Getting a Texas Divorce : Moving Out of the Martial Home

July 17th, 2014

This is a complicated question to answer depending upon the facts of each case.  If you have experienced domestic violence you need to immediately do whatever is necessary to secure you and your child’s safety.  Many times a victim will go to court for a protective order and ask the judge to move the abusive or violent spouse out.  In this situation contact an experienced family law attorney now!

In most cases, absent of violence or risk of abuse, we would not suggest that a spouse move out of the martial residence.

Why is this?  One reason is once you have vacated the residence it may be very difficult to get back in! You have no legal obligation to leave the residence if your name is on the lease or mortgage personally and exclusivity.

Our suggestion to a client might be, to remain in the residence since the person who vacates may still have financial obligations and expenses of the family residence, while paying all expenses on a new residence for themselves. Double expenses are not a desirable result during the divorce process.

The higher wage earning spouse who moves out of the martial home must expect to continue to pay most of the household expenses, including the insurance and mortgage!  What about the personal property and furnishings in the residence?

If an agreement has not been made between the divorcing couple, the moving spouse will generally only be able to leave with personal belongings (clothing & jewelry) until a court rules fairly as to temporary possession.

Secure a court order ASAP to equalize property and household expenses.

What To Do : Alienated Parent With a Parental Alienation Syndrome Family Experience

July 15th, 2014

There is nothing worse than a family torn apart by parents who are battling over child custody.  Many of these cases are in serious litigation and often, these disputes will continue for years.

What is Parental Alienation Syndrome (PAS)?   In the 1980’s, forensic psychiatrist, Dr. Richard A. Gardner noticed a large increase in a disorder where one parent will program or brainwash a child to alienate the other parent.  He also found the child was self-creating contributions supporting the alienating parent’s campaign of denigration against the targeted parent.

Dr. Gardner’s definition of PAS: Parental Alienation Syndrome (PAS) is a disorder that arises primarily in the context of child-custody disputes.  Its primary manifestation is the child’s campaign of denigration against a parent, a campaign that has no justification.  It results from the combination of a programming (brainwashing) parent’s indoctrinations and the child’s own contributions to the vilifications of the target parents. (Gardner, the Parental Alienation Syndrome)

There is no pure PAS diagnosis if the child still has a positive relationship with the parent even though the other parent is trying to alienate the child.

Courts are generally more conservative in their judgment acknowledging PAS in high conflict cases.  Even though Parental Alienation evidence may be overwhelming, often courts will enter judgments allowing the “parents to make joint decisions about the child’s welfare.”  This will not ever happen between two alienated parents! In many situations it will take a dramatic or tragic situation to force the court to change primary custody. When the alienating parent becomes unstable mentally, the court will recognize that there is something “out of line” and will become more supportive of the targeted parent.

What are the Best ways for the Alienated Parent to Deal with the PAS issue?

  1. Keep your “cool”. Never retaliate. Never act in anger since anger=unstable.

  2. Never give up! You cannot let your child grow up in this environment of hate. The child is the victim of a situation that he/she never asked to be in.

  3. Be “Proactive”! It is a terrible situation for the entire family, but work on seeking constructive action to solve the problem. Do not allow yourself to become a victim!

  4. Always keep a journal of dates and times of major key events. Explain when the situation occurred and what happened specifically. Any Witnesses?

  5. Always call and show to pick up the child even when you know he/she will not be there. Try to contact the police to have a record of the no-show event or take a witness to video the denial of possession. You do have an interest in your child, no matter what the alienating parent says.

  6. When you do see the child, focus on enjoying your parent-child time together. Never talk badly about the other parent and do not let children overhear inappropriate conversation on the telephone.

  7. Hire a skilled family lawyer who has experience in parental alienation syndrome issues.  Do your homework on PAS and interview the lawyer on his experience and what your issues are. If you are not satisfied look again.  This is your life and you are trying to save your child.

  8. Be prepared to financially see this case to the end.  Most of these case last for years. You cannot start and stop.

  9. A forensic evaluator in PAS cases is usually an asset in showing that there is truly alienation occurring and recommend changing legal and primary custody to the alienated parent. An appropriate parenting plan included showing how well the child will be taken care of with the alienated parent, is advised.

  10. Always pay your child support on time and never violate court orders. Never give the alienating parent reason to question your behavior.

  11. Last but not least, to show that your parenting skills are superior, take a comprehensive parenting course to be able to show the court that you strive to be the best parent you can to the child, no matter what the alienating parent says.

Litigation in Texas

July 6th, 2014

The first step to begin a lawsuit in Texas is to finding a lawyer who is knowledgeable and experienced in the area of your legal concern. 

 

In Texas, the filing of an original petition or a complaint officially starts a lawsuit.  The complaint will state the facts of the case, spell out the legal issues as they relate to the facts and request the Court grant relief.  The complaint is then filed with the court and served on the Defendant who will have a set period of time to respond. 

 

After the complaint has been filed and the Defendant has entered his answer, the discovery phase of the lawsuit begins.  During the discovery process, the counsel for each side will gather as much evidence as is reasonable to present their case to the judge or jury.  Such discovery includes but is not limited to depositions (sworn testimony taken out of court); disclosure of witnesses, experts and other necessary information; interrogatories (written questions); requests for production of documents; requests for admissions; requests for business records, and electronically stored information (ESI), etc.   Discovery may last from a few months to a year, and in some cases several years.  Discovery rules can be very liberal, allowing a great deal of evidence to be revealed. 

 

In Texas most courts require the parties to mediate a case before allowing it to go to trial.  Mediation can be a useful process as it allows both sides to state their case to a neutral party who has experience in the issues being mediated and who will attempt to assist in the resolution of the case before the parties are forced to incur the expense of a trial.  In many cases, the mediation process is a good gauge for a possible trial outcome.  At a minimum, it allows each side to measure the strengths and weaknesses of the case.

 

The pre-trial conference takes place approximately one week prior to the case going to trial and presents yet another opportunity for counsel to settle the case or review the issues.  During the pre-trial conference the counsel speak informally with the judge and agree to the undisputed issues.  They share the evidence they intend to present during trial and the witnesses they plan to call to testify.  The parties, along with the judge, are then able to plan the course of the trial. 

 

After completion of the discovery, mediation and the pre-trial conference, should the parties be unable to settle the case, it will then be placed on the Court’s trial docket and proceeds to trial. 

 

The trial most commonly proceeds in the following manner:  Plaintiff’s attorney makes an opening statement detailing the facts of the case followed by the Defendant’s attorney detailing the defenses; Plaintiff’s witnesses and evidence are introduced, examined and cross-examined; Defendant’s witnesses and evidence are introduced, examined and cross-examined; Plaintiff and Defendant are allowed to introduce rebuttal evidence; and, finally, Plaintiff presents their closing argument, followed by the Defendant’s closing argument.

 

When a jury is hearing the case, a judge will instruct the jury as to the law that is to be applied to the issues.  The jury will then retire to the jury room until a verdict is reached.  Should the jury end in a deadlock, the judge will normally send the jury back to deliberate until a verdict is reached.  If a verdict cannot be reached, the judge must declare a mistrial.  If a verdict is returned, the judge will generally enter a judgment on the verdict.

 

 

Serving clients throughout Texas, including Collin, Dallas, Denton, Ellis, Grayson, Kaufman, Rockwall and Tarrant counties and the communities of Addison, Allen, Arlington, Carrollton, Dallas, Fort Worth, Frisco, Garland, Grapevine, Highland Park, McKinney, Mesquite, Plano, Richardson, Rowlett and University Park, Murphy,Wylie, Lewisville, Flower Mound, Irving, along with surrounding DFW areas.