Posts Tagged ‘Divorce’

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Basics of Texas Divorce Law

Friday, January 14th, 2011

Wanted to give a shout out to my friend and colleague Michelle May O’Neill and her new book Basics of Texas Divorce Law.  You can find a copy on Amazon.com or you can visit her website The May Firm.

My blog was created to help the average person figure out Family Law in Texas and provide the best resources possible to help you find your answers.  This is one of those resources.

A peek behind the cover at the table of contents:

  1. Am I ready for Divorce?
  2. Attorney or no Attorney?
  3. The Divorce Proceeding.
  4. The Divorce Itself.
  5. The Division of Property.
  6. Alimony/Maintenance.
  7. Issues Related to Children.

I think this book is a great idea and I wish I had come up with it myself :)   If you are contemplating divorce, this would be a great first step.

But wait, that’s not all….Michelle also has an excellent iPhone app (did I already say that I wish I had come up with this?) that helps you prepare for divorce and estimate costs.  You can read about it and purchase it here or on iTunes.com.

You can follow Michelle’s Blog at dallastxdivorce.com.

Thanks for reading.

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Posted in Divorce | 1 Comment »

is it legal to record telephone conversations or intercept emails?

Monday, January 10th, 2011

A very common question in my practice is whether it is legal for a person to record telephone conversations or intercept emails from their spouse in a divorce.  As with most other areas of law, there are no hard and fast answers to every factual scenario only general guidelines.  I will start by addressing the recording of telephone conversations.

In Texas you can record a telephone conversation as long as one of the parties on the line knows they are being recorded.  That means you can record your conversation with your spouse because you know that you are being recorded.  You cannot record telephone conversations between two people if they do not know they are being recorded.  For instance, you cannot record your spouse’s conversation with their lover or sister or whatever.  That is wiretapping and can get you into some serious criminal trouble.

The next question that typically arises is whether you can record your wife or husband’s telephone conversation with your child? The general answer is yes.  Since a child is not old enough to consent to being recorded, the parent can consent for them.  If the parent consents to recording the conversation between the child and the other parent, then at least one party on the line knows they are being recorded.

As I stated above, however, these are general guidelines as every case is factually different.  You should always consult with a lawyer before embarking on a telephone recording campaign.  Factors such as phone calls to other states or out of the country could take this to a whole new level.  Be careful.  What is legal in Texas may not be legal in Arizona and if you are recording a conversation between a phone in Texas and a phone in Arizona you could open yourself up to criminal liability in Arizona.

The next topic is whether it is legal to intercept emails from your spouse.  Obviously you are not a party to the emails, otherwise you would have a copy.  This situation arises when you are snooping through your spouse’s email account.  Things get a little more dicey here.  It usually boils down to the spouse’s expectation of privacy and the availability of the email program and passwords, meaning was it a computer that everyone had access to in the house, was the password readily available, etc… No expectation of privacy then they become fair game, or do they?  There is a case out of Michigan where a husband was checking his wife’s gmail account from their home computer and she kept her passwords right next to the computer.  Did she have any expectation of privacy? Doesn’t sound like it.  However, that did not stop the District Attorney’s office from filing charges on him.  You can read more about this case in this MSNBC article.  What if you set up the spouse’s email software to forward you all emails they receive?  You may want to read this case on arstechnica.com.  What about key tracking software that sends a report of what was typed?  There is no easy answer to these questions.

Is it legal to record telephone conversations?  Sometimes.   Is it legal to intercept emails?  Maybe.  Consult a lawyer and be careful.  That is the best advise I can give.

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Posted in Children, Divorce, Separation | No Comments »

january and the standard visitation order in Texas

Friday, January 7th, 2011

Happy New Year everyone.  January is upon us and the kids should all be back in school now.  With the holidays behind us we enter a few months of normal standard visitation weekend and weekday visitations.

The first standard visitation in January for most of you was likely last night, the Thursday visitation (unless you have an old order and it would have been Wednesday).  Thursday possessions should continue this month without interruption.  The first weekend is tonight (as it is measured by the first Friday of the month).  The third weekend will be January 21st and there is not a fifth weekend this month.

For some of your children, Martin Luther King, Jr. Day will be a holiday, but since it falls on an off weekend for visitation it should not be an issue.

Pretty plain month in terms of visitation.  Until next month…

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Posted in child visitation, Children, Visitation | 1 Comment »

november and standard visitation in Texas

Monday, November 1st, 2010

I hope everyone had an enjoyable Halloween.  November is here and it is a busy month when it comes to standard visitation in Texas.  We’ll start with the simple and move to the more complex:

The standard weekends this month are Friday the 5th and Friday the 19th (maybe, see below).  The Thursday (or Wednesday if you have an old order) possession will continue this month with the exception of Thanksgiving week.  It is the custodial parent’s Thanksgiving this year.

Now the difficult part.  Each school district exercises the Thanksgiving holiday differently.  Let’s first address the language in most orders.  Standard orders read like this:

“the possessory conservator shall have possession of the child in odd-numbered years, beginning at 6:00 p.m. on the day the child is dismissed from school before Thanksgiving and ending at 6:00 p.m. on the following Sunday, and the managing conservator shall have possession for the same period in even-numbered years.”

If yours is a school district that dismisses school on the Tuesday or Wednesday before the holiday, then you will have the weekend of the 19th as a standard weekend visitation.

If your school district dismisses for the entire week then we have to look a little deeper.  Some schools dismiss on Wednesday, but have an inservice day on Monday and Tuesday (see the DISD Calendar).  That means that the child is out for the entire week.  If that is the case, when is the child “dismissed from school before the Thanksgiving holiday”?  This year the non-custodial parent would argue that it starts on Wednesday the 24th so they could have their weekend (extended by the Monday inservice day), while the custodial parent would argue that is starts on Friday the 19th so that they get that weekend as well as the holiday.

My first response is always that the parties should reach agreements on these types of issues.  However, I know that is not always possible.  So what is the answer?

I don’t know!  I think it depends on the wording on the school calendar.  In looking at the DISD Calendar I think the argument could be made both ways.  The custodial parent would argue that the whole week is designated a holiday and therefore it would begin the preceding Friday.  The non-custodial parent would argue that the calendar makes a clear delineation between the Thanksgiving holiday and the two inservice days.  By color coding them differently, the parent would argue that the Thanksgiving holiday does not start until the black highlighted section begins on the 24th and that the two white highlighted sections are inservice days extending their weekend per the standard order.

By contrast, look at the calendar for Grapevine ISD.  Theirs is highlighted the same throughout the week.  I think the custodial parent has the best argument here as it looks like the whole week is the Thanksgiving holiday.

Hopefully your school district makes it easy for you by letting out on Wednesday with no inservice days.  That is cut and dry.  If you are one of the unfortunate that have it the other way, be reasonable on both sides and save yourself a lot of grief.

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Posted in Children, Divorce, Holiday visitation, Visitation | 3 Comments »

october and standard visitation in Texas

Friday, October 8th, 2010

I was a little slow this month in getting the monthly standard visitation update done.  Hopefully everyone knew that their first weekend of the month was last weekend.  This is a pretty standard month for weekend and Thursday visits with the exception of a few items:

  • There is a fifth weekend this month and it begins on the 29th of October.  That is also the weekend of:
  • Halloween – Obviously halloween falls on the visiting parent’s weekend.  Be careful to check your order to see if there are specific possession times for this event.  While it is not common to put halloween in a standard visitation order, it is sometimes done so check your order.  If the parent with custody would like to have the child for a bit, be a good goblin and allow a few hours for some trick or treating.  That is DOUBLE CANDY  for the kids!  Won’t they be excited.
  • The other issue is Fair Day for those of you in the Dallas area.  Many schools will let the kids out for a Fair Day.  If that is on a Friday or a Monday, check your order well because a standard visitation order has a provision for extended weekends when Friday or Monday are a holiday for the kids.  If it is a Friday holiday your visitation will begin at the normal time it would on Friday, but on Thursday instead.  If it is a Monday holiday then your visitation will end on Tuesday at the time it normally would have ended on Monday.

Other than that, everyone should have standard Thursdays (or Wednesdays depending on how old your order is) this month and the weekends of the 1st, 15th, and 29th.

Happy Halloween and be safe out there with the kids.   Next month we will learn all about Thanksgiving visitation.  Fun!

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Posted in Children, Divorce, Visitation | 3 Comments »

child support contempt and enforcement in Texas

Wednesday, September 22nd, 2010

Child Support contempt

I have many client’s who are confused on when child support is considered late for purposes of contempt of court proceedings.  Most people read their decree literally when it says that support payments are due on the first of the month.  While it is true that it is due on that date, it is not considered late until thirty days have elapsed.

The reason for this is that most people are not paid there entire months check on the first of the month.  They are paid in weekly installments, on the first and fifteenth or every other Friday.

It may be easiest to show you an example:

  1. Donna Divorce is ordered to pay child support to Danny Divorce in the amount of $500 per month, with the first payment being ordered due and payable on September 1, 2010.
  2. Assume Donna is paid on the 1st and 15th of the month (semi-monhtly).
  3. She has submitted an employer’s order to withhold to her employer and they submit the first payment of $250 to the State Disbursement Unit in San Antonio (Attorney General’s Office) on September 1, 2010, the date she is paid.
  4. Obviously Donna did not get the full $500 payment on the 1st.  Is she in contempt?  No.
  5. Why?  Because her employer will submit the remaining $250 on the 15th of the month completing her payments for that month.
  6. That is why there is a thirty day cushion.

That was an easy one.   What if Donna is paid every other Friday (bi-weekly)?

  1. Assume her first paycheck is on September 3rd (a Friday).
  2. Since she is paid bi-weekly the amount that comes out of each check is $230.76.  I will go over how I got that number below.
  3. On September 3rd her employer submits a payment to the disbursement unit of $230.76.
  4. They submit another payment on the 17th of September, her next paycheck date.  Same amount, $230.76.
  5. Her next payment is not until October 1st.
  6. Obviously she is contempt because she only paid $461.52 for the month of September, correct?  That is not correct.
  7. Why?  Because although she may be a bit behind in September, later in the year there will be a month where she pays three time, which would catch her up.  Get it?
  8. For instance in October she will be paid three times instead of two.  For the month of September and October she should have paid $1000.  She paid $461.52 for September, but in October she paid $692.28 (three paychecks that month) for a total over the two months of $1,153.80.
  9. Just like she was not in contempt for September, she does not get money back for September and October.  Why?  Because there will be a month later that she only makes two payments.

At this point you are asking yourself how one would even keep track of this.  Look at it on a yearly basis because no matter how they are paid, weekly, bi-weekly, semi-monthly, or monthly, the number will all equal the same amount at the end of the year.  Per our example above:

  • $500 per month x 12 months = $6,000 for the year.
  • $250 semi monthly (on the 1st and 15th) x 24 payments = $6,000 for the year.
  • $230.76 bi-weekly (every other Friday) x 26 payment = $6,000 for the year.
  • $115.38 weekly x 52 payments = $6000 for the year.

You figure the installments as follows:

  • $500 a month is self explanatory.
  • If a person is paid on the 1st and 15th, then they are paid twice per month.  That is 24 times per year.  $500 divided by two is $250.
  • If person is paid bi-weekly or every other Friday, that is not two payments per month.  As we have seen above, some months are three payments.  Take $500 x 12 months = $6,000.  Divide $6,000 by 52 weeks in a year gives you $115.38 per week.  That number times two is $230.76.
  • The weekly number is $115.38 as just calculated.

I hope I have not made this more confusing because I am trying to help here.  Bottom line, because you do not receive the fully child support payment on the first of the month does not necessarily mean that the other side is in contempt.  There is a thirty day cushion.

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Posted in child support, Children, Divorce, Modification | No Comments »

child support and the employer’s order to withhold

Tuesday, September 21st, 2010

child support, employer's order, paycheck

A common issue that arises in child support cases is the roll that an obligor’s (person paying child support) employer plays in the payment of child support.  There is a misconception that once an employer’s order to withhold earnings for child support is given to an employer, the obligor is covered on child support.  That cannot be further from the truth.  Let me give you an example:

  1. Danny and Donna Divorce finalize their divorce case on September 21, 2010.  The court signs the final decree of divorce on that day and the employers order to withhold for child support.  The decree and order state that child support begins on October 1, 2010.
  2. Larry Lawyer, who represents Donna, submits the employer’s order to Danny’s employer on October 3, 2010 so that child support comes out of his check.
  3. Danny believes that there is nothing that he needs to do since the order was entered on September 21, 2010 and his child support will come out of his check.  Danny does not even bother checking his paycheck to see if the child support comes out because his paychecks are auto-deposited into his checking account.
  4. Meanwhile, Danny’s employer processes the order and begin withholding child support from his check on November 12, 2010.
  5. Donna is not happy.  She calls her lawyer, Larry, and complains that she has not received a child support payment since the decree was entered.  It is now November 13, 2010.
  6. Larry files a contempt action against Danny for failure to pay his child support for the month of September.
  7. Larry argues that it is supposed to come out of his check and that he did not know that his employer was not withholding the amounts.
  8. Result?  Larry is held in contempt for failing to pay his child support and pays Larry lots of attorney fees.
  9. Why?  Because Danny is responsible for payment of the child support every month regardless of whether his employer withholds it or not.  It is not a defense that his employer screwed up or did not screw up.

The moral of the story.  If you are ordered to pay child support, you are responsible for making the payment every month.  It is up to you to confirm that the correct amounts are coming out of your check.

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Posted in child support, Children, Divorce, Modification | No Comments »

update on gay divorce case in Dallas County

Thursday, September 2nd, 2010

The 5th District Court of appeals for Texas has ruled on the gay divorce case.  As a refresher, two men who were married in Massachusetts sought a divorce in Dallas County.  Judge Tena Callahan ruled that it was a violation of the federal constitution to deny them the right to divorce.

Essentially the appellate court ruled that Judge Callahan did not have the authority to hear the case, stating “[w]e hold that Texas district courts do not have subject-matter jurisdiction to hear a same-sex divorce case.”  Lawyer speak for you cannot hear same-sex divorce cases.

Remember, this was not a discussion of gay marriage, it was a discussion regarding the right of two people to divorce who had a valid marriage in another state.  Nobody was arguing that gay marriage should be legalized in Texas, simply that two people legally married in another state should be able to divorce in Texas.  The attorney general for Texas argued that by allowing gay marriage you were essentially recognizing gay marriage, which Texas does not.

I think it is interesting to note that Tena Callahan is a democrat and all the judges sitting on the Court of Appeal are republican.

In any case, I promised an update and here it is.

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Posted in Divorce, Gay Marriage | No Comments »

september and the standard visitation schedule

Wednesday, September 1st, 2010

Alright, September is here, school is in full swing and we are back to our school time  standard visitation schedule.  September is a pretty straight forward month with the exception of Labor Day weekend.  Labor Day is following the first Friday of the month which is a standard weekend period of possession under the standard visitation laws.

You will pick up at your normal time (per your order), however your drop off time will change this weekend.  If you typically drop off at 6:00 p.m. on Sunday, then you will now drop off at 6:00 p.m. on Monday.  If you typically return to school on Monday morning, then you will return them to school on Tuesday morning.  This provision can be found at §153.315 of the Texas Family Code for a standard visitation schedule and extends the weekend because of the Monday holiday.

Weekend visitation rights will be on the 3rd of the month and ending as described above, and the 17th of the month with standard pick up and drop off per your order.  You will also have the right to each Thursday this month.

I can’t think of any other issues that could arise, but if you have any questions, please provide them in the comment section or contact me at the email to the right.

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Posted in Children, Divorce, Visitation, Visitation in Texas | 4 Comments »

a few final points on the standard possession order in Texas

Thursday, August 12th, 2010

In previous posts I have discussed the various schedules that occur in a Texas standard possession order.  For review we have covered:

There have been other discussions on Texas standard visitation which you can access via “visitation” on the tags below.

To finalize the discussion I wanted to cover some of the other issues that arise in Texas standard visitation.

Agreements

One of the first paragraphs in a standard possession order states that the parties are free to agree on any possession order they like, but absent agreement it will be a standard possession order.  This is set out in §153.311 of the Texas Family Code.  This means that standard visitation is just a fall back for when the parties cannot mutually agree on visitation.  This is the legislatures way of trying to get the parents to work things out.

General Terms and Conditions

These are set out in §153.316 of the Texas Family Code.  It covers:

  1. Where the child should be dropped off at the beginning of the non-custodial or visiting parent’s possession.  This can be at the home of the custodial parent, at the home of the visiting parent, or some other location like the child’s school or a police station.  Check your order to determine where this is.
  2. If the possession is to begin at the time the child’s school is dismissed, then the child is surrendered at the school at the end of the school day.
  3. Where the child should be picked up at the end of the non-custodial parent or visiting parent’s possession.  This will typically be the opposite of the place in number 1., but can be at any of the three.  Check your order.  NOTE: All transfers are to take place at these location.  If no agreement has been made to modify these provisions, this is where you must pick up and drop off.
  4. If the possession ends when school resumes, the visiting parent will return the child to school at the beginning of the school day.
  5. Each party is supposed to return the child with the clothes and items that they brought.  You cannot imagine what a big issue this can become, or maybe you can.  The provision is simple…what the child comes with, the child goes home with.  Do the clothes have to be washed?  No, it does not say that.  You simply must return those items with the child.
  6. Each party can designate a competent adult to deliver the child.  This means that a parent can pick an adult to transfer the child pursuant to numbers 1. and 2. above.  If your order does not specifically restrict someone, then they can choose any competent adult.  If you disagree with the adult’s competence, you will have to go to court.  This provision is for pick up and drop off only.  This provision does not mean that the parent can designate a person to visit with the child while the visiting parent is not there.  Visitations are set up for the parents.  However, there are circumstances where a parent can allow others to visit with the child (grandparents, new wife and family, etc…)  This may be the subject of another post.
  7. Each parent shall give notice to the other parent in possession of the child if they will be unable to exercise visitation of the child.  This notice should be in writing if possible.  This is probably the most ignored provision of a standard possession order in Texas.  You shouldn’t ignore it because if it happens enough (no notice given for missed possessions) it can be grounds to take away visitation rights.
  8. Send it in writing as soon as possible.  This can include an email.
  9. If possessions begin or end at school, and the parent will not be able to get the child from or to school, you must notify the other parent so that proper arrangements can be made.  Nothing will get you in trouble faster with the court than a child missing school.

The above is a general summary of some of the additional rules in a standard possession order in Texas.  My comments are not all inclusive and there are many fact scenarios that I did not cover.  If you are having problems with any of these, contact a local attorney and discuss it with them.

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Posted in Children, Divorce, Visitation | 1 Comment »

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