Lewisville Family Law Blog

Reasonable Discipline - What is Appropriate?

  • 18
  • September
    2014

Thumbnail image for Thumbnail image for Thumbnail image for johndenke_SMALL1.jpgIn the wake of the recent Adrian Peterson controversy, http://www.people.com/article/minnesota-vikings-adrian-peterson-reinstated, many parents might ask themselves what is reasonable discipline for their children in the eyes of the legal system.  Of the 50 states, 29 of them, including Texas, permit corporal punishment of a child as a means of reasonable discipline.  Texas permits a parent or grandparent of the child, along with a stepparent or guardian of the child, to use corporal punishment for reasonable discipline also.discipline.jpg

Although the Texas Family Code permits such corporal punishment, there are limits on the amount of corporal punishment allowed.   The determination of whether corporal punishment is excessive is done on a case by case basis, but a parent or other individual administering corporal punishment to a child can risk being charged with the crime of injury as designated in the Texas Penal Code.  In that code, a person commits injury to a child if he intentionally, knowingly, recklessly, or by criminal negligence causes bodily injury to a child.  The offense is a felony and punishable by significant jail time and fines.

discipl;ine.jpgSo the question becomes what is permissible corporal punishment and what is not permissible? Well, the cases on the subject come down to a fact specific analysis to be done on a case-by-case basis. The judge or jury can determine, after hearing the evidence on what type of punishment was used and what type of injuries were sustained, whether the punishment was reasonable or rose to the level of criminal conduct. The person charged with injury to a child can, for example, bring in evidence such as doctors and psychologists to dispute the claim that the corporal punishment used was not reasonable by the parent. In addition, interviews of the child and evaluations from investigators can provide insight into whether the form of punishment used was unreasonable.

Parents need to be aware of the fine line that can exist between whether the way they discipline their child will be seen as proper discipline or child abuse in the context of a legal proceeding. Otherwise, they might be caught up in a legal action alleging family violence, or, as is happening to Mr. Peterson, a criminal case for injury to a child.discipline3.jpg

The Old 1-2-3 Punch of Family Violence

  • 16
  • September
    2014

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By now you've probably seen the incriminating video of Ray Rice, the former NFL running back for the Baltimore Ravens, popping his then-fiancee in the face and knocking her out cold in an elevator. It's not a pretty sight, and I'm sure Mr. Rice would take like to redo the whole incident over. If only he could have gotten hold of the footage recorded by the elevator security camera before it was released to the media. . . .

In Texas, Family Violence is defined as (1) violence by a member of the family or household against another member of the family or household, (2) abuse by a member of the family or household against a child of the family or household, or (3) dating violence against a member of a dating relationship or a third-party victim. See Section 71 of the Texas Family Code. So if the NFL star's incident would have been here in Texas, he could be subject to criminal prosecution for the crime of assault, and he could also be subject to the harsh legal consequences of family violence in the Family Law arena. The Texas Family Code can give the perpetrator a 1-2-3 punch right back.arrestfamilyvio.jpg

Punch 1 Because Family Violence poses a threat that reasonably places the victim in fear of imminent physical harm, bodily injury, assault, or sexual assault, the first action is to obtain a Protective Order. This Protective Order "protects" the victim from the one committing the harm. I use quotation marks around the word protects because the Order itself is just a piece of paper (so how can that protect?). The Protective Order puts the police on notice that the perpetrator is dangerous to the victim and the victim only has to reach out to the police if the perpetrator violates any of the conditions of the Protective Order. These restrictions usually order the perpetrator to stay a minimum distance from the victim, restrict any and all communications with the victim, and prohibit the perpetrator from even possessing a firearm at anytime.

Punch 2 If Family Violence is found to have occurred, then the perpetrator of that violence will be responsible for all costs of going to Court, including attorney's fees of the victim. If the perpetrator and victim are seeking a divorce, the Family Violence finding will likely give the victim a right to a disproportionate share of the marital estate. This simply means that the victim will be entitled to a significant amount more than the perpetrator. We see these disproportionate splits usually being in the neighborhood of 60% to 70% in favor of the victim in north Texas.courtroomviolence.jpg

Punch 3 If children are involved, then the perpetrator may very well have just given up a crucial right to be considered a Joint Managing Conservator of the children. The perpetrator might be restricted to being a possessory conservator only, with no shared rights and duties of the children for such decisions as education, medical, and psychological.

Now, since the debacle has been unfolding with Mr. Rice, his then-fiancee is now his wife, and she appears to be sticking by his side without claiming that he committed any Family Violence against her. Of course, that's her right to exercise as well. And often it is the case that the victim refuses to come forward or seek outside help. North Texas has several resources available to victims of Family Violence, one being Friends of the Family (www.dcfof.org). Their website has some very useful information and contact numbers. They even have on staff an attorney who can help obtain a protective order in emergencies. It is then also very important to seek good counsel as to how to proceed with a divorce, child custody, child support, etc.abusi-2.jpg

I am Finally Calling a Divorce Lawyer - I need to know what?

  • 15
  • September
    2014

Thumbnail image for Thumbnail image for Thumbnail image for CT0R4007.jpgSo, you have decided that you can't take it anymore and you need to speak with an attorney regarding the possibility of filing for divorce. In order to make that initial call as informative and productive for you as possible, here is some basic information the paralegal for the law firm needs to obtain when you are making that first call.divorce2.jpg

1. Complete names of the parties. This includes full legal names. You will also need to provide any other last names, including the maiden name.

2. County of residence - what County do you live in? This is very important for making sure that your lawsuit is filed in the proper venue.

3. Are there minor children of the marriage? Do any of the children have special needs? Are there minor children from a prior marriage?

4. Generally, what kind of property is involved? Is there a marital home? Does either party own a business? If so, what is the full name of the business? Are other individuals involved in ownership of the business? What are their full names? Is the business a corporation, limited liability company (LLC), or a sole proprietorship? Are there retirement accounts, mutual funds or stocks that will need to be divided? What bank accounts does each party have?

5. What kind of motor vehicles are there?

6. Was a premarital agreement signed? Were any post-marital agreements signed, such as a "buy-sell" agreement for a business?

. The more "initial" information you can provide during the first telephone call to the attorney's office, the better able the paralegal is to set your appointment with an attorney who has specialized knowledge and experience for your case.phonecall.jpg

Do you know what the Responsibilities of the Paralegal Assisting with your Family Law Case are?

  • 12
  • September
    2014

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INFORMATION GATHERING, ORGANIZATION, AND HELP! Gathering background information, facts, and case development are very vital to your Family Law Case. The Case Management Paralegal assigned to work the file with the attorney that you have hired will have day-to-day contact with you throughout your divorce or modification case. This contact will include gathering of background information and necessary documents to build your claims. Beyond just obtaining the information, it must be kept in an organized manner which allows quick access to an email or text or picture that is needed to make the point needed. Your paralegal has the primary responsibility to build these data files so when it comes time to prove them before the Judge or a Jury all the facts and documents are ready.

Information gathering may include records request for police reports, bank records, medical records, and counselors records - just to name a few. Going through a divorce or a custody battle may be one of the most difficult, if not the most difficult, time in your life. There is so much for you to consider and decide about financial issues and parenting decisions. Your paralegal will have done this thousands of times in the past and while you are dazed and confused at the onset of this situation, an experienced paralegal is trained to be calm, collected, and help you at every turn in getting the information the lawyer needs to handle your case. Close contact with the paralegal assigned to your case, especially at the start of the process, is not only invaluable but puts your case on the right track for successful resolution. There is no question to small that your paralegal can't answer and no question too big that your paralegal can't get the answer from the attorney in charge immediately and put your mind at rest.

As the case moves through the process things will happen - they always do. Your paralegal is there every Monday thru Friday to take down everything that is going on for you. Somebody not return the child on time? Get the information to your paralegal right away so it can be entered on the time line. Hear from the kiddos that a new woman (or man) is spending a lot of time around the house on weekends? Let the paralegal know immediately. Just discover that your estranged spouse with no money bought a new sports car or took a vacation to Puerto Vallarta? Definitely get that information to your paralegal. The paralegal is the first radar for your case and when you get this important information that could impact your case to them, it will be efficiently stored and disseminated to the attorney and your team.iguanaaffair.jpgKeeping track of the facts and evidence is an equally important job and responsibility of a Paralegal. They must be organized in order to compile the research, background information, facts and supporting documents necessary for the development of your case. The efficient organization of all this information is critical once the time comes for trial preparation, mediation, or a settlement conference. It is both frustrating and expensive to try and recreate a situation that happened 8 months ago. A proven paralegal who has managed cases for years knows how to organize and safe keep the important evidence and facts in your case. When matters of evidence are needed to make a persuasive presentation of your position for final resolution, your attorney only has to make strategic decisions on what to use - not spend his or her time trying to find what to use.

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My Spouse is Hiding Something, and No--I'm Not Paranoid

  • 11
  • September
    2014

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for ted ogilvie_SMALL.jpgA wife who suspects her husband is hiding something is usually right.  A husband who thinks his wife is seeing someone else behind his back is usually right.  Not always, but most spouses who have been married a long time and familiar with the others' usual and customary habits, recognize strange behavior when the others' habits are interrupted or replaced with secretive, unusual conduct that is inconsistent with normal behavior.  Often it's just a gut feeling; frequently, however, it's evident by receipts, notes or private texts.  But how do you break through to that confidentially held evidence?

                  The suspecting spouse could hire a private investigator.  Oh my, the reports that lawyers get from "Private Eyes" are often very telling!  Sometimes they're noprivate-investigator-long-island-2.jpgt. 

                  The lawyer could serve formal discovery on the suspected spouse, expecting that in thirty days the corruption will readily surface for all to clearly see.  But this doesn't always yield what we want it to, either.

                  Or the suspecting spouse could just outright ask the other one to "fess up."  But that's also not usually all that revealing.

                  This kind of scenario reminds me of one I witnessed the other day when I had my car serviced.  While I was in the waiting area, the service writer approached another fellow "waiter" and said, "We couldn't get your car to make the noise you described earlier, so there wasn't anything we could really do.  But if it keeps doing it, let us know."  I know I've had that same feeling of exasperation before, when I would hear a noise or feel a vibration in my car that could not be replicated by the mechanic.  Even on the next visit, after hearing it repeatedly and incessantly after the first unsuccessful trip to the shop, it was still undetectable.  Arrrggggghh--how  frustrating!

                  I've had similar situations with clients who come in and tell me that they've been to attorneys who listened to their stories of suspicion and tried to find the "smoking gun," but nothing turned up.  One extra method quality family law firms will include in their services is the incorporation of a Certified Fraud Examiner.  In our boutique firm we have the special advantage of incorporating the services of a Certified Divorce Financial Planner ("CDFP") who is also a Certified Fraud Examiner ("CFE") to help trace accounts and piece together incomplete marital estates.  Often our reliable CDFP/CFE, although a financial expert and not a lawyer, can point us in the right direction that the other spouse thought would never get uncovered.

  Divorce_Hidden-Assets.jpg                We don't like to give up in our firm when a client presents with a tough scenario that has been elusive to previous attorneys.  We look to achieve success, particularly when the client is believable and the possibility exists.  That's why our team approach digs to reveal the flaw in the other spouse's presentation.  When the "Ah-Ha!" moment finally surfaces, that's when the other side knows the jig is up.  If they don't, the Judge will soon enough tell the bad actor what's up!

                  So, it is important when looking for the "right lawyer" to query about the firm's methods to bust the other side's secret shell.  Make sure you're setting yourself up for success!

Spousal Maintenance - Eligibility, Duration, and Amount

  • 10
  • September
    2014

Thumbnail image for Thumbnail image for johndenke_SMALL1.jpgIn a divorce, sometimes a party will be able to qualify to receive periodic support payments from their spouse post-divorce. In Texas, this is characterized as spousal maintenance. To be eligible for spousal maintenance, a spouse must establish certain criteria to the court to receive these payments.

First, the spouse receiving maintenance must show that, after dissolution of the marriage, they will lack sufficient property to provide for their minimum reasonable needs. Minimum reasonable needs typically mean essentials like the mortgage or rent, utilities, car payments, insurance, food, and clothing.

Next, the spouse will need to show that they lack sufficient property to pay these expenses. The court will look at things like the spouse's income, the spouse's separate property, and the property awarded to the spouse in the final decree of divorce. Further, the spouse will need to show that they have made efforts to find reasonable employment or procure income sufficient to meet their needs.images-30.jpeg

Just because a spouse can meet these three elements, there still remain statutory bases for maintenance that a spouse must meet to be eligible. One basis is a marriage that has lasted for 10 years or longer. If a marriage has lasted for 10 years or greater, then a spouse can possibly receive up to 5 years of spousal maintenance. If a marriage has lasted for 20 years or greater, then a spouse can receive up to 7 years of spousal maintenance. If a marriage has lasted for 30 years or longer, then a spouse can receive up to 10 years of spousal maintenance. The amount of the payments will be limited to the lesser of $5,000.00 or 20% of the payor's average gross income per month.

This is not to say that spousal maintenance payments will be for the maximum duration or maximum amount, but will rather be for a period of time to allow the receiving spouse to gain appropriate employment to meet their minimum reasonable needs and will be for an amount that is needed to meet these same needs.

If you are concerned about providing for yourself post-divorce, you are going to need to consider whether you qualify for spousal maintenance. This may be the best way to help you transition to providing for yourself after a divorce without causing you to experience undue hardship.images-29.jpeg

We Settled-What Now?

  • 08
  • September
    2014

Thumbnail image for Thumbnail image for jimsmall.jpgIn my last blog, I tried to describe your day of mediation and what to expect. The negotiations are over, and you believe you have reached an agreement. What happens next?

The mediator will reduce the agreements you have reached in the form of a Mediated Settlement Agreement. You may have settled all of the issues in your case (hopefully) or some you may decide to leave up to the Court to decide (hopefully not).

The Mediated Settlement Agreement (MSA) contains all of your agreements. It is very important to carefully review the MSA with your attorney prior to signing. In Texas, the MSA is binding on both parties and is not subject to revocation. Either party is entitled to a judgment based on the MSA so there is no such thing as "buyer's remorse" once it is signed by both parties and the mediator. Typically (unless otherwise contained in the MSA), the terms of the agreement you have reached are effective immediately.divorce-settled-agreement-300x199-2.jpg

One of the attorneys for the parties will draft a final order which adds additional language more specifically setting out the agreement. Typically, the attorney who is preparing the initial draft of the order is to do so within fourteen days of the date of mediation and provide the draft to the other attorney, who then has fourteen days to agree to the draft or suggest changes. Any disputes as to the form of the order are generally resolved by the mediator. The order is then entered with the Court and your case is over.

The important thing that you have accomplished by resolving your issues in mediation is that you have had control of the resolution of your case as opposed to going through the stress and expense of going to trial and having your case decided by a Judge or a jury. If you have been considering mediation but are not sure you want to do it, I hope this series of blogs has convinced you that mediation is the better course of action to take.Just_divorced.jpg

Charity and Divorce - can they Co-exist?

  • 04
  • September
    2014

Thumbnail image for Thumbnail image for Thumbnail image for Thumbnail image for wfneal_SMALL.jpgRecently, I was challenged by Cordell Parvin, the respected Legal Coach and Author,  to the phenomenon sweeping the country known as the "Ice Bucket Challenge".   As anyone who has any presence in social media, or access to a TV, car radio or the internet knows, the point of this dumping ice water over the heads of people is to raise awareness and funds  to fight the horrendous and often overlooked disease of ALS.  The whole process was fun and for a good cause but the other unforeseen consequence was it started me thinking about this idea of charity in the world I work in everyday - divorce and child custody.

 

          The word "charity" is not often used much nor even thought about as people who once cared deeply for each other try to find ways to reduce that other person to the lowest form of human existence.  Can there be charity in divorce?   If you tithe at your church or synagogue the Courts are not going to give you much slack in that regard when it comes to alimony and child support.   When families separate and one house now becomes two - there is much more attention paid to how the money is going to be stretched to cover all the expenses than how much can be given to help others.foodpantry.jpg 

 

          The stay-at-home mom (or dad) who raised the children and still found the time and energy to serve on local non-profit boards, the PTA, or help with food pantries are required in a divorce to find a job and re-tool themselves for the work force to now survive.  A life of giving to others isn't going to serve them very well in a divorce court.  

 

          If you look at "charity" as the giving to others of material things such as money or personal belongings - then the word really has no useful purpose or significance in a family law case.  The circumstances of the situation simply won't fit that definition.  But if you view the word in its original meaning (dating back to the Romans) when "charity" connoted more a state of mind - a mentality of kindness and benevolence, then it certainly has a place in divorce and custody matters.  This view of "charity" should definitely be more prevalent and in the forefront when couples divorce or decide to fight each other.  The ancient proverb that "charity begins in the home" is probably never so needed more than in a divorce or family law matter.   The costs, the mental anguish, the worries, and all the fears would be dramatically  diminished if this simple truism were followed.  It was the family they once created and it will be the family they leave when all is said and done.  Wouldn't a little "charity" from both sides make this sad happening a little better for everyone - especially children involved and help maintain respectable relationships into the future post lawyers and Courts? charity2.jpg

          Maybe the Legislature should enact a new law requiring every parent who is thinking about filing family law litigation to have ice poured over their head.  It just might jolt them both into thinking about how "charity" should work in their situations - or maybe it will just cool them off for a while.

JUST BECAUSE YOUR DIVORCE CASE IS SETTLED DOESN'T MEAN IT'S OVER!

  • 03
  • September
    2014

Thumbnail image for Thumbnail image for CT0R4007.jpgAs a paralegal, our work is just beginning.  We now have to compile all the information we have gathered during the case along with the Judge's order or the Mediated Settlement Agreement and put all that information into an initial draft of a final order.  That takes time. 

 

            We have to put together a document that will contain all of the final decisions regarding such things as the sale of the house, the property split between the parties, and all the details dealing with the children (the rights and duties, possession and access, child support, passport information, and healthcare coverage). 

 

            This final document in a divorce matter is the document the parties will use to complete the division of the community property.    It is also the document that parents will live under for the next several years to determine when the parents have possession and access to the children, child support, and what rights and duties each parent has with regard to their children, such as medical decisions and educational decisions. paralegalstress.jpg 

 

            During this process, client contact is very important.  You know your property, bank accounts, etc. better than we do.  So when your case is settled and your paralegal calls and says, "I need. . ." be ready to help pull the information together so the process can go smoothly as possible.  When we send you the draft to review, please take your time and carefully go through each page.  This will be your Bible for the next few years - it deserves your full attention.

Protective Orders and Family Violence

  • 02
  • September
    2014

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In most family law cases, the court will be greatly concerned if there is an allegation of family violence having been committed by one of the parties. This concern can be intensified when it comes to cases involving children. The commission of family violence can affect orders put in place by the court that govern the behavior and rights of the parties.

When family violence has occurred, the party against whom it is committed may be entitled to seek a protective order against the party committing the family violence. A protective order can prohibit contact between the two parties or between one of the parties and the child. It can also ask for exclusive use of property, such as a residence, and be used for the granting of spousal maintenance.

A party who commits family violence may also face other consequences such as restricted access to the child that they have with the other party. Such contact can be reduced significantly, and even be supervised by another person or entity for a period of time. Not only will possession of the child be a factor to consider when family violence is committed, but the rights and duties to a child, such as the right to make medical or educational decisions, will be affected by an act of family violence.domestic violence.jpg

Other family violence considerations include dispensing with the requirement to go to mediation with the party that committed the family violence, the assessment of attorney's fees against that party, and the suspension of that party's license to carry a handgun.

Generally, a protective order is good for two years, but may be extended under certain circumstances to a longer period. If you have been alleged to have committed family violence, you are going to need to take immediate action to protect your interests with regards to your family and property. Speaking with an attorney is imperative to defend against family violence allegations that may affect you not only in the near future, but also in the long term as well.