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Divorce Corp. – Documentary Decoded Part 3: Texas Juries in Family Law

Posted on January 13, 2014 by

After seeing Divorce Corp., I’m taking the opportunity to correct the impression that there are no juries in family law cases – only judges.  The documentary quotes Thomas Jefferson about the importance of juries:

“It is left, therefore, to the juries, if they think the permanent judges are under any bias whatever in any cause, to take on themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges, and by the exercise of this power they have been the firmest bulwarks of English liberty.”

One of the law professors in the film said it more simply:  Juries keep us honest.

While the absence of a jury in family law trials may be norm in some states, juries are alive and well in Texas.  The right to trial by jury is guaranteed in the Texas Constitution under Article I Section 15 as inviolate.  In fact, all one must do to obtain a jury trial is timely pay the sanctioned jury fee to the clerk of the court, which is about $30.00.

In child custody cases a party is entitled to a jury verdict on issues such as:

  • Whether parents are appointed as joint managing conservators,
  • Whether one parent is appointed as sole managing conservator,
  • Whether a party is appointed a possessory conservator
  • Which party has the exclusive right to designate the primary residence of the child, and
  • If there is a geographic restriction on the primary conservator, what that restriction will be.

Once the jury delivers a verdict, the judge cannot disregard the verdict.  See Tex. Fam. Code Section 105.002. Texas is unique in delegating these decisions to a jury if a party makes a demand for jury trial.

In issues pertaining to marriage dissolution and property division the jury can also make binding verdicts on in areas such as grounds for divorce, characterization of property, and valuation of property.

Jury trials in family law cases are rare mainly because of the expense of presenting a jury trial in comparison with a bench trial.  Whether an attorney is preparing for a jury trial for commercial litigation, personal injury, probate or a family law matter, it is always more labor intensive and expensive.  However, the jury trial is very powerful and can protect a litigant if a presiding judge is known to have a bias that could impact a party in a family law case.

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Back to School for Separated and Divorced Families

Posted on September 13, 2013 by

Going back to school has always been one of my favorite times of year.  It marks a new beginning, opportunities for learning, making new friends, and participating in enriching activities.  For families that are newly separated or divorced, back to school can add another stressor to parents and kids because two households with less than ideal communications have difficulty staying on top of homework, class projects, parent/teacher conferences, getting kids to and from activities after school, and the little extra expenses that frequently crop up. One of the biggest concerns I hear from parents who aren’t the primary custodial parent is they feel like they’re not “in the know” about what goes on at school.  My advice:  plug into technology.  This is especially helpful if you’ve not yet established good communications with the other parent, and in the event communication remains a challenge.  These days it’s easier than ever to keep up with the kids and teachers.  Most school districts and individual schools have web sites where parents can register for e-mail notifications of open houses and special events, projects, homework assignments, quizzes, tests, and report cards.  Not everyone can get off work to attend PTA meetings or go to parent/teacher conferences during the middle of the day, but parents can show their interest by staying in regular contact with the teachers and expressing concern for their kid’s learning, class participation, socialization, and conduct in class.  Even if your schedule doesn’t permit you to bake cupcakes, perhaps offer to donate supplies or sponsor a class party.  Teachers tremendously value parents who are interested in what they can do to help their child succeed.  Bottom line – you owe it to your kids to be involved, show interest in what they do, and help them succeed.

HISD

SBISD

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Increase in Texas Guidelines Child Support for Some Obligors and Obligees

Posted on August 19, 2013 by

Texas parents paying or receiving child support may be impacted by a legislative update.  Presently, the cap for calculating guidelines child support is the first $7,500 per month of the paying parent’s net monthly resources.  However, as of September 1, 2013, the new cap increases to $8,550.   For high wage earners, this means that child support for one child can increase from $1,500 per month to $1,710 per month based on the 20% multiplier for one child.   This increase is not something “new” Texas legislators imposed during the 2013 regular session; rather, it is in response to statute adopted in 2007, which adjusts the child support cap.  (Texas Family Code Section 154.125).  It’s important to note that this adjustment is not automatically applied to parents.  In order to obtain this increase, a modification for child support must be filed with the court of continuing jurisdiction over the case.  A modification is something to be handled by an experienced family law attorney.  In instances where the paying parent is a high wage earner (meaning they earn up to and over $8,550 per month), sometimes this can be handled by agreed motion and order between the parties’ attorneys.

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Child Custody: Why Trials Destroy Families

Posted on January 7, 2013 by

When I first started my career, a wise Houston family law attorney and mediator told me after successfully settling a high conflict case, “Trials destroy families.”  Obviously, I knew trial was not the optimal way to bring order from chaos of divorce and custody battles, but I recall judging her statement was somewhat melodramatic.  Having spent some years in the trenches now, I agree that experiencing a custody trial as either Mom or Dad from start to finish is a very effective way to destroy co-parenting, trust, respect, and once treasured memories.  The judge is not King Solomon, and cannot split the child in half. However, if you ask a child involved in a custody dispute, that image is close to how s/he feels.  A North Carolina attorney specializing in family law posted from a court reporter’s transcript, the statements of a presiding judge asking the parties and their attorneys to settle their case before asking the court to decide. This judge paints an accurate description of what trial attorneys have to do to accomplish their client’s objective.  Though not King Solomon, this judge perhaps has his wisdom.  Even after the parties leave the courtroom, a custody ruling can scar the family for years to come.  This is not to say that child custody trials should never occur, but to encourage parties to be very aware of consequences and make every attempt to put their children first.

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Knowing Your Judge – What Does It Really Mean?

Posted on July 13, 2012 by

There are thousands of quips about lawyers, and a particularly poignant one says: “A good lawyer knows the law, but a great lawyer knows the judge.”  Hearing that both as a layperson, and during my first year of law practice made me bristle.  I thought it meant the lucky people who know the judge personally get better justice, or something to that effect.   Receiving better justice because someone knows the judge or contributes a lot of money to his/her election campaign is offensive to the values of American justice.  Though justice is blind, we would be naïve to believe that such circumstances never exist, because humans are capable of the best and worst, and many things in between.  However, I believe that the majority of our Texas and Harris County Family Law judges seek and remain on the bench because they actually care about families and respect the rule of law.  Before digressing too far, let me get to what the quip about great lawyers knowing the judge really means.  It means that a lawyer needs to remember the audience each and every time he/she goes to court or writes a brief.  That audience is always the judge, even in a jury trial.  Knowing the judge means knowing: (1) how the judge likes to receive information; (2) how the judge is likely to rule on a given legal issue; (3) what the judge’s pet peeves include; (4) what the court’s individual rules include; (5) what time limits are imposed at hearings on each side; and so forth. Just like a speaker or writer would consider the audience, so must a lawyer.  One of my personal crusades as a lawyer is to help my clients and the public understand that the law is not meant to be a scary world reserved only for the elite.  The law serves each and every adult and child in our community, and the court system is a means of resolving disputes that cannot be handled in other ways.  Knowing the judge is not just for lawyers.  The proceedings of our courts are a matter of public record (barring very unusual circumstances), so you are always welcome to visit the Harris County Family Law Center, Harris County Civil Courts and criminal courts to observe and learn.

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Montgomery County Standing Order in Divorce and Suits Affecting the Parent/Child Relationship (SAPCRs)

Posted on May 15, 2009 by

All of the courts of Montgomery County have approved a Standing Order regarding children, pets, property and conduct of the parties that will apply in all divorce cases and in most SAPCRs. The order became effective March 15, 2009, and will likely eliminate the need for attorneys to request temporary restraining orders in Montgomery County in the future.

To obtain a copy of the Standing Order, please utilize the following link to the Montgomery County website: http://www.co.montgomery.tx.us/dcourts/standingorder.pdf

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New Orleans parent allegedly kills child to avoid child support

Posted on January 6, 2009 by

As a family law attorney, I have a thick skin, and not a lot gets to me. The story about Ja’Shawn Powell, however, raises my blood pressure.  I plan to keep an eye on this story through the AP and Houston Chronicle.

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Jobless parent wants break on paying child support

Posted on January 5, 2009 by

In light of the troubled economy, it follows that child support obligors will experience difficulties in staying current on child support obligations. In fact, this was the theme of an article in today’s Houston Chronicle in Lipman’s State your Case column

The parent stated he was one of hundreds of people laid off from his job, and he has been unable to find other employment. As a result, the parent is unable to make any child support payments. The parent asked whether he could get his child support payments lowered or suspended until he finds work. 

Though Lipman’s answer (which was “Maybe”) is a good one, I would go a little farther in my commentary. 

Before a judge grants a motion to reduce an obligor’s child support, he/she must find that it is in the child’s best interest. Think for a minute or two about how you would argue that. It’s tough to say that providing the custodial parent with less money to support the child meets the best interest standard. Additionally, the court will want to know what assets are available to provide for the child, such as savings accounts and/or assets that can be liquidated to provide support. 

The prevailing attitude of many judges is that parents meet obligations to support their children. If that means your child eats before you do, then so be it.   

My comments are not intended to discount the plight of folks having legitimate financial difficulties. I merely suggest that you be elegantly prepared before asking the court, a caseworker at the Texas Office of the Attorney General, or the custodial parent to consider a reduction. Be prepared to show that you cannot pay for your rent/mortgage, car note, and other essential items. Be prepared to show how you’ve tried to gain other employment. Be prepared to show that you are attempting to pay something every week. Something is better than nothing. Be prepared to demonstrate that you are making an effort, and that you are sacrificing to meet child support obligations. 

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Houston-area children’s deaths were a preventable tragedy

Posted on August 16, 2008 by

During the last week in Houston, two young children died after being left in hot cars by their caretakers. I can only imagine the agonizing guilt one would experience as a result. Busy lives, multi-tasking, and/or a change of routine can lead to accidentally leaving a little one in his/her car seat, but the hot Houston summers are unforgiving.

Area experts advise simple steps to prevent this deadly mistake, including:

  1. Put your purse, briefcase or work ID badge in the back of the car next to the baby seat;
  2. Keep a stuffed animal in the front seat of your car as a reminder that the baby is in the back;
  3. Tape a note to the steering wheel of your vehicle;
  4. Instruct your child’s day care center to call you if your child does not report at his/her regularly scheduled time;
  5. Install an alarm device to the car seat that activates an alarm on your key chain after you are a certain number of feet away from the vehicle. 

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How is child support determined when the obligor’s income fluctuates?

Posted on August 8, 2008 by

Family courts, in determining a the obligor parent’s child support, look to specific data including the obligor’s most recent pay stubs and two previous year’s tax returns. This data usually provides an accurate indicator of the obligor’s net monthly resources. After the net monthly resources are determined, a multiplier is applied based on the number of children before the court, and if applicable, the number of the obligor’s children who are not before the court (i.e., children from previous marriage). 

While some obligors have a fixed salary, their income may have significant fluctuation, and may be less predictable. Examples include sales reps who work on commission, real estate agents, persons who regularly work overtime, and the self-employed. In those circumstances merely looking at a 2-3 recent pay stubs or recent tax returns (especially if the obligor hasn’t filed a tax return for several years) may not provide an accurate picture of the obligor’s net monthly resources. Under such circumstances, there is case law supporting averaging the obligor’s income for calculation of child support. A recent opinion pending publication by the Texas 14th Court of Appeals supports this approach. 2008 WL 1838023; Swaab v. Swaab, — S.W.3d — (Tex. App. – Hou. (14th Dist.), no pet history). There is authority which supports averaging a parent’s income for as long as a ten year period to determine retroactive child support. See In re Sanders, 159 S.W.3d 797, 801 (Tex. App. – Amarillo 2005, no pet.). 

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