Lewisville Family Law Blog

I'm Divorced, Now What?

  • 30
  • June
    2015

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It can be a relief for a person to finally be divorce from their spouse, particularly if they have been in a lengthy or contentious divorce proceeding. But, just because the divorce may be over, an ex-spouse can still have issues come up with their former spouse over certain post-divorce matters. These issues can involve important items such as custody, child support, and property division.


If the parties had children together, one of the parties might choose to file a modification of the prior divorce decree provisions dealing with things like custody, visitation, and child support. A significant change in circumstance of the parties or the children can cause these issues to come up again. Some of these changed circumstances include significant harm to the children, changes in visitation schedules, and increases or decreases in income.postdivorce4).jpg


Also to the child-related provisions, parties may not perform their obligations when it comes to post-divorce property issues. These can include payment of expenses like a mortgage or spousal support along with delivery of property such as a deed or a vehicle. Enforcing these property provisions is accomplished through a motion for enforcement of property division. At times, there are issues with the performance of property division ordered in a decree. If you discover issues with your divorce decree, bring the action sooner rather than later as some time limitations exist.


A parent can also bring an enforcement action for the previously mentioned child related provision when the other parent has refused to follow the court's order on things such as visitation and payment of child support. In an enforcement action, a party can request relief such as contempt, fines, and attorney's fees.


Sometimes you see parties back in court rather quickly over the items ordered in their divorce decree. Also, the parties might come in at some point to modify the prior orders of the court on child-related provisions. If you are concerned that something has changed since the entry of your divorce decree, you will need to contact an attorney to see the remedies you have available to you through legal action. The same is true if your ex-spouse has not performed all of their obligations under the decree.post.jpg

Birthdays and the Texas Family Code - Somebody didn't Think this Through

  • 26
  • June
    2015

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for wfneal_SMALL.jpgI just celebrated another birthday recently. I say another because they seem to come faster at my age. This birthday got me thinking about birthdays in general - their role in life, their significance, their importance to families. Everyone is loved on their birthday. Think about it. The meanest person you know will find some way to offer you a congratulatory "Happy Birthday" if it happens to be your day. Strangers will wish you a Happy Birthday if someone tells them it is your day. Groups of waiters and waitresses will sing an off tune chorus of Happy Birthday and present you with a free piece of cake topped with a single candle. Everyone knows the saying and country western song proclaiming that everyone should live their life like they were dying. Well, I say to live your life like every day is your Birthday and make sure you tell everyone it is. 

Birthdays are especially important in families. I think birthdays in families are rallying points for the marriage because it marks another year of being together as a family. Mothers and Fathers "raise" their children so each birthday a child celebrates is an exclamation point to them doing their job. To the children, it is friends over, cake and ice cream, and being "special" for that day. Birthdays are put simply, a win-win for everyone.images-89.jpeg

So, how does the law treat birthdays when families divorce or split? Oddly, for the importance of the day, not very well. If the possession schedule under which the parents are operating states you not in possession of your child on his or her birthday, you get from 6:00 p.m. until 8:00 p.m. on that day. However, you are required to go pick up your child from the other parent's home and then return the child back to that home. Two hours? Really? It's hard to get into a restaurant and eat a meal in two hours, let alone celebrate a birthday. How are you going to "pick up" your child if your child is on vacation or out of town with the other parent in Florida? Unfortunately, I have seen this trick pulled more than one time in my 40+ years of practicing law. Yes, ex's will do this and whether it is intentionally or negligently the result is the same. 

The law only gives you the child that is celebrating the birthday - not any brothers or sisters he or she might have. Most lawyers will try to correct this in the Final Decrees and Orders that are signed by the Judge. The Final Order can provide that the parent out of possession gets the child and all siblings for that two-hour period. Technically, there is no basis for this provision.

The lawmakers also completely left out parents when they conceived this plan for handling birthdays in a divorced family. There is no legal requirement that you get to see or have your child for your birthday. While I understand as we get older that one day that is your Birthday seems to spread out over days and weeks, there usually is some concession given to the actual day of your birth. Nope. No children unless they are actually in your possession.

If parents don't have any allotted time for their birthdays under the Texas Family Code, you must know that grandparents, great grandparents, or Aunts and Uncles birthdays will be in the Final Order at all. I have seen too many times Nana's 90th Birthday not be attended by grandchildren or great grandchildren because divorced parents can't cooperate to allow this historic family event to include the grandkids.


Birthdays are the icing on the cake of parenting. Moms and Dads will remember their children's birthdays for years down the road even when their child can't remember even being there. Birthdays are the glue that holds decades of togetherness as a family - be it intact or split - firm in our memories. Our lawmakers should have done a better job of planning how we share birthdays when families split. But - they didn't.


So, it is up to us to keep the purpose and meaning of birthdays alive and well despite the travails of the family. How can this be done? Remember that a birthday marks a child's - or our - anniversary of time. The hard work, the love, the nurture, and the lessons parent's teach during the 365 days in between are what matter. To this end, Abraham Lincoln said it best:


"And in the end, it's not the years of your life that count, it's the life in your years."


Happy Birthday everyone - in case I forget next year!

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Do You Want Control Of Your Divorce?

  • 25
  • June
    2015

Of course, you do.

But, if you are like many people, then you know how difficult it is to feel in control during the divorce process

So what are your options?

Our white paper, "Want Control Of Your Divorce? Identify Your Financial Issues!" can help you move forward.

In this white paper, we help you understand how to begin the process of identifying what financial issues exist in your divorce process.

We also offer insight into how an attorney working with a divorce financial planning professional can help you before, during and after this process. Particularly when it comes to identifying and managing emotional issues, a divorce financial planning professional working with an attorney can help you stay objective and make the best possible choices for your future.

By identifying your financial issues now, you situate yourself for the future while protecting your rights now.

Dads, Don't Be Like This Dad

  • 24
  • June
    2015

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Several years ago I represented the mother of a divorcing couple's children. It was one of those ugly custody battles over who got primary control and more time with the children. I called Dad to the stand to ask him why he didn't always exercise his periods of possession with his children as allowed in the decree. His answer was astounding. His answer made my heart sink.

With a straight and resolute face, this guy told the Court that he refused to pick up his children on many occasions because they didn't deserve to see him. In fact, he went on to proudly announce that he told his kids, in no uncertain terms, that he would not pick them up for visitation unless they obeyed every instruction. They must comply with every expectation of conduct when they were with him. These children ranged from four years old to teenagers. If they couldn't act the way he expected them to, then "they did not deserve to get to spend time with him" on the next scheduled visit. That's right-they did not deserve to get to spend time with images (21).jpghim!

This man was a licensed professional in the state of Texas, with a brilliant mind and a wonderful set of skills. But he was beyond arrogant. He was beyond conceited. He was narcissistic and self-absorbed to the point that the world revolved around him, and he felt the power to control all that revolved around him, and particularly his children.

Obviously his ex-wife did not live up to his expectations, and his disdain for her had been made obvious for years. Perhaps it was the children's fault that they were half of Mom's DNA and were not inherently perfect like Dad. At least that is what he'd like to think.

This past Sunday was Father's Day, and I cherished the ability to spend that day, just like every other day, with my children. There are times I'm pretty sure they don't cherish every day with me. But they're kids, and they have not matured to the level of adults yet. So it is irrelevant to me whether or not my children cherish each moment with their father. I see it as my job to cut them slack, fill their gaps in maturity, and persistently be their consistently present and caring parent known as "Dad."

What a shame about this father from many years ago. That's what the Judge thought, too. She was incredulous about what came out of his mouth, coupled with the contemptuous audacity he displayed in regaling the Court with his misguided parenting style.

That brings me to this learning point (pardon my rare sports analogy). Judges cannot make fathers into good parents. Lawyers cannot make fathers into good parents. Parents must step up to the plate on their own and taking the pitches as they come. Sometimes we hit them well, and sometimes we miss by a mile. But once we put our kids in the game, it is up to us to keep swinging and keep the game going. We don't have to hit a home run every time, but nothing sings like a good solid base hit. It's not easy sometimes, but the experience of playing is worth it.

Batter up.

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What About a Paternity Test?

  • 23
  • June
    2015

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for johndenke_SMALL1.jpgSometimes a male client will come to a family law attorney and ask about a paternity test for a child that the mother alleges they have fathered with them. If the parties were married or have been monogamous for a significant period, paternity may not be an issue. If this is not the case, it can raise doubts for an alleged father who is now being asked to support the child financially through the payment of child support.

When a male doubts the paternity of the child, they can usually request a paternity test from the court. A simple motion for paternity testing will be filed and the court can sign an order for testing of the father and the child. The test will usually take a few weeks to be completed, and will let the parties know whether the male party is the father of the child to a 99.999% certainty.Thumbnail image for 101014144312-large.jpg

There are possible limitations on when a paternity test can be obtained. When the children reach a certain age, or the alleged father has held himself out as the children's father and it would be inequitable to break the father-child relationship. However, the alleged father can obtain a paternity test if he can show that he is being misled to think he is the father by the mother's misrepresentations to him.

Once a paternity test is done and shows that a person is not the father of the child, it essentially terminates any parent-child relationship between the party and the child. However, if the test comes back positive, then issues such as custody, visitation, child support, and health care costs must be determined.

An attorney can help you properly request genetic testing from the court if you doubt you are the father of the child subject of the lawsuit. If the child is older than four and has known you as their father, this can create a barrier to obtaining testing, but is not completely prohibitive in having a paternity test ordered. You will want to give your attorney the complete history of the case, including that with the mother and child, so they can determine if a paternity test is a proper request in your case.pater.jpeg

Father's Day - Five Rules to Follow for Divorced and not Divorced Fathers

  • 22
  • June
    2015

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Father's Day was just this past weekend. I hope every Father out there got the tie he wanted or the drill he needed. More importantly, I hope every Father out there got to spend real quality time with their son or daughter. The third weekend in June is always set aside for Father's Day. We know when it comes each year. Mother had her day in May, and now it is time for Dad. Whether you are divorced or getting divorced, the first three rules are little known, but important, items to keep in mind. The last two rules are for every dad regardless of his marital status:

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1. Father's Day weekend begins at 6:00 p.m. on the Friday before Father's Day and, at Dad's election, can be extended to end at 8:00 a.m. on the following Monday. The Texas Family Code sets out the standard Father's Day weekend as ending at 6:00 p.m. on Sunday. As a result, I see Divorce Decrees and Final Orders that routinely have Father's Day weekend end at 6:00 p.m. on Sunday. The election by Dad to extend to the following Monday is often forgotten or overlooked. This election is subject to the Court's best interest approval but since school is out there can be little good arguments against the election. Make sure you make this election if going through a divorce and if not currently in your possession orders, ask your lawyer to include it next time you are revising your final orders.


2. Yes, Dad can back up his summer possession to Father's Day weekend. Yes, that gives the appearance that he is getting more than his allotted 30 or 42 days in the summer (depending on how far he lives from the kids). However, he is not getting more time. He is just using the choices given him under the Family Code. There is nothing you can do about it so get over it. The Legislature of Texas made a conscious decision in crafting and drafting the possession schedules in the Texas Family Code. The law says, for one month, the tables turn and Dad becomes the primary conservator and Mom gets the weekends. Know that it is going to happen. So, if your particular historic family summer plans or activities will be conflicted by this, then negotiate or present to a judge a modification of the way the Legislature has it set up. Once it is set in stone, the chances of getting it corrected are very, very, very low.


3. Don't do anything that would interfere, screw up, get the way of, or otherwise impinge in any way on Father's Day (or Mother's Day). I can't tell you how many times I have had clients who plan something (vacation, outing, recital, soccer game - you get the picture) on Father's Day. Father's Day and Mother's Day are sacrosanct to Judges. There is no excuse nor good enough reason to justify messing with Father's Day. You'll lose every time. So, quite simply, don't try it. Even if Dad is behind in child support, or never visits the kids, or makes your life miserable all the time, this one weekend a year is going to be his. Grin and bear it.

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4. For Dad's with teenagers, I would remind you and refer you to the great Samuel Clemens, more famously known as Mark Twain. My own Father loved the following and often repeated it to me. He was also known to send this quote to me often as I grew into manhood. I wish he would have been on this earth for the past 25 Father's Days, but since he hasn't I am reminded of him and our relationship every time I read or remember this quote. It would be wise for every Dad with teenagers - girls or boys - to commit this to memory.
"When I was a boy of fourteen, my father was so ignorant I could hardly stand to have the old man around. But when I got to be twenty-one, I was astonished at how much the old man had learned in seven years."


5. Perception is everything. How you are perceived by your son or daughter and how you perceive your son or daughter is the basis for your relationship. Always remember that and when your time here on earth comes to an end - it is only that perception that will live on in your child's mind. Build the foundation for their perception with much care, honesty, love and time. If you do, it will last more than a lifetime. 

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Father's Day-From a Family Law Attorney's Perspective

  • 19
  • June
    2015

Thumbnail image for jimsmall.jpgFather's Day can be a difficult time for many children due to many factors including divorce. As a result, many children don't have the opportunity for what many consider a "traditional" Father's Day. I'd like to share some thoughts about the importance of this day and how you as a divorced parent can make this holiday meaningful for you and your children. My perspective is from both a son who has lost his father and a practicing divorce lawyer for over 20 years.


1. Keep Your Child's Best Interest In Mind. If it's within your power to help your child spend some time or just talk with their father on Father's Day, make it happen. Most parenting plans state that a father have visitation with their child for the Father's Day weekend. Mom's should encourage the children to see their father and put the bad feelings aside so that they can enjoy the holiday and strive to reduce the conflict.

2. Have a Plan for the Weekend. If you are blessed to be able to spend Father's Day weekend with your children, do it! Many times I have seen fathers decline to exercise their Father's Day weekend visitation because they want to "do what they want" for the weekend. You can always go to the golf course next week. Creating a tradition for your children on how to spend Father's Day weekend may last them a lifetime and become something they pass to your grandchildren. Start a legacy for them.

3. Make the Time Special. Mother's Day and Father's Day are not about the gifts. Father's Day is an excellent occasion to try to reinforce the importance fathers play in a child's life. Talk with your children and listen carefully. Encourage your child to express his or her feelings freely.Remember that children who have strong, loving relationships with both their mother and father grow up the healthiest. On Father's Day, we should remember the words of Sigmund Freud: "I cannot think of any need in childhood as strong as the need for a father's protection." Happy Father's Day to all the dads. 

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Planning for the Financial Aspects of Your Divorce

  • 17
  • June
    2015

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Making the decision to divorce is a serious matter that comes with both emotional and financial consequences. Many of my clients over the years have simply overlooked the financial aspect of divorce due to the emotional pain that comes with their (or their spouses) decision to divorce. Here are a few things to consider BEFORE you file:

1. Know The Assets and Liabilities of Your Estate-Often, one spouse "controls" the finances of both parties and the other spouse has no clue what the financial state of the marriage is. Take the time to gain as much information as early as possible and make copies of all the statements you can find, including bank accounts, brokerage accounts, retirement, pension, even credit card accounts. Know how much you owed on your mortgage and vehicles. Also, make copies of your last three years of tax returns.

2. Create a Spreadsheet-Once you have gathered as much information as you can, create a spreadsheet listing all of your assets, liabilities, and income sources. Begin tracking your expenses. You should also list and take pictures of all of your valuable items such as jewelry, keepsakes, art and collectables as these items tend to "disappear" during a divorce.

3. Budget for the cost of your divorce. Many times the budget for the cost of your divorce is overlooked. Decide how much you are going to set aside to finance the expenses for your divorce and what accounts you are going to use to pay them. Also, start thinking about the life you want to lead post-divorce and determine how you will achieve that goal. If you don't already have credit in your sole name, you may want to consider obtaining an individual credit card.

4. Consider Options to Litigation-Litigation is expensive. Consider other methods for resolving your divorce issues such as collaborative law or mediation. At least in those alternative dispute resolution methods, you have some control over the outcome of your case.

Taking the time to prepare for your divorce will greatly assist your attorney and hopefully help you to plan financially for your "new life".

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Will My Case Get Dismissed?

  • 16
  • June
    2015

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for johndenke_SMALL1.jpgIn practicing litigation, I have often times noticed that clients are not aware of the potential that is out there for their case to get dismissed either by a party or by the court. While the risk is decreased when there is heavy action on a case, it is still there and should be recognized by both an attorney and his or her client.

When a case is filed, usually the court is going to require some action be taken on it within a certain period of time. The periods of time can vary, but in courts with a heavier docket, the time period can be shorter to help keep up with the caseload in that particular court. The court is typically going to set a dismissal for want of prosecution date, or "DWOP" date for short, at which time a case will be dismissed if it has not either been finalized or set for trial. This is essentially to help work cases to resolution in a particular court by letting the attorneys and parties know that they need to obtain an end result to their case by a certain time.

At the actual dismissal hearing, the parties will need to show up to the court and set the case for trial. Some courts require that a scheduling order be presented for signature at this dismissal hearing. A scheduling order lays out all of the deadlines for discovery and trial that each party will need to follow in finalizing their case. If a party does not show up to the dismissal hearing, then either their pleadings or the entire case can become dismissed.

Parties sometimes choose to voluntarily dismiss their case with one another. This can be accomplished through what is called a notice of nonsuit. Usually, the petitioner is going to file this notice. The nonsuit will not have to be agreed to by the respondent as long as the respondent has not filed any affirmative pleadings, such as a counterclaim for example. If there are affirmative pleadings, then a joint notice of nonsuit will need to be signed by both parties and filed with the court. A nonsuit of a case effectively ends the case but leaves open the possibility to file it later should one of the parties change their mind.

These are some of the more common examples of how a case can become dismissed in the family law arena. Other ways include filing to dismiss for lack of jurisdiction or lack of standing. If you currently have a family law case, taking note of a dismissal date and its effect on your case will be important in ultimately reaching a final resolution to your case. While it may not ultimately result in your case being dismissed, it can act as an impetus to help reach a conclusion to your case.

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There's No Place Like Home - Residence Restrictions

  • 09
  • June
    2015

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for johndenke_SMALL1.jpgWhen parents separate or divorce, it will likely mean that at least one parent will have to make a new home for themselves and the children. Where the parents respective homes will be can cause some conflict over determining what locale the children will reside. Courts have contemplated this issue and come up with ways to address it in their decisions on cases.

First, we must determine what the issue is we are talking about when we know parents will separate. Usually, one of the parents in a divorce case or a case involving custody will be designated as the parent with the right to determine the children's primary residence. With this determination can come some restrictions on the children's future residence, specifically the geographical boundaries the children will have to reside in with the custodial parent.

When a case is pending before the court, usually there will be standing orders in place which state that neither parent can remove the children from the State of Texas for the purpose of changing their primary residence. Thus, while litigation is going on, the children usually have to remain in Texas, unless the parties have agreed otherwise or the court has made specific orders to the contrary.move5.jpg

Once a case does reach a final resolution, the court can impose a residence restriction on the parent with custody on a final basis. A typical restriction would be a geographical limitation on the parent with custody to Denton County and contiguous counties if the case was in Denton County. So, the parent with custody would have to reside with the children in Denton County or any county touching Denton County on a map. This limitation is designed to allow the parent without custody to remain in close contact with the children in the future without having to travel long distances for possession and access.

For some parents, this limitation can pose a problem when they want to move outside of the restrictive area either at the time of the divorce or custody case or in a later modification suit. A parent desiring not to have this limitation will need to show good reasons to the court why allowing a long-distance move with the children is in their best interests. A few examples of valid reasons would be lack of involvement of the other parent in the children's lives, need for financial reliance on those in another location, or prior plans to move with the children that the other parent was either aware of or previously consented to.

When dealing with residence restrictions, a parent should be mindful of the limitations they place on them and the possibility that the court will order one in a final order or decree. If you as a parent desire to move out of the general restrictive area, you will need to discuss this with your attorney and come up with a strategy on presenting this issue to the court. There are many reasons why a parent would want to move away with the children, but the weight that the court will place on a particular justification will need to be properly assessed by your attorney.

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