Divorce Archives - Heiman Law Firm

Can I appeal my Divorce Case Judgment?

Jun 13, 2024 | Blog, Divorce, Family Law

Today, we will discuss your options, when you are dissatisfied with the result of your divorce case.

Initially, it bears repeating that in most (perhaps, all) U.S. jurisdictions, fewer than 5 percent (5%)of the filed cases make it all of the way through trial. And, of those a very small percentage are appealed. So, the odds of your having an appeal are small. Nevertheless, appeals do happen.

We have done appellate work in Texas for more than thirty (30) years, so we have learned a few things about them. To begin with, it’s important to note that an appellate court is not going to reconsider the merits of the case, and (perhaps) reverse the judgment of the trial court, merely because one party is not satisfied with the case result. Instead, the appealing party (the “Appellant” in Texas state law practice) must show that the judgment of the trial court is based on reversible error. Let’s discuss this a bit.

In order for reversible error to exist, the appealing party must show (in Texas) that:

the court made an error in its rulings; and, that error was of such magnitude that it probably caused the rendition of an improper judgment; or,
the court abused in discretion on matters for which it has discretion. Those discretionary matters include issues such as child custody, and the award of Community Property[1]) are not going to be found to be error, unless the court’s judgment is found to be an abuse of that discretion. In Texas, that means that the court acted arbitrarily or unreasonably; or, without reference to guiding rules or principles. That is (obviously) a high standard to meet.

In regard to the first of those, one or more erroneous rulings, typically on a matter of law, must be shown. For example, incompetent evidence is admitted; or, improper Jury Argument is made (if your case, in fact, has a Jury). Then, it must be shown that the Appellant properly preserved that error, such as by making an objection; obtaining an adversary ruling (a ruling against the objection; and, (perhaps) offering proof of excluded evidence.[2] That establishes error. Next, the more difficult task of showing that the error is reversible must be shown.

The presumption in Texas is that any error committed by the trial court is “Harmless.” In order to overcome that presumption, the Appellant must show (again, in Texas) that “the error complained of:

(1) probably caused the rendition of an improper judgment; or

(2) probably prevented the appellant from properly presenting the case to the court of appeals. (TRAP 44.1).”

Item Number 2 rarely occurs, in our experience. So, the focus is on Item 1, above. To show that an improper judgment resulted on account of the error, that error must be of such magnitude that it likely overcomes the cumulative result of the other case elements. So, we are not talking about trivial matters. Errors of this kind are matters such as admitting expert testimony (and, likely opinions) that were not shown to be relevant and reliable. Or, excluding important evidence (documents, audio-visual materials, or testimony, e.g.) that would likely significantly alter the case result. That is not an easy task.

Appellate work is specialized and highly technical. If you believe that you may have an appealable issue, please contact a qualified appellate lawyer as soon as possible. There are time limits which, if missed, can end the option of appealing a trial court’s judgment.

That’s all for today: keep on loving those kiddos (Grown-ups, too)!

My best,

David

[1] Texas is one of just eight (8) Community Property States; so, this concept of “awarding Community Property” does not apply to the other states and territories on the United States)

[2] This is a general discussion The technicalities of error preservation are beyond the scope of this post.

When to Consider Divorce (Part 3)

Jan 21, 2023 | Divorce, Family Law

Previously, we have discussed the benefits of a happy marriage, as well as warning signs in this article; and, the types of marriages that might be saved, and are worth fighting for, in this post following-up the first one. Today, we will discuss different types of commitments to a marriage, and which is required for a marriage to be happy and thrive (and so, for divorce to not need to be considered).

In traditional, ceremonial, marriages, the individuals to be married make vows to one another. They, typically, will publicly attest to their mutual love, devotion, and expressed intention to work towards a lifelong, supportive relationship. That commitment is usually “for better, or for worse, for richer or poorer, in sickness and in health; to love and to cherish, till death do us part.” And yet, despite those vows, many once-married people find themselves divorcing or divorced. Why is that?

Notice that the vows cited above do not express how the couple will stay together through troubling times. There is no mention of what actions they will take when warning signs (discussed in the articles linked above) present themselves. Divorce should not be considered, at least not initially, in a non-abusive relationship, where the partners are appropriately committed. So, that raises the issue: what type of commitment is “appropriate?”

According to Benjamin Karney, a professor of psychology and co-director of the Relationship Institute at UCLA, “’(w)hen people say, ‘I’m committed to my relationship,’ they can mean two things. One thing they can mean is, ‘I really like this relationship and want it to continue.’ However, true commitment to the marriage is more than just that.”[1] In a new study, UCLA psychologists based their analysis of 172 married couples over the first 11 years of marriage. What they found was that couples who did more than just commit to wanting their relationship to continue; who were actually willing to examine how they might change themselves, compromise on their wishes and preferences, and prioritize the welfare of their marriage, over their individual desires, were significantly less likely to divorce, than were those couples who did not commit at that level.[2]

That makes sense when applied to other contexts. Let’s take parenting for an example. There are times when a parent prefers not to get-up with a sick child at night; prepare a healthy meal, wash clothes, arrange parties or outings for a child. They may even reside in a location where it is better for a child (such as in the attendance zone of a good school, or within an area designated by a court for the child to reside) rather than where they would ideally live (on a mountain, at a beach, in another state, or in a downtown condo, for examples) But, most parents will do those things anyway, because they prioritize the welfare and happiness of their child over their own individual wants, desires, and preferences.

It’s easy to want to have a good relationship, with a thriving, healthy child. It’s the parents’ commitment to sacrifice for the child’s welfare that is truly important to achieving those outcomes. Should spouses treat the welfare of their marriage with less commitment? If the answer to that question is “no,” then divorce should not be considered in that circumstance. If the answer is “yes,” then that spouse should consider whether s/he wishes to truly be married, or whether being single is the preference.

Healthy marriages bring much value to spouses, including a longer life expectancy, more general happiness, and life satisfaction. But like most things worthwhile, they take work, commitment, and sacrifice. But, the process of making them successful improves our own attitudes towards life, and ourselves as people and partners.

[1] https://newsroom.ucla.edu/releases/here-is-what-real-commitment-to-228064

[2] Ibid.

Is There an Ideal Time to File for Divorce?

Oct 20, 2022 | Divorce

One of the more common questions that we receive concerns when to file for divorce (another one is “(d)oes it matter who files first). There are several factors that go into figuring the timing. For one thing, is divorce an appropriate response to your current situation? Some considerations to think about can be found here and here.

Assuming that you have fully considered your decision, as discussed in the links above, and you wish to proceed with divorce, the next consideration is whether you have taken the steps necessary to be prepared for divorce. A discussion of those steps can be found here.

Ok, now that you have given thought to whether divorce is right for you; and if you are ready for divorce; then the issue of ”when to file” arises. January is the most popular month for filing for divorce. In fact, it is commonly referred to in the industry as “Divorce Month.” February is, typically, the second most popular month for new divorce case filings.[1] But, does it truly matter in which month a new divorce case is started?

As far as the law governing the divorce case, and the manner in which the proceedings will go, the answer is “no.” Filing in either Spring, Summer, Fall, or Winter, will not change your case. So, the answer as to when to file is that you should file if and when you are ready to file.

Have you made the plans discussed in the links above for how things will go during your case? Also, will the two of you continue to reside together, or will one of you move out of the home? Have you considered finances and debt payments? Is now a particularly dicey time for one or more of your children? Is it a particularly stressful time at your work? Is there a preplanned family vacation on the horizon? All of these considerations, as well as the others discussed within those other blog posts, amount to determining whether you would be happier staying together, at least for now, or beginning the process of legally dissolving your marriage.

It is not an easy decision for many folks. As for others, they emotionally checked-out of the marriage in the past, and so, it is merely a business decision for them. Wherever you are in that process of emotionally coming to grips with the loss of your marriage, our advice is for you to not make a rash decision. Think about what you want to do. Discuss it with friends, or a mental health worker. And, if you decide that divorce is right for you; and that you are ready to proceed, then make that decision. Until then, wait until you are ready (or, ideally, work to improve your marriage, and never get divorced).

Until nest time, I am the Family Lawyer who says “Divorce is a big decision. Please don’t rush into it!”

[1] There are a few reasons for this phenomenon. Many people do not want to start the divisive process during the holiday season. The stress of the holiday season pushes other to realize how unhappy they actually are. And, January is often viewed as a time for new resolutions, and major life changes.

How to Expedite Your Divorce Case (Part 1)

May 21, 2022 | Divorce, Family Law

All marriages have their ups and downs. A “down” period, by itself, is usually not reason to abandon a healthy marriage. But, of course, not all marriages are “healthy.” If you are unhappy in a marriage, visiting with a good therapist may be the first step in trying to figure-out where you are, and where you wish to go. Here are some things to think about, and perhaps to discuss with your therapist: When to consider Divorce, Part 1; When to Consider Divorce, Part 2; and, When to Consider Divorce, Part 3.

Assuming that you have considered your options, and decided that divorce is right for you, then there are things that can be done to expedite your divorce. First, you should consider how you want issues resolved. If you have minor children of the marriage, then these are issues to be decided such as child custody, child support, child possession, and the authority to make important decisions for the children, such as where they will go to school, and which classes they will take, Also, who will choose which extracurricular activities they will participate in; how will those be paid for? Who will be responsible for transporting the children to and from practices and other events, such as games or recitals? Another important issue is who gets to make invasive medical decisions in a non-emergency[1]; and, where their primary residence will be located (either within a restricted geographic area or not). Each or all of those decisions might be set-up to require the joint agreement of both parent; or, one parent may get to make that decision unilaterally.

There is quite a bit to discuss in these areas. To what extent do you believe that you are your spouse will be able to discuss and resolve some or all of these issues? Your divorce case will go quicker, and be easier (financially and emotionally) to the extent that the two of you can make agreements without the need for litigation and judicial intervention.[2]

There are usually, also property issues to be determined by either the agreement of the parties, or by court decision. Which assets and liabilities exist? Which of those do you want for yourself, and which do you wish for your spouse to take? To what extent is there agreement or disagreement about those issues? Were some assets and/or debts acquired: prior to marriage? by inheritance? by gift? Those items are Separate Property, and will be treated differently than all other property, which is Community Property,.

Importantly, assets are viewed by courts in terms of their net value, as well as their affordability. Net worth is, of course, the value of the asset less anyt debt associated with it. In terms of affordability, awarding a spouse an asset which s/he cannot afford to maintain is not a benefit to that spouse, unless s/he intends to sell it right away. So, e.g., a court is unlikely to award house, even with a high net equit6,y to a spouse who cannot afford the mortgage, insurance, taxes, and upkeep on it. In that case, the spouse in question would likely be better off by taking an award of cash (or another asset) for some or all of the net equity in the house, and allowing the other spouse to have the house and its payments.

I hope that this has given you some things to think about. There are plenty of other blog posts about divorce, child custody, and property, on this site. Please feel free to search for them.

[1] Usually, either parent can consent to invasive medical procedures in the case of an emergency.

[2] Discussion is not always recommended, such as when there is abuse (of any kind, including verbal). So, please, use your common sense, and trust your gut instinct, about whether to attempt to discuss divorce issues with your spouse,

What Are The Steps to Take After Deciding to Divorce? (Part 1)

Aug 22, 2021 | Divorce, Family Law

Deciding to divorce is a big decision. Once it has been made, proper preparation is, like with so many things in life, a key to making the outcome more likely to be positive for you and your family. And, yet, because it can be such an emotional decision, many people do not develop a plan for successfully moving through the process. This piece is designed to guide you in developing that plan.

Initially, it is important to go through this process before beginning the divorce. That is when issues can be pondered without having the pressure of a pending divorce affecting your decision-making

Step 1 Who will be your allies during this process? Divorce can be emotionally-taxing. One or both spouses may make emotional decisions that create chaos, confusion, or worse. It is easier to get through those times with allies—family members and friends who can provide support. It is also important to have people who you can talk to regularly; esp. if other family members and friends decide to not be there for you at this time. Having the support of allies help you to better weather the storms of your case.

Step 2 Do you understand the property matters? Do you have, or can you get, documentation (hard copy and/or virtual) pertaining to all debts and assets of the family? Car titles, mortgage statements, retirement and brokerage account statements, bank or credit union statements, loan applications, credit card bills, health and life insurance policies, and tax returns are all important to have. Do you know where to obtain any of those documents which you do not already have? Is there anyone who can assist you with this process? Be sure to store electronic versions of those documents in the cloud (such as via OneDrive, Dropbox, Google Drive, or Box), so that you can access them from anywhere that you have an internet connection

Step 3 Who provides services to the home? You should either know, or learn, the identity of the gas company, the electricity provider, and the cable or satellite provider, for the home. Are there other service providers that your family uses, such as for landscaping, lawn maintenance, or babysitting? Do you know how all of those bills are customarily paid? What about the water/trash bill for your home? Do you either have access to that information, or can you get it? In a similar vein do you know all about your family’s health insurance, toll tag, phone, and other accounts? Can you compile all of this information in a document that you can access online?

Step 4 How will you meet financial obligations during the divorce? In addition to your living expenses, there will be additional charges related just to the divorce process, itself. So, securing a means to pay those expenses allows one to continue the case, rather than perhaps being forced to settle on less-than-favorable terms because you’ve run-out of money. The court may award certain bills, support, or alimony during the case. But, that is uncertain until it happens. Funding is sometimes available by taking a loan against a retirement account; selling some securities in a brokerage account; securing one or more credit cards in your own name, and unknown to your spouse, ideally; or opening-up a line of credit with a financial institution. Also, do you have a relative who will loan you money, or who will allow you to use his or her credit card? Is there home equity available to borrow? Even if the house is owned by both of you, the court may allow that home equity to be used to pay the expenses of the case.

These are the first few considerations. We will address more of them with the next post, so check back for more useful info!

Can Divorce Mediation Save You Time & Money?

Feb 25, 2017 | Divorce

Divorce cases have traditionally involved the husband and the wife each getting their own lawyer, filing a lawsuit for divorce, and then, treating the case much like any other civil case: setting hearings on preliminary matters that should be resolved early in the case; sending and responding to written discovery requests; taking depositions of each other, along with any other witnesses who know things that are important to the case; attempting to negotiate a settlement of the issues of the case; and finally, if no agreement has been reached, setting the case for a contested trial. Most Texas Courts also now require the parties and their lawyers in a divorce case to spend a full day in mediation prior to the trial date. These steps make up the Litigation Process. It is time-consuming and costly.

But, there is another way to resolve divorce cases, even when all of the issues are not agreed on by the husband and wife at the start of the case. This process is called Divorce Mediation. This process is usually substantially quicker and less expensive than the Litigation Process described in the paragraph above. Let’s see how the Divorce Mediation Process works.

When the husband and wife decide to use Divorce Mediation, they do not each hire a lawyer and begin fighting the case. Instead, they agree on one Divorce Mediation lawyer to assist them in working towards a resolution of the case. This Divorce Mediation lawyer first learns from them what the contested issues are, gathers information, then leads mediation to try to reach a settlement. If and when a settlement is reached (and, settlements are reached in most cases that use this process), the terms of the settlement are reduced to writing, and signed by the parties. With the difficult part of the case (resolving contested issues) behind them, the parties can, then, choose to finalize the case themselves, or to hire another lawyer to prepare the final divorce paperwork, and present it to the court, in a process known as a Divorce Prove-up.

The Divorce Mediation process will usually go more smoothly and quickly if both parties have full information about bank accounts, retirement accounts, the house payment or rent, the bills, and any other financial matter. And, if they have minor children, then each parent should inform himself or herself about each child’s current situation, such as the child’s medical condition, and any existing academic issues. When the parties have the same information about these matters, the Divorce Mediator can, then, lead a discussion of the issues, develop settlement proposals for the parties, and work towards attempting to have the parties reach agreement on the issues of the case. This process usually yields positive results, if both parties are ready for the divorce to happen, and are willing to work in good faith towards reaching agreements.

Divorce Mediation has advantages over the Litigation Process. When issues are resolved in Divorce Mediation, the process is private. Contrast that with contested cases, where court filings are made that can be seen by anyone in the public who wants to look at those filings. Also, the Divorce Mediation process provides a greater opportunity for the parties to be civil to each other, which is important when they have to co-parent one or more children together. And, it is usually less expensive and quicker.

Divorce Mediation is a relatively new process. The days when divorces had to involve people publicly fighting issues in a court are behind us. While not every case is suitable for Divorce Mediation, most are.

For information on how to get ready for a divorce, please see 8 Steps to Take to Prepare for Divorce.

How You Can Help Your Children Survive Divorce (Part 1)

Sep 7, 2015 | Family Law, Blog, Divorce

Divorce can be tough, especially for children who don’t know why it is happening, what it means, and whether they are the cause of it. The children’s parents can work together on a few things to lessen the impact of divorce on their children.

The following information was gathered from multiple sources, including my experiences handling child custody cases, things taught to me by mental health professionals, and my reading of available literature on the subject.

1. If possible, both parents should sit down together with their children to break the news about the divorce. This will minimize the risk of one parent portraying the other as the “bad guy” and reduce the temptation to use the children as allies or confidants at such an emotional time. It will also lay a groundwork that will help the children progress through the denial phase. In addition, you will demonstrate that you’re still co-parenting.

2. Be ready to answer (to the extent possible) younger children’s logistical questions about where they will live, who will take care of them, and how much time they will spend with each parent. Older teens should have a voice in determining their living arrangements.

3. Assure the children that they did not cause the divorce, and likewise, that they cannot change their parent’s decision, no matter how much they may wish mom and dad could stay together. Emphasize that your decision was not made on a whim.

4. Spare the gory details. Provide an honest, but age-appropriate, explanation for your break-up, such as “Mommy and Daddy will be happier living in different houses.” Children who have no rationale for their parents’ split are more likely to blame themselves.

5. Acknowledge that the divorce will be painful for everyone, and apologize to the children for disrupting their lives. Again, assure them that the split-up is not their fault.

6. Make a commitment to them to preserve their relationships with both parents and with members of their extended family. Assure the children that both parents will always love them, and that they can contact the other parent at any time.

7. Alert teachers and other care givers to your announcement so that they can help watch for signs of emotional stress in your children.

8. If possible, don’t move or change schools simultaneously with the divorce. Losing a parent plus their home, teachers, and friends is more than you should expect children to handle.

9. Remember that the longer and harder you fight each other, the less time and energy you have for parenting your children. Some experts say that it’s not the divorce so much as its accompanying disruption in parenting that does the real damage. For this reason and others, the wisdom of engaging in a protracted custody battle should be considered. Sometimes the children really do need to have a court make custody orders that the parents cannot agree to on their own. And sometimes the parents can come-up with a suitable child custody arrangement on their own without battling it out in court.

10. Allow your children to grieve the divorce. Let them know it’s okay to cry.

11. Realize that your children are acutely aware of your pain and are likely striving to not trouble you further. For this reason, they tend to bury their own pain and anger. Try to provide your children with a peer support group or other safe place where they can express their feelings.

12. Be open to the notion of seeking counseling, for yourself and your children, not only at the time of the divorce, but anytime they need it. The danger signs are: a) problems that get worse over time instead of better, b) drastic changes, and c) continuous extreme behavior, whether it’s acting out or being “the perfect child.”

13. For the good of your children’s self-esteem, avoid denigrating your ex-spouse in their presence, and ask members of the extended family to do the same. If you have nothing positive to say about your ex, try to put your children in contact with someone who does. The children do not need to know “the truth,” if that truth is negative about the other parent. Hearing negative things about a parent affects a child’s happiness. So, there is no legitimate reason to bad-mouth the other parent; even if that bad-mouthing is truthful. If your ex is truly a horrible person, it’s likely that your children will discover this fact on their own over time.

14. If the children point out your ex-spouse’s faults and question you about them, validate their feelings, By saying something like “I can see that you are upset.” You can also tell them that both parents are doing the best that he/she knows how.

By following these steps, you will be helping your children adjust to their new living situation. I will write more on this topic later.

Divorce and Child Custody FAQ

Nov 23, 2014 | Family Law, Child Custody, Divorce

Frequently Asked Questions about Divorce and Child Custody

Q1: For how long must a person live in Texas before he or she can obtain a divorce in Texas?

A: The wife, the husband, or both spouses must have lived in Texas for at least the most recent six months (this is referred to as “being domiciled in Texas”)
Had a home for at least the last ninety days, in the particular county in which the divorce case will be filed (this is what is meant by “being a resident” of that county).

Q2: What do some terms commonly used in Texas divorce proceedings mean?

A: The spouse who initiates the case, by filing an Original Petition for Divorce, is known as the “Petitioner.” The other spouse is designated as the “Respondent.” When “Venue” is proper for the divorce case, that means that the divorce is filed in the right county. In Texas, proper venue for the divorce action is in the District Court within a county in which the residency requirements (discussed above) are met.

Q3: How long does a divorce case have to be on file with the court before a divorce can be granted?

A: Once the divorce case is filed, there is a minimum sixty-day waiting period prior before the court has the power to grant the divorce, except in cases of Family Violence. But, most contested cases are on file longer than sixty days, because it usually takes more than sixty days, to learn what issues remain contested and what the evidence is for those issues. Also, if a trial will be necessary, the court often requires the parties to mediate the case prior to trial. Drafting and having final documents entered also will usually take awhile.

Q4: I have heard people talk about “having grounds for divorce.” What does that mean?

A: “ground for divorce” means simply a basis on which the court may grant a divorce. In most cases, the grounds used are so-called “No Fault” grounds (discussed below).

Q5: What are the recognized grounds for divorce which are recognized in Texas?

A: No Fault—this means that the marriage has become insupportable because of discord or conflict of personalities that destroy the legitimate ends of the marriage; and, there is no reasonable expectation that the spouses will reconcile with one another.

There are also fault grounds for divorce. These are grounds for which one of the parties is at fault for the failure of the marriage. Cruelty, adultery, confinement in a mental hospital, and concealed divorce are fault grounds recognized in Texas.

Q6: What is “spousal support” under Texas law?

A: “Spousal support” (sometimes informally called “alimony”) is money paid by one spouse to the other to compensate a spouse for the loss of income which will be experienced by the spouse who will receive the spousal support.

Q7: Is spousal support available while the divorce is pending in court, or only after the divorce has become finalized?

A: The court may order that one spouse pay spousal support to the other spouse while the divorce case is ongoing, as well as after the case ends. There are different standards which apply to each of those types of spousal support payment programs.

Q8: What factors will the Texas court consider when determining how much spousal support to award to a party?

A: The Court will consider the needs of the requesting spouse and the ability of the other spouse to pay. The court will also consider whether the person seeking spousal support is disabled, or is the full-time caregiver of a disabled child. And, the Texas Court will additionally consider the health and age of the party’s ability to work, responsibility for children, availability of funds, and the length of the marriage.

Q9: On what basis does a Texas court decide how marital property is divided?

A: Texas is a so-called “equitable distribution” state. This means that the division of property and debts between the divorcing parties should be fair and equitable, but not necessarily equal. The court has wide discretion in dividing property.

Q10: What is “Separate property.”

A: The Texas Constitution defines “Separate Property” and “Community Property.”While the definitions are straight-forward, applying them to a particular marriage can be tricky and complicated, especially if the marriage is a long one; if gifts and inheritances have been received by the parties, if monies were not kept in separate accounts, and if separate property was productive (i.e. it earned interest or income). Additionally, there can be issues of “Equitable Reimbursement” which arise from certain uses of Community or Separate Property.

Q11: What happens to that “Separate Property” during a divorce case?

A: This question concerns whether property owned by one of the parties should be included in the marital estate for purposes of the court’s property division. Generally, property is “separate” if it was acquired before the marriage, or by gift or inheritance at any time. Sometimes, one or more items of property “mutate” to another item or items of property. “Separate Property,” once proven to be such, is excluded from the marital estate unless it has been ‘co-mingled” with community property to the extent that it is no longer distinguishable from the community property.

There are a lot of tricky considerations concerning Texas Community Property Law, such as whether income from separate property is separate or community property, or whether the parties may agree between themselves to alter the character of certain items or classes of their property. An experienced Texas Family Lawyer can explain these issues to you.

Q12: I have heard that the presumption in Texas is that the parents of a child should be appointed as “Joint Managing Conservators.” Does that mean that the parents split time with the children 50-50?

A: No. “Joint Managing Conservators” means that the parents share rights and duties to to their children. This means that both parents should be involved in the making of important decisions for their child, such as on school issues, and when a medical decision is needed. The “Standard Possession Order” awards possession and access to the children. And, it is presumed to be in the best interest of a child who is 3 years of age or older.

Q13: What is Managing Conservatorship (custody) and possession and access (visitation)?

A: In Texas, there is a rebuttable presumption that parents should serve as the Joint Managing Conservators of their children (see above). In Texas, “Conservatorship”is the equivalent of “custody” of the children. Those two terms are not identical in meaning. “Conservatorship” recognizes that parents have duties to care for their children, rather than merely the right to temporarily “own” them, such as with property.

The right to Joint Managing Conservatorship does not mean that each party will have the children one-half of the time. It also does not mean that child support will not be awarded to one parent. Joint Managing Conservatorship does mean that the parents will either share, allocate, or apportion parental rights and duties. In most cases, it also means that the child’s domicile must be established in the final Court orders, so that each parent will be able to be involved in the children’s lives. “Possession and access” speaks to when each parent has the right to visit with, and spend time with children from the marriage.

Q14: If the parents cannot agree on conservatorship and access issues, on what basis will the court decide those issues?

A: These matters, like all of those pertaining to children, are based upon a finding by the court of the children’s best interest. As discussed above, the Texas Family Code contains a “Standard Possession Order” which is presumably in the children’s best interest. So, while the court does not have to follow that Order, that is where the discussion starts, and often, where it ends.

Q15: What is “child support?”

A: Child support is money paid by the non-custodial parent to the custodial parent in order to meet the needs of the children.

Q16: To what should the parties look for guidance regarding amount of child support to be paid? What standard will the court use if the parties cannot agree?

A: The Texas Family Code contains guidelines for the computation of child support. The guideline amount is presumably the minimum amount which should be awarded as support for the children. If any child has “Special Needs,” then additional child support may be awarded.

Q17: When does the duty to pay child support end?

A: Unless the child marries sooner than age 18, joins the military, or does something else to become “emancipated”prior to turning 18 years of age, child support orders continue until the child reaches age 18. But, if the child is in high school at age 18, support continues until high school graduation. If the child is disabled, it may be possible to continue child support for an indefinite period. Texas law makes no provision for support during college, or the payment of college expenses. But, the parties may provide for the payment of those expenses by contract.

Who Gets Divorced in America and Why?

Oct 16, 2014 | Blog, Divorce

The Who

Most of us have heard the divorce rate in America is high. Overall, approximately half of all marriages end in divorce, according to the most recent statistics. This works out to 6,646 divorces per day, and 46, 523 divorces per week-large numbers. But upon a closer look, the statistics reveal interesting differences in the types of folks who are more or less likely to see their marriages end in divorce.

The numbers reveal that 41% of all first marriages end in divorce. 60% of all second marriages wind-up in Divorce Court. And 73% of third marriages end there. This is somewhat more optimistic for folks who have not already tried marriage. Three out of five first wed Americans will not be divorced during their lifetimes.

Researchers have looked at Americans who divorce, and found some interesting trends. For example, the careers or occupations with the highest reported divorce rates are: dancers and choreographers, who have a divorce rate of 43.05%; bartenders, who divorce at the rate of 38.43%; massage therapists, whose divorce rates clock-in at 38.22%; “gaming cage workers” go through divorce at the rate of 34.66%; and “extruding machine operators” have their marriages end in divorce 32.74% of the time.

Conversely, the listed jobs of those least likely to divorce are the following: “Directors of religious activities and education” get divorced at the rate of just 5.88%; clergy wind-up in divorce court 5.61% of the time; whereas, the marriages of transit police wind-up there 5.26% of the time; optometrists see their way to divorce court 4.01% of the time; and, the chances of agricultural engineers divorcing is just 1.78%.

Other demographics also relate to whether people are less likely to go through a divorce. If your parents are still married to one another at the time of your wedding, then you are less likely to be divorced. The same is true if you are over the age of 25 when you marry. Folks who have attended college are less likely to divorce than those who never attended college. Interestingly, people who live in a “Blue State,” one in which Democrats tend to prevail over Republicans in state-wide races, are less-likely to divorce than are their “Red State” counterparts.

If both spouses smoke, then divorce is more likely. If one spouse does all of the household chores, then a divorce is more likely in that couple’s future. Married people who frequently socialize with divorced people tend to divorce more frequently than do folks whose friends are mostly other married couples. Spouses who first met each other in a bar are more likely to get divorced. Surprisingly, spouses who have just a daughter or daughters, but no son are more likely to divorce. And not surprisingly, married people who frequently or constantly have significant money problems find their way to divorce court more frequently than those who do not often have that issue arise in their marriages.

The Where
States with the lowest divorce rates are Hawaii with a divorce rate of 9.4%; Massachusetts, whose citizen divorce at a rate of only 9.1%; New York which has a divorce rate of 8.4%; New Jersey, which sees just 8.2% of its marriages end in divorce; and, North Dakota, comes in with the lowest divorce rate of 8.1%.
‘The secret to a happy marriage is if you can be at peace with someone within four walls, if you are content because the one you love is near to you, either upstairs or downstairs, or in the same room, and you feel that warmth that you don’t find very often, then that is what love is all about.” ~ Bruce Forsyth

The Why
Another interesting survey result concerns the reasons stated by divorcees for their divorce. When asked “Why did you get divorced?” the number one answer was not “fighting about money” nor “disagreements about sex.” The number one reason given for divorcing is “Poor Communication.”

So, what exactly is the “poor communication” that so often leads to divorce? “Nagging” is frequently cited by those who have gone through divorce as being a major reason that they became dissatisfied with their marriage. The frequent “suggestions” and unsolicited “advice” that comprises “nagging” often lead to both spouse’s being annoyed. The one being nagged (the “naggee”) is annoyed for obvious reasons. But, the one doing the nagging also becomes frustrated when his or her well-intentioned advice is typically met with an attitude of resentment and irritation.

The ensuing arguments caused by nagging, then become about the appropriateness of the nagging, rather than about the real issues in the relationship: the nagger’s lack of trust and the naggee’s lack of responsibility. Naturally, when this happens enough times, the fun is sucked out of the relationship, and both spouses become disinterested in being together. It is not a far distance from this relationship state to being divorced.

Another poor communication type which tends to lead to divorce (according to surveys of divorced Americans) is “Insincerity.” Spouses communicate in this poor manner when they say “yes” when they actually want to say “no.” Or, they may answer a question with an “I don’t know” instead of stating their true opinion, when they feel like their actual opinion will be rejected or put down. So, in order to avoid a fight, these spouses do not communicate honestly with their partners.

Marriage counselors warn us that dishonest communication does not take a marriage in a healthy or sustainable direction. Eventually, the spouse who is being told the insincere answer learns that he or she is not being told the truth. And, when that happens the feelings of affection between the spouses is replaced by feelings of mistrust, resentment, and anger. Once those feelings dominate, too often a vicious cycle begins, leading to divorce.

“Mixed Messages” are another poor communication technique mentioned by the survey respondents. Besides saying things which are inconsistent with one another, spouses also may send mixed messages by verbalizing one thing, while their body language conveys another message. For example, a spouse may answer a question “How are you” with the answer “fine” while crossing his or her arms. Or, perhaps a spouse, when asked “What is wrong?” will say “Nothing, I’m fine” while shaking his or her head as though irritated or avoiding eye contact. The message received by the inquiring spouse is a dismissive one.

“Competitive Communication” is communicating with one’s spouse in a manner seeking to “win’ an argument rather than trying to understand his or her perspective is another unhealthy mode of communication which often appeared in the survey results. A healthy romance is not about “beating” the other spouse when disagreements arise nor “winning” an argument. That is not exactly the type of message which builds trust and affection nor does it lead to the “peace” described in the Forsyth quote, above.

Divorced people often describe poor communication habits of either one spouse’s interrupting while the other spouse is speaking or attempting to finish the other’s sentences. At this point, the spouses are taking “at” each other, rather than “to” one another. This leads to emotional distance between the spouses being created. And, given enough distance and enough time, a marriage will come unwound when there is significant emotional distance between the spouses.

Finally, impolite comments, such as a spouse saying “I should have figured as much would happen,” when the other one makes a mistake, is obviously unhealthy. But also, the neglecting of common courtesies, such as the saying of “please” and “thank you” can build resentment and distance in the marriage. And, we already know where that can lead.

Ideally, every marriage would be healthy and happy. But, as we know, many of them fall way short of this ideal. Thankfully, we know factors that give marriage a better shot at being successful.

How Divorce Affects Children
Researchers have had decades of divorces in America to study. The effects of divorce on children have been thoroughly examined. They are not encouraging.

Children from divorced families are twice as likely to not graduate from high school as are their fellow students who have intact families through the Twelfth Grade. Also, one of four children of divorce report being emotionally detached from their families at some point before attaining adulthood. Many children of divorce have lower grades in school. And, as one might expect, these kids are more likely to experience problems of behavior or emotion.

Almost every studied society of human beings has one or more forms of marriage. While they vary greatly from one society to another, they all show positive benefits when they are healthy, and have negative effects when they are not healthy.

How to Find a Divorce lawyer

Jun 23, 2014 | Divorce, Family Law

My Search For a Divorce Lawyer

Guest post by Ellen R

When you’re in the middle of a marital crisis, the last thing you need is to hunt for the right divorce attorney. My husband and I had separated and were exchanging terse emails, and I felt traumatized and not up to much of anything let alone Googling and asking friends (when I was embarrassed to even admit I was in this place). I called a lawyer friend and she gave me a few names. I went to their websites and entered contact information and we set up a call. I was first shocked at the hourly rate – she had given me the names of some of the top lawyers in the city – and the questions. What was our net worth? Did my husband have a personality disorder? Could I pay $10,000 for a retainer…today? One lawyer I talked to told me I was about to have a $90,000 lesson and I should think of it like paying for a college degree…NOT what I wanted to hear. A loan I’d made my husband would have to be written off, he said.

Finally I found a great lawyer through a friend with a reasonable hourly rate who seemed to have my interests and not his check in mind. Carefully, over several months, he corresponded with my husband and his lawyer and established a rapport with them, and then crafted a win for me. He practiced what is known as collaborative law, which is a low-tension form of working with opposing counsel to find the best resolution. A ‘win’ in divorce is of course not really a win, but it allowed me to keep my house and for my husband to make payments on the loan. This could never have been achieved in a fighting mode which would have caused them to dig in, but collaboratively, my lawyer was able to pose scenarios and fight for integrity through the process, appealing to fairness and he succeeded.

The lawyer you want to choose uses whatever method will yield the best results for his clients. He is able to work collaboratively with the other counsel and, if need be, to fight a battle, but his approach is based on his assessment of what will be most productive. Productive is key. Emotions are so cranked up that it’s easy to get stuck in them, and miss possibilities for solutions. David Heiman doesn’t miss those opportunities and working with him will dial down the stress when you experience his positive attitude.

On a personal level, David is warm and intelligent and truly cares about his clients’ difficulties and seeks to ease them through any legal channel he can. I highly recommend his services wherever you are in the Dallas area; it’s worth it to travel to his office in Lewisville.