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This page is designed to give you an overview of the basic tenets of civil law. More than coincidentally, these are the areas of practice in which we have experience or specific knowledge, and which we would be pleased to represent you. Please choose one of the areas of law listed below, to jump to that section: Civil Litigation
Over three-fourths of legal disputes are resolved out of court through discussion and negotiation between the parties. However, when the parties are unable to reach consensual resolution, civil litigation is the next usual step. Civil litigation is the process by which a claim is shepherded through the court system. Your attorney will first file a petition with the clerk of the appropriate court. A petition is a document outlining the dispute, listing the facts that have occurred, the reasons the Plaintiff (the person initiating the claim) believes they are entitled to relief, and what relief they hope to obtain. The Defendant is served a copy of the Petition and is given a specific number of days to answer the allegations. When answering the Petition, a defendant may also make a counterclaim, stating that they are entitled to specific relief from the plaintiff. If more than one defendant is involved, each may assert what are known as cross-claims, which are complaints against other defendants. During this period, a defendant may decide that there is no basis for a claim, and he or she may seek to Dismiss. A judge then decides if the case should go forward. Following the filing of an Answer, the discovery period begins. Discovery is an effort to obtain further information to validate a party's claim that they are entitled to relief or prove that they are not liable. Discovery generally consists of submitting written questions (interrogatories) to each party, requesting copies of documents pertaining to the dispute, and asking questions, under oath, of witnesses to the claim (depositions). Settlement negotiations may occur during this period. A party who feels its case has been weakened by the discovery process may feel compelled to settle before the trial while a party who has seen its case strengthened will have more leverage as the trial date draws near. Before the trial occurs either party may file a motion for summary judgment. This motion is supported by affidavits (statements taken under oath) or other evidentiary materials. This motion contends that there are no relevant issues of fact in dispute, and that the moving party is therefore entitled to judgment as a matter of law. If the judge denies this motion and the parties do not settle, the matter goes to trial. In a typical trial attorneys will make their opening statements, then the plaintiff will introduce his or her case. This is done through the questioning of witnesses and the introduction of evidence. When either attorney, while questioning a witness, asks a question that the other attorney believes is improper or attempts to introduce evidence the other attorney feels is impermissible, the other attorney must object. If the attorney does not object at that point in the trial, that issue cannot be challenged on appeal. The defendant may present any witnesses or evidence which they feel will help their case. Both parties will then make closing arguments, trying to persuade the judge or jury that theirs is the winning argument. When both sides have concluded, either party may again make a motion for judgment as a matter of law. If the motion is denied, the judge or jury will then deliberate, and return with a verdict. If the judge is convinced that the jury has reached a verdict which is inconsistent with law, the judge may enter a judgment notwithstanding the verdict. This is a rarely used procedure as the court grants great deference to the wisdom of the jury. Estate Planning
Health Care Proxy.This instrument designates someone (your Health Care Agent) to make critical health care and treatment decisions for you in the event you are unable to make those decisions for yourself.Living Will- Physiciation's Directive.This instrument is your statement that in the event you are suffering from a terminal illness you do not wish to be kept alive by "artificial means." When used in conjunction with a Health Care Proxy, a Living Will also serves as a directive to your Health Care Agent.Durable Power of Attorney.There are essentially two types of decisions someone may have to make for you: those relating to health care, and those relating to finances. The Durable Power of Attorney is an instrument that allows your "attorney-in-fact" to manage your financial affairs in the event that you are unable to manage them yourself because of physical or mental disorder. Your Attorney-in-fact may, but need not, also be your Health Care Agent. An Attorney in fact need not be an attorney licensed to practice law; rather, he or she is someone you have authorized to act on your behalf.Last Will and Testament.Known by most as the "Last Will," this is the instrument, which upon your death, specifies how your wealth will be distributed. A Last Will also permits you to make other decisions, such as your choice of guardian for your minor children, and the individual who will be responsible for insuring the provisions of your Last Will are honored. You can set up testamentary trusts for your minor children and appoint a trustee for the children.Living Trust.This document separates legal ownership of an asset from its use or enjoyment. It provides you (or someone you select) with the benefits of ownership, while placing the burden of management in another. Through careful implementation, use of a Trust plan may result in significant tax savings. An attractive feature of a Living Trust is that it allows for the transfer of an asset to a trust over which the grantor retains a significant measure of control.Real Estate Law
Nearly everyone has an interest in real estate. Individuals either rent a home or own one, and most businesses lease their space. What you should know about real estate depends entirely upon what you are buying and leasing. Buying a single family home, for example, differs from buying a condominium. Here's a quick checklist of some of the issues you'll want to watch for when buying real estate. THE SINGLE FAMILY HOME:The Home Inspection.Be sure to get a professional to inspect your new home before you sign a contract to buy it. The inspector should check for evidence of pest or termite infestation, evaluate the soundness of the mechanical and electrical systems, and tour the roof and chimney to check for defects.Septic System.If the property is serviced by a septic system, be sure it passes inspection. All septic systems must be installed in compliance with the Title V of the State Sanitary Code, and whenever a home is sold the septic system must pass rigorous inspection.Easements and Covenants.Find out if there are there is a right of way, such as access to a beach or private road, which benefits the owner of the property. Also check out if there are any restrictions which limit your use or ownership of the property. A seemingly small restriction can greatly reduce the market value of the house or your enjoyment of it.New Construction.If the builder promises to build a sound structure, make him put his promise in writing by giving you warranties against defects which become apparent only after the house is completed and you've paid for it and moved in.THE CONDOMINIUMThe condominium is a single-family home, except that it's stacked vertically one on top of another, instead of horizontally, on an expanse of land. Unlike traditional single family homes, condominiums represent a special form of ownership regulated by a set of documents referred to as the Master Deed, Declaration of Trust, Bylaws, and Rules and Regulations. If you're buying a condominium, you must read these documents. They place important restrictions on how you live in the building. You'll also want to satisfy yourself that the association of Unit owners is financially sound, and that the association isn't running in the red. If there are Unit owners who haven't paid their monthly fees, the condominium may be running on empty. You should also find out if the building is professionally managed or "self-managed." Small buildings of 3-4 Units can be easily managed by the owners themselves, but larger, more complex buildings usually require professional property management services which can be costly.Before you sign a contract to buy a condominium Unit, find out if there's any litigation affecting the association and whether there are any proposed increases in the monthly fees or special assessments. If there are any new fees, find out why! You'll also want to know the ratio of owner-occupants to tenants. Generally, the more tenants in a building the more difficult it is to maintain the property from wear and tear. A good lawyer should also be able to help you understand whether there are any restrictions on such issues as pets, parking, storage or renting. DIVORCECAN YOUR MARRIAGE BE SAVED?Before you take any legal steps to end your marriage, you should make sure that you have tried all possible ways to save it. Do you want professional help in working out ways to save your marriage? Many communities and many social and religious organizations offer counseling services either free or on a sliding fee scale. Or you mat wish to consult with a marriage counselor, psychologist, psychiatrist, minister, priest rabbi or other qualified person. Your attorney may also know someone who can counsel you and your spouse. GENERALDivorce can be one of the most difficult and complex experiences of a person's life. In the State of Texas, a divorce cannot be granted without settling what is in the best interest of children involved and the division of the community property. There are those who are able to simplify their divorce by agreeing with their spouses on the division of the marital estate and on the issues regarding the children. Such simplification is often a good idea and can greatly improve the financial and emotional factors of a divorce. However, your decision must be carefully thought through. After the divorce is over, it is often too late to change your mind. DIVORCE DISCLAIMERDisclaimer: The advice in this section is for families going through a divorce without specialized problems such as domestic violence, substance abuse issues or child abuse problems. Should your upcoming divorce involve specialized problems, seek an attorney's advice immediately. The official word for divorce in Texas is "dissolution." Texas is one of the many states that has abolished fault as a ground for divorce. This law lessens the potential harm to the husband and wife and their children caused by the process of divorce. All that is required is that the marriage be "irretrievably broken." Either spouse can file for the dissolution of marriage. All that has to be proved is that the marriage is broken. Fault however, may be considered under certain circumstances in the award of alimony, and determination of custody issues. Each divorce case is unique and therefore settlements vary. Even though fault is not an issue, the division of the marital assets may become a contested matter. The divorce process is highly emotional and traumatic for everyone it touches. Marriage partners often do not know their legal rights and obligations. Court clerks and judges can answer some of your basic questions but are prohibited from giving legal advice. Only your lawyer is allowed to do that. Court procedures must be strictly followed or you may lose certain rights forever. It is recommended that you obtain the services of an attorney concerning legal questions, your rights in a divorce, your children's rights, your property rights, your responsibilities resulting from the marriage or tax consequences. A knowledgeable lawyer can analyze your unique situation, and can help you to make decisions in the best interest of you and your family. To obtain a dissolution of marriage in Texas, normally at least one spouse must have been a Texas resident for six months or more before the case is filed. DISSOLUTION OF MARRIAGE
AgreementA common method to obtain a divorce is through agreement of the parties, which also is referred to as a non-contested divorce. To accomplish a divorce through agreement, the parties enter into a written marital agreement which spells out the terms of the divorce, including matters relating to any children of the marriage and property owned by the parties. The agreement is then presented to the Court for approval.Default.A default happens when one party files a petition for divorce with the Court and obtains service of process on his or her spouse, and the spouse does not file an answer within the time allowed by law. If the location of the spouse is not known, service of process can be obtained by publishing notice in the local newspaper. With a default, the Court decides all issues concerning the divorce, but the Court's decision is based on the testimony of only the party who filed suit. Trial.With a trial, sometimes referred to as a contested divorce, all issues concerning the divorce are presented to the Court for decision. The Court bases its decision on the testimony of the parties, witnesses, and any other evidence presented. With a contested divorce, a party can use the legal proceedings to discover prior to trial information concerning the other parties' assets, credit card receipts, bank accounts, telephone calls, and other matters which may be relevant to the Court's decision. Because pretrial discovery is permitted, and because a trial entails substantially more legal work than drafting a marital agreement or default paperwork, a trial generally is more expensive than a divorce through either agreement or default. Therefore, unless substantial differences exist as to the division of marital assets, or unless the custody of children are involved (where money is not the consideration), the parties generally are better off trying to settle their differences outside of the courtroom. It is often the case that parties who commence a divorce on a contested basis settle their differences prior to trial. Mediation.The Texas Courst now require mediation as part of the divorce process. If the parties cannot reach agreement on their own but do not wish to go through a full trial, mediation should be considered. Mediation can be an effective negotiating tool when the parties cannot reach agreement between themselves. With mediation, the parties meet with an impartial mediator. The parties' attorneys can, but need not, be present. The mediator represents neither party but instead seeks to facilitate a settlement between the parties on an equitable basis. If the parties reach agreement through mediation, then the agreement is presented to the Court for approval. If the parties cannot reach agreement, then they may still proceed with trial.Legal Separation.Texas does not have legal separation. Legal separation is an alternative for those who do not wish an absolute divorce but who wish to live apart from each other. It sets out the parties' rights and responsibilities in a formal manner and is submitted to the Court for approval. The main difference between legal separation and divorce is that neither party can marry another while the decree is in effect. Differences also may exist as to the parties' health insurance coverage, taxes, and estate distribution (in the event of the death of one of the parties). Grounds for Divorce.In order for the Court to grant a divorce, it must have grounds to do so. The most common ground used today is incompatibility, which does not require the fault of either spouse. Although a Court can grant a divorce on a no fault basis, the grounds for a divorce are important with respect to child custody, alimony, and property division. Other grounds for which a divorce can be granted include: adultery, prolonged imprisonment, desertion, addiction to alcohol or drug abuse, and other matters. Premarital Agreements.A premarital agreement is an agreement entered into prior to the marriage that defines the parties' rights in each other's property. These agreements can be enforceable in Court provided that certain contractual requisites are met and the agreement is not manifestly unjust or unreasonable. The parties can agree to the division and character of the property that they will acquire during their marriage. It can be determined as to the character and ownership of income from their separate property that they take into the marriage. There must be full disclosure, of all assets and liabilities, from both parties. DOMESTIC VIOLENCEYou may go to court yourself for an injunction to protect yourself against assault, battery or sexual battery by your spouse (whether you are separated or not) or your former spouse. If you feel you are the victim of such domestic violence. You should contact the office of the clerk of the court in your county for information and assistance. PROPERTY DIVISIONTexas is a community property state. Although there are exceptions to every rule, community property is subject to a division in the event of a divorce, including debts. Before the community estate can be divided, it must be characterized. The estate is not merely divided by giving each side 50%. Instead, several questions are asked to determine what a "fair and equitable" division of that estate should be. For example, items that would be considered as part of the community estate could consist of cars, houses and other property obtained during the marriage. In the State of Texas, property that is considered the separate asset of a party is generally not divided. It is only the community estate that gets divided. For instance, if one party owned a house before the marriage, that house would remain the property of that person after the divorce is settled. However, there are also rules that might give the other spouse a claim of reimbursement if certain criteria are met. Other separate property items may include such things as stocks, businesses, inheritance and gifts. Whether each item of the marriage is characterized as community or separate is the key to the final outcome of the division of property. One of the most difficult and complex areas of divorce is the division of marital property. Marital property may include cars, houses, retirement benefits (pensions), business interests, cash, stocks, bonds, bank accounts, personal property and other things of value. Texas statutes and case law provides for an equitable distribution of marital property. In essence, the marital property should be divided fairly or equitably (not necessarily equally) between the parties regardless of how the title is held. The division is based upon all facts of the case and the contribution of both spouses to the marriage. The division of marital property (any asset acquired during the marriage by the efforts of one or both parties) is considered in conjunction with all other awards of alimony and interests in property. There is no fixed way to determine how you or the court should divide the property. Liabilities as well as assets must be considered. Other factors include the nature and extent of the property and whether it is marital property or non-marital property, the duration of the marriage, and the economic circumstances of each spouse. If you and your spouse can agree, and if your agreement is reasonable, it will be approved by the court. If you cannot agree, the court will divide the property after a trial. ALIMONYUntil just the last few years, Texas was the last state of the union without any alimony. Legislative changes have opened the door to spousal support following a divorce. However, alimony is limited in scope and duration. The possibility and probability of spousal support will be evaluated by the lawyer and factored into the strategy of the case. ( non Texas residents): The court may grant alimony to either the husband or the wife. Rehabilitative alimony may be for a limited period of time to assist in redeveloping skills and financial independence or permanent alimony until the receiving spouse's remarriage or the death of either party, or the Court may grant some combination of the two. Also the court may order through lump-sum alimony one party to pay the other party a lump-sum payment of money or property. Although adultery does not bar an award of alimony, the court may consider the adultery of either spouse and the circumstances of that adultery in determining the amount of alimony to be awarded. In awarding alimony, the court considers all relevant economic factors, such as: the parties' prior standard of living; length of the marriage; age and physical and emotional condition of both spouses; each spouse's financial resources and income-producing capacity of the assets they receive; the time necessary to acquire sufficient educational training to find appropriate employment; and the services rendered in homemaking, child rearing, and education and career building of the other spouse. The court may consider any other factor necessary to do equity and justice between the husband and wife. You have the right to find out about all your spouse's income and assets through the use of discovery procedures which your attorney will explain to you. (Texas residents): Texas has enacted "Spousal Maintenance," or support which is similar to alimony after the divorce is granted. The Texas legislature has set forth guidelines in the Texas Family Code. To be eligible, you must have been in a marriage over ten years and have specific circumstances where one spouse is unable to support him or her self, either completely of partially. The court generally only awards spousal maintenance on a temporary basis while the divorce is pending. TAXES AND DEBTSPlease see your CPA for tax concerns.. Custody and VisitationIt is the public policy of Texas to assure each minor child frequent and continuing contact with both parents after the parents have separated or divorced, and to encourage parents to share the rights and responsibilities of child rearing. The father is given the same consideration as the mother in determining conservatorship regardless of their child's age, sex or other factors. Texas Courts favor joint custody arrangements. In most cases, parental responsibility for a minor child will be shared by both parents so that each retains full parental benefits and responsibilities with respect to their child. This requires both parents to confer so that major decisions affecting the welfare of the child will be determined jointly. Joint Managing Conservatorship means that both parents share the children's substantive parental decisions. Despite popular belief, "joint custody" does not mean the child spends half of the time with one parent and the other half with the other parent. In fact, joint custody has little to do with the actual time either parent spends with their children. Instead, it relates to the legal issues associated with raising children. In some cases, the most important legal right is the establishment of domicile, or the determination of where the child will physically live. Over the past several years, domicile restrictions have become more and more popular. That is, though one parent may have the right to establish the residence of the children, that residence must be located within a certain geographic boundary. That boundary can be a school district, city, county, state or even country. Most often, the children's residence is limited to a county or group of counties. However, every case does not necessarily require a domicile restriction. Some courts even refuse to grant such restricts except in extreme cases. You and your spouse may agree, or the court may order, that one parent have the ultimate responsibility over specific aspects of the child's welfare, such as education, religion and removal from the area, medical and dental needs. If the parents have a substantial conflict over any of these areas the court will decide for them. The court will also designate one parent's home as the primary residence of the child. The other parent is usually entitled to frequent and continuing contact with the child. In rare cases, the court can order total parental responsibility and custody to one parent To do so, the court must determine that shared parental responsibility would be detrimental to the child. The court may award the child's grandparents certain visitation rights if it is deemed by the court to be in the child's best interest. Thereafter, the grandparents have the right to seek judicial enforcement of the visitation rights. The court may award grandparents visitation rights after the parents divorce, when it is in the best interest of the grandchild or when one or both parents of the child are deceased; or, when a parent of the child has deserted the child. In considering issues between parents and their children, the best interest of the child is the primary consideration by the courts. The Texas State Bar has developed a consumer pamphlet entitled Shared Parenting After Divorce, which discusses the subject and includes a model shared parenting agreement. Contact the Texas State Bar to obtain your free copy. CHILD SUPPORTYou and your spouse each have a responsibility to support your children in accordance with their needs and your financial abilities. Support may be by direct payment or by indirect benefits, such as mortgage payments, insurance, or medical and dental expenses. Ordinarily, the obligation to support your child ends when that child reaches 18, marries, graduates from school, or becomes financially independent. Some of the issues concerning child support which must be considered include: (a) the amount of support; (b) the method of payment; (c) ways to assure payments are made; (d) when child support may be increased or decreased. Other questions may need to be answered, depending on the circumstances of your case. Guidelines for support which apply to most cases have been adopted by the state and are mandatory. If you have a problem getting support payments from your spouse or former spouse, or visitation and access to your child is denied, you should bring this matter to the attention of the court. It is not proper to withhold visitation or child support payments because of any alleged wrongdoing by your spouse or former spouse. APPEALSAfter a regular dissolution of marriage. If you feel the judge's decision was incorrect, you may appeal that decision, provided that certain procedural steps are taken. An appellate court does not, however, frequently reverse a trial judge's decision because the judge has broad discretion in divorce cases. Just because you do not like the judge's decision is not a reason for an appeal. If the trial judge makes an error of law, or has abused his discretion, the decision may be reversed. ATTORNEYS' FEES AND COSTSDivorce does not have to be expensive. The more complex your affairs and the more contested the issues, the more the dissolution will cost. At an initial meeting. Your attorney should be able to provide an estimate of the total cost of a dissolution based on the information you provide. To a great degree the cost will depend on how contested the matter becomes. Your lawyer will expect you to pay a fee and the costs of litigation in accordance with the agreement you make. Sometimes the court will order your spouse to pay part or all of your fee and costs, but such awards are unpredictable and cannot be relied upon. You are primarily responsible for the payment of your legal fees. FAQsWe have decided to Divorce - How do we tell our children? It's best that you and your spouse tell your children together, if possible. It is important to let them know it is an adult decision that you both believe will make your independent lives better. Many children have misperceptions about having to choose a parent, not being able to see the non-primary parent, or even having to go to court. So it is important that you both educate your children together about what to expect in the upcoming months and reassure them that you will always be a family, although you will not always be living together. Listen to you children's concerns. Encourage your children to talk so you can address possible misperceptions. Let your children know that you support their relationship with the other parent. Tell your children that it is ok to love and miss the other parent and that having these feelings is natural. Most importantly, tell your child she or he will not have to choose "a side". It is important to re-assure your children that they still have two parents who love them, that they will eventually have two homes, and that they will be living some with Dad and some with Mom. Remember that your children will look to how you and your spouse are coping with the upcoming changes. Your confidence and your reassurance about the new changes in the family will instill confidence in your children. How do I help our children cope with the problems of divorce? Listen and Talk. Just listening to your children's concerns and feelings is enough to provide them great relief - you don't have to be a solver of all problems. Sometimes just listening is enough. Talk to your children, shepard them through the divorce process - allow them to disagree with you or be angry with you - this will pass. Our relationship is so strained that we can't even talk to each other - much less talk to the children. What do we do? Conflict between parents is extremely hurtful to children. Find a neutral mediator or a therapist to help you and your spouse focus on the needs of the children. Use your neutral person to help you both tell the children about the upcoming divorce and your hopes that the strife between the two of you will lessen by living independently. Be very careful to keep your children out of the middle. Resist any urge to draw your children into the divorce issues - children caught in the middle feel like they are in a war zone. I am the parent likely to provide the primary home. How do I help our children? Children tell us they most often miss the parent they are not with at the time, so you need to let your children know it is natural and normal to miss the absent parent. Give your children permission to call or see the other parent. Teach your children how to deal with feelings of missing the absent parent. Show them how to telephone, e-mail or help them arrange a meeting with the absent parent. Your showing them how to reach out is teaching them how to cope, as well as a demonstration of your support for the other parent - it is a physical demonstration of permission to love the absent parent. Eventually, you and your spouse will have legal documents that will likely provide for set periods of visitation for the other parent. Although your children don't need to know the details of the Court's orders, they should know that they will be able to see the other parent on a regular basis. Even though your legal documents will outline specific periods for both parents, you will have the ability and responsibility to work with the other parent and be as flexible with the children's schedule as possible. I am the parent not likely to provide the primary home. How do I help our children? Frequent contact across a variety of contexts - meals, homework, sports practice, discipline, bed-time - contribute to a rich parenting relationship that mirrors normal family life. Try to interact with your children in these types of natural, everyday experiences - it will feel good and right to them. Establish independent lines of contact with teachers, therapists, friends, neighbors, and extended family. This will help you keep in touch with your children's lives without interruption and without infringing or becoming too dependent on the primary parent. Knowing your children's schedules and habits at their primary home will help you normalize their experience at yours. Finally, remember that your children have two homes, not just one. Don't make the mistake of "taking the children home" after your period of possession. Keeping this mindset will help you create a fulfilling family life for the children. My Spouse is telling the children negative things about me and the break up. What should I do? First, listen to your children's thoughts and feelings. Gently learn about how such information was obtained. Do not criticize the other spouse. Rather, if your child holds a misperception, correct the misperception factually without judgment. Be realistic. Even parents within in-tact families make critical remarks of one another. Forgive and try to understand small transgressions. If possible, talk to your spouse about working together to protect your children from strife. If the problem continues, your children will be harmed, so you must take action to protect them. Talk to your lawyer about options, mediation, a therapist, or even a court hearing that might provide needed relief. Judges generally have little tolerance for parents who say bad things to their children about the other parent because it is so very harmful for the children. How do we help our children with setting up two households? Involve your children in the process of setting up two households - mix old and new from their bedrooms. Avoid having the non-primary spouse start new bedrooms from scratch. Work together - let your children see cooperation. Avoid becoming territorial with toys and clothing. Such things belong to the children - not to the adults. Invariably, children will unintentionally leave a beloved toy or homework at one household - work together to straighten out such problems. It's the best for your children. Will custody of the child always go to just one of the parents?No. Courts normally award at least some aspects of custody to both parents, called "joint custody." Joint custody, or conservatorship usually takes at least one of these forms: In most states, courts are willing to order joint legal custody, but about half the states are reluctant to order joint physical custody unless both parents agree to it and they appear to be sufficiently able to communicate and cooperate with each other. In Idaho, New Mexico and New Hampshire, courts are required to award joint custody except where the children's best interests --or a parent's health or safety-- would be compromised. Texas expressly allow their courts to order joint custody even if one parent objects to such an arrangement. Can someone other than the child's parents be granted custody?Sometimes neither parent can suitably assume custody of the children, perhaps because of a substance abuse or mental health problem. In these situations, others may assume temporary, or permanent custody of the children under a court-ordered guardianship or foster care arrangement. The court must consider the best interest of a child in determining who will be granted custody. What factors will the courts take into account when they make custody and visitation decisions?The court will normally favor the parent who will best maintain stability in the child's surroundings. There is no set standard as to what constitutes "stability," but a judge looks for continuity in a child's life. To the degree possible, a judge will try to maintain a child's school, community and religious ties. A court gives the "best interests" of the child the highest priority. What the best interests of the child are in a given situation depends upon many factors, including: Are mothers more likely to be awarded custody over fathers?In the past, most states provided that custody of children of "tender years" (about five and under), had to be awarded to the mother when parents divorced. This rule has been rejected in most states, or relegated to the role of tiebreaker if two fit parents request custody of their preschool children. Only South Carolina and Tennessee continue to carry the tender years doctrine in their statutes. Most states require their courts to determine custody on the basis of what's in the children's best interests without regard to the sex of the parent. As it turns out, a lot of divorcing parents agree that the mother will have custody after a separation or divorce and that the father will exercise reasonable visitation. This sometimes happens because fathers presume that mothers will be awarded custody or because the mother is more tenacious in seeking custody. In still other situations, the parents agree that the mother has more time, a greater inclination or a better understanding of the children's daily needs. Do I have to pay child support if my Ex keeps me away from my kids?Yes. Custody and visitation should not be confused with child support. Every parent has an obligation to support his or her children. When one parent has visitation rights (but not physical custody), he or she is usually ordered to pay some child support to the other parent. The parent with physical custody is deemed to meet the support obligation through the custody itself. With one narrow exception, no state allows a parent to withhold visitation because the other parent owes support, or to withhold support because of disputes over visitation. The exception? If the custodial parent disappears for a lengthy period so that no visitation is possible, a few courts have ruled that the non-custodial parent's duty to pay child support may be considered temporarily suspended. However, this must be determined by the courts. One important study discovered a telling relationship between custody and visitation arrangements, levels of conflict and payment of court-ordered child support. Fathers tended to continue paying child support when they had regular and frequent daytime and overnight visits with their children. The less involved with their children's lives they became, the less apt they were to keep paying support, and their compliance fell off over time. Most states allow for the child support payments to be withheld direct from the obligator's payroll. Their employer sends the child support payment to the court or the parent with primary possession. All states and the District of Columbia have enacted a statute called the Uniform Child Custody Jurisdiction Act, which sets standards for when a court may make a custody determination and when a court must defer to an existing determination from another state. Having the same law in all states helps standardize how custody decrees are treated. It also helps solve many problems created by kidnapping or disagreements over custody between parents living in different states. In general, a state may make a custody decision about a child only if it meets one of these tests (in order of preference): If a state cannot meet one of these tests, the courts of that state cannot make a custody award, even if the child is present in the state! In the event more than one state meets the above standards, the law specifies that only one state may make custody decisions. This means that once a state makes a custody award, any other state must keep its hands off the matter. I have sole physical custody of our children. Several times my Ex has not returned the kids on time after taking them for a visit, and I'm scared one day he won't return them at all. What are my rights as the custodial parent? In most states, it's a crime to take a child from his or her parent with the intent to interfere with that parent's physical custody of the child (even if the taker also has custody rights). This crime commonly is referred to as "custodial interference." In most states, the parent deprived of custody may sue the taker for damages, as well as getting help from the police to have the child returned. If a parent without physical custody (who may or may not have visitation rights) removes a child from --or refuses to return a child to-- the parent with physical custody, it is considered kidnapping or child concealment in addition to being custodial interference. Federal and state laws have been passed to prosecute and punish parents guilty of this type of kidnapping, which is a felony in over 40 states. In many states, interfering with a parent's custody is a felony if the child is taken out-of-state. Many states, however, recognize good-cause defenses, such as where the taker acted to prevent imminent bodily harm to self or to the child. Mediation is a non-adversarial process where a neutral person (a mediator) meets with disputing persons to help them settle the dispute. The mediator does not, however, have power to impose a solution on the parties. Mediation is often used to help a divorcing or divorced couple work out their differences, especially over custody and visitation disputes. Some lawyers and mental health professionals employ mediation as part of their practice. Several states require mediation in custody and visitation disputes and a number of others allow courts to order mediation. In California and a few other states, if the parties do not reach agreement, the mediator is usually asked by the court to make a recommendation. In most states, however, the mediator plays no further role if the parties can't agree. Mediators are very skilled at getting parents who are bitter enemies to cooperate for the sake of their children. The more parents can agree on the details of separate parenting, the better it will be for them and their children. And mediators are skilled at getting the parents to recognize this fact and then move forward towards negotiating a sensible parenting agreement. If there is a history of abuse or the parents initially cannot stand to be in the same room with each other, the mediator can meet with each parent separately and ferry messages back and forth until agreement on at least some issues is reached. At this point, the parties may be willing to meet face to face. After a final decree of divorce is filed with a court, former spouses may agree to modify the custody or visitation terms. This modified agreement (also called a "agreed modification") may be made without court approval, but is not advisable. If one person, however, later reneges on the agreement, the other person may not be able to enforce it unless the court has approved the modification. Thus, it is generally advisable to obtain court approval before relying on such agreements. Courts usually approve modification agreements unless it appears that they are not in the best interests of the child. If a parent wants to change an existing court order affecting custody or visitation and the other parent won't agree to the change, he or she must file a motion requesting a modification of the order from the court that issued it, usually on the ground of material changed circumstances. Requiring a showing of material changed circumstances encourages stability of arrangements and helps prevent the court from becoming overburdened with frequent and repetitive modification requests. Some examples of changed circumstances: Geographic move.If a custodial parent geographically relocates a substantial distance, the move may constitute a changed circumstance that justifies the court's modification of a custody or visitation order to accommodate the needs of the non-custodial parent. Some courts switch custody from one parent to the other, although the more common approach is to ask the parents to work out a plan under which both parents may continue to have significant contacts with their children. The court may divide the costs incurred to visit the children.Change in lifestyle.Changes in custody or visitation orders may be obtained if substantial changes in a parent's lifestyle threatens or harms the child. If, for example, a custodial parent begins working at night and leaving a nine year old child alone, the other parent may request a change in custody. Similarly, if a non-custodial parent begins drinking heavily or taking drugs, the custodial parent may file a request for modification of the visitation order (asking, for example, that visits occur when the parent is sober, or in the presence of another adult). What constitutes a lifestyle sufficiently detrimental to warrant a change in custody or visitation rights varies tremendously depending on the state and the particular judge deciding the case. For instance, cohabitation by a parent may be ignored in one place, but not another.WILLSWHAT IS A WILL?A will is a written direction controlling the disposition of property at death. The laws of each state set the formal requirements for a legal will. In Texas: You, the maker of the will (called the testator, must be at least 18 years old. You must be of sound mind at the time you sign your will. Your will must be written. Your will must be witnessed in the special manner provided by law for wills. It is necessary to follow exactly the formalities required for the execution of a will. To be effective, your will must be proved in and allowed by the probate court. No will becomes final until the death of the testator, and it may be changed or added to by the testator by drawing a new will or by a "codicil," which is simply an addition or amendment executed with the same formalities of a will. A will's terms cannot be changed by writing something in or crossing something out after the will is executed. In fact, writing on the will after its execution may invalidate part of the will or all of it. WHAT ARE SOME OF THE RESULTS THAT CAN BE ACCOMPLISHED BY A WILL?You decide who gets your property instead of the law making the choice for you.You may name the personal representative (executor) of your will as you choose, provided the one named can qualify under Texas law. A personal representative is one who manages an estate, and may be either an individual or a bank or trust company, subject to certain limitations. The expense of bond premiums, required of the person managing your estate if there is no will, may be waived in the will and possibly avoided. A trust may be created in a will whereby the estate or a portion of the estate will be kept in tact with income distributed or accumulated for the benefit of members of the family or others. Minors can be cared for without the expense of proceedings for guardianship of property. Real estate and other assets may be sold without court proceedings, if your will adequately authorizes it. You may make gifts, effective at or after your death, to charity. You decide who bears any tax burden, rather than the law making that decision. WHAT HAPPENS WHEN THERE IS NO WILL?If you die without a will (or die "intestate," as the law calls it), your real and personal property will be distributed according to a formula fixed by law. In other words, if you fail to make a will, the inheritance statute determines who gets your property, not you. The inheritance statute contains a rigid formula and makes no exception for those in unusual need. When there is no will, the court appoints a personal representative, known or unknown to you, to manage your estate. The cost of probating may be greater than if you had planned your estate with a will, and the administration of your estate may be subject to greater court supervision.MAY A PERSON DISPOSE OF HIS PROPERTY IN ANY WAY HE WISHES BY A WILL?While any sort of property may be transferred by will, there are some particular interests in property which cannot be willed because the right of the owner terminates automatically upon his death, others have been granted rights in the property by Texas law. Some examples of these types of property rights or interests are: 1. Except in certain very specific circumstances a homestead (that is, the residence and adjoining lands owned by a person who is survived by a spouse or minor child up to ten acres within limits of an incorporated city or town or up to 200 acres outside those limits); 2) A life estate: property owned only for the life of the owner; 3) Any property owned jointly with another person or persons with right of survivorship (a tenancy by the entireties, which is limited to joint ownership between a husband and wife, would be one of these). 4) A community property asset where the husband and wife owns the asset jointly. MUST A PERSON LEAVE HIS CHILDREN AT LEAST ONE DOLLAR EACH?No, not even a cent. There is a popular misconception that when a will fails to make provision for or "remember" a child, the law "presumes" that the testator merely forgot. To meet this, the draftsman of the will in olden times frequently gave "to my son, John, the sum of one dollar." If the testator desires not to make any provision in his will for a child he may do so by merely deliberately omitting that child or heir. Children born after a will is signed or a child without adequate means of support may still have certain rights in the estate under particular circumstances. FOR HOW LONG IS A WILL GOOD?It is "good" until it is changed or revoked in the manner required by law. Your will may be changed as often as you desire while you are sane and not under undue influence, duress, or fraud, provided it is changed in the required manner. Changes in circumstances after the execution of the will, such as tax law amendments, deaths, marriage, divorce, birth of children, or even a substantial change in the nature or amount of your estate, may raise questions as to the adequacy of your will. All changes require a careful analysis and reconsideration of all the provisions of your will and may make it advisable to change the will to conform to the new situation. DOES A WILL INCREASE PROBATE EXPENSES?No. If there is property to be administered or taxes to be paid or both, the existence of a will does not increase probate expenses. A will frequently reduces expenses. If there is real or personal property to be transferred at your death, the probate court will have jurisdiction to ensure that it is transferred properly, either according to your will, or, if there is no will, in accordance with the inheritance statute. Thus, even if you have no will, your heirs must go to court to administer your estate, obtain an order determining your legal heirs, or to obtain a determination that administration is unnecessary. These procedures are often more expensive than administering your will, since a properly drawn will names the beneficiaries and delineates procedures to simplify the administration process. ARE ESTATES BY ENTIRETIES OR JOINT TENANCY WITH RIGHT OF
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