Now, she notes that she should have listened to the advice early on. "I was fighting a fight I couldn't win," she said, "and I got tromped before I reached the finish line."
For many reasons, child custody and conservatorship are emotional issues. Most parents want the best for their children and will do all they can to fight for what they believe to be in their children's "best interests." Yet, there are times when a parent's interpretation of the "best interests" of his or her child differ dramatically from what a court will order.
]]> Of course, you shouldn't give up a fight you believe you can win, and many people going through a divorce or child custody battle win "difficult to win" cases every day. But there are times when it is good to reconsider your approach. An attorney can help you do that.An attorney's job is to fight for your interests and help you understand the law. But attorneys are also tasked with discussing everything honestly with you. The best attorneys will be both zealous advocates and knowledgeable counselors. In some cases, this means telling you that what you want to do (such as gain custody over your children) is going to be challenging and costly and that there may be other options for you to consider.
In essence, your attorney becomes your voice of logic on an emotional journey.
Source: Huffington Post, "Custody Battles: Are They Worth the Fight?" Pauline Gaines, May 7, 2013
]]>Military mothers deserve our praise for their sacrifices to our country and for all the challenges they must meet and overcome. As Michelle Obama said at the Military Mother's Day Tea Party last week, "That's what military moms do every day. You all help people soar. You help our country soar. When somebody needs you, whether it's your family, or your community, or your country -- you lift them up."
]]> When we think of military parents, the picture that often comes to mind is one we see in movies: A father looking at a photograph of his young son or daughter after a day of fighting. Of course, reality is always different from the movies. Today, many women are entering the military and having to say goodbye to their children when they are deployed.A large percentage of female service members have children -- more than 40 percent. Unlike their male counterparts, however, military mothers are frequently the primary caregivers for their children. Many are single -- more than 30,000 single mothers fought in Afghanistan and Iraq --and many others will face a divorce during their time in the military -- between 6 and 9 percent of servicewomen face military divorce every year.
What does it mean for the children? Many grandparents and other family members take care of military children whose mothers are on active duty. When the mothers come home, it can take some time to recover the children's trust and affection. That is why, for some, Mother's Day is a celebration not just of a mother's love but also of an important relationship rekindled -- that between a mother and her son(s) and/or daughter(s).
Source: The White House Blog, "'Thank you for all that you do': Military Mother's Day Tea with the First Lady and Dr. Biden," Kassie Coccaro, May 10, 2013
]]>Unlike some other community property states, such as California, community property is divided equitably in Texas. "Equitable distribution" of community property is somewhat subjective. Courts have wide latitude in deciding what is equitable based on the circumstances of the case. It is not necessary for courts to divide the property 50/50.
How is property divided that is both community and separate property?
Some property is a mix of community and separate property. For example, if a spouse contributed $3,000 of the money he or she made before marriage to buy a $10,000 boat but the other $7,000 was joint funds, then the spouse has a 30 percent separate property interest in the boat while the remaining 70 percent would be divided as community property. Seventy percent of the boat's worth could then be included in the equitable distribution of the martial estate.
]]> What about debt? Is it community property?Similar to assets, if a spouse brings a debt into marriage, that debt is considered that spouse's responsibility. Debt incurred during marriage, however, is not "community debt." Courts will look at many factors in determining who is responsible for paying debts incurred during marriage, but that division does not need to be equal to be considered "just" under Texas family law. It is also important to note that creditors are not bound by a divorce order and may go after both spouses to recover on a debt.
Source: Texas Family Code, Chapter 3, "Marital Property Rights and Liabilities"
]]>What is community property?
In Texas and nine other community property states, all property acquired during marriage is considered "community property" and is owned jointly by the spouses. In other words, each spouse has an equal interest in the property.
]]> What is separate property?Separate property is any property that is not community property. This includes:
One spouse owns separate property and has sole rights to sell it. A court cannot divide separate property as part of equitable distribution.
What is the community property assumption?
Under Texas law, all property owned at the time of divorce is presumed to be community property. Individuals going through a divorce must designate property acquired before marriage and inheritances as separate property and must provide "clear and convincing evidence" that the property is separate property.
Is it possible for separate property to become community property?
Yes, there are certain situations where separate property can become community property. For example, if funds from inheritance are put into a joint banking account, they are no longer considered separate property. Furthermore, if one spouse has money in a separate bank account before marriage but that money builds interest during the marriage, then the interest is community property.
Source: Texas Family Code, Chapter 3, "Marital Property Rights and Liabilities"
]]>Texas is a community property state, which means that all property and debts accrued during marriage belong equally to both spouses. In other words, the debt your spouse accrued on credit cards during marriage is equally your debt to pay.
Yet, that does not necessarily mean that you will be held responsible by credit card companies for that debt. Most credit card companies will look to the person who signed for the card when determining credit issues. Only once they resolve a judgment against the signatory will they go after joint assets to recover for a debt.
]]> How, then, can you protect yourself from your spouse’s debt? Separate your funds from your spouse and make sure your assets, such as your home, are in your name only. If you are cosigned on a credit card with a $0 balance, consider closing that account. Also consider sending a letter to your spouse’s credit card company explaining your separation or pending divorce.Take the time now to understand your credit card agreements, your credit report and your financial standing. It is beneficial to go into divorce with a full understanding of your combined and separate assets and debts. Property division can be stressful, but compiling the information now can remove some of the frustration and make the process go more smoothly.
Source: Fox Business, “Will My Husband’s Business Card Debt Hurt My Credit After Divorce?” Elaine Pofeldt, Apr. 25, 2013
]]>In particular, the bill, HB 2878, would prevent judges from entering an order or otherwise granting relief involving a "high-court" (Supreme Court created) divorce form if there are procedural errors on the form. In other words, if a pro se litigant crossed out information on the form and made an "addendum," a judge may not be able to accept the form. Only high-court forms, and not standardized forms, would be affected by this bill.
]]> Supporters of the bill have said that it would treat pro se litigants (people who represent themselves) exactly like other litigants and prevent significant errors. It would ensure that each spouse had a clear grasp on the other spouse’s assets, especially retirement assets, and prevent one spouse from hiding assets from the other simply by failing to disclose them.Opponents worry that HB 2878 would create a barrier for pro se litigants, preventing them from accessing the courts if they do not properly fill out the forms. They also worry that it would decrease efficiency in the court system
The Supreme Court recently heard public comment on the forms at issue, the pro se divorce forms that have been a point of controversy for many months. At least one Justice, Chief Justice Wallace Jefferson, would like to delay action on HB 2878 until the forms have been in use and there is more evidence of misuse of the forms.
Source: Texas Lawyer, “Chief Justice: Delay Action on Bill Limiting Pro Se Divorce Forms,” Angela Morris, Apr. 15, 2013
]]>Most judges would agree that do-it-yourself divorces do not work for the majority of spouses. Most of the time, the parties simply do not know how to complete the forms and do not do their homework. They may fill out the form thinking divorce can be a simple process, but in doing so, they miss significant factors or make legal errors. This means redoing the divorce papers, reappearing in court and backing up the entire court system.
Why is divorce complicated? There are many factors to consider and 226 unique chapters in the Texas Family Code. In addition, courts have made decisions that are not captured in the Family Code but can influence other decisions.
]]> There is more to divorce than determining how long the child will be with each parent or how much money one spouse will pay the other. Your divorce may include:This list is only the beginning. Every divorce is unique and will involve different challenges. For most people, speaking with an attorney is the most efficient, and certainly the most effective, way to get through this difficult time.
Who can benefit from an online divorce? If you do not have children, have very little property, have been married for a short period of time, and do not have significant retirement assets, you may be able to fill out your divorce papers on your own.
Source: KXXV - TV News Channel 25, "Online divorce option increasing," Mike Iliopoulos, Apr. 8, 2013
The case, Adoptive Couple v. Baby Girl, involves the adoption of a child that is 3/256ths Cherokee. The child's mother put her up for adoption after the father refused to pay child support because she wouldn't marry him. Two parents from Charleston, South Carolina, adopted the girl and raised her for two years. When the biological father, a member of the Cherokee Nation, found out she had been placed for adoption, however, he opposed it and asked the court to grant him access to his child.
]]> Under the Indian Child Welfare Act (ICWA), passed in 1978, most Indian children cannot be adopted by non-Indians. Following this law, which trumps state law, courts in South Carolina held that the child should be returned to her biological father.Now, in a final attempt to get their child back, the adoptive parents have turned to the Supreme Court. They argue that the father lost all claim to the child when he refused to pay child support or otherwise take action that would show his parenthood under ICWA. Upholding the rulings, they say, would "permit biological fathers of Indian children to repudiate their parental responsibilities under state law while retaining a back-pocket veto over the mother's choice to place her child for adoption."
The biological father counters that he is a parent and termination of his parental rights is illegal under ICWA. His attorneys state that he "asserted his claim to raised his daughter literally the moment he was belatedly informed of the attempted adoption, which never would have gone forward at all had accurate information...been provided to Oklahoma authorities and the Cherokee nation."
The US Supreme Court will hear Adoptive Couple v. Baby Girl today, April 23, 2013.
Source: SCOTUSblog, "Adoption Couple v. Baby Girl," Apr. 16, 2013
]]>Where can you file for divorce? How do you determine which state is the best option?
First, you can file for divorce in a state where one or both parties is a resident. If just one party has residency in a state, the other party must agree to allow the divorce to proceed there. To determine residency, ask yourself these questions: Where do I vote? What state's driver's license do I carry? Where do I pay taxes? Where is my church, my bank, my property? It is a wise decision to file in the state that is most convenient for you -- where it is easiest for you to attend hearings.
]]> Of course, there are other factors to take into account. For example, if you reside in Texas and your spouse lives in North Carolina, you may want to file in Texas to avoid the one-year separation period required under North Carolina law. Texas does not have a legal separation requirement.When you know where to file for divorce, the next question might be: When should I file? A military spouse may want to "get the divorce over with," but there are challenges to filing while the military spouse is deployed. Military divorce during active duty can cause undue stress on a military member and make it difficult to serve divorce papers. Furthermore, a military spouse may be able to prevent the divorce from going forward while he or she is away. For those reasons, most attorneys recommend waiting to file for divorce until the other spouse is home.
Even under the friendliest of terms, divorce is stressful. Choosing the right place and time to file for a divorce can help set the tone for a more harmonious divorce.
Source: Military.com, "Military Divorce: Why Where You File Matters," Rebekah Sanderlin
The father is currently the girl's primary conservator, which means he has custody rights over the girl. According to police, the girl and her mother have a volatile relationship.
]]> Under Texas law, it is a state jail felony to:Unfortunately, many people do not understand how serious it is to take a child away from a custodial parent or otherwise interfere with child custody. It can lead to time in jail and fines, but it can also help the other parent win the child custody case.
Source: Indystar, "Missing Texas girl, 12, found safe in Fishers is caught in custody fight; mother is jailed," John Tuohy, Jill Disis, Apr. 14, 2013
Even in "modern society," it is difficult for many people to imagine fathers having primary care of their children. Many of today's parents grew up in homes where the mother was the caregiver. Yet, "times are a changin'" and more fathers are taking on this important role.
Have the courts begun to recognize the change? Not yet. According to the census, child custody awards haven't changed much in the last ten years. Approximately 80 to 85 percent of child custody awards go to mothers, which is the same percentage as in the mid 1990s.
]]> How can you, a father, win your child custody battle when you face potential discrimination by the court because of your sex? Fathers do have larger hurdles to jump, but, as Deon Sanders' case shows, it is possible. The key is proving that custody with you is in your children's best interests. To do this, you must gather clear evidence, such as evidence showing your relationship with your children, the support and time you can offer your children, and your past parenting behavior.If you believe that the children's mother is unfit to parent, you should also present clear evidence showing why this is the case. Evidence of alcoholism, child abandonment, abuse or other dangers can prove to the court that it is not in the children's best interests for custody to be granted with their mother.
Source: Census Bureau, "Custodial Mothers and Fathers and Their Child Support: 2007," Timothy S. Grall, Nov. 2009
In Texas, child custody can be modified under the following circumstances:
Similarly, if one parent feels the current child custody order is dangerous for a child -- perhaps an abusive adult has moved into the child's residence -- then a court will strongly consider child custody modification.
There are many factors that go into modification of child custody orders. One thing to note is that modifying a child custody order can affect child support. If the paying parent spends more time with the child, he or she may ask for the child support order to better reflect the new custody order.