The Special Needs Child and Parents Going Through a Texas Divorce

November 3rd, 2014

Parents of a special needs child face many challenges while raising and nurturing their child.  Many marriages falter and end in divorce due to the stressful demands required of parents with a special needs child. The stressors and emotional pressure that exists prior to the initiation of a divorce frequently accelerates during the divorce process. A special needs child is seriously affected by their parental decisions made during a divorce.

A divorce does not bring out the best in any couple. In the case of a special needs child, thoughtful and prudent care of the child should always be the main objective of both parents so the child knows that he/she is loved by both parents and is not at risk.  A special needs child will experience serious emotional and behavioral problems during this time becoming more vulnerable and not knowing what is happening in life.  The child is often afraid that he/she is losing Mom and Dad due to false and misplaced self-imposed guilt.

Many parents have already struggled with questions surrounding their child’s special needs such as correct diagnoses or the validly of treatments for their child’s conditions.  During serious custody battles, such concerns become the focus of intense parental conflicts.

Some of the more serious concerns are:

  • A child’s reactions to overly permissive or excessively rigid parenting

  • Use and dosage of prescribed medicines for a diagnosed problem

  • Proper diagnosis being made by a competent professional

  • Whether a professional label and diagnosis will be noted in school records

  • Whether a child be placed in special education classes for leaning or emotional disabilities. Whether one parent is so occupied with the special need child that the parent has lost perspective on how to best manage the child

Often one parent accepts a child’s diagnosis given by the specialist and actively advocates for the child, while the other parent may remain in denial of the child’s obvious needs. Which parent is actually and consistently working in the child’s best interests?

Special efforts are needed when setting up possession schedules for your special needs child. Both parents must understand the nature of the child’s physical/emotional problems and the level that the child can function.  When the child spends time in each parent’s home, both parents must reasonably work together and agree on a parenting approach that addresses the child’s needs.

When parents cannot agree upon the child’s actual needs and course of care, the court may appoint a specialist to conduct a complete evaluation of the child.  From this evaluation the specialist will offer specific opinions to the parents and court regarding the nature of the child’s special needs and specifically address these needs.

In a divorce involving a special needs child many joint decisions are critical to and impact a child’s self-esteem.  Other family issues and problems may need to temporally be put aside between the parents to assure a special needs child will fully receive the attention needed.  We suggest that in the divorce decree a parenting plan be included setting out specific provisions for the care of the child.

Some suggested items to include in this Plan would be:

  • Can the child be cared for in the home or an outside facility and how would these costs be covered?

  • Medical, educational, and therapeutic interventions and decision making authority

  • Treatments not covered by insurance. Who is responsible as to the authority and cost?

  • Working with the child’s school to implement plans for the educational needs of the child.

  • Care decisions on parents’ ability to work outside the home with a special needs child

  • Handling of Lifetime care and support and the cost necessary for the special needs child

Employee-At-Will : Status in Texas and Employment Agreements

September 5th, 2014

Texas is an “Employee-At- Will” state which gives few rights to an employee that are not created by statute or governed by labor regulations. At-will employees can be terminated for any reason, as long as the reason is not in violation of specific statutes or is not due to failure or refusal of the employee to commit an illegal act during employment. A Texas Employment Contract is of critical importance in order to create equal rights and obligations that are enforceable. An employment contract must directly limit the employer’s right to terminate an employee without good cause (a defined term) or provide for a “term” of employment that is firm. In the employment contract the employer should unequivocally indicate that termination of the employee’s job may only occur in specific defined circumstances. The contract may also set out the terms on which a company hires an individual or an individual hires a company.

If properly prepared, this employment contract is a legally binding agreement in Texas and is enforceable in a court of law. Discretionary flexibility in changing the job terms and conditions is limited by a Texas employment agreement and the newly created legal obligations of the employer.

Many common provisions included in employment agreements are:

  • Employee’s job description

  • Employee’s monetary and benefits compensation

  • Protection of Trade Secrets and Confidential Information

  • Non-compete covenants of varied length, time and geographic location

  • Prior physical exam and/or drug testing program ongoing

  • Notification of Company Policies and Procedures

  • Terms of Notice of Resignation and Return of Company Property

  • Terms of employment and duration of employment

  • Severance issues

  • For cause termination

An oral employment agreement in Texas with a term less than one year in duration or an agreement which can be fully performed within one year, is generally binding. Contract terms can flow from a number of sources which may include the following:

  1. Verbal agreements
  2. Agreements in writing or document form
  3. Agreements required by law
  4. Implied – not written but mutually understood to exist
  5. An offer letter
  6. An employee handbook
  7. A company notice board
  8. Collective agreements
  9. Emails
  10. Faxes

Wrongful dismissal is a breach in the way the employee is dismissed, i.e. without being given proper notice or following the procedures as terms or rights set out in the employment contract.

In order to modify a Texas employment contract, there must be a subsequent agreement (preferably in writing) between the parties. Under certain circumstances, the employer may need to make changes to the contract because of economic circumstances. Things that might may be modified include:

  • Rate of pay
  • Work time
  • Duties and responsibilities
  • Work Location
  • Correcting an error in the contract
  • Disciplinary action – check disciplinary procedures to make sure this is done properly

Employees may ask for a change in a contract to: 

• Improve their work environment
• Secure a raise in pay
• Secure more vacation or holiday time
• Change work hours

A breach of the contract occurs when either the employer or the employee  violates a condition or term in the contract. A breach may be the result of a verbal or an oral (implied) agreement. If you think a breach of contract has occurred, it is best, generally, about absent fraud or duress, to take the problem to the employer first and attempt to work out a solution. If you decide to take legal action, remember you will need to prove financial loss in order to receive compensation. Legal counsel action may prompt the employer to counter sue, if the employer thinks it has legal ground. An employer has the legal right to sue the employee for damages just as the employee has the right to sue the employer.

 

Your New Texas Business : Structure and Planning

September 5th, 2014

You are now ready to set up your new Texas business venture!  Setting up a new business and forming a new entity in which you will do business is to “Effectively win your lawsuit before it is filed against you.” You should have already consulted with a knowledgeable attorney and accountant on the type of structure that will best fit the needs of your business.  When starting a new business with partners or by yourself, proper advance legal planning will enhance the enforceability and specifically define the terms of your business agreement.

What are the most common Business Structures for your new Texas business venture?

  • Sole proprietorship : Most common and simplest form of business. A single individual engages in a business activity without necessity of formal organization. If the business is conducted under an assumed name (a name other than the surname of the individual), then an assumed name certificate (commonly referred to as a DBA in Texas) should be filed with the office of the county clerk in the county where a business premise is maintained. If no business premise is maintained, then an assumed name certificate should be filed in all counties where business is conducted under the assumed name.

  • General partnership : When two or more persons associate to carry on a business for profit. A general partnership in Texas generally operates in accordance with a partnership agreement, but there is no requirement that the agreement be in writing and no state-filing requirement. If the business of the partnership is conducted under an assumed name (a name that does not include the surname of all of the partners), then an assumed name certificate (commonly referred to as a DBA) should be filed with the office of the county clerk in the county where a business premise is maintained. If no business premise is maintained, then an assumed name certificate should be filed in all counties where business is conducted under the assumed name.

  • Corporation : A Texas corporation is created by filing a certificate of formation with the Texas Secretary of State.

    A corporation is a legal person with the characteristics of limited liability, centralization of management, perpetual duration, and ease of transferability of ownership interests. The owners of a corporation are called “shareholders.” The persons who manage the business and affairs of a corporation are called “directors.” However, state corporate law does provide for shareholders to enter into shareholders’ agreements to eliminate the directors and provide for shareholder management.

  • Limited Liability Company: A Texas limited liability company is created by filing a certificate of formation with the Texas Secretary of State.

    The limited liability company (LLC) is not a partnership or a corporation but rather is a distinct type of entity that has the powers of both a corporation and a partnership. Depending on how the LLC is structured, it may be likened to a general partnership with limited liability, or to a limited partnership where all the owners are free to participate in management and all have limited liability, or to an “S” corporation without the ownership and tax restrictions imposed by the Internal Revenue Code. Unlike the partnership, where the key element is the individual, the essence of the limited liability company is the entity, requiring for its creation more formal requirements.

    The owners of a LLC are called “members.” A member can be an individual, partnership, corporation, trust, and any other legal or commercial entity. Generally, the liability of the members is limited to their investment and they may enjoy the pass-through tax treatment afforded to partners in a partnership. As a result of federal tax classification rules, a LLC can achieve both structural flexibility and favorable tax treatment.

    A limited liability company can be managed by managers or by its members. The management structure must be stated in the certificate of formation. Management structure is a determination that is made by the LLC and its members.

  • Limited Partnership: A Texas limited partnership is a partnership formed by two or more persons and having one or more general partners and one or more limited partners. The limited partnership operates in accordance with a partnership agreement, written or oral, of the partners as to the affairs of the limited partnership and the conduct of its business. While the partnership agreement is not filed for public record, the limited partnership must file a certificate of formation with the Texas Secretary of State.

  • Limited Liability Partnership: In order to limit the liability of its general partners, a general or limited partnership may opt to register as a limited liability partnership.

(Info courtesy/http://www.sos.state.tx.us/corp/businessstructure.shtml)

There are many ways to maintain control of your new business, but these must be implemented before the business commences.

  1. Define the terms of the entity/structure

  2. Make sure the major governing provisions and terms of the entity are clear and specific.

  3. Protect the owners in the event of the death of fellow owners and claims of their estate or surviving spouse.

  4. Protect yourself against a lazy or incompetent partner.

  5. Protect the business in case of divorce, either yours or other key people.

Always planning for common or unpredictable major life events in your business dealings makes very good financial and legal sense. Getting good legal advice up front when setting up your new Texas business will save much time, money and stress in your future business decisions.

 

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.