Articles Posted in Issues Affecting Families

When Texas parents get divorced, it is not unusual for one or both spouses to move to another city, state, or even country to begin life anew. Issues may arise, however, when one parent wishes to bring the child who is bound by an existing child custody order.

Under the Texas Family Code, a divorced parent’s ability to move with a child depends on the existing custody arrangement established after the divorce. So, before you make any decisions about relocating with your child, it’s imperative that you understand the basic factors and rules of child custody in Texas.

What Is the Custodial Arrangement?

While Texas law recognizes many types of custodial arrangements, the most common setup is joint custody, also known as joint managing conservatorship. The reason is simple—the Family Code assumes that awarding both parents with shared custody of the child/children is ultimately in their best interests, unless of course there is a proven history of abuse and violence in the family.

If the divorced parents are able to come up with a joint managing conservatorship agreement on their own, they may file a parenting plan stipulating the details of their agreement in court. Normally this parenting plan will also specify the child’s place of residence, which can be a specific geographical area in Texas, such as a particular county or any contiguous counties.

If the parents are unable agree on terms, the court may intervene and determine a custody arrangement that is in the best interests of the child/children. In many cases, the court’s custody orders will place restrictions on a parent’s ability to move with a child.

It’s for this reason that settling out of court with the assistance of a skilled Texas divorce attorney is important, as it gives you some control over the terms of the custodial arrangement.

What If There Is a Need to Relocate Outside the Agreed Place of Residence?

A parent can’t just pack up and move with their child outside of the agreed geographical area in their custodial agreement without first notifying the court. Under Texas law, the parent who wishes to move must seek a child custody modification from the court to change the initial custodial arrangement.

What’s more, even if the original parenting plan or custodial arrangement does not restrict the child’s residence to a specific area, a parent can’t just relocate with the child without informing the other parent. The other parent can file a motion to challenge the relocation and can even file a temporary restraining order until a hearing can be held.
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One of the bitter realities of going through a divorce in Texas is having to decide where to live while the divorce proceedings are ongoing and after things have wrapped up. There are no right or wrong answers here. Your decision ultimately depends on your specific circumstances, even if a certain option turned out well for a friend or family member.

Continuing to live in the family home may add to your personal debt and tax liabilities. On the other hand, moving out can mean paying more out of your pocket every month for rent or a new mortgage.

Here’s a closer look at your options and their pros and cons.

Continue Staying in the Family Home

If you have young children or currently don’t have the resources to move and find a new home, you can negotiate to continue living in the family home. Obviously, this means you can maintain a part of the quality of life you’re accustomed to, not to mention you get to stay close to your friends and family in the neighborhood through this tough time.

But this option also comes with issues. For starters, you need to prepare yourself financially for the costs of maintaining a home on your own, such as maintenance, cleaning, utilities, and taxes. If you are assuming the mortgage, you need to find out if you have the monthly cash flow and financial capability to refinance. Note that monthly mortgage payments cannot be counted towards spousal maintenance or child support.

Moving into a New Home

While many divorcees fight tooth and nail to continue living in the family home, there’s something to be said about starting life anew and moving into a new neighborhood, city, or state. And given the right real estate market, this can lead to an opportunity to build equity, serving as a launch pad towards greater wealth.

Of course, it goes without saying that buying a new home is expensive, so before making any final decisions, you want to be realistic about whether you can even afford the total cost of moving. These expenses include:

New furnishings
Home improvements
Transaction costs (e.g. down payment and settlements)
Closing costs
Insurance

If your joint accounts are frozen or the divorce proceedings are taking longer than expected to resolve, moving into a new home may not be the smartest option.

Renting

Renting is perhaps the most practical option on this list, especially when it comes to figuring out where to live while the divorce negotiations are ongoing. At a time when emotions are high and your life is going through major changes, the last thing you want to do is make any decisions that may damage your finances permanently.

Finding a temporary home also lets you buy some time and space to think about what to do next after the divorce. By not committing yourself to a mortgage, you have more options to consider.
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State legislators in Illinois have passed a new law that sanctions a new, team-based approach to divorces, encouraging a more amicable way to dissolve marriages.

Although divorces, by their nature, tend to be acrimonious, the Illinois Collaborative Process Act aims to create standards that divorce attorneys, as well as financial advisors and mental health professionals, can adopt and present as viable options to divorcing clients.

Chief among those options is a “collaborative divorce,” which has been described by its proponents as a clean, simple, and less-expensive way to end a divorce without ever having to go through a messy and emotionally-draining trial.

Collaborative Divorce Explained

Words like “clean” and “simple” are rarely associated with divorces, but that’s exactly the appeal behind a collaborative divorce.

In a collaborative divorce, the two spouses work with divorce attorneys with the intention of coming to the most amicable resolution to the case. The process also involves the participation of different collaborative professionals, such as neutral financial advisors, mental health professionals, and child specialists, all of whom are committed to supporting the couple and the family address their issues and arrange agreements for both parties to move on and start their lives anew as ex-spouses.

Collaborative Divorces vs. Litigation

Perhaps the biggest advantage of a collaborative divorce over litigation is that litigation usually devolves into blaming, incessant arguing, and trying to make the other side “pay.” In contrast, the collaborative process is about focusing on solutions by finding common ground between both parties.

In litigation, the goal is often to “win” the case by making your soon-to-be ex-spouse look as the bad guy. With a collaborative process, the goal is not to play the blame game and point fingers—it’s finding a solution that works for everyone involved.

When it comes to costs, while a collaborative divorce is usually less costly than a trial, it will still be expensive.

Will a Collaborative Divorce Work for You?

Of course, the question is: Does a collaborative divorce even work?

Short answer? It depends on the couple seeking it. For example, if you and your ex are the type of people who value your relationship and want to remain civil and maybe even continue on as friends after the divorce, then yes, a collaborative divorce might work for you.

But these scenarios are far and few between, especially when so many divorces involve infidelity and pain. But if you and your ex are willing to put aside your differences for the greater good of your family, a collaborative divorce can be a viable option.
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It’s common knowledge that long-term relationships tend to break down around Valentine’s Day, which comes at the midway point between the Christmas holidays and Spring, which in turn, represents the renewal of romance. But when it comes marriage and divorce, does this trend remain present? There was really no way of knowing, until now.

A new study conducted by sociologists from the University of Washington shows that divorces tend to spike during two particular months of the year. According to the researchers, their findings represent the “first quantitative evidence of a seasonal, biannual pattern of filings for divorce.”

According to a report on the University of Washington’s news portal, “The researchers analyzed filings in Washington state between 2001 and 2015 and found that they consistently peaked in March and August, the periods following winter and summer holidays,”

Accidental Discovery:

It’s worth noting this discovery was accidental by nature.

Initially, Julie Brines, an associate sociology professor, and Brian Serafini, a doctoral candidate, set out to study divorce filings within Washington State between 2001 and 2015. The goal was to understand what kind of impact the Great Recession of 2008 and 2009 had on marriages.

Instead, the researchers found a peculiar pattern in divorce filings, realizing that throughout their research timeframe, divorces seemed to spike in March and August.

Why March and August?

Brines and Serafini believe the explanation behind the spike in divorce filings in these months has something to do with lower expectations, that is, couples tend to avoid damaging their relationships out of a “domestic ritual” calendar that affects family behavior.

“People tend to face the holidays with rising expectations, despite what disappointments they might have had in years past,” Brines said.

“They represent periods in the year when there’s the anticipation or the opportunity for a new beginning, a new start, something different, a transition into a new period of life. It’s like an optimism cycle, in a sense,” he adds.

Think of it this way: most couples tend to avoid separating during the months leading to and after the holidays because they don’t want to spoil the family’s mood, or are holding on to the possibility that things may change for the better.

And let’s face it, nobody wants to spoil Thanksgiving and Christmas with news of divorce, and the months after the start of the New Year typically represents hope and fresh beginnings.

But this optimism might fade heading into March. Likewise, during the school break (i.e. June to July), the feeling of facing reality and disillusionment sets in, such that couples begin to weigh divorce once more.
Brines notes that theoretically, divorce filings should spike around February and July, but he attributes the one-month delay to the long process of seeking a divorce attorney.
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Tying the knot after a divorce may not be the first thing on most new divorcees’ minds, but it’s something that happens fairly often. After all, when couples split apart, their priority is to pick up the pieces of their lives and find a way to move forward.

For those who eventually find new love and decide to remarry, one thing these people often do not expect is how complicated the financial and estate planning issues that come with remarriage can be. It’s a problem that has caught many blended families off guard.

If you’re about to remarry or have just remarried, it helps to be aware of the following financial and legal issues you might encounter.

Shared Expenses, Income, and Assets:

If you and your new spouse have shared income and assets, these funds may be at risk if you are still financially tied to your former spouse. You and your new partner may have set up a joint account or two, where you can pool funds to pay for expenses like utilities, groceries, and mortgages—basically, family expenses.

Ask your lawyer about your financial obligations to your former spouse. It may be that you need to keep money separate to protect it from creditors, who are not necessarily bound by divorce settlements. This insulates your shared income from being involved in an old debt of your ex.

Community Property and Common Law Issues:

In a community property state like Texas, the law states that assets brought into the marriage or received individually by one spouse are owned by that spouse. However, any income or assets earned or acquired during the marriage has the presumption that it is the property of both spouses.

In contrast, a common law state requires ownership of assets to be controlled by titles and other ownership documents.

Consult your lawyer to prepare an estate plan that considers your home state, as well as any property that’s out of state.

Safeguards Against Remarriage:

Should your spouse remarry after you pass away, your assets may be at risk of being shared with that new family. Sometimes, what happens when a spouse pre-deceases a new spouse, is that none of the assets owned jointly go to children from a previous marriage. In this situation, the new spouse has the final say over who inherits these assets.

You can set up a Trust, which will ensure your assets are protected and allocated to your desired beneficiaries. A Trust will guarantee that inheritances go straight to your desired loved ones. A Trust can also indicate what happens to your home upon your death, and whether you want to leave it for the benefit of your surviving spouse or children.
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Texas county clerks with “sincerely held” religious objections may now delegate the task of issuing same-sex marriage licenses to other officials. According to state Senator Brian Birdwell, Texas Senate Bill 522 institutes a “statutory balance between the religious liberties of marriage-certifying officials and the rights of all couples to marry,” thereby creating an effective middle ground for the contrasting civil liberties in question.

SB 522 provides that county clerks may lend licensing authority to a “certifying official,” allowing them to produce a marriage license in their place. The bill requires that the concerned county clerk must notify the commissioners court of “sincerely held religious beliefs” that may go against their function and office.

These substitute officials may include an available judge, deputy clerk, or magistrate who is willing and able to certify the marriage license application, administer the oath, as well as the actual issuance of the marriage license.

Likewise, the bill prohibits action against officials who recuse themselves from their functions, stating that, “a civil cause of action may not be brought against the person based on the person’s refusal to conduct the marriage ceremony.” This provision effectively protects officials from administrative and civil penalties for refusing to administer these marriage licenses.

To prevent the possibility of same-sex couples facing additional obstacles after a state official delegates the task of issuing a marriage license, State Sen. Sylvia Garcia (D-Houston), amended the bill: “A commissioners court of a county in which the clerk has made a notification under Subsection (a) shall ensure that all eligible persons applying for a marriage license are given equal access to the process and are not subject to undue burden due to the county clerk’s refusal to certify the application for a marriage license, administer the oath, and issue the license.”

The amendment comes in response to the actions of Texas Attorney General Ken Paxton, who defied the Supreme Court’s decision legalizing same-sex marriage. In an advisory released to county clerks and judges, Paxton suggested that they may refuse to issue same-gender union licenses on the grounds of religious freedom, which in effect, places a burden on gender-deviant couples looking to get married.

The State Bar of Texas has made no disciplinary action on Attorney Paxton in spite of the ethics complaint filed against him by over 200 attorneys.

The seemingly tolerant move was not met with resounding applause from gender equality advocates, however.

Equality Texas, an Austin-based nonprofit supporting equal gender rights, asserts that the bill authorizes employees in public office to discriminate based on religious convictions, ultimately permitting them to cite religion as a basis for further discrimination.

Texas Freedom Network President Kathy Miller believes that the bill not only condones discrimination against same-gender couples but also “against virtually any Texan,” including previously divorced as well as interfaith couples.
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Reversing the previous decision of a lower court, the Texas Supreme Court ruled that under the Texas Occupations Code, licensed family and marriage therapists can diagnose the mental, behavioral, and emotional problems of their clients, provided their assessment falls under their expertise. Among other things, the decision allows family and marriage therapists to provide diagnostic assessments to couples going through a divorce, or spouses with troubled marriages.

Justice Jeffrey S. Boyd delivered the High Court’s decision on February 24, reversing an earlier ruling by the Third District Appeals Court done in favor of the Texas Medical Association.

The decision originates from a 1994 rule passed by the Texas State Board of Examiners of Marriage and Family Therapists, which permitted marriage and family therapists (MFTs) to offer “diagnostic assessment which utilizes the knowledge organized in the Diagnostic and Statistical Manual of Mental Disorders (DSM)…as part of their therapeutic role to help individuals identify their emotional, mental, and behavioral problems when necessary.”

Curated and published by the American Psychiatric Association, the DSM is the universal reference system for diagnosing mental health disorders in the U.S. and in many countries around the world. According to the Therapists Board, the ability to conduct diagnostic analyses through the DSM is at the heart of an MFT’s practice and services.

For example, diagnostic assessments play a crucial role in an MFT’s ability to:

Diagnose a client’s mental health problems
Develop a plan of treatment
Determine suitable treatment services
Provide recommendations to treatments with other health professionals

In 2008, the Medical Association disagreed with the rule and sued the Therapists Board and its directors. In its push for a court to invalidate the rule, the Association argued that allowing MFTs to conduct diagnostic assessments also allowed them to practice medicine without a medical license.

But the Board argued the rule specifically prohibits MFTs to provide medical diagnoses, or any other kind of diagnoses, outside their expertise. Rather, it permits MFTs to diagnose a number of nonmedical mental disorders related to psychological issues and experiences, such as, but not limited to:

Mood disorders
Depression
Anorexia
Bulimia
Anxiety
Behavioral disorders
Personality disorders
Addiction

The Travis County District Court ruled in favor of the Medical Association, invalidating the diagnostic-assessment rule on the grounds of exceeding the scope of the Therapists Act.

The Texas Supreme Court, however, saw otherwise. Justice Boyd considered the arguments raised by the Therapists Board, particularly the claim that the appeals court decision “makes Texas the only state to prohibit Licensed MFTs from performing an integral part of their profession that is essential to their ability to properly treat their clients.”

Boyd also refuted the Medical Association’s claim that the rule allowed MFTs to diagnose all kinds of mental disorders with no limits.
“(T)he rule itself specifically states that MFTs may only make diagnostic assessments ‘as part of their therapeutic role to help individuals identify their emotional, mental, and behavioral problems when necessary.’ Another Therapists Board rule explicitly limits an MFT to services ‘within his or her professional competency,’” the ruling reads.
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Reversing the previous decision of a lower court, the Texas Supreme Court ruled that under the Texas Occupations Code, licensed family and marriage therapists can diagnose the mental, behavioral, and emotional problems of their clients, provided their assessment falls under their expertise. Among other things, the decision allows family and marriage therapists to provide diagnostic assessments to couples going through a divorce, or spouses with troubled marriages.

Justice Jeffrey S. Boyd delivered the High Court’s decision on February 24, reversing an earlier ruling by the Third District Appeals Court done in favor of the Texas Medical Association.

The decision originates from a 1994 rule passed by the Texas State Board of Examiners of Marriage and Family Therapists, which permitted marriage and family therapists (MFTs) to offer “diagnostic assessment which utilizes the knowledge organized in the Diagnostic and Statistical Manual of Mental Disorders (DSM)…as part of their therapeutic role to help individuals identify their emotional, mental, and behavioral problems when necessary.”

Curated and published by the American Psychiatric Association, the DSM is the universal reference system for diagnosing mental health disorders in the U.S. and in many countries around the world. According to the Therapists Board, the ability to conduct diagnostic analyses through the DSM is at the heart of an MFT’s practice and services.

For example, diagnostic assessments play a crucial role in an MFT’s ability to:

Diagnose a client’s mental health problems
Develop a plan of treatment
Determine suitable treatment services
Provide recommendations to treatments with other health professionals

In 2008, the Medical Association disagreed with the rule and sued the Therapists Board and its directors. In its push for a court to invalidate the rule, the Association argued that allowing MFTs to conduct diagnostic assessments also allowed them to practice medicine without a medical license.

But the Board argued the rule specifically prohibits MFTs to provide medical diagnoses, or any other kind of diagnoses, outside their expertise. Rather, it permits MFTs to diagnose a number of nonmedical mental disorders related to psychological issues and experiences, such as, but not limited to:

Mood disorders
Depression
Anorexia
Bulimia
Anxiety
Behavioral disorders
Personality disorders
Addiction

The Travis County District Court ruled in favor of the Medical Association, invalidating the diagnostic-assessment rule on the grounds of exceeding the scope of the Therapists Act.

The Texas Supreme Court, however, saw otherwise. Justice Boyd considered the arguments raised by the Therapists Board, particularly the claim that the appeals court decision “makes Texas the only state to prohibit Licensed MFTs from performing an integral part of their profession that is essential to their ability to properly treat their clients.”

Boyd also refuted the Medical Association’s claim that the rule allowed MFTs to diagnose all kinds of mental disorders with no limits.
“(T)he rule itself specifically states that MFTs may only make diagnostic assessments ‘as part of their therapeutic role to help individuals identify their emotional, mental, and behavioral problems when necessary.’ Another Therapists Board rule explicitly limits an MFT to services ‘within his or her professional competency,’” the ruling reads.
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Divorces are intrinsically very tricky situations. At a time where most, if not all people, rely heavily on electronic data and communications, this added dimension throws in some extra challenges for couples facing divorce, as well as the legal system that adjudicates it. When relationships are made and broken through texts, emails, and social media posts, it’s important to be informed on the many ways you can secure your electronic data.

Secure Your Social Media Activity

Social media only makes it too easy for your soon-to-be-ex-spouse to find information to take against you. Unsightly photos, outspoken status updates, and suspicious online relations – all of these can be found in your online profiles. It takes no effort to document these things before you even have the chance to delete them, but you could never run out of damage reduction and preventative measures.

For Facebook, you can run through your list of friends and weed out those who don’t have your full confidence. You have the option of changing the privacy settings of all your existing and future posts, as well.

For Twitter and Instagram, you may likewise screen your followers list, and set your profile to private. While these are all fantastic ways to keep your privacy online, it’s still best that you exercise prudence and self-control in all your future online activity.

Secure Your Online Accounts

Many couples trust each other enough to share passwords to their email addresses and social media accounts. Whether or not your once-marriage falls under this category, your passwords are nonetheless at risk as there are other means of acquiring them. You may want to change all your passwords, refrain from using the same password across multiple accounts, and reset your password retrieval questions.

Review Your Shared Applications

Man mobile applications like gallery apps, cloud storage accounts, online messengers, and calendars offer syncing services that automatically downloads content into other linked devices. This means that if you and your ex-spouse have any such shared apps, you might want to block their access.

Start Over

If you’ve tried the previous solutions, yet still don’t feel like you’ve got it all covered, you can always start with a clean slate. Do your best to deactivate and delete the accounts that you can (some services don’t allow account deletion though), and make sure you remember to inform your colleagues, clients, and superiors of these changes.

Moreover, you may also want to publicly denounce any future activity from your discontinued accounts. If you suspect that your ex-spouse has access to an email account hosted by your employer, you should contact your IT department for consultation.

Prior to permanently removing or deleting anything, make sure that you comply with all applicable Standing Orders for the particular country your case is pending in. Many counties have what is called a “Standing Order” that attaches when a new divorce case is filed. A standing order are enforceable rules that apply automatically in all cases involving Divorce, Child Custody or Child Support, without the need for hearing, as soon as the case is filed. They are in a sense, automatic injunctions that apply upon filing with the Court.

Get Legal Counsel

There are many illegal ways to acquire electronic information. If you suspect your ex-spouse of engaging in these activities or if you just want to be made aware of any such activities, approach your attorney in consultation. Not only will you be protecting yourself, but by keeping your attorney informed, you may also potentially render evidence against you inadmissible.
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It’s not exactly a secret that Texas Republicans have taken a hard line stance on issues such as bathroom laws, abortion, and Planned Parenthood among many others. Now, the Texas GOP seems to be turning its sights on another social issue —divorce.

Texas State Representative Matt Krause of Fort Worth has filed a state bill aimed at making the divorce process harder for Texas couples, while also helping keep families together. The bill, if passed into law, would eliminate the ‘no-fault’ divorce option, also known as the leading category under which ex-spouses file for divorce in the entire state of Texas.

The emotional and financial strain brought about by a divorce naturally means that it’s a decision couples should never take lightly. However, filing for divorce under the no-fault option allows spouses in Texas and several other states to separate from their partners without the drawn-out process often associated with divorce proceedings. This option allows couples to simply divide their assets and go about their separate ways

But according to Krause, who is married and has a family of six, the prevalence of no-fault divorces has contributed to the breakdown of the family as a unit of society.

“I think people have seen the negative effects of divorce and the breakdown of the family for a long time,” he said. “I think this could go some way in reversing that trend.”

“I think we’ve done a terrible job, sometimes in our own lives and own quarters, of making sure we do what we can to strengthen the family. I think this goes a long way in doing that. I think people have seen the negative effects of divorce and the breakdown of the family for a long time. I think this could go some way in reversing that trend,” Krause adds.

By ending no-fault divorces, Krause believes that couples would think twice about separating. It would also help to protect spouses who do not want to end the marriage.

The bill is up for the consideration of Texas lawmakers in January, often called by divorce lawyers as “divorce month” due to an uptick of divorce inquiries and filings after the holidays.

Krause has also filed another bill that would extend the waiting period for divorces from 60 to 180 days. But critics point out that this will only make the divorce process more expensive and discourage spouses in abusive relationships to split from their partners.
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