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Conservatorship is the legal designation that each parent has with regard to their child. In Texas, unless there are concerns about the safety and fitness of a parent, the law presumes that the parents should be appointed joint managing conservators of their child. This designation gives each parent the right to be equally involved in their child’s life and to make decisions on behalf of their child.

Some of the rights typically granted to each parent under a joint managing conservatorship are:

• The right to make educational decisions for the child.
• The right to seek medical treatment for the child.
• The right to consent for the child to have surgery.
• The right to take the child to a counselor, psychologist or psychiatrist.

The Right to Primary Custody of the Child

Most disputes in custody cases or divorces are focused on the right to have “primary custody” of the child. This right allows a parent to determine where the child lives most of the time. Depending on the possession schedule that the non-custodial parent receives, the time that the child spends with each parent may be similar, regardless of which parent is awarded primary custody of the child. The main benefits of being awarded primary custody of the child are the ability to choose which school the child attends and to receive child support from the other parent.

When a Joint Managing Conservatorship is Not Appropriate

In situations where one parent is determined not to be safe or appropriate, the court may appoint one parent the sole managing conservator of the child and the other parent a possessory conservator.

Circumstances that could lead to such a designation include:

• A parent being addicted to drugs or alcohol.
• A parent having certain criminal charges.
• A parent having a history of domestic violence.
• A parent being uninvolved or absent from the child’s life for a long period of time.

When a parent is appointed the sole managing conservator of the child, they are granted the exclusive right to make all decisions for the child, including the rights mentioned above. The parent granted possessory conservatorship of the child will have the right to possession of the child, to receive information from the other parent and from the child’s school, doctors and counselors.

If your child has never been charged with a juvenile offense before they may be eligible for pre-court deferred probation. Juveniles who are charged with a criminal offense are generally only eligible for a pre-court offer if they are facing a minor misdemeanor charge, such as shoplifting.

Deferred probation is the simplest form of probation a juvenile can be offered. It comes with less restrictions than regular probation and is the shortest probationary period available. Additionally, successful completion of deferred probation also allows a child to avoid having a conviction on their record.

Even if your child is not offered pre-court deferred pronation, they may still have an opportunity to receive deferred probation from the Court through agreement with the State or after a hearing before the court.

If your child is not offered deferred probation, they will most likely receive an offer of regular probation. The term for regular probation can last anywhere from six months all the way up to their eighteenth birthday, depending on the nature of their current charge and history of juvenile charges. Regular probation can require any of the following conditions:

• Weekly meetings with a probation officer
• Community service hours
• Counseling
• Compliance with school attendance and behavioral requirements
• Curfew
• Drug testing

If your child has a history of juvenile charges, has a more serious offense or several charges, they could receive Intensive Supervision Probation. Intensive Supervision Probation requires more restrictive conditions than regular probation, such as a stricter curfew, additional counseling or community service hours or corrective classes.

The Court could also require your child to participate in a live-in placement at a juvenile treatment facility. Placement referrals often require that your child live in  a facility away from their home for a period of six to twelve months.

If your child has numerous charges, their charges are especially serious or they have previously been on Intensive Supervision Probation or sent to a juvenile treatment facility for placement previously, they could be sent to the Texas Youth Commission.

Financial circumstances can change over time. Texas law has taken this into account in allowing for the modification of the amount of child support ordered when one or both parents’ financial circumstances change.

A request to modify a child support order can be filed by either the person entitled to receive support for the child or by the person obligated to pay support.

REQUIREMENTS FOR A MODIFICATION

In order for a modification to be approved by the court, the person requesting the modification must prove that a substantial change in circumstances has made the modification necessary.

Such changes could include:

• Loss of employment
• Disability of either a parent or the child
• A promotion
• A second job
• The birth or adoption of a new child

OPTIONS FOR MODIFICATION

Modification of the court order could result in the child support amount being increased or decreased.

A modification could also allow the court to determine that the child support obligation should be terminated entirely. This typically occurs when one or all of the parties’ children have met the legal requirements to be considered an adult, such as turning eighteen years old.

In some instances, a modification could result in the court extending the time period when the parent required to pay child support is ordered to do so. This can happen when the child appears to have a physical or mental condition that will prevent them from living independently as an adult, meaning that a parent will need to continue to provide care for the child after they are eighteen years old.

AGREEMENTS ARE NOT ORDERS

While it may be possible for you to reach an agreement regarding the modification of child support with your child’s other parent, it is extremely important to obtain a new court order for the modified amount of child support. Failing to do so can come with unfortunate consequences.

If you are ordered to pay child support, the amount ordered is the amount that the court will require you to pay until a modification has been finalized. Even if your child’s other parent has agreed to accept a lower amount for child support than was previously court ordered, you are still legally required to pay the court ordered amount and can be held accountable for failure to do so despite that agreement. Not only could you be ordered to pay the full amount of your court ordered child support, you could also be required to pay interest on any unpaid portion.

Conversely, if you are receiving child support and your child’s other parent has agreed to pay a higher amount of than the previous court order requires them to pay for child support, they are not legally obligated to do so, and could stop paying at any time if an official court order is not entered.

An agreement is not official until a final court order granting the requests of the parties is signed by the judge.

When parents seek a divorce or to establish paternity or custody of their child, a geographical restriction that the child must live within will typically be implemented by the court. The geographical restrictions established by the court or the parents could restrict the child’s residence to a specific county, multiple counties near where the suit takes place, or a specific school district.

Even if there are not yet any court orders restricting the child’s residence to a specific area, if both parents have been living with or near the child, one is likely to be ordered by the court if a dispute arises over the area the does or may child live in.

Generally, a geographical restriction only applies when the non-custodial parent resides within the area designated in the geographical restriction. If the non-custodial parent moves outside that area after the order is entered, the restriction no longer applies.

IMPLEMENTING A GEOGRAPHICAL RESTRICTION

When initially establishing a geographical restriction, both parents should carefully consider any requests to the court or offers of settlement made to the other parent regarding the area selected.

• If the area is too large, it could allow the one of the parents parent to move quite some distance from the other parent’s residence without violating the restriction. This could make it more difficult or more expensive for the non-custodial parent to visit the child regularly.
• If the area is too small, it could make it more likely that the restriction will be negated entirely by a move outside that designated area by the non-custodial parent.

SEEKING TO RELOCATE OR TO PREVENT RELOCATION

If you are seeking to relocate with your child outside the area where the child currently lives, you are required to notify the non-custodial parent of your intent to move. The non-custodial parent then has the right to challenge your ability to move with the child by filing suit with the court.

If you anticipate that the non-custodial parent will challenge your right to move, you will need to be prepared to show the court that you should be allowed to move. The following factors could be convincing to the court:

• The non-custodial parent has and has not regularly visited with the child or been involved in their life.
• The non-custodial parent has a history of being physically abusive towards you or the child or a pattern of threatening or harassing you or the child.
• The non-custodial parent is involved in criminal activity or is abusing drugs or alcohol.
• Relocating would benefit the child somehow, such as allowing them to be closer to extended family or to attend a higher rated school.
• You have lost your job and, despite your best efforts, you have been unable to find a similar position within the area of the geographical restriction.
• You have remarried and your spouse has received a promotion or been transferred to another area.

Conversely, if you are the non-custodial parent and you hope to prevent the request to relocate from being granted, you will need to be prepared to respond to any arguments that the custodial parent may make based on the factors above. It may also be helpful to show the court how the move will adversely affect you or the child.

Brandi Underwood has represented parents seeking authorization to relocate as well as parents seeking to enforce or establish a geographical restriction. She can answer any questions that you may have about the benefits and hazards of establishing either a broad or restrictive geographical restriction. Brandi Underwood can also provide direction on the most effective evidence and arguments to make when seeking to obtain or prevent relocation. If you are involved in a divorce, paternity suit, custody case or modification, contact Brandi Underwood to discuss all your options.

Divorce is expensive and it will inevitably strain your finances. It is possible to limit the damage if you have the right guidance, however. Below are a few tips to help you protect your finances while going through a divorce.

INVENTORY ALL YOUR ASSETS AND DEBTS

At some point during the process, your attorney will ask you to complete a formal document that lists all the assets and debts that may be subject to division in the divorce. You can and should begin working on this process immediately.

All assets such as your home, vacation or rental house, vehicles, retirement accounts, and household and personal items should be included. You will also need to list any debts that you owe, including a mortgage, credit card debts and loans.

REVIEW YOUR RETIREMENT ACCOUNTS

Retirement accounts, including IRAs, 401ks, pensions and annuities are subject to division in your divorce. This is true even if one spouse does not have a retirement account or has contributed very little to it during the marriage. It is important to determine what funds were contributed to your or your spouse’s retirement accounts during and prior to your marriage and to provide documentation of those amounts to your attorney.

KNOW THE NATURE OF YOUR PROPERTY

Separate property is classified as the property that you owned prior to marriage and property that you received as a gift or that you inherited either prior to or during your marriage. This can include funds contained in accounts or retirement plans and tangible assets.

Any property that was acquired during the term of your marriage is presumed to be community property. This is true regardless of which spouse purchased or paid for the property or whose income provided the funds to make the purchase.

There is a presumption that all property subject to division in a marriage is community property. That presumption can be overturned by providing documentation that the property was acquired through gift or inheritance or was owned prior to marriage.

DOCUMENT EVERTHING

You are entitled to receive any property that you can prove is your separate property without splitting the value with your spouse. However, if you can’t prove it, you may not receive it. You will need to work on obtaining any documentation that you can to support your argument that each asset claimed to be your separate property is actually your separate property.

In order to equalize the division of assets for each spouse, the court will need to know the value of each item. It is common for each spouse to provide a value for those community property assets that differs from the value that the other spouse suggests. If you want the court to use the value that you suggest, you will need to be prepared to show evidence of the value that you claim.

REALIZE THAT YOU MAY NOT RECEIVE EVERYTHING THAT YOU WANT AND YOU MAY RECEIVE SOMETHING THAT YOU DON’t WANT

Most people believe that keeping their finances separate during their marriage will allow them to maintain those bank accounts or assets in a divorce. This is not the case.

Even if you have maintained your own bank account throughout the marriage and only purchased assets with the funds contained in that account, the law provides that any income earned by either spouse during the term of the marriage is community property. Thus, your income, and any assets purchased with it, is subject to division in a divorce.

This is true even if your spouse was unemployed for extended periods of time during your marriage, regardless of whether their unemployment was due to a voluntary election not to work or a drug or alcohol addiction that prevented them from maintaining employment. Your unemployed spouse is likely still going to be entitled to an equal division of the marital estate.

While the law may not always seem fair, it does provide specific rules that each party can rely on. Unfortunately, those rules may result in your spouse receiving a portion of the assets that you believed were yours or you being required to pay a portion of the debts that you thought would be your spouse’s responsibility.

HIRE AN EXPERIENCED FAMILY LAW ATTORNEY

While you are unlikely to receive everything that you want out of a divorce, being represented by the right attorney will help you protect your finances.

An experienced family law attorney can help you avoid unnecessary losses and prepare to manage those losses that may be unavoidable. More importantly, an experienced family law attorney can assist you in preparing to present your case to the court in a light most favorable to you, thereby ensuring that you receive everything that you are entitled to under the law.

While there are some standard expenses associated with most divorces, the cost for those expenses and for additional work on the case can vary greatly. There are some things that you can do to keep the costs down.

Obtain an experienced family law attorney. While it is may seem like representing yourself would be cheaper, it often ends up being much more expensive. If the correct pleadings are not filed, hearings requested, or discovery requests delivered, the case may end up costing more in the long run when you have to pay an attorney to correct the mistakes made. Additionally, if things are not done accurately, you may miss out on those financial or personal benefits that you might have been entitled to if you had had an experienced attorney guiding you.

Attempt to negotiate with your spouse. This can be done informally through a casual conversation if you are able to speak amicably to one another. If not, it can be done through your respective attorneys. Make an offer. Your spouse may reject it, but perhaps it will open up negotiations that will lead to a settlement.

Schedule mediation early. You will be required by the court to attend mediation before you can go to trial, delaying scheduling will only serve to delay the process and could cause more work if you are scrambling to get mediation done before trial.

Decide early on in the case if you plan to send discovery requests to the other side. Discovery can be very expensive. However, failing to identify and divide that bank account that your spouse has been secretly contributing to for years could be much more expensive. Some cases do not require discovery, many do. Again, this process can delay your ability to go forward to trial if you wait too long to get it started.

Try to keep things as amicable as possible. The more you fight, the more you pay. While you may be hurt and angry, behaving improperly or arguing merely for the sake of punishing your spouse will only serve to cost you more money.

Do not create reasons to fight. Make sure that your actions will benefit your case. Do not start dating until you are legally divorced. Do not send hateful text messages or emails to your spouse. Do not post pictures or statements on social media that advertise adultery, extravagant spending, substance use or information about your divorce. Do not throw all your spouse’s personal belongings out. Remember that what you say and do can be used against you and could end up costing you more money.

Respond promptly to requests from your attorney or orders of the court. If you receive discovery requests from your spouse, provide responses to them. Failure to do so could result in both legal and financial consequences. Ask you attorney for specific directions on how to handle the process. Respond promptly and completely. The more requests that your attorney has to make for you to provide documents or responses and the longer it takes to receive them, the more their fees will be.

Remember that any work that your attorney does on your case will result in a charge for legal fees. If possible, combine your questions to one email or phone call rather than sending multiple emails or making several phone calls. Ask for advice and act accordingly. Your attorney should fight for you, but they can only do so within the parameters of the law. Do not make unreasonable request or arguments.

Contact Underwood Law Office today at (940) 372 0931 for a free consultation about your case.    

Going through a divorce is difficult under the best of circumstances, having to spend an extraordinary fee for it only adds insult to injury. Unfortunately, as you may already be aware, legal matters are often expensive. There are specific costs associated with your divorce that you will are standard and you may be unable to avoid, so plan ahead and factor them in to your estimated expenses. Typical costs include:

• Filing fees. This is the fee for filing the divorce and will be paid by the spouse who files first. They are roughly $300.00.
• Service fees. These fees are the costs for serving your spouse with notice of the suit, they typically cost between $80.00 to $300.00, depending on the method of service, the number of documents being served and the number of attempts required to accomplish service.
• Retainer fee. This is the amount that your attorney will ask you to pay to retain them to represent you in the case. They retainer fee will be applied to the legal fees that the attorney charges for working on your case. Most attorneys charge at an hourly rate between $250.00 and $500.00 an hour and most require a retainer fee between $2,000.00 and $6,000.00. Though it is not always the case, it is likely that your case will cost close to or more than that original retainer fee.
• Mediation. The fees for mediation include both the amount paid directly to the mediator and legal fees paid to your attorney for their time while attending mediation. Mediator fees vary, but typically cost between $600.00 and $1,200.00 per spouse. Mediation is scheduled for an eight-hour day, though it may end early if a settlement is reached or an impasse called or may run late if additional time is needed. Estimate that you will be paying your attorney for that eight-hour day. Many attorneys will ask that you prepay their time for attending mediation.
• Discovery fees. If you choose to send discovery to your spouse, be prepared that they will likely respond by sending you similar requests. Discovery is time consuming. It takes me between an hour and three hours to draft discovery requests and between two to six hours to respond to discovery requests. Some attorneys will ask that you prepay the estimated legal fees for discovery since the process can be expensive.
• Subpoenas. If you have a temporary orders hearing or trial, it is possible that you may need to send formal requests for witnesses to appear in court or to request that a business or entity provide specific records. Each subpoena will likely cost between $100.00  and $300.00 for service.
• Trial. If you are unable to settle your case informally or at mediation, you will likely be going to trial. Trials are expensive, perhaps the most expensive part of the case. Most attorneys will ask you to pre-pay a trial retainer. Typically, trial retainers range from $3,000.00 to $10,000.00, depending on the complexity of your case.

Contact Underwood Law Office today at (940) 372 0931 for a free consultation about your case.