marriage of 10 years or more that ends in divorce with one party lacking sufficient property to provide for that person’s minimum reasonable need and
  • The person is unable to support himself/herself due to a physical or mental incapacity
  • Is unable to be employed outside the home due to caring for a child with a mental or physical incapacity or
  • Lacks the earning capacity to support himself/herself.
• Family violence was committed by the other spouse.

As a practical matter, the persons most often qualifying for spousal maintenance are the “stay at home mothers” who have been out of the workforce for a considerable period of time in order to raise children. Changes in business structures and advances in technology (particularly in the field of computer software) can present huge obstacles for the spouse who has been away from the business world.

A person may forfeit the right to seek spousal maintenance unless he/she is diligent in pursuing education, training and employment during the time the divorce is pending. That means following the “I won’t go to work so my spouse will have to pay more alimony” avenue is disastrous.

Limitations

In disability cases, the payments can be ordered to continue for as long as the disability continues. In those situations, the judge will probably order that there be periodic reviews of the facts to determine whether the disabling condition is still in existence.

Under the latest Texas statute, the amount and duration of payments that the judge may order have been significantly changed.  If the parties were married between ten and twenty years, the spousal maintenance payments could run for up to five years.  If the marriage lasted between twenty and thirty years, the payments could be extended for up to seven years.  If the divorce took place after more than thirty years, the payments could span up to ten years.  Further, the potential amount of the payments was increased from $2,500 per month to $5,000 per month.

Although the Texas spousal maintenance law remains very conservative when compared to the laws of other states, the revised law gives the judge more latitude to assist a former spouse who would otherwise be in dire financial straits after the divorce. (see Spousal Maintenance – Recent Changes in Texas Divorce Law)

Contractual Alimony

The structure of contractual alimony is defined within the Internal Revenue Code. Contractual alimony, as the name implies, can be placed into effect only if the parties agree to its terms. The courts in Texas can and will approve divorce settlement terms that include contractual alimony provisions, but the only form of post-divorce payments by a former spouse the court can order without an agreement of the parties is spousal maintenance.

Limitations

Contractual alimony payments must cease upon the death of the receiving party. There are some rules concerning disqualification if payments are heavily weighted on the front end of the time period or are clearly used as a substitute for child support; however, aside from those limitations, the parties are free to fashion the terms of the agreement.

What Is The Advantage Of Alimony?

In many situations, one spouse has a considerably greater earning capacity that does the other spouse and that disparity will continue after the divorce. Under the U.S. graduated income tax system, the higher wage earner is taxed at a higher percentage rate than is the lower wage earner. Contractual alimony is tax deductible for the paying party and is to be included as income for the receiving party. That means the cash along with the income tax liability associated with the payment is shifted from the person with higher earnings to the one with lower earnings.

Contractual alimony is a very helpful settlement tool in cases of this nature because the net effect of the transfer of income and taxes creates a benefit for both parties at the expense of the IRS.

For example, if the alimony payment is made by a person in the 35% tax bracket to a person in the 20% tax bracket, the IRS loses the 15% differential in tax liability. Through the deduction of the alimony by the paying party, the net cost of $1.00 paid is actually $.65 whereas the inclusion of the same $1.00 as taxable income on the receiving party’s tax return costs that person $.20 while benefitting that person with spendable income of $.80. Both parties benefit at the expense of the IRS – no one ever complains about the loss to the IRS.

Defining The Terms Of Alimony Payments

Contractual alimony is not limited by the kind of restrictions that are applicable to spousal maintenance. The period of time during which the payments are made, the amount of the payments, terms by which the payments will increase or decrease, the procedures for making the payments and all other provisions of the agreement related to alimony are devised by the parties and their attorneys. In other words, the entire structure of the alimony agreement is built from the ground up to suit the particular needs of the parties involved in the divorce.

Situations In Which Alimony May Be A Useful Tool

As stated above, the “stay at home mom” situation frequently arises in divorce cases. Quite often the father/husband earns a significant income and mother/wife will reenter the workforce at a significantly lower wage level. In some cases, the mortgage payments on the house are relatively large or the children are enrolled in private schools or an automobile needs to be purchased for a child or some other expenditure is necessary for the former spouse and children to maintain a reasonable life style after the divorce. Contractual alimony is a very helpful tool in resolving cash flow dilemmas of that nature.

Under the spousal maintenance statute, the potential relief for the newly employed mother/wife are very limited – perhaps, to the point of being virtually no assistance at all. That is not the case with contractual alimony. For example, an alimony figure can be set to assist mother/wife in paying the mortgage or cover expenses related to the children. If the alimony is intended to cover private school tuition, the payments can be made directly to the educational institution.

Obviously, father/husband needs some incentive to make contractual alimony payments and will expect something in return for the cash. By including provisions in the agreement that the alimony payments will be discontinued if wife/mother and the children move out of the house, husband/father can be assured of where his children will reside. If the agreement states that the alimony is to be paid directly to the private school, father/husband knows that the child will continue to be enrolled in a particular institution.

Provisions can be incorporated to lower the alimony payments if the income of the paying party decreases or vice versa. Termination provisions can be included to halt payments upon the remarriage of the receiving party.

Bottom line – the terms of contractual alimony payments can be tailored to fit the circumstances of the parties.

To arrange a consultation with an experienced Texas Family Lawyer please click here.

Annulment in Texas

It is very common for people to call a lawyer’s office and say “I want an annulment” and they are disappointed to learn that the annulment process is not available to them. Because the rules related to annulments in Texas are very specific, the facts of most cases do not fit into the statutory terms. That means the judge cannot grant an annulment.

Annulment vs. Divorce

In legal terms, an annulment is appropriate only when the marriage was invalid from the outset. In other words, there was something about the facts involved in the marriage give a person “grounds” to ask for an annulment.

In legal terms, a divorce is appropriate when there has been a valid marriage and one or both parties desire to bring that relationship to an end.

Grounds For Annulment

An annulment can be granted by a judge if:

• Alcohol or narcotics – A person was incapacitated by alcohol or narcotics to the extent that he/she did not have the ability to understand the situation and that person separated from the other person when the effects of the alcohol or narcotics ended.
• Fraud, Duress Or Force – One person used fraud, duress or force to compel the other person into the marriage and the person who was under pressure separated from the other person after understanding the nature of the fraud, duress or force.
• Mental Incapacity – One person lacks the mental capacity to consent to the marriage or understand the marriage relationship and the parties separated when the mental incapacity was discovered.
• Concealed Divorce – One party conceals that he/she has been divorced from another person less than 30 days prior to the marriage and the parties separate after learning of the prior divorce.
• Marriage Within 72 Hours After License Was Issued – The marriage took place less than 72 hours after the marriage license was issued.
• Marriage During Prior Marriage – A party is already married to another person.
• Marriage To Certain Relatives – The marriage involves people who are close relatives.

Conclusion

It is rare for the facts of a case to fit into the statutory requirements for a divorce. Of course, a divorce is available.

Court Order Modification

Once a decree of divorce is signed by the judge, certain matters cannot be changed. Only in very unusual situations can orders dividing property and debts be altered.

On the other hand, orders concerning children can be changed if circumstances change. Child support can be raised or lowered if the income of the paying party fluctuates, if the cost of raising the child changes, or for other reasons. Orders concerning child custody may be changed if a parent is not capable of properly caring for a child or mistreats the child. Parental possession of the child can be altered if a parent moves a considerable distance away from the other parent or fails to visit the child regularly.

More information is available on our page “Modification – What Can Be Changed.”

Call our McKinney office at 972-387-9955, or our Frisco office at 214-387-8501, to arrange a consultation with an experienced Texas Family Lawyer.

Child Custody Attorneys

Family Law Attorneys

In Texas, the term “conservatorship” is used instead of “custody.” The Family Code assumes that the parents of a child should be appointed as “joint managing conservators.” Under certain circumstances, the court might appoint one parent as the “sole managing conservator” of the child and the other parent as the “possessory conservator” of the child.

Designation as a joint managing conservator means a parent has some decision making authority with respect to the child.  There are a number of rights that may be allocated to one parent or shared between parents. The most important rights a parent may be granted are the authority to select where the child will live, what school the child will attend, and what persons will provide health care for the child. In addition to those rights, one or both parents may have the authority to consent to underage marriage or enlistment in the armed services, to represent the child in legal proceedings, and other rights.

For more information about child custody issues, see our page “Conservatorship – Texas Child Custody.”

For trusted legal advice and expertise derived from many decades of experience, you can rely on our family law team to protect your rights and help you improve the chances of a civilized relationship after your custody dispute is resolved.

To arrange a no-cost consultation with an experienced Texas family law specialist please click here to contact us.

North Texas Child Support Law Firm

In divorce cases, it is common that one parent will be ordered by the court to pay child support to the other parent. The amount of child support is based primarily upon the level of income earned by the paying party and the number of children that person is obligated to support. The Family Code includes guidelines that specify the percentage of the paying party’s net income to be assessed as child support. In unusual cases, the judge may assess more or less than the guideline figure; however, more often than not, support orders follow the guideline numbers.

For more information about child support, see our page “Child Support – How Much & Why.”

Texas Child Support Guidelines

Net Resources

All wages, salary, bonus payments, interest & dividend income, rental income & income from any other sources, minus:

• Social security taxes
• Federal income taxes
• Union dues
• Health insurance premiums for the child/children

The Net Resource figure is to be calculated as a monthly figure

Application of Guideline Percentages

The Net Resource figure (up to $7,500.00) will be multiplied by the guideline percentage. The Court can set the child support above the guideline number if the needs of the child/children justify doing so.

Child Support Guidelines

The chart above is included in the Texas Family Code along with a comment that the judge should assume the guideline percentages are appropriate unless the circumstances of a particular case are unusual. As a practical matter, the guideline figure is more often than not the number the judge will select for child support.

Other Factors Related to Child Support

In setting the child support amount, the judge may vary from the guideline figures if it is in the child’s best interests to do so. The factors the judge may consider in making that decision include:

• The age and needs of the child.
• The ability of the parents to financially support the child.
• The sources of funds available to support the child.
• The time periods during which each parent has possession of the child.
• The earning potential of the paying party.
• Child care expenses.
• Whether the parent with custody of the child has custody of another child.
• The amount of alimony or spousal maintenance being paid or received.
• College expenses for another child.
• Whether either party receives benefits that reduce that party’s ongoing expenses.
• Unusual education or health care expenses.
• Travel expenses necessary to have time with the child.

Generally speaking, if a parent wants the judge to set the child support figure above the guideline number, there must be evidence that the extra money is directly related to the child’s needs. In most instances, that means the child has special needs that are expensive (i.e., ongoing health care expenses, special education costs, etc.) or the lifestyle of the child prior to the divorce was more costly than the guideline figure will allow.

Conclusion

In the vast majority of cases, the child support number will be set in accordance with the guidelines. Of course, the parents can always make an agreement to the contrary and the judges very seldom question the wisdom of the parties in doing so.

Collaborative Law

North Texas Divorce Lawyer – Family Law – Divorce

The vast majority of family law cases are settled. That being the case, it makes sense to minimize the trauma and cost of moving from the problems to the solutions. Collaborative law is a process that assists people in doing just that.

Essentially, the litigation approach to family law issues involves presenting evidence to a judge to demonstrate that the opposing party is bad and the presenting party is good, and then asking the judge to enter court orders giving the presenting party what he or she wants. Although that process works, it is expensive, and it deprives the parties of the opportunity to resolve matters in a way that fits their particular situation.

Collaborative law was recently introduced in Texas as an alternative to the litigation process in family law cases. The process involves collaboratively trained attorneys who assist their clients in defining their objectives, addressing the issues, evaluating the alternatives and formulating solutions that best suit the facts of the specific case. The process is voluntary; however, once the parties agree to use the collaborative approach, they and their lawyers sign an agreement that requires them to pursue settlement of the case and stay away from litigation. If the parties are unable to reach a solution, the attorneys are obligated to withdraw from representing their clients and refer the parties to lawyers who will handle the suit in a litigation setting. The withdrawal clause locks the parties and the lawyers into the negotiation setting and out of the courthouse and results in everyone making a concerted effort to resolve the problems.

The collaborative process has proven to be very successful in terms of saving parties time, money and emotional distress.

Why Are Divorce Cases So Difficult?

Divorce cases are unlike any other form of litigation for a number of reasons, including:

• The case is charged with emotion, sometimes extreme emotion.
• Emotional and psychological trauma is a virtual certainty.
• Judges have much broader discretion than they do in most other types of cases.  That means there is virtually never a clear-cut “winner” or “loser”.
• The funds spent in the litigation process are paid from the marital estate and thereby diminish the “prize” over which the parties wage combat.
• Each spouse wants the lawyers and/or the judge to “set things right”.
• Persons offering “helpful advice” appear in droves and offer loads of misinformation.

A divorce suit is a difficult and draining process.  Your attorney will guide you along the legal avenues of the lawsuit.  However, only you are capable of charting your emotional and psychological course through the litigation and you have the responsibility for doing so.  Hiring a counselor who is familiar with the emotional aspects of the divorce process is a very good idea.

More information can be found on our “Collaborative Law” page.

The Collaborative Alliance is composed of the lawyers who formed the first collaborative practice group in Texas.  Initially, the group was comprised only of lawyers but now includes mental health professionals and financial professionals.  Members of the Alliance believe that in most situations a collaborative team comprised of lawyers and neutral professionals is usually the most efficient and cost effective approach to handling family law matters.

By facilitating effective communications between the parties and offering advice concerning agreements related to the children, the mental health practitioner keeps the discussions moving in a positive and productive manner.  Through the compilation of data from both parties the financial professional assembles post-divorce budgets and a marital balance sheet that serve as the foundation for settlement options.  Since the neutral professionals gather information from both parties and conduct settlement discussions that may not require the participation of the lawyers, their addition to the collaborative team helps control expenses.

Members of The Collaborative Alliance are not the only collaborative practitioners in Texas but they are certainly among the very best.

Woods, May & Matlock, P.C. is one of the relatively few collaborative law practices in Texas. In addition to practicing collaborative law, our attorneys each have decades of legal experience and all are Texas Board Certified Family Law Specialists.

For more information about collaborative law or other legal remedies for family law issues, we invite you to arrange a consultation. We offer a free, brief phone consultation to prospective clients that we call “Divorce 101.” Please contact us to schedule an appointment.

D. Kay Woods | Family Law Attorney | McKinney TX

D. Kay Woods, a shareholder with Woods, May & Matlock, P.C., began her legal career in 1987. Ms. Woods’ practice involves all areas of family law including divorce, child custody, child support, marital property agreements and domestic violence.

Professional History

• Woods, May & Matlock, P.C., shareholder
• Holmes, Woods, Diggs & Eames
• Abernathy, Roeder, Boyd & Joplin
• Winstead, Sechrest & Minick

Bar & Court Admission

• State Bar Of Texas, 1987
• Admitted to practice before all trial courts in the State Of Texas, Texas Courts of Appeals and Supreme Court of Texas

Certifications & Recognitions

• Board Certified, Family Law, Texas Board of Legal Specialization
• Texas Super Lawyer for Family Law, Texas Monthly, 2010, 2009, 2008, 2007, 2006
  Kay Woods

  online at

  

  visit superlawyers.com
• AV Peer Review Rated, Martindale-Hubbell

Professional Memberships & Activities

• State Bar of Texas
• Dallas Bar Association, member Family Law Section
• Collin County Bar Association, member Family Law Section
• Texas Women Lawyers Association
• Attorneys Serving the Community

Publications & Lectures

• Southern Methodist University School of Law, adjunct professor, 1992 to 1997
• “Hot Topics in Family Law,” presentation to the Collin County Bench Bar IX Conference, 2000
• “Overview of Child Custody Laws in Texas,” presentation for the Lorman Educational Services Custody Symposium, 2000

Education

• Texas Tech University, Doctor of Jurisprudence, 1986; Associate Editor of the Texas Tech Law Review, member of Phi Delta Phi
• University of Texas at Tyler, Bachelor of Science, Psychology, 1982

Life Outside the Law

Ms. Woods is a member of the First United Methodist Church in Richardson. She is active in Single Parent Action Network (SPAN). In 2005 and 2006, she served on the PTA Board, Mohawk Elementary School, Arts in Education.

Divorce & Family Law Consultations

“Divorce 101” Consultations

The lawyers at Woods, May & Matlock, P.C., invite you to arrange what we call a “Divorce 101” consultation to discuss your family issues and see how an attorney- client relationship with our firm might benefit you. The consultation is a brief phone conversation that is free and at no obligation. If you prefer, we will be glad to schedule an appointment for your consultation. Please click here to contact us.

“Family Law 101” – Issues Other Than Divorce

If you have questions about a family law matter other than divorce (e.g., modification of child custody or child support, enforcement of court orders, etc.) the offer of a free phone consultation is available, or, if you prefer, our staff will be glad to schedule an appointment for you to talk with one of our attorneys.

Please click here to contact us.

Representing clients throughout Texas in divorce and family related issues, with a focus on clients from Dallas, Frisco, McKinney, Plano, Prosper, Allen, Carrollton, Richardson and other communities in Dallas, Collin, Denton and Rockwall Counties.

Divorce Settlement Tools

Mediation became a formally recognized settlement tool about 25 years ago with the enactment of a statute stating that the Texas courts encourage parties to settle their disputes without the use of court resources for trial of the issues. Mediation, arbitration and several other settlement vehicles were outlined as appropriate methods for resolving pending lawsuits.

The judges who handle divorce suits were among the first to promote the use of mediation. They did so by requiring the parties to participate in mediation before the lawyers would be allowed to request a trial date. By pushing the parties into mediation, the judges were confident that a considerable number of the pending lawsuits would be settled and that would free court resources – that has proven to be true.

Mediation – The Process

Simplistically speaking, mediation is a process involving a conference attended by the parties, their lawyers and a neutral person who serves as the mediator. The mediator in divorce cases is usually a lawyer with extensive experience in the field of family law. As a neutral person, the mediator’s objectives involve 1) determining the parameters of the dispute, 2) understanding the positions and objectives of the parties, 3) defining the resources available for use in resolving the issues, 4) outlining the various alternatives for resolution, 5) assisting with the negotiation of settlement terms and 6) drafting an outline of the parties’ agreement.

Advantages Of Mediation

From the perspective of the parties, mediation offers a unique and valuable opportunity.

If the parties proceed to trial, they will place their futures and the destinies of their children in the hands of a stranger (a judge) who will have very limited information to use as a basis for his/her decision. Further, the decision of the judge will be governed by the parameters of the Texas Family Code and the personal philosophy of the jurist.

Simply stated – There are some things the judge cannot do and there are some things the judge will not do.

Almost inevitably the best solutions in family law matters involve crossing some of the “can’t do” or “won’t do” lines. That means the decision by the judge will not be the best available for the parties and everyone will be disappointed in some degree with the orders imposed upon them. The significant advantage of mediation over trial is that ability of the parties to formulate an agreement that crosses the “can’t do” and “won’t do” lines resulting in a deal that is better than can be expected from the court.

What To Expect In Mediation

The following notes are taken from memos that are sent to parties and their attorneys by Robert Matlock when he serves as a mediator:

Things to Know Before Mediation

Joint & Separate Discussions:

Usually the mediation conference begins with the lawyers and parties together. The mediator will outline how the mediation process works, have the parties sign the Agreement To Mediate, and talk in general terms about the issues to be resolved.

After the joint conference, one party and that party’s lawyer will usually move to another room. The mediator will then move from one room to another to talk with the attorneys and parties about fashioning an agreement.

Patience:

Mediation takes time. Usually the differences that led to litigation are complex and developed over a lengthy period. It is very rare that acceptable resolutions for those conflicts can be formulated swiftly.

Bring a book, magazines, a laptop with work/video games or some other means of passing the time while the mediator talks with the other party and lawyer.

Comfort:

Mediation is not a formal proceeding. Dress comfortably and casually.

Relax:

Tension is always part of litigation, but control of stress is necessary to work productively toward a solution. Remember to take a few deep breaths and calm down when tension levels rise.

Listen To Alternatives:

Finding a solution requires looking at alternatives – the good and the bad. Discussing alternatives, including those that are unacceptable, is part of the process and evaluating them is imperative.

Decisions Need To Be Made:

An agreement is the product of decisions by the parties. Both parties will be called upon to make decisions.

The Mediator Is Neutral:

The mediator’s job is to bring the conflict to an end by assisting the parties in crafting an agreement. The mediator is neutral – the decisions and agreements are made by the parties.

Attitude:

Mediation requires both parties to make a good faith effort to define and settle the issues. Keep in mind that the problems can be solved.

Mediation Guidelines

Purpose Of Mediation:

Mediation is a discussion process intended to assist the people involved in litigation to resolve their differences and reach a resolution of the lawsuit. If an agreement is made through mediation, it is usually put into the form of a court order and signed by the judge.

Mediation Is:

• Voluntary – either person is free to halt the discussions at any time.
• Confidential – the statements made by the parties to the mediator during settlement discussions are not to be brought to the court if a trial of the case is later necessary.
• A search for alternatives – the mediator will endeavor to offer avenues toward settlement that may not have been previously considered by the parties.
• Binding – the court can enforce any agreements made by the parties.

Mediation Is Not:

• A substitute for a trial – the mediator will not act as a “judge” to pass upon the merits of either party’s position.
• A substitute for thinking – the mediator will not make decisions for the parties.
• A method to stall the lawsuit – such a ploy will be quickly discovered and one such incident will probably preclude any later settlement negotiations.
• The only means of resolving the lawsuit – if an agreement is not made, the parties may settle at a later date or present the disputes to the court for resolution.

Mediation Agreements:

Agreements made during mediation will usually be incorporated into a court order. If so, the judge will be asked to enter the order and make the terms of the order binding on the parties. Therefore, it is important to -

NEVER MAKE AN AGREEMENT UNLESS YOU INTEND TO LIVE UP TO IT.

Conclusion

Experienced lawyers can and do advise their clients concerning what they can expect a judge to do in their particular case. However, even the best of attorneys refer to trial of a lawsuit as “rolling the dice” because there can be no certainty concerning the judge’s final decision. The mediation process offers an opportunity to resolve the issues in a manner that is acceptable to the parties and avoids the uncertainties and expense of a trial.

North Texas Domestic Violence Orders

McKinney Family Law Attorneys

Serving clients throughout Northern Texas

Unfortunately, family strife can lead to physical confrontations and injuries.  Domestic violence creates huge problems for children as well as adults.

District Attorneys have authority to file family violence protective order cases on behalf of parties who lodge a complaint with their offices. Abused persons can seek the help of the District Attorney’s office as no cost to themselves. However, pursuing a complaint with the DA often takes time and may leave a person in limbo while waiting for the court process to be initiated.

A person may ask for a family violence protective order in conjunction with a divorce. Doing so requires the victim to sign an affidavit outlining specifically what has occurred and what injuries have been suffered or what threats have been made by the other party. If the judge believes there is a serious threat of harm, an order can be entered immediately instructing the other party to stay away from the victim and report to the court on a certain date for a hearing. At the hearing, the judge may decide to continue the order in effect or modify it so as to protect the victim.

Being aware that a person is capable of physical violence is the necessary first step. Understanding what triggers violence in a particular person and what to do to protect oneself when it occurs are of utmost importance. People in volatile relationships must have an escape plan for themselves and their children.

Detailed information is available on our “Domestic Violence Escape Plan” page.

At Woods, May & Matlock, our family law attorneys, have a wealth of experience, offer a full scope of legal services in all aspects of domestic violence, and are dedicated to ensuring that victims have full protection of the law.

When you need legal help and guidance concerning violent acts of an intimate partner or member of your household, we encourage you to contact us for a no-cost consultation. Your private matters are treated with the utmost discretion, and there is no charge for an initial consultation.

Helpful Links

Texas Domestic Violence Resources

Domestic Violence Help – State & Local Programs

U. S. Department of Justice, Bureau of Justice Statistics, Intimate Partner Violence in the United States

Domestic Violence Protective Orders

Unfortunately, domestic violence exists in our society and will probably continue to exist. The Texas Family Code authorizes courts to issue a family violence protective order in situations that involve actual or threatened violence. To obtain a protective order, the applicant must sign an affidavit that states the facts related to the threats and/or injuries and the reasons the applicant fears there will be future improper behavior. If the affidavit is sufficient, the judge can sign an order requiring the perpetrator to stay away from the victim, including orders that the perpetrator not come within a given distance of the victim’s house, automobile, place of work, etc.

After the perpetrator has been served with a copy of the protective order, a hearing will be held. At the hearing, the judge will consider the evidence offered by the parties and decide whether the protective order should be continued or terminated.

The District Attorney’s office also has authority to seek a family violence protective order. That type of order is different from the form described above.

Domestic Violence Personal Safety Plan

Although it is important to know that there are remedies available through the courts in domestic violence situations, the first concern of a potential victim involves how to handle the confrontation and potential violence. The following are suggestions in formulating plans to preserve one’s personal safety.

A word of caution – make the plan and arrangements NOW – there will be no time to do it during a confrontation.

Safety During An Explosive Incident

• If an argument seems unavoidable, try to have it in a room or area where there is an exit you can reach. Try to stay away from the bathroom, garage, and kitchen. Try to stay away from weapons, or any place where weapons might be available.
• Practice how to get out of your home safely. Identify which doors, windows, elevator, or stairwell would be best to use in an emergency.
• Have a packed bag ready and keep it at a friend’s or relative’s house so you can leave quickly.
• Identify friends or neighbors you can talk to about the violence, and ask them to call 911 if they hear a disturbance coming from your house.
• Figure out a code word you can use with your children, friends, and family to let them know when to call the police.
• Plan where you will go if you have to leave home (even if you don’t think you will need to do it).
• Use your own judgment and feelings. If the situation is dangerous, consider giving the abuser what he or she wants to calm him or her down.
• You have the right to protect yourself until you are out of danger.
• Always remember – You don’t deserve be hit or threatened.

Safety When Preparing To Leave

• Open a bank account and get a credit card in your own name.
• Get your own post office box so that you can receive mail and checks.
• Leave money, an extra set of keys, copies of important papers, extra medicine and clothes with someone you trust so you can leave quickly.
• Know ahead of time who you can stay with or turn to if you need to borrow money.
• Call the Center for Battered Women for help in safety planning.
• Keep the Center for Battered Women’s Hot Line number and some change with you for emergency calls. Using a calling card is not safe.
• Remember – Leaving a controlling person is the most dangerous time.

Safety In Your Home – After You Have Separated

• Change the locks on the doors as soon as possible. Buy additional locks for your windows and patio doors.
• Talk to your children about what they should do if you are not with them.
• Advise your children’s school or daycare teachers of who has permission to pick up your children from school.
• Tell your neighbors and landlord that your partner no longer lives with you and that they should call the police if they see your partner near your home or car.
• Never call your partner from your home. If he or she has caller ID, it will be easy to locate you.

Safety With A Protective Order

• Keep your protective order with you at all times. When you change your purse or wallet, it should be the FIRST thing that is moved.
• Give a copy of the protective order to a trusted friend or relative.
• Call the police immediately if your partner breaks the protective order.
• Think of ways to keep safe if the police don’t come right away.
• Tell your family, friends, neighbors, co-workers, landlord, and health care provider that you have a protective order in effect.

Safety On The Job & In Public

• Decide which co-worker you can talk to about your situation.
• Tell the office or building security people of the situation and provide them a picture of your partner.
• Use an answering machine or caller ID, or have someone else screen your calls.
• Implement a safety plan when you leave work. Ask someone to walk you to your car, bus, or train. Take different routes home. Think of what you would do if something happened to you on the way home.

Your Safety & Emotional Health

• If you are thinking about going back to your abusive partner, first talk to someone you trust about another plan.
• If you must communicate with your partner, figure out the safest way to do it.
• Think highly of yourself and be assertive with others about what you need.
• Decide who you can call to talk openly and who will give you needed support.
• Plan to attend a victims’ support group for at least two weeks to gain support from others and learn more about the effects of abuse and control.

Checklist – What to Take When You Leave

Identification

• Driver’s license
• Children’s birth certificates
• Your birth certificate
• Social Security card
• Welfare identification
• HMO card

Money

• Money and/or credit cards
• ATM card
• Bank books
• Savings books
• Checkbook

Legal Papers

• Your protective order
• Lease, rental agreement, deed to house
• Car registration and insurance papers
• Health and life insurance papers
• Medical records for you and your children
• School records
• Work permits/green card, visa passport
• Divorce papers
• Custody papers

Other

• House and car keys
• Medications
• Small objects to sell
• Jewelry
• Address book
• Phone card
• Pictures of you, your children, and your abuser
• Children’s small toys
• Toiletries, diapers

Important Phone Numbers

• Police & Emergency Services – 911
• National Domestic Violence Hotline – 800-799-7233 or TDD 800-787-3224
• Family Violence Hotline – 800-374-4673
• Legal Hotline – 800-777-4673
• Texas Department Of Human Service Abuse Hotline – 800-252-5400

Enforcement – What Can Be Done To Enforce An Order?

Every litigant understands that obtaining the court order is only the first step in the process.  The degree of leverage that can be exerted to enforce the court’s order is the more important issue.  An order without an effective enforcement mechanism is of little value.

Frankly, it is rather frustrating from a lawyer’s point of view to inform a client that enforcement of a court order is not as simplistic as it should be.  In fact, the remedies available to push a recalcitrant party into compliance vary considerably depending upon the type of order and the terms of the particular order in question.  The Texas appellate courts have made enforcement procedures complicated and, in some instances, rather frustrating.  Only the vagaries of marital property law are more complicated than the procedures related to enforcement of orders in Texas.

Enforcement – Contempt & Other Relief

“Contempt” is the first term that comes to mind when someone believes the opposing party has violated a court order.  Closely behind the term “contempt” is the thought of “jail time” for the violator.  Unfortunately, the real answer is not that simple.

Texas appellate courts have taken the position that a litigant who faces the possibility of incarceration is entitled to the same considerations as a person charged with a criminal offense.  That means a person seeking enforcement of an order with a finding of contempt and a jail sentence must clear several hurdles including: 1) a definitive order as the foundation for the enforcement suit, 2) specific allegations concerning how the order was violated, 3) personal service upon the violator, 4) evidence that the violator was capable of complying with the order, and 5) a definitive order related to the incarceration of the violator.

When taken item by item the foregoing paragraph means:

• Definitive order – The order that has been violated must be specific concerning:
  • What party is to do it,
  • What the party is to do,
  • When the party is to do it,
  • How the party is to do it.
• Specific allegations – The request for enforcement must specifically outline:
  • The terms of the order that has been violated,
  • The date the order was violated,
  • How the order was violated,
  • A claim that the violator was capable of compliance but elected to do otherwise.
• Personal service:
  • The enforcement request must be personally delivered to the violator,
  • The enforcement pleadings must include an order for the violator to appear before the court on a certain date at a certain time.
• Capability to comply:
  • The request for enforcement should include a general allegation that the violator was aware of the court order and capable of complying with its terms,
  • The violator elected not to obey the court order.
• Definitive order – If a party is held in contempt by the court, the orders signed by the judge must be specific concerning:
  • What order was violated,
  • What the violator was ordered to do,
  • How the violator failed to comply with the order,
  • When the violator failed to comply with the order,
  • A finding that the violator was capable of obeying the order but did not do so.

Child Support – Enforcement

Child support orders are generally the easiest of the court orders to enforce because they are usually very specific and there are several ancillary remedies available to assist with enforcement.  Support orders usually include the amount to be paid, the first date upon which a payment is to be made, the date or dates upon which subsequent payments become due and the terms upon which the support payments terminate or are altered. Assuming the child support order includes the foregoing elements, the motion for enforcement would outline the dates upon which payments were due, what amounts were paid and what amounts remain unpaid along with a request that the violator be held in contempt, jailed, fined and be ordered to pay attorney’s fees.

Child Support Enforcement Orders

Texas law mandates that once a child support payment is due and is not paid it becomes an obligation that cannot be altered by the court.  However, judges differ with respect to their philosophies concerning the types of child support enforcement orders to be entered and they have considerable latitude concerning the severity of the punishment to be levied.  That means different judges may enter very different orders simply due to different policies concerning child support enforcement.   Further, the circumstances of a particular case are very important and will affect the terms of the enforcement orders.

Child Support – Other Enforcement Tools

In conjunction with child support orders there are a number of ancillary enforcement tools.  They include: 1) employer’s withholding orders, 2) notice of child support liens, 3) child support lien foreclosure suits and 4) license suspension proceedings.

Employer withholding orders are the most common of the child support enforcement tools.  Typically, the employer’s order is entered in conjunction with a divorce or other suit requiring the payment of child support but may not be placed into effect until a later date.  The employer’s order states that any business or person who employs the person who is obligated to pay child support has a duty to withhold the child support sums from the paying party’s wages.  If the employer fails to withhold the child support sums, the employer may become liable to pay the amount owed.

If a third party is holding assets that belong to a person who is obligated to pay child support, a notice of child support lien can be delivered to that party thereby forcing them to freeze whatever assets that may be in their possession.  This mechanism is helpful if there is a bank account held in the name of the paying party.  A notice of lien can be sent to the bank to freeze the funds in the account and when an enforcement suit is filed the bank would be asked to release the funds to the person entitled to receive the support payments.

The Family Code states that a person who fails to make child support payments can lose all the licenses issued by the State of Texas.  There are provisions that allow the paying party some latitude to be forewarned and given the opportunity to bring the payments up to date before suffering the loss of any privileges.  However, if the paying party fails to comply, everything from a driver’s license to a professional license (medical, dental, law, etc.) can be suspended.

Child Possession Orders – Enforcement

Possession orders are sometimes more difficult to enforce than are child support orders because they may not be as specific.  For example, in years past it was common for orders to state that a parent was entitled to “reasonable visitation upon reasonable notice” or possession on “alternate weekends” but not provide anything more specific concerning times or dates.  Enforcement of those orders is very difficult because they are not specific and often the most a lawyer could accomplish for a client is the replacement of the vague order with a definitive order that can be enforced in the future.

On the other hand, if an order is definitive concerning the date, time and place possession of the child is to begin, the judge has authority to enforce its terms.

Delivery Of Property Or Money – Enforcement

The court has authority to enforce orders for the delivery of money or items of property.  However, it is often more difficult to hold a violator in contempt and have the judge assess a jail sentence in such cases because the order to be enforced is usually not very specific.  However, the court can assist with enforcement by entering a very definitive order that outlines step by step what is to be done by the violator and the timeframe within which the actions are to be completed.  In conjunction with the detailed order, the judge can also enter a money judgment against the violator.  Should the violator breach the detailed order, the court may have the authority to jail the recalcitrant party as well as levy other sanctions including attorney’s fees and court costs.

Enforcement Orders – What To Expect

As previously stated, enforcement orders can and do vary dramatically from judge to judge and from case to case.  Even in the situations where the judge is locked to certain types of orders (i.e., a child support judgment) the law gives the judge considerable latitude concerning the types of enforcement provisions and severity of punishment to be levied.

From a litigant’s perspective, it is often important to secure some form of punishment for the past wrongful behavior and some measure of assurance that it will not be repeated in the future and thereby necessitate the expenditure of time and resources to pursue additional enforcement measures.  Many judges handle those concerns by entering an order that holds the violator in contempt and levies a jail sentence for that misconduct but suspends the jail sentence and places the violator on a probation status as long as that person complies with the court’s orders.

For example:

A typical order in a child support case might state the violator is sentenced to 3 days in jail with the sentence suspended provided that the violator a) remains current with the child support payments, b) pays $XXX per month toward the arrearage, c) pays $YYY in attorney’s fees, d) pays $ZZZ in court costs and e) comes back to the court on a given date to report on what has happened.

A typical order concerning the refusal to allow possession of a child might state the violator is sentenced to 3 days in jail with the sentence being suspended provided that the violator a) allows possession of the child as ordered, b) pays $XXX attorney’s fees, c) pays $YYY court costs and d) comes back to the court on a given date to confirm that he/she has complied with the orders.

If an order is not specific enough to be enforced, the judge has the power to enter a very definitive order that can be enforced by contempt.  Quite often a paragraph is included within a motion for enforcement requesting that the judge enter precise orders if there is any doubt about it being specific enough for enforcement purposes.

Conclusions

Judges expect their orders to be obeyed and are usually annoyed when parties elect to ignore them.  For that reason, a litigant who has been the victim of misbehavior by another party can generally expect the judge to assist in securing compliance.  However, due to the constraints within Texas law, jail time is not always available as punishment – even when the misconduct is malicious.  For that reason and others, it is wise to hire an experienced attorney to pursue enforcement proceedings.

Enforcement of Court Orders

As the saying goes, the world is a smaller place than it used to be.  In this country and other parts of the world, people are much more mobile than in past decades. Business commitments frequently require people to move from one area to another, sometimes even to different countries. When that occurs with divorced parents, it often creates significant conflict and hardship.

Most states, including Texas, have statutes that allow parents who were divorced in other states to register and enforce their divorce orders in Texas. Under certain circumstances, orders from another state can be modified by a Texas court.

The Hague Convention is an international treaty intended to assist a parent recover children who are unlawfully withheld by the other parent and taken to another country. Not all countries have agreed to participate in the Hague Convention, and the process is often slow and expensive; however, it is a potential remedy for situations that used to be hopeless.

Detailed information can be found on our “Other States & Countries” page.

To arrange a consultation with an experienced Texas family law specialist, click here.

As the saying goes, it is a small world.  It is common in this country and many others for employees of corporate businesses to be moved from place to place numerous times during their working careers.  Often, the need for financial and other support requires people to move nearer to relatives or friends.  In total, the population of today’s world is much more mobile than at any time in the past.

Among the ancillary issues created by relocation are those related to family court orders, particularly orders concerning children.  For example, orders for visitation become unworkable as the distance between the parents increases, child support payment orders become more difficult to enforce when a parent is employed in another country, and maintaining contact with a child becomes problematic when the parent and child are separated by more than a few time zones.  The worst of all parental nightmares – the kidnapping of a child – sometimes occurs in direct defiance of court orders.

What Remedies Are Available

There are no easy or quick or inexpensive answers to the questions concerning enforcement of orders issued by other jurisdictions or enforcement of Texas orders in other venues.  The potential questions generated by the relocation of parties and children are innumerable and the remedies vary from the ordinary (transfer of jurisdiction from one state to another) to the incredibly complex (involvement of the F.B.I. and/or filing suit in a foreign country under The Hague Convention).

All of the states in the U.S. have recognized the difficulties presented by parents and children moving from one jurisdiction to another and have enacted statutes that assist in giving some uniformity to how the courts handle the ensuing problems.  Further, a considerable number of countries have acknowledged the need for international cooperation in matters related to children and have signed treaties concerning the issues.

General Rule

The action to be taken in a particular case depends upon several factors including what state entered the orders that are currently in effect, does either parent or the child still reside in the state that entered the last order, where are the witnesses who can provide the most important evidence in the case.  Generally speaking, if either parent or the child remains in the state that entered the existing orders, any request to enforce or change those orders must at least be initiated in the court where the orders were entered.  If the facts justify doing so, the judge of that court may decide that another court would be a more appropriate forum and defer to that court to enter orders.

Registration

If neither parent nor the child continues to reside in the state that entered the prior orders, the parent with primary custody of the child may ask that a court in another state enforce or modify court orders.  The Family Code allows a parent to register an order from another state and request Texas courts to enforce or modify that order.

State, Federal & International Laws

Depending upon the issues involved and the facts of the particular case, there are state and federal statutes and international treaties that provide assistance including:

• Interference with child custody; Texas Penal Code, Section 25.03.
• Criminal nonsupport; Texas Penal Code, Section 25.05.
• Uniform Child Custody Jurisdiction & Enforcement Act; Chapter 152, Texas Family Code.
• Uniform Interstate Family Support Act; Chapter 159, Texas Family Code.
• Failure to pay legal child support obligations; U.S.C.S. Title 18, Chapter 11A.
• International parental kidnapping; U.S.C.S. Title 18, Chapter 55.
• The Hague Convention.

What Should Be Done

If you have a situation involving orders from another state or country and you now reside in Texas or a situation involving a party who is outside the U.S., you should approach it by taking the following steps:

• Obtain copies of ALL the court orders that are related to the parties and children.
• Determine whether there are any pending lawsuits or other proceedings involving the parties or children.  If so, obtain copies of the pleadings and orders in those matters.
• Determine where all of the parties and children are physically located.
• Outline in writing your objectives and questions.
• Contact a competent attorney and make an appointment.

Conclusion

There are a very limited number of lawyers who have experience in dealing with orders from other jurisdictions within the U.S. or mandates from other countries.  For that reason, it is wise to begin by contacting a law firm with board certified attorneys in the area of family law and request to speak with a lawyer who has handled matters involving the issues of your case.

North Texas Child Support Enforcement

Obtaining a court order is an essential step in all family law matters; however, the ability to enforce the order is the most meaningful part of the process to most people. The courts in Texas have the power to enter “contempt” orders against persons who disobey those orders. Contempt orders may include sentencing a person to jail, assessing fines against him or her, ordering the party to pay attorney’s fees and expenses, and other remedies.

Because the court has the authority to levy harsh punishment upon a person who disobeys its instructions, Texas law requires that the terminology used in the order itself must be very precise. Sometimes, a person escapes the wrath of the judge due to what the aggrieved party would call “a technicality.” Avoiding those technicalities by drafting specific orders is a very important aspect of the lawyer’s task in representing a client.

If an order has been violated, the Family Code grants the court the authority to enforce it in several different fashions. For obvious reasons, the remedies available to enforce orders concerning property matters are different than those utilized to enforce child support payments. Understanding what avenues are available, and what a particular judge is likely to do, are very important aspects of representing clients who seek enforcement orders.

More detailed information can be located on our “Enforcement in Texas” page.

To arrange a consultation with an experienced Texas Damily Law Attorney, click here.

Texas Divorce Law FAQs | Answers By Divorce Lawyers in McKinney TX

Even though each divorce case is different, there are some questions that are voiced in virtually all of them. The following is a list of those inquiries and generalized responses that are intended to provide you with some guidelines for application to your case.

How Quickly Can I Get This Divorce Over?

Sixty days is the minimum because Texas has a mandatory waiting period of that length. As a practical matter, that timeframe is seldom realistic.

Divorce is a process – not an event. After having made the decision to pursue a divorce, it is natural to want the matter wrapped up promptly. It will probably not proceed quickly enough to suit you. It will simply take as long as is necessary for your spouse to accept the realities of divorce and focus upon resolving the issues that are part of the process.

Will Filing Suit Bring My Spouse to His/Her Senses?

Generally not. Some people hope that filing a divorce suit will shock his/her spouse into reality and thereby save the marriage. Although filing for a divorce sometimes saves the marriage, it rarely works out that way. Usually, it causes the other spouse to become more hostile and defensive. Therefore, the divorce should be filed with the realization that you are asking for a divorce and, barring very unusual circumstances, a divorce is what you will receive.

How Much Will This Cost?

That is a reasonable question for which there is no definitive answer. There are a number of factors that affect the cost of litigation and many of them are beyond your control and that of your lawyer. For example, the behavior of the other party and that party’s attorney can make the divorce very expensive or, on the other hand, help keep the cost down.

An ethical McKinney or Frisco divorce attorney will always pursue the client’s interests while trying to minimize the expense of the process and the time necessary to complete it.

What Should I Hear From a Lawyer About Fees?

Experienced lawyers will ask you for a retainer and quote you an hourly rate for attorney’s services. The retainer should be refundable meaning that any part that is not expended for attorney’s fees or expenses will be refunded to you.

The amount of the retainer will be based on the lawyer’s assessment of how complex the case will be and what will probably need to be done to move it toward a conclusion. The hourly rate for services will depend upon the policies of the law firm and the experience level of the lawyers.

How Can I Hire a Lawyer if I Don’t Have Access to Money?

Some law firms insist on being paid a retainer before they will agree to handle a case. Other attorneys will agree to begin representation if the lawyer believes the judge may order the other spouse to release funds to pay the expenses.

Can I Get My Spouse to Pay for the Divorce?

The answer is “yes” in the sense that expenses related to the divorce will normally be paid from community property money. Since both parties own an interest in community property funds, both parties are contributing to the costs of the divorce.

The answer is usually “no” in the sense that the judge will usually not divide the property between the parties and then order one spouse to pay the other spouse’s divorce expenses from his/her portion of the property. The judge has the authority to do that, but generally will not do so.

The judge will consider the attorney’s fees and expenses in formulating the property division orders. By doing so the judge can indirectly allocate the divorce expenses between the parties.

Since Texas is a Community Property State, Will Everything be Divided Down the Middle?

No. The judge has authority to divide the community property in a lop-sided fashion. Most judges start be determining how much 50% of the marital estate is worth but he/she may vary from that percentage if the facts warrant doing so.

What are “Standing Orders?”

The courts in several north Texas counties (Collin, Dallas, Denton, Rockwall, Tarrant) have adopted “standing orders” that are applicable to all divorce suits the moment the case is filed. The orders are applicable to both parties and state that no one is to upset the status quo, either financially or with respect to the children. The orders are intended to prevent a mischievous party from: a) hiding the kids or b) spending money for frivolous purposes. It is OK to pay for ongoing living expenses, regular business expenses and expenses related to the divorce.

How do I Get a “Legal Separation?”

There is no such thing in Texas. Other states recognize various forms of “separation”, however, that is not a legal status in this state. After a divorce case is filed, there may be temporary orders entered by the court, but they do not constitute a legal separation of the types recognized in other states.

What Effect Will the Spouse’s Adultery Have on the Case?

Judges differ concerning their attitudes about adultery but it is usually not a factor that will have much effect on the division of property. However, adultery may be more important to the judge in formulating orders related to the children.

Adultery is still a “fault” basis for divorce in Texas, but a claim of that sort no longer carries the impact it once did. Family law judges have been exposed to tales involving the most bizarre varieties of misbehavior and, to some degree, are beyond the point of being shocked by violations of marital vows.

On the other hand, adultery may be import if the circumstances related to the transgression are significant. For example, the expenditure of marital funds for the purpose of pursuing the adulterous affair will catch the court’s attention. Likewise, flaunting the affair in front of the children will draw the ire of the judge. Under such circumstances, the “damage” from the adulterous conduct may result in action by the court, whereas similar misconduct without consequential “damage” may be of little concern to the judge.

Can I Throw my Spouse out of the House?

Yes and no. If your spouse agrees to move out, then the problem will solve itself. If that is not the case, then you may need to resort to other measures.

Unless there has been violence or a serious threat of violence in the relationship, the judge cannot exclude either spouse from the home without a hearing. After a temporary hearing, the judge will usually order that one party is to have the exclusive use of the residence and order the other party to move out.

Can I Change the Locks (Garage Door Opener Code) on the House?

Many attorneys will advise their clients to change the locks, alter the garage door opener, and change the alarm system code in conjunction with the filing of a divorce suit. If you fear that your spouse will return to the residence for the purpose of creating havoc, causing injury or other malicious purpose, the exclusion of that person from the house is probably an appropriate method to thwart the misbehavior. Usually, the changing of locks, etc. should be coordinated with the filing of the divorce suit and service of the divorce paperwork upon the other party.

You should consider your options before making such a decision. If you believe your spouse will agree to move out after learning you have filed a divorce suit, changing the locks may be an unnecessary expense.

Can I Just Throw Out My Spouse’s Stuff?

No, that is counterproductive behavior. Engaging in such misconduct will enrage your spouse, result in the unnecessary expenditure of funds to replace the lost items, and probably irritate the judge. None of those consequences will be beneficial.

It is appropriate to gather up your spouse’s clothing and personal effects so that they can be picked up. They should be appropriately packed and made available as soon as practical.

Can I Open My Spouse’s Mail?

No. If you receive any mail addressed solely to your spouse, it should be forwarded to him/her by you or through your attorney.

I Think My Spouse is Hiding Assets – How do I Find Them?

It is possible for a spouse to hide assets. However, most people do not have the means, the time or the dedication to do so. In today’s world, there is a paper trail created by virtually every financial transaction. Therefore, it is generally possible to figure out what money has come into a spouse’s hands and where it has gone.

Generally there will be an order entered requiring both parties to prepare sworn inventories that list all assets and debts. That information will give you a good idea whether your spouse is being honest or deceitful.

To double check, apply the IRS’ “standard of living” audit to your financial facts. Your lawyer can tell you how to do it.

Should I Close Bank Accounts?

Whenever you take unilateral action that alters the financial status quo, you must be prepared to offer a reasonable explanation to the judge for your actions and be able to account for how the money has been handled.

If the suit was filed in a county that uses Standing Orders or you were served with a Temporary Restraining Order, you are probably prohibited from closing accounts. If you are not under such orders, you are free to close the accounts. However, you should consider the possible consequences. Closing an account without notice to your spouse may increase the hostility level and foster mistrust. Further, it may cause checks to bounce and create difficulties with creditors.

If you believe your spouse is likely to spend or hide money from an account, it may be wise to place the funds beyond your spouse’s reach by depositing it in a new account. If you do so, you should leave sufficient funds in the old account to cover any outstanding checks and a reasonable sum for your spouse’s use.

Should I Cut Off the Credit Cards?

Standing Orders usually preclude a party from altering the status of credit card accounts. Further, whenever you take unilateral action that alters the financial status quo, it must be reasonable and intended to protect the marital estate rather than punish the other spouse.

If your experience with your spouse leads you to believe he/she will run up the credit card bills, it may make sense to cut off the accounts. If it is unlikely that your spouse will misuse the line of credit available, closing the account would be unwise.

If you do close accounts, the credit card firms will generally require that the account be completely closed (i.e., neither spouse will be able to charge to the account) and a new account be opened in the name of one party only. Any existing balance on the old account will be transferred to the new account.

Can I Record Telephone Conversations?

Wiretapping is a felony and can subject you to criminal prosecution. However, it is lawful to record a conversation if you are a party to the conversation. Therefore, you are not to “tap” conversations in which you do not participate, but you may record conversations between yourself and another person.

Can I Read My Spouse’s E-Mail?

Maybe. The dawning of the computer age has carried with it a number of state and federal statutes aimed at preserving privacy with respect to electronic transactions. Some of the federal statutes make it a criminal offense to intercept or tamper with computer generated information. Technically, intercepting e-mail is a violation of those statutes. On the other hand, information that is stored on the hard disk of the “family” computer is generally fair game for anyone who ordinarily has access to that equipment.

Should I Have My Spouse Followed?
If I do, What Then?

It depends on what you hope to gain from the information to be gathered. Investigators are expensive and they will expect to be paid whether their reports are helpful or not. The decision should be made by weighing the cost against the potential benefit.

If you do hire an investigator, keep it to yourself. The advantage of securing information without the other party’s knowledge lies in how that information is utilized. The premature release of the information will allow a dishonest person an opportunity to manufacture an explanation or excuse. On the other hand, if the dishonest person believes he/she is safe in misrepresenting the facts (i.e., lying during a hearing or in response to discovery requests), then the impact of the information can be devastating. It is important to give the other party an opportunity to choose between truth and prevarication, then you can decide what action should be taken.

Does Joint Custody Mean Equal Possession Time of the Child?

No. In Texas, the Family Code terminology is “joint managing conservatorship”, but most people tend to use the term “joint custody”. Joint managing conservatorship involved sharing of some decision making authority concerning the child – it does not refer to equal possession times for the parents.

The significance of “conservatorship” lies in the power to make decisions on behalf of the child. The most important areas of decision making authority are related to: 1) selection of the child’s place of residence, 2) selection of the child’s educational institutions, and 3) selection of the persons to provide health care for the child.

Possession time allocated to the parents is a separate issue. As a general rule, history will provide the judge with guidance concerning which parent should have primary possession of the child.

If I Don’t Work, Will He Have to Pay More Child Support Or Alimony

No. That is a self-defeating approach.

Couples often spend virtually all of their cash flow on a regular basis. A divorce case escalates the parties’ ongoing expenses in the form of attorney’s fees, the cost of setting up a new place of residence for one of the parties, etc. That means there is no extra cash from which to pay more child support or alimony.

Can I Get Alimony?

Maybe. In Texas it is called “spousal maintenance” and there are very specific rules related to eligibility. The most important requirements are a 10 year marriage and the inability to financially support oneself after the divorce.