Dallas Divorce Law Blog

Tips for Understanding the Texas Standard Possession Schedule: Part III

Sarah A. Darnell — Thu, 17 May 2012 10:15:48 -0600

The Children’s Birthdays

Pursuant to the Texas Standard Possession Schedule, the parent that is not entitled to present possession of a child on the child’s birthday shall have possession of the child beginning at 6:00 p.m. on the child’s birthday and ending at 8:00 p.m. on that day.

In order to determine if you are the parent entitled to present possession of the child on the child’s birthday in any given year, it is a good idea to look at the calendar at the beginning of each year and determine which parent is entitled to possession of the child on his or her birthday. If you are the parent that is not scheduled to have possession of the child on his or her birthday, then you have the right to have possession of the child on his or her birthday beginning at 6:00 p.m. on the child’s birthday and ending at 8:00 p.m. on that day for that year.

If you intend to exercise your right to have possession of the child for his/her birthday in any year, it is a good idea to give the parent that is scheduled to have possession of the children notice that you intend to exercise your right to possession of the child on his/her birthday for that year as early as possible. This will allow both parents the ability to plan the child’s birthday celebrations accordingly.

Father’s Day

Pursuant to the Texas Standard Possession Schedule if the Father of the children is designated as a conservator of the children, then he is entitled to possession of the children beginning at 6:00 p.m. on the Friday preceding Father’s Day and ending at 6:00 p.m. on Father’s Day in all years.

Mother’s Day

Pursuant to the Texas Standard Possession Schedule if the Mother of the children is designated as a conservator of the children, then she is entitled to possession of the children beginning at 6:00 p.m. on the Friday preceding Mother’s Day and ending at 6:00 p.m. on Mother’s Day in all years.

The following additional periods of possession and access to the children are specifically addressed by the Texas Standard Possession Schedule:

Spring Break/Spring Vacation; and
Summer Possession.

Spring Break / Summer Vacation

Pursuant to the Texas Standard Possession Schedule, spring vacation is alternated between the parents each year in most cases. Spring vacation is similar to Thanksgiving holiday because it is not divided into a front-half and back-half like Christmas holiday.

If you are the possessory conservator, you will have possession of the children for spring vacation in even-numbered years beginning at the time that the children are released from school for spring vacation and ending at 6:00 p.m. on the day before school resumes from spring vacation. The managing conservator will have possession of the children for spring vacation in odd-numbered years beginning at the time that the children are released from school for spring vacation and ending at 6:00 p.m. on the day before school resumes from spring vacation.

If the parents of the children reside 100 miles or more apart, then the possessory conservator shall have possession of the children for spring vacation in all years beginning at the time that the children are released from school for spring vacation and ending at 6:00 p.m. on the day before school resumes from spring vacation.

Next week I will discuss and provide tips for understanding how to designate and maximize your summer periods of possession of the children.

Co-parenting is the real custody, part 2 of 2

Michelle O'Neil — Wed, 16 May 2012 11:48:34 -0600

In part 1 of the co-parenting series

we looked at Deborah Serani’s “Do’s” of co-parenting from her article The Do's and Don'ts of Co-Parenting Well.

Remember that a divorce or break-up doesn’t end the parenting relationship with the other parent of your children. You will be involved with that person for the rest of your children’s lives. Think of all the ballet recitals and softball games, graduations, weddings, and grandbabies that are in your child’s future. You and the other parent (and probably both of your future spouses and other children) will be in each other’s lives for a very long time. Here are Ms. Serani’s “Don''s” of co-parenting:

Don't

Don't burden your child. Emotionally charged issues about your Ex should never be part of your parenting. Never sabotage your child's relationship with your Ex by trash talking. Never use your child to gain information about things going on or to sway your Ex about an issue. The main thing here is this: Don't expose children to conflict. Research shows that putting children in the middle of your adult issues promotes feelings of helplessness and insecurity, causing children to question their own strengths and abilities.
Don't jump to conclusions or condemn your Ex. When you hear things from your children that make you bristle, take a breath and remain quiet. Remember that any negative comments your children make are often best taken with a grain of salt. It's always good to remain neutral when things like this happen. Research shows that your child can learn to resent and distrust you if you cheer them on.
Don't be an unbalanced parent. Resist being the fun guy or the cool mom when your children are with you. Doing so backfires once they return to your Ex - and sets into motion a cycle of resentment, hostility and a reluctance to follow rules for all involved. Remember that children develop best with a united front. Co-parenting with a healthy dose of fun, structure and predictability is a win-win for everyone.
Don't give into guilt. Divorce is a painful experience, and one that conjures up many emotions. Not being in your child's life on a full time basis can cause you to convert your guilt into overindulgence. Understand the psychology of parental guilt - and how to recognize that granting wishes without limits is never good. Research shows that children can become self-centered, lack empathy and believe in the need to get unrealistic entitlement from others. Confusion understanding the dynamics of need versus want, as well as taming impulsivity becomes troublesome for children to negotiate too.
Don't punish your Ex by allowing your child to wiggle out of responsibility. Loosening the reigns because you just want to be a thorn in your Ex's side is a big no-no. "I know Mommy likes you to get your homework done first, but you can do that later." "Don't tell Daddy I gave you the extra money to buy the video game you've been working towards." If you need to get your negative emotions out, find another outlet. Voodoo dolls, skeet shooting and kick boxing can yield the same results, but with less of a parenting mess. Remember, work before play is a golden rule - and one that will help your child throughout their lifetime. Making sure to be consistent helps your child transition back and forth from your Ex - and back and forth to you too.
Don't accuse. Discuss. Never remain quiet if something about your Ex's co-parenting is troubling you. If you don't have a good personal relationship with your Ex, create a working business arrangement. Communication about co-parenting is extremely vital for your child's healthy development. No finger pointing or you-keep-doing-this kind of talk. The best approach when communicating is to make your child the focal point: "I see the kids doing this-and-that after they return home from their visit. Any ideas of what we can do?" Notice there's not one "you" word in there. No accusatory tone or finger-pointing either.

Co-parenting is the real custody, part 1 of 2

Michelle O'Neil — Tue, 15 May 2012 07:33:24 -0600

Whether you are filing a custody suit in Dallas, Texas or another county in Texas, rarely is the situation when one parent will get the children ALL of the time and the other parent NONE of the time. Thus, the vast majority of custody cases are really about two parents sharing a child according to a schedule that works for the child under the particular circumstances of that child’s life. Most frequently, the dispute is over whether one parent or the other will have the Texas Standard Possession Schedule (frequently seen as about 40% of the time) or more and whether the other parent will have the rest of the time. Parenting in these situations can be challenging, especially when the parents have differing styles and beliefs regarding discipline.

Deborah Serani in her article The Do's and Don'ts of Co-Parenting Well provides some good pointers for handling co-parenting. Here are her “Do’s” for co-parenting. In the next part of my series on Co-parenting, I will provide her “Don’ts” for co-parenting.

Do's:

Commit to making co-parenting an open dialogue with your Ex. Arrange to do this through email, texting, voicemail, letters or face to face conversation. There are even websites where you can upload schedules, share information and communicate so you and your Ex don't have to directly touch base.
Rules should be consistent and agreed upon at both households. As much as they fight it, children need routine and structure. Issues like meal time, bed time, and completing chores need to consistent. The same goes for school work and projects. Running a tight ship creates a sense of security and predictability for children. So no matter where your child is, he or she knows that certain rules will be enforced. "You know the deal, before we can go to the movies, you gotta get that bed made."
Commit to positive talk around the house. Make it a rule to frown upon your children talking disrespectfully about your Ex even though it may be music to your ears.
Agree on boundaries and behavioral guidelines for raising your children so that there's consistency in their lives, regardless of which parent they're with at any given time. Research shows that children in homes with a unified parenting approach have greater well-being.
Create an Extended Family Plan. Negotiate and agree on the role extended family members will play and the access they'll be granted while your child is in each other's charge.
Recognize that co-parenting will challenge you - and the reason for making accommodations in your parenting style is NOT BECAUSE YOUR EX WANTS THIS OR THAT, but for the needs of your children.
Be Aware of Slippery Slopes. Be aware that children will frequently test boundaries and rules, especially if there's a chance to get something they may not ordinarily be able to obtain. This is why a united front in co-parenting is recommended.
Be boring. Research shows that children need time to do ordinary things with their less-seen parent, not just fun things.
Update often. Although it may be emotionally painful, make sure that you and your Ex keep each other informed about all changes in your life, or circumstances that are challenging or difficult. It is important that your child is never, ever, ever the primary source of information.

Go for the high notes. Each of you has valuable strengths as a parent. Remember to recognize the different traits you and your Ex have - and reinforce this awareness with your children. Speaking positively about your Ex teaches children that despite your differences, you can still appreciate positive things about your Ex. "Mommy's really good at making you feel better when you're sick. I know, I'm not as good as she is." It also directs children to see the positive qualities in his or her parent too. "Daddy's much better at organizing things than I am."

Tips for Understanding the Texas Standard Possession Schedule: Part II

Sarah A. Darnell — Thu, 10 May 2012 08:06:37 -0600

Holidays are an important time of the year for most parents. In Texas, the Standard Possession Schedule provides specific dates/times for each parent to spend time with their children during the holidays. Not all holidays are addressed by the Texas Standard Possession Schedule.

The Texas Standard Possession Schedule contains specific terms for possession of the children for both parents for some of the major holidays. Not all holidays are addressed by the Texas Standard Possession Schedule. Therefore, if there is a holiday that you would like to be addressed by the Court or by agreement, then you need to make sure that the terms of possession of the children for that particular holiday are addressed in any and all orders regarding possession of the children.

The following holidays are specified in the Texas Standard Possession Order and are not altered regardless of the distance that the parents reside from one another:

1. Christmas;

2. Thanksgiving;

3. The Children’s birthdays;

4. Father’s Day; and

5. Mother’s Day.

In order to fully understand the Texas Standard Possession Schedule, it is important to know whether you are the “possessory conservator” or the “managing conservator.”

The managing conservator is also referred to as the “primary conservator” or the parent with the exclusive right to designate the primary residence of the children. The possessory conservator is commonly known as the parent that exercises their possession pursuant to the Standard Possession Schedule and/or the “non-primary conservator.”

Additionally, if you have children that are in daycare and/or are not yet of school age, then you need to review and obtain a copy of the school district calendar from the school district that the child would attend based upon his/her primary residence, if the child was attending school. This is the calendar that should be used in order to determine when your holiday periods of possession with the children should begin and end.

Christmas

Pursuant to the Texas Standard Possession Schedule Christmas is divided up between the parents into two separate parts, “a front-half and a back-half.” This allows each parent the opportunity to have possession of the children during the Christmas holiday in all years.

The front-half of Christmas in all years begins at 6:00 p.m. on the date that the children are released from school for the Christmas break and ends at noon on December 28. The back-half of Christmas in all years begins at noon on December 28 and ends at 6:00 p.m. on the day before the children return to school from Christmas break.

Pursuant to the Texas Standard Possession Schedule, the front-half and back-half of Christmas are rotated between the parents in even-numbered years and odd-numbered years. If you are the possessory conservator, you will have possession of and access to the children for the front-half of Christmas in even-numbered years. The managing conservator will have possession of and access to the children for the back-half of Christmas in even-numbered years. If you are the managing conservator, you will have possession of and access to the children for the front-half of Christmas in odd-numbered years. The managing conservator will have possession of and access to the children for the back-half of Christmas in odd-numbered years.

Thanksgiving

Pursuant to the Texas Standard Possession Schedule, Thanksgiving holiday is alternated between the parents each year. Thanksgiving holiday is not divided into a front-half and back-half like Christmas holiday.

If you are the possessory conservator, you will have possession of the children for Thanksgiving holiday in odd-numbered years beginning at the time that the children are released from school for Thanksgiving holiday and ending at 6:00 p.m. on the Sunday following Thanksgiving. The managing conservator will have possession of the children for Thanksgiving holiday in even-numbered years beginning at the time that the children are released from school for Thanksgiving holiday and ending at 6:00 p.m. on the Sunday following Thanksgiving.

Small business owners get divorced too

Michelle O'Neil — Wed, 09 May 2012 15:10:53 -0600

Sometimes spouses who own small business get divorced in Texas. Dividing a small business in a divorce can have special challenges. Read this white paper I wrote about the Top Five Concerns Regarding Small Business Ownership and Divorce in Texas. To summarize, the five points are:

What type of entity is the business – corporation, partnership, or sole proprietorship?
When was the business formed? Different rules apply if it was formed during the marriage versus before the marriage.
Have there been changes in the formation since the business was started?
Who runs the business day-to-day? Will one spouse operate the business going forward or is there a dispute about who and how the business will continue to operate during the divorce?
Where do the customers come from? In determining value of the business, one consideration will be whether the customers come to the business solely because of the reputation of the business (called commercial goodwill) or because of the reputation of one of the spouses (called personal goodwill).

When spouses have a small business and are getting a Texas divorce, it is critical to hire a Texas board certified family law attorney to handle these complex issues.

The rules are different in Texas family law

Michelle O'Neil — Tue, 08 May 2012 09:08:03 -0600

I read with interest an article written by a Dallas Divorce Lawyer (Jonathan Bates of Kinser & Bates), “Baker's Dozen: 13 Unique Ingredients of Family Law Practice”

Texas Lawyer, March 12, 2012. He set out 13 ways that family law differs from other areas of law in the way a case is handled. I thought his 13 points would be instructive for potential divorce parties, particularly in thinking about what kind of lawyer to hire. I always recommend that a potential divorce litigant hire a lawyer who is experienced in family law in the particular geographic area where the divorce will be filed. Example, hire a divorce lawyer in Dallas, Texas if your divorce will be filed there. Further, it is important to find a lawyer who is board certified in Texas family law to ensure that the attorney has a minimum level of competence in divorce cases. Jonathan Bates’ 13 points justify why just any lawyer won’t do to handle a divorce case, but instead why a family law specialist is best.

His 13 points, in summary are:

Children: Divorce cases involving children have nuances that a general litigation attorney may not appreciate. Although it sounds simple to say that the best interest of the children are the primary factor for the court to consider, this concept affects how the case is prepared and presented, from the beginning pleading to the end of the case.
Pleadings: In civil cases, pleadings must have a lot of factual specifics. In family law, these facts are not required and are very much frowned upon. Texas family law pleadings are broadly interpreted and failing to following the commonly accepted format screams to the Judge and opposing attorney that the lawyer does not know what he/she is doing.
Trial strategy: An overly aggressive style, although common in civil or criminal cases, may not play well in family court. Instead, a certain finesse is essential to show the court that you are sensitive to the issues at hand, while still presenting the right amount of assertiveness of the client’s position.
Prioritizing: An experienced Texas family law attorney will be able to discern what information is probably not crucial to the case (example, one-time instance of adultery committed by a spouse five years prior to the divorce) and what information the Judge will really want to hear (example, taking the children for sleepovers at the boyfriend/girlfriend’s house before the parents are separated). In other words, in a custody case, the focus should be on actions that directly affect the parenting of the children.
Discovery: Pretty much all information about either parent or the children or the money is discoverable in a divorce. All bank statements for any account owned by either party is usually discoverable for several years before the divorce was filed. In a custody case, medical and mental health treatment of either parent may be relevant. The contents of either parent’s computer may be obtained, including emails, text messages (for iPhones, stored in iTunes), and websites visited. Further, objections to the standard family law discovery requests result in disfavor with Judges.
Privacy: Because of the sensitive nature of the information exchanged in family law cases, judges will liberally grant requests to seal a court file or enter confidentiality orders protecting the parties’ information.
Evidence: Judges are sensitive to a party trying to block the entry of standard and customary information in a family law case. Such actions make a party appear to be hiding something, even when a lawyer may be making a technically correct objection. Bates suggests that the evidentiary victory of challenging the admission of relevant information may be more damaging than the admission of the evidence in the first place.
Developmental tools (for evidence): There are many tools in the family lawyer’s toolkit for developing evidence – social studies, psychological evaluations, drug testing, and forensic accounting evaluations are examples.
Characterization: Determining whether certain assets owned by either spouse are community property (obtained by either spouse during the marriage and divisible in the divorce) or separate property (owned by either spouse before the marriage or obtained through gift or inheritance and not divisible upon divorce) is a crucial part of the divorce. Expert witnesses, such as valuation experts or forensic accountants, can evaluate documents and evidence and provide useful testimony.
Statutes: Texas family law statutes are revised every two years when the Texas Legislature meets. Having an attorney who is current on the latest law and the effect of any changes is essential to the effective presentation of a divorce case.
Facts: Texas family law cases are very fact-specific. Judge because a friend or co-worker had a certain result in their divorce does not mean that result will be the same in another situation based on different facts. As Bates says, “Unfortunately, many divorce litigants receive inaccurate information from Hollywood, the Internet, or friends and family members. They often do not understand that an outcome implemented by agreement in another case may not be the likely result after a trial on the merits. What happened in another state or county may be inapplicable.” Even slight variations in the facts of two cases may result in significantly different outcomes.
Counseling: People (spouses or children) going through a family law case are often seeing some of their worst times and may need someone to talk to (other than a very expensive attorney).
Terminology: Using the right vocabulary is important. The term “custody” is used in lay terms but is not a common term in Texas Family Law. Know what the words “conservatorship” and “primary residence” mean. Understand that rarely does one parent get the children 100% of the time – instead, almost all cases are about how the parents are going to share the children.

Tips for Understanding the Texas Standard Possession Schedule

Sarah A. Darnell — Thu, 03 May 2012 07:42:23 -0600

There are times when parents get confused regarding which parent is entitled to possession of the children pursuant to a Texas Standard Possession Schedule. The key to eliminating the confusion is to understand how the Texas Standard Possession Schedule operates.

Over the next several weeks, I will break down portions of the Texas Standard Possession Schedule and provide tips for understanding how it operates.

Weekend Periods of Possession:

The Texas Standard Possession Schedule states that the parent exercising possession pursuant to this schedule shall have possession of the children on the weekends as follows:

“On weekends that occur throughout the year, beginning at 6:00 p.m., on the first, third, and fifth Friday of each month and ending at 6:00 p.m. on the following Sunday.”

It is important to note that when you are determining which weekend is the first weekend of the month you should always look at Friday, not Saturday. You look at Friday and not Saturday because Friday is the day that your weekend period of possession begins. For example, if the first day of the month falls on a Friday, then that is the first weekend of the month. However, if the first day of the month falls on a Saturday, then that is not the first weekend of the month. The following weekend would be the first weekend of that particular month.

If you are the parent that is exercising standard possession, it is important to understand that the 1^st, 3^rd, and 5^th weekends of the month are not the same thing as every other weekend. For example, if there is a month that contains a fifth weekend, then the parent exercising standard possession will have possession of the children for two consecutive weekends because the following weekend will be the first weekend of the month.

Weekday Periods of Possession:

The Texas Standard Possession Schedule states that the parent exercising possession pursuant to this schedule shall have possession of the children during the week as follows:

“On Thursday of each week during the regular school term, beginning at 6:00 p.m. and ending at 8:00 p.m.”

It is important to note that the Thursday periods of possession are only exercised during the regular school term and not throughout the year as are the weekend periods of possession.

Additionally, during the regular school term, the parent exercising standard possession is entitled to possession of the children on Thursday of every week during the regular school term.

Final tip for the week:

It is helpful to plan ahead. Take a blank calendar and mark the days and times that are “your days” with your children. Then, send a courtesy copy to the other parent months in advance. This should assist both parents with minimizing any confusion regarding which parent is entitled to possession of the children on any given day or weekend.

Next week I will discuss holiday possession pursuant to the Texas Standard Possession Schedule.

Tips for Avoiding (or Minimizing) Summer Travel Woes

Ashley Russell — Wed, 02 May 2012 14:35:47 -0600

Summer is just around the corner and for many families this means fun travel plans and summer vacations. But, if you have been through a divorce or are in the process of divorcing now, nothing can throw a wrench in your summer travel plans faster than an uncooperative ex with an ax to grind. If your ex (or soon-to-be ex) is not the type to put their own sometimes questionable agenda aside for the good of the kids, planning and actually taking a summer vacation with your children can be a source of stress, anxiety, and tension for the entire family.

The most important thing you can do to avoid conflict and confusion that can surround your summer travel plans is to clearly designate your extended summer possession in accordance with your divorce decree and/or temporary orders. Letting the other parent know that your designated days are off limits can help avoid disruption in your vacation plans and in any activities that you would like to schedule for your kids, like summer camp or swimming lessons. Make sure that you provide the other parent with written notice of your summer designation, that your dates are clear, and that you send your notice in a manner that you can prove the other side received it later if need me (for example by certified mail or through your attorney).

Another good way to minimize the stress that can surround travel plans is to include provisions regarding passports and notice of international travel in your divorce decree and/or temporary orders. Setting the procedure for international travel can bring comfort and security to both parents – bringing the traveling parent satisfaction in knowing that their travel plans will not be sabotaged at the last minute and allowing the non-traveling parent to take comfort in the fact that they know their child’s plans, flight numbers, destination, and contact information in case of an emergency. Clearly establishing the ground rules for who will hold the child’s passport and how important travel documents will be exchanged can help avoid conflict and stress for everyone.

While it will be impossible to avoid every conflict about summer travel, advanced planning, clear divorce decrees or temporary orders, and proper notice to the other parent can go a long way.

Temporary Spousal Support

Michelle O'Neil — Tue, 01 May 2012 07:36:49 -0600

Temporary spousal support is different than post-divorce spousal support.

In Texas, temporary spousal support to be paid while a divorce is pending is based on the concept that each spouse has a legal duty to support the other spouse. So, until the divorce is final, the legal duty of support comes into play. Judges often base their decisions on issues of temporary support on a theory of preserving the status quo until the divorce can be finalized. So, if there is a history of the husband providing the income to pay the marital obligations, then that may likely continue. If there has been a pattern where both spouses make income that is used to pay the marital bills, then a Judge will consider making that part of the temporary orders. The main concern in reaching a temporary order is to make sure that both spouses have sufficient means with which to meet their reasonable and necessary obligations. A judge will allocate the income coming in to the marriage to accomplish this goal. This may be accomplished with an order for one spouse to pay the bills of the other spouse, for one spouse to provide a monthly stipend of spousal support to the other spouse, or with an order for each person to use their monthly income to pay certain obligations assigned to them.

Temporary orders usually last in duration for the entire pendency of the divorce. However, it is becoming increasingly popular for judges to limit a temporary spousal support award to a short period – say, 90 days – providing a sufficient time for the spouse needing support to obtain employment and resolve the divorce.

There are no statutory guidelines for temporary spousal support orders as there are with orders for post-divorce spousal maintenance.

It is important to note that temporary spousal support also differs from the legally required temporary child support.

Read more posts about temporary orders:Temporary Orders Hearing: Step 2 of the Divorce Proceeding

What to Expect When You Fail a Drug/Alcohol Test During the Pendency of a Divorce or Child Custody Case in Texas:

Sarah A. Darnell — Thu, 26 Apr 2012 07:54:09 -0600

Over the last several weeks I have been discussing the most common methods of drug and/or alcohol testing utilized by courts in Texas in divorce and child custody cases. Failing a drug and/or alcohol test during a divorce or child custody case will have a negative impact on the custody issues involved in your case. There are several things that Texas courts commonly order when a party fails a drug and/or alcohol test during the pendency of a divorce or child custody case.

The first thing that you should expect to happen if you fail drug and/or alcohol test in Texas is for the Court to order that your periods of possession of and access to your children shall be supervised. The duration of the supervision will depend upon several factors. Family law matters in Texas are very factually driven, and the Courts have a lot of discretion regarding the remedies and precautionary measures that they order for the protection of the children. One factor for the Court to consider is the level of the illegal substance and/or alcohol found in a person’s system. For example, persons who have used drugs on a frequent and consistent basis will likely have their possession of and access to their children supervised for a longer period of time.

If the Court orders supervised possession the Court can order that your possession of your children take place at a supervising facility. The Court could also order a qualified individual to supervise your possession, or the Court could order a person that is agreed upon by the parents to supervise the possession. If the Court orders a facility or a qualified individual to supervise your possession it will likely be expensive. Most supervisors, whether a facility or individual, charge by the hour to supervise possession of children.

Additionally, the Court could, and likely will, order a person that has failed a drug and/or alcohol test during the pendency of a divorce or child custody case to attend Alcoholics Anonymous and/or Narcotics Anonymous on a regular basis. The Court could also order the person to submit to a substance abuse evaluation that will be conducted by a qualified professional, in order to determine the extent of any issues with substance abuse and/or dependence. If ordered, a substance abuse evaluation will be an added cost that you will be responsible for.

Finally, the Court will likely also order you to submit to random drug and/or alcohol screening for several months and/or years if you test positive on a test. The cost for random alcohol testing is an important factor to be aware of. A urinalysis alcohol and/or drug test can range is cost from $50.00 to $100.00 per test. A hair test and/or nail test can range in cost from $100.00 to $200.00 per test. Some courts order testing to occur at least once every thirty days. Other courts order random testing to take place more frequently. If random testing is ordered you are usually allowed anywhere from as little as 3 hours to as many as 24 hours to submit to a test upon receipt of notice that a test is being requested. Random drug and/or alcohol testing can be an expensive inconvenience.

Breaking Up Is Hard To Do: How Can You Call Your Divorce Quits If You Decide to Reconcile

Ashley Russell — Wed, 25 Apr 2012 10:19:34 -0600

Second thoughts after filing for divorce are not uncommon. While a case is pending, couples often decide that they would like to try to reconcile and work out their differences instead of going through with the divorce. People often ask me if they can stop the divorce if they change their mind. The answer is: it depends.

If both parties agree that they want to stop the divorce, the answer is an easy yes. In this situation, the parties can agree to nonsuit their divorce action and the case will be dismissed by the court, no questions asked. The document filed with the court is called a notice of nonsuit.

Likewise, if only one spouse has filed affirmative pleadings in a case, that spouse can unilaterally decide to nonsuit their claims. This will stop the divorce. But since a party’s notice of nonsuit only dismisses that party’s claims, one party cannot unilaterally stop a divorce by filing a nonsuit because the other party’s claims (and the divorce) will still remain pending.

Once a party files a notice of nonsuit, their claims will typically be dismissed without prejudice. This means that if the parties want to re-file their divorce at another time then they are not prohibited from doing so. It is important to note that dismissal is final, by a notice of nonsuit or otherwise. It does not press “pause” on the divorce or hold it while the parties make up their minds. In the event attempts at reconciliation are unsuccessful, the parties will have to re-file their divorce action.

It is possible to continue hearings or trial dates while parties attempt reconciliation, but the court is not likely to postpone the resolution of a case indefinitely or allow the case to remain on the docket for years. While the litigation can be stalled for a little while, at some point parties attempting reconciliation will have to decide whether to nonsuit their case and dismiss the divorce or whether to move forward with ending their marriage.

Eight Simple Rules for Tax-Deductible Alimony - Rules 6-8

Michelle O'Neil — Tue, 24 Apr 2012 07:45:40 -0600

How to determine whether payment of money to a spouse post-divorce qualifies as alimony under Internal Revenue Code §71 for tax-deduction purposes – Part 3.

This post continues discussion of the Make the Tax Code Your Friend from the Winter 2012 Family Law Advocate journal of the American Bar Association by Christopher Melcher.

Rule 6: Payments must terminate on the death of the payee.

This requirement was adopted to distinguish between property settlement in the divorce and true alimony. “Dead people require little, if any, support,” so for alimony to be tax-deductible, the payment should terminate upon the death of the supported spouse. See Taft, Tax Aspects of Divorce and Separation, §5.03[1][v]. On the other hand, an obligation regarding the division of marital property survives the death of either party because it creates a vested property right that can be transferred on death. So, if any of the payments are required to be on or after the death of the supported spouse, the payments look like a property division, rather than for maintenance.

If this rule is violated, none of the payments before or after the death of the spouse qualify as alimony.

Rule 7: Payments may not be fixed as child support.

Payments designated as child support are not deductible as alimony. Even if a payment is labeled as “alimony” the payment may be treated as disguised child support if the amount of the payment reduces upon some contingency related to a child.

Rule 8: A joint return is not filed.

The final requirement is that the parties file separate tax returns. They cannot file a joint tax return together, with one claiming an alimony as income and the other claiming the tax-deduction for alimony paid.

For an overview of Texas alimony laws, please see our website O’Neil & Attorneys.

For additional information about alimony and maintenance in Texas, see the following blog posts here on the Dallas Texas Divorce Law Blog:

Drug and Alcohol Use: What You Should Know Before Filing A Suit Affecting The Parent-Child Relationship In Texas

Sarah A. Darnell — Thu, 19 Apr 2012 07:40:11 -0600

Over the past several weeks I have provided you with information regarding the most common methods of drug and/or alcohol testing used by courts in Texas in divorce and child custody matters. This week, I will discuss the method of drug testing known as “nail testing.”

Nail testing is the newest form of drug testing being used by courts in Texas in divorce and child custody cases. Either fingernails and/or toenails can be tested to detect drug use. Like hair testing, nail testing has a longer detection period than a urinalysis drug screen. Nail testing can detect drug use for a period of 3 months up to 8 months.

When submitting to a nail test the nail is either clipped or shaved/scraped. You must remove all nail polish and/or acrylic nails prior to submitting to a nail test. Nail testing is generally used in cases where a person has no hair to test and/or if use of shampoos or other products that intend to alter hair or urinalysis test results are suspected. There are not many products on the market that claim to assist someone with passing a nail test.

If you are considering filing for a divorce and/or a child custody matter in Texas, be sure that you could pass any method of drug testing commonly utilized by the Courts. Since hair testing and/or nail testing are the methods of testing used by courts in Texas that have the longest detection periods you should make sure that you could pass either a nail or hair test prior to filing a family law matter in Texas. Depending upon the drug consumed, the duration of use, and quantity consumed it could take as long as 9 to 12 months before you test clean on either a nail and/or hair test.

Testing positive on any kind of drug and/or alcohol test will have a negative impact on your divorce and/or child custody case in Texas. You will likely be awarded only supervised visitation with your children for an extended period of time. The Court will likely require your visitation to be supervised until you can demonstrate to the Court that any issues with substance abuse have been resolved. You could be required to submit to random alcohol and/or drug testing for an extended period of time.

Next week I will discuss some specific consequences associated with testing positive for drugs during the pendency of a divorce and/or child custody matter in Texas.

What's Ours Is Mine: Signs Your Spouse Might Be Hiding Money

Ashley Russell — Wed, 18 Apr 2012 07:25:33 -0600

Divorce can bring out the worst in people or uncover bad behavior that has been there all along. Unfortunately, some people try to hide money from their spouse in a divorce. Other people have hidden money throughout the entire marriage. Clients often sense that something is just not right. This is the time to take action and seek legal advice.

Often it is hard for people to put their finger on exactly what sets off the alarm bells for them. To help, here are the top 5 signs that your spouse is hiding money from Nancy Van Tine of Burns & Levinson, LLP:

“1. No transparency. This can be a problem from the beginning of the marriage. You don't have joint accounts. There is no openness about finances and no real economic partnership. This makes it super easy to hide money! Every spouse should understand the family finances and be aware of what you have and how it is held, always. It just makes it too easy for a spouse to transfer funds and hide cash if you don't know how it all fits together.

2. A change in behavior. Instead of mail coming to the house, it goes to a spouse's office or he/she gets a post office box. The spouse opens new bank accounts and you don't see the statements. He/she gets new credit cards, and the bills don't come to the home. He/she has more than one cell phone, and you don't see the bills. The extra phone can indicate a lover, and that often means money is leaving the marriage.

3. A sudden decrease in income. One of my favorite quotes (and I have used it for so long I can't remember the source, other than it was another divorce lawyer) is, "once again, the magic alchemy of divorce turns yet another prince into a pauper." This can happen more often with the self-employed, as it is much easier to finagle finances in your own business than if you are a W-2 employee. If it occurs in conjunction with #2 above, watch out!

4. New and unusual economic behavior. This tends to be more on the spending side. The spouse is buying stuff which depreciates, i.e. a fancy car, a new motorcycle, boat or jet ski -- basically wild spending on toys. If your spouse starts running up large debts or cleaning out accounts to pay for new acquisitions, watch out!

5. Rushed and controlling. When tax returns need to be signed, you get the return on the day due and there is no time to read it, nor is there a copy for you to keep. Estate planning is rushed and/or unexpected, and you don't get to discuss the plans and their meaning with the lawyer. These and other areas where speed and lack of clarity can really hurt you are considerable.”

If any of these five signs set off alarm bells in your own relationship, or more importantly if your instinct tells you that something is just not right about your spouse’s behavior lately, consult a good divorce attorney immediately. An experienced divorce attorney can inform you of your legal rights and can explain the steps you need to take to better understand your financial situation.

Above all else, the most important thing you can do is to become knowledgeable about your finances – review your tax returns, meet with your CPA, learn about your spouse’s business. This investment will pay off for you by allowing you to be an engaged and active participant in your divorce and empowering you to manage your own finances once your divorce is final.

Eight Simple Rules for Tax-Deductible Alimony - Rules 3-5

Michelle O'Neil — Tue, 17 Apr 2012 10:00:51 -0600

How to determine whether payment of money to a spouse post-divorce qualifies as alimony under Internal Revenue Code §71 for tax-deduction purposes – Part 2.

This post continues discussion of Make the Tax Code Your Friend, an article from the Winter 2012 Family Law Advocate journal of the American Bar Association by Christopher Melcher.

Rule 3: Payments must be made under a divorce or separation instrument.

This means a written, formal agreement or court order. The written instrument must be in existence at the time the payments are made.

Rule 4: The instrument does not say that payments are non-taxable/non-deductible.

If the parties designate the payments as non-taxable, they will be bound by their agreement. On the other hand, saying a payment is taxable doesn’t make it taxable unless/until the IRS agrees.

Rule 5: The parties must not live together, unless the alimony is temporary.

If there is a legal separation of the parties, but they are not divorced, payments made for support are deductible even if the parties are members of the same household when the payments are made. Once a divorce is finalized, the parties cannot continue to share the same household for more than one month or the payments will not qualify as alimony.

For an overview of Texas alimony laws, please see our website O’Neil & Attorneys.

For additional information about alimony and maintenance in Texas, see the following blog posts here on the Dallas Texas Divorce Law Blog:

DRUG AND ALCOHOL USE: WHAT YOU SHOULD KNOW BEFORE FILING A SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP IN TEXAS: PART II

Sarah A. Darnell — Thu, 12 Apr 2012 13:18:24 -0600

PART II

HAIR TESTING

Another common method of drug testing used by Texas courts during divorce matters and custody matters is hair testing. Generally, a 5-panel hair test is conducted by the testing facility unless other drugs are specifically requested to be tested.

A 5-panel hair test will test for use of the following substances:

1. Cocaine;

2. Methamphetamines, amphetamines, ecstasy;

3. Heroin, morphine, codeine;

4. PCP; and

5. Marijuana.

The main difference between a urinalysis drug test and a hair test is that a hair test can test for a longer period of use. Hair tests are generally used to test for use with someone that you believe has used drugs for a longer period of time rather than occasional use. Generally, a standard head hair test can detect use for 90 days or 1.5 inches of hair closest to the scalp. Therefore, there are people that can test negative on a urinalysis drug screen that generally tests for use up to 5 days for most illegal drugs and prescriptions and 30-40 days for marijuana, but will test positive on a hair test.

Just like there are myths about how to “beat” a urinalysis drug test there are also myths regarding how to “beat” a hair test as well. A common method of attempting to avoid having to take a hair test is to shave off your head hair, cut your hair extremely short, and/or to color or bleach your hair prior to submitting to a hair test. It is important to be aware that if you shave and/or cut your head hair, then your body hair can be tested instead. Head hair generally tests for use for 3 months. The growth rate of the head hair is approximately ½ inch per month. Body hair however can test for use from 7 to 12 months because the rate of growth for body hair is much slower, and then the hair is dormant. So, it is not wise to cut or shave your head hair in an attempt to avoid a hair test because testing the body hair is likely the next alternative, which can detect use for a much longer time period.

A common method of attempting to “beat” a hair test is to use shampoos that claim to reduce or remove any signs of drug use from the hair and/or to bleach and/or color your hair prior to a test. It is important to note that some of the shampoos can reduce the level of drugs in your hair, but they generally do not reduce the level enough to test negative. Coloring and/or bleaching your hair can reduce the level of drugs in your hair, but will not reduce the level enough for you to pass a hair test.

Some interesting things to be aware of when facing a hair test:

On average it takes roughly 100-150 strands of head hair to perform a test.
Marijuana is more difficult, but not impossible to detect in a hair test.
If your hair does test positive in the initial test, the hair is tested again to confirm the initial positive by confirming with another methodology.

Next week I will discuss part III of a IV part series. Next week will focus on nail testing.

PART I: URINALYSIS

What to Expect in Your First Meeting with a Divorce Lawyer

Ashley Russell — Wed, 11 Apr 2012 12:31:16 -0600

Like going to the doctor, people often put off consulting with a divorce attorney because they are afraid to hear bad news or cannot bear to face the problem. This is the worst thing you can do for your divorce case. In a divorce, knowledge is power and a promptly scheduled consultation with a reputable divorce attorney is one of the best ways to get it. Keep these things in mind to help dispel the anxiety and stress that accompany many people to their first meeting with a divorce lawyer.

First, remember that the attorney you are consulting with is on your side. We understand that you have likely never done this before, that you are scared, and that you need information. During your consultation we will give you information of the law as it applies to your case, work to identify the major issues in your case, and attempt to provide you with a realistic assessment of your options. Our goal is to achieve the best possible outcome for you – you are hiring a divorce attorney to be your advocate.

In order to assess your case and give you the information you need, understand that we need information from you. During your consultation we will delve into personal issues like the history of your marriage, what you think might have led to the divorce, your relationship with your children, and the status of your finances. Know that what you say to us in your initial consultation and throughout the attorney-client relationship is confidential. Do not be afraid to be honest – that is one of the most essential aspects of a successful attorney-client relationship. You will not shock us with what you say and we will not judge you.

While we will give you our assessment of your case and provide you with information on the law and your legal rights, do not be afraid to ask questions. Let us know what is important to you and what you want to know. Your initial consultation with a divorce attorney should be a safe place for you to get the information you need to better understand the process and to begin making sense of the confusion swirling around you.

Eight Simple Rules for Tax-Deductible Alimony - Rules 0 - 2

Michelle O'Neil — Tue, 10 Apr 2012 09:26:38 -0600

How to determine whether payment of money to a spouse post-divorce qualifies as alimony under Internal Revenue Code §71 for tax-deduction purposes – Part 1.

Christopher Melcher provides a useful article on the tax-deductibility of alimony in this month’s Family Law Journal of the American Bar Association: Make the Tax Code Your Friend – and Alimony More Palatable. He points to eight simply rules to determine if payment of money to a former spouse post-divorce qualifies as tax-deductible alimony:

Rule 0: The label doesn’t usually matter.

Whether or not the payment is called “alimony” in the court order or something else does not affect its treatment as alimony under the tax laws. Likewise, a payment labeled as “alimony” may not qualify if the rules are not met.

One exception to this rule is that payments labeled as “child support” cannot be considered alimony.

Rule 1: The payment must be made in “cash”.

Alimony cannot be paid in exchange for services, property, an I.O.U., or for the use of property. Treas. Reg. §1.71-1T. Of course, checks or other methods of paying “cash” are accepted.

Rule 2: The payment must be received by or on behalf of a spouse or former spouse.

The payment does not have to be made directly to the spouse or former spouse. It can be paid to a third party for the benefit of the spouse. For example, cash payment of rent, mortgage, tax, or tuition liabilities of the spouse or former spouse made under the terms of the divorce decree will qualify as alimony. Treas. Reg. §1.7-1T, Q&A, A-6.

Melcher says the tricky part of these arrangements is to make sure that the payor does not benefit from the payment; otherwise the payment will not qualify as alimony. Sometimes making payments on behalf of the spouse, such as mortgage payments, can implicate more than one set of tax rules and create some confusion. If the house and the mortgage are in the name of the payor, the payor cannot take an alimony deduction for paying the mortgage even if the payee has exclusive possession. “Any payments to maintain property owned by the payor spouse and used by the payee spouse (including mortgage payments, real estate taxes, and insurance premiums) are not payments on behalf of a spouse, even if those payments are made pursuant to the terms of the divorce or separation instruments. Treas. Reg. §1.71-1T; Q&A A-6.

Simple enough: the payor is responsible for making those payments as the owner of the property or debtor under the mortgage and, thus, payment of those obligations cannot be treated as alimony to his or her spouse or former spouse.

On the other hand, where the payee owns the house and the mortgage is in his or her name. Since the alimony recipient is solely obligated for paying the mortgage, the parties can agree that his or her alimony will be paid to the mortgage company. The payee spouse can take an itemized deduction for the mortgage interest and property taxes paid, since these were made with his or her alimony money. IRS Publ. 504, p. 13 (2008).

If the spouses jointly own the residence and mortgage and the alimony order says that one spouse will pay the mortgage as alimony to the other spouse, the IRS will only recognize one-half of the payment as alimony. IRS Publ. 504, p. 12 (2008).

For payments of property taxes and home insurance in the form of alimony on a residence held in joint tenancy, none of the property tax or insurance payments qualify as alimony, but the payor spouse can take an itemized deduction for all of the property taxes. IRS Publ. 504, p. 12 Table 5 (2008).

Sometimes, spouses agree to require life insurance as a form of security for the loss of alimony if the payor dies. If the divorce agreement requires the payor spouse to maintain life insurance for the supported spouse as security for alimony, the premiums are deductible if the supported spouse is both the owner and irrevocable beneficiary of the policy and has all incidents of ownership under the policy. Stevens v. Comm’r, (1971) 439 F.2d 69; Rev. Rul. 57-125; Rev. Rul. 70-218; Treas. Reg. §1.71-1T, Q&A, A-6.

For an overview of Texas alimony laws, please see our website O’Neil & Attorneys.

For additional information about alimony and maintenance in Texas, see the following blog posts here on the Dallas Texas Divorce Law Blog:

DRUG AND ALCOHOL USE: WHAT YOU SHOULD KNOW BEFORE FILING A SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP IN TEXAS

Sarah A. Darnell — Fri, 06 Apr 2012 08:36:00 -0600

PART I

URINALYSIS DRUG TESTING

Urinalysis drug and/or alcohol testing is a form of testing that is frequently ordered by courts in Texas in cases involving children. Urinalysis drug and/or alcohol testing can detect a broad range of drugs. Urinalysis drug and/or alcohol testing can detect use from 3 days up to a week depending on the frequency and/or quantity of use. Also, the type of substance consumed can also impact the detection window. For example, if a person consumes marijuana on a daily or regular basis, a urinalysis drug and/or alcohol test could detect use up to 40 to 45 days. A person’s body type can also impact how long a substance remains detectible in a urine sample. For example, there are certain drugs, like marijuana that remain detectible for longer periods in individuals that weigh more because the THC in marijuana sticks to a person’s body fat. A substance like cocaine is usually only detectible in a urine sample for a much shorter time period, generally 3 to 7 days.

There are many myths regarding how to “beat” a urinalysis test. There are many products on the market that purport to guarantee that you will “pass” a urinalysis drug and/or alcohol test. There are also some home remedies that also claim to help you “pass” a drug and/or alcohol test. It is important to be aware of that when you take measures to tamper with and/or alter the results of a urinalysis drug and/or alcohol test the test results themselves can illustrate that the test may not be accurate because of an attempt to alter the true results. The most common methods that many people attempt when it comes to urinalysis drug and/or alcohol testing is to consume excessive amounts of water, to mix household ingredients such as bleach with the water that is being consumed, or by consuming products that are sold by companies that claim to be able to assist you with “passing” your test. Some people even attempt to use someone else’s urine when submitting a sample for a test.

Below are some points to be aware of prior to attempting to alter your urine sample:

Many drug and/or alcohol testing facilities used by courts in Texas have personnel that supervise the urinalysis testing. Therefore, attempting to use another person’s urine sample will likely not be successful and you will more than likely be “caught in the act.”
Consuming excessive amounts of water and/or other products will more than likely cause your creatinine level to be extremely low. Creatinine is metabolic waste found in urine. When you consume excessive amounts of liquid your creatinine levels decrease drastically. The normal range of a person’s creatintine level differs for men and women. However, the general rule of thumb is that if the creatinine level is below 20 mg, then the sample is considered to be diluted.
Most courts in Texas consider a diluted sample as the equivalent of a “positive” result.

The best way to test negative and “pass” a urinalysis drug and/or alcohol test is to stop using all substances that could be tested at least 45 to 60 days prior to filing for divorce and/or a suit affecting the parent-child relationship in Texas.

Over the next several weeks I continue to provide helpful information regarding the impact that illegal drug use and/or substance abuse issues may have on your case. Next week I will discuss part II of a IV part series. Next week will focus on hair follicle drug testing.

Tennessee Mom in Hot Water for Baptizing Children and What You Should Know About Religious Decisions in Texas

Ashley Russell — Wed, 04 Apr 2012 16:23:12 -0600

In a recent case out of Tennessee, a mother could face criminal contempt and jail time for baptizing her two children without the father’s knowledge or consent. The issue in this case centers on the mother’s violation of a court order requiring all major decisions regarding the religious upbringing of the children to be made jointly by agreement with the children’s father. If they could not agree, the order required them to attend mediation to resolve their dispute - which never happened.

Father believed that the children, 5 and 7 at the time, should be older when baptized. Mother disagreed and took matters into her own hands, baptizing the children without agreement or even notice to the father. After learning of the baptisms after the fact, father requested that mother be held in both civil and criminal contempt. The trial court held mother in civil contempt, but dismissed the criminal contempt action. Mother appealed and the Court of Appeals reversed both order holding mother in civil contempt and the dismissal of the criminal contempt action, meaning mother still faces fines and jail time for her actions.

Mother argued on appeal that the parenting plan requiring agreement with the father on the religious upbringing of the children amounts to unconstitutional interference with the right that a divorced parent has to influence their children with their religion. Father and the Tennessee Court of Appeals disagree, maintaining that mother should face criminal contempt proceedings due to her violation of a court order.

In Texas unless otherwise limited by court order, unlike the Tennessee order requiring parents to agree, §153.074 of Family Code gives parents the right to direct the moral and religious training of the child during the period that a parent has possession of the child. This can open the door for unilateral action when it comes to religious decisions (like the baptisms in the Tennessee case), especially when parents disagree or have difficulty communicating. When divorcing parents are not on the same page as far as religion is concerned, it is wise to address the right to direct the moral and religious training of the children directly to avoid confusion or conflict should disagreements arise later on.

Please click on this link to review the Tennessee opinion.