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The Trouble with the Mediated Settlement Agreement

I went to a breakfast meeting with several family court judges the other day. One of the questions asked was how they were going to apply the case of In Re Stephanie Lee in their courts. They were all adamant that they would follow the law as instructed by the Texas Supreme Court. However, that doesn’t mean they all liked it.

In Re Stephanie Lee was handed down by the Texas Supreme Court on September 27, 2013. It fully and finally set down the rule that a Family Court Judge could not act in contravention of a mediated settlement agreement, even if she believed that the agreement wasnot in the best interest of the child. Once the parties agreed by MSA, the court’s ministerial duty was to accept it and incorporate it into a final decree.

Some Harris County Family Judges have shown their displeasure with this case in the manner they have handled cases settled by mediated settlement agreements. In one court, the proposed final decree is not permitted to include language that the decree is in the “best interest” of the children when it incorporates a MSA. In another court, the Judge(now retired) appointed amicus attorneys to cases “in the event of mediation”. This action, I assume, was to get the Judge’s voice heard through the amicus when she could not otherwise. This last practice was particularly onerous to parents who are generally getting along, and there is no evidence of child abuse. An unneeded amicus slows down the proceedings, and pumps up the cost of a divorce.

I remember when Stephanie Lee came down. Many lawyers I worked with felt a sense of freedom. No matter how you slice it, the success of any […]

The Importance of Temporary Orders

 
The Importance of Temporary Orders
Some clients fail to realize the importance of winning the initial battle of Temporary Orders in their divorce or child custody action. Temporary Orders are designed to allow the Court to maintain the status quo while the lawsuit is pending. These orders keep the parties from wasting the couple’s assets and harassing each other. More importantly, they dictate conservatorship issues involving the children.

Although a temporary order does not decide who wins what in the divorce action, they have important implications in the final decision. The Judge in Family Court tries most cases, and it is usually the Judge or the associate Judge who issues Temporary Orders. Therefore, the decision made at the hearing gives great insight into the first impression gained by the Judge.

The main issue in both the hearing and the trial is determining what is in the “best interest of the child”. If there are no substantial changes during the pendency of the lawsuit, and the children appear to be well situated, it is a very difficult proposition to influence the Judge that she was wrong in the first place.

This leads many clients to choose a jury trial in order to change conservatorship. A jury trial greatly ratchets up the stress and expense of a child custody battle, and sadly adds stress to the children. It takes a long time to get to a jury trial.

I have had many clients who come in wanting custody of their children, and I spend many hours with these clients preparing them for the realities of the process. The Judge is going to be tuned into making sure that the children’s lives remain as “normal” as possible. She will focus on where […]

By |August 24th, 2013|Uncategorized|Comments Off on The Importance of Temporary Orders|

Protective Order Conundrum

I have a theory about protective orders. I think most Courts that consider them, look at it with a “better safe than sorry” mentality. Since a protective order generally only prevents a family member from doing things he shouldn’t be doing in the first place, plus requires a fighting couple from coming into contact with each other, it is safer to grant a protective order than to actually consider the viability of the allegation in the first place.

Let me be more specific. There are essentially three ways to involve a court when one spouse wants to restrain the other from harassing or violent behavior. The first is through temporary orders in a divorce filing. These orders last throughout the pendency of the divorce. The second is through a Magistrate’s Emergency Protective Order. This order is attached to a criminal case involving an assault, irrespective of whether a divorce has been filed. This order lasts 60-90 days. The final method is a Protective Order under Chapter 81 of the Texas Family Code. This is a more far-reaching order and applies for two years.

A Court can grant a two-year protective order if, after a hearing, it finds that “family violence” has occurred and is “likely to occur in the future”. Once the order is granted, the Court can enforce the order through contempt. As well, a violation of the protective order can be prosecuted through the criminal statute.

A party subject to a protective order is therefore in real danger. Once a protective order is in place, all it takes is one 911-phone call to put that party in jail. Often times the bail amount for the criminal offense of Violation of a Protective Order is exorbitant and is […]

By |May 17th, 2013|Uncategorized|Comments Off on Protective Order Conundrum|

Taking Them to the Cleaners

Taking Them to the Cleaners

With rare exception, our family law cases address generally three areas. The first is kids. Second is pre-divorce maintenance. And finally, we have property. From a legal standpoint, divorce is really all about separating property and debt. It is dissolution of a partnership, pure and simple. Except that in the family context, the Court has a very general rule it is required to follow to make its determination of who gets what. The split of assets and debt must be “just and right”, which is another way of saying “equitable”.

“Equitable” doesn’t mean half and half. In fact, that would often be impossible since family assets are usually in something other than cash holdings. An equitable distribution is going to take into consideration the relative earning powers of the spouses, the needs of children, and the characterization of the property.

The Court can also take into consideration the parties relative “fault” in the divorce. This is often a gray area, and one of the most contentious and confusing areas for our clients. Many a time, a client will come in and make a request that we punish the other spouse for his/her bad behavior during the marriage. Often, we have to talk our clients down off the ledge.

A spouse can do quite a lot to screw up an otherwise viable and healthy marriage. One of the most prevalent is adultery. The Texas Family Code is pretty specific about adultery. It can be used as a reason for divorce. The Court, in determining a property split, can also consider it. Many clients want the Court to punish their philandering spouse by taking away all of their community property rights.

No doubt about it. Most […]

By |May 17th, 2013|Uncategorized|Comments Off on Taking Them to the Cleaners|