Fathers Rights Blogs

Sep
20

What Happens in a Texas Divorce ?

Divorce can be frustrating, confusing, and resentful. Divorce is never a pleasant experience even in the most amicable terms. It is important to know what you are in for when a divorce is filed. An original petition will be filed, and your spouse must be served with a process server.

After service of the original petition, the Petitioner may file for a Temporary Restraining Order (“TRO”) to protect the child and marital estate. Once a TRO is granted by the District Judge, a temporary order hearing will be set within 14 days. This temporary order hearing is extremely important and will determine the direction of the case.

Temporary Order hearings are usually condensed to 20 minutes a side depending on the complexities of the case. Within this 20 minutes, you will have to put on evidence for your entire case regarding custody of the children, management of the marital estate, and any other considerations such as receivership of a business.

After the temporary orders hearing, the case will dive into full throttle litigation. Discovery on both sides is usually conducted including interrogatories, admissions, and production of documentations. The documents that are usually requested consists of bank statements, retirement pensions, social media pages, text messages, and emails. Each case requires specific Discovery requests that are narrowly tailored to the facts presented. Discovery can last months and usually follow with motions to compel and sanctions. In highly contested cases the rigors of discovery and compiling documentation can be brutal.

During the Discovery phase, Depositions may be warranted. Depositions consists of your attorney questioning your spouse and any other witnesses that are relevant to the case for impeachment purposes. Depositions are necessary if the case will go to a jury, because impeachment of your spouse is a necessity to prove your truthfulness.

Mediation is, more often than not, mandatory in Courts, but this is the general rule. Certain Courts in the Dallas, Fort Worth, and Collin county do not require mandatory mediation. Each Court has its own rules of procedure and requirements. If the Mediation fails to produce a settlement between you and your spouse, then the only thing left is trial.

Depending on the complexities of the case and assets, a trial can last half a day or be a three-day trial. Most trials are before the District Judge. Certain facts may give rise to a jury trial but a jury trial is more costly and can take up more time. After the trial is complete the parties will have to wait for a ruling. This can take days to months depending on the case and jurisdiction.

When the final ruling is given to all parties, the Judge will charge one party to create a final order that will be submitted to the Court. This can give rise to more litigation depending on the interpretation of the Judge’s rulings by both parties. Finally, when both parties agree to a final order or the Judge determines which version of the final order is proper, then the case will be over.

Divorce can be a painful process that lasts 6 months to three years depending on the circumstances and the nature of the parties involved. If you are about to file for a Divorce in the DFW metroplex call Nacol Law Firm so that you have an experienced family law attorney to represent your interests throughout the process.

Julian Nacol
Dallas Fathers Rights Divorce Attorney
Nacol Law Firm PC

By Nacol Law Firm P.C. | Divorce Checklist . Prepare for Your Divorce
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Sep
07

The Texas Legislature 87th Session: New Texas Family Code Bills and Revisions

The Texas 87th session was very uneventful this year, with two additional  sessions. Listed below are some new bills and bill revisions that passed this year for the Family Code: 

  • HB 3774: Effective September 1, 2021, The date of the marriage must now be included in all final decrees of divorce in an official court document. Proof of the length of marriage is required to apply for Social Security retirement benefits. 
  • HB 2926: September 1, 2021, Reinstatement of Parental Rights after Involuntary Termination.  This is a new and significant procedure that allows certain people, including the Department of Family and Protective Services and a previously terminated parent, to move for reinstatement of their parental rights. Subchapter D added to Ch. 161 of the Texas Family Code, sets out the basic requirements for filing and hearing procedures.
  • SB1936: September 1, 2021, expressly states the standard Possession Order that the alternative ending time for Monday school holiday and teacher in-service days is 8a.m. on the following Tuesday and if a conservator lives less than 50 miles from the other conservator, the court shall also award that conservator the alternative beginning and ending time for standard possession order. This award does not apply if the possessory conservator declines one or of the alternative times or possession is limited by the court in the best interest of the child.
    *If the Possessory Conservator lives more than 50 but not more than 100 miles from the child’s primary residence, the law will not change: that parent may still opt into the Expanded Standard Possession Order (ESPO) – but it will not be automatic.
  • HB 1012: September 1, 2021, Access to residence or former residence to retrieve personal property.  If entry is denied by a current occupant, the denied person could seek a writ, authorizing them to go to the residence to get their possessions with a peace officer.  If the property was listed in a Decree, relief can be sought in court granting such Decree.
  • HB 3009: September 1, 2021, Child Custody evaluators must be able to communicate with a parent in their primacy language or have someone who can assist the parent in their primary language for Child custody evaluations. 

This legislature Session caused a lot of “smoke” but “little fire” for Texas Family Law.  

Nacol Law Firm P.C. 
Walnut Glen Tower
8144 Walnut Glen
Dallas, Texas 75231 
Call (972) 690-3333
NacolLawFirm.com

By Nacol Law Firm P.C. | UPDATE! New Texas Laws
DETAIL
Jul
14

Getting a Texas Divorce? Know what Marital Property is Community or Separate

In Texas, Community Property Laws apply in determining the Property Distributions to a wife and husband.  This system is employed to divide the property fairly between the divorcing couple.

What is Separate Property?  Texas Family Law Code, FAM 3.001: A spouse’s separate property consists of:

    1. The property owned or claimed by the spouse before marriage

    1. The property acquired by the spouse during marriage by gift, devise, or descent

  1. The recovery for personal injuries sustained by spouse during marriage, except any recovery for loss of earning capacity during marriage.

The terms “owned and claimed” as used in the Texas Family Code means that where the right to the property accrued before marriage the property would be separate.  Inception of title occurs when a party first has a right of claim to the property by virtue of which title is finally vested.  The existence or nonexistence of the marriage at the time of incipiency of the right of which title finally vests determines whether property is community or separate.  Inception of title occurs when a party first has a right of claim to the property.

Under Texas Constitution, Art. XVI, Section 15, separate property is defined as all property, both real and personal, of a spouse owned or claimed before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of that spouse; and laws shall be passed more clearly defining the rights of the spouses, in relation to separate  and community property; provided that persons about to marry and spouses, without the intention to defraud pre-existing creditors, may by written instrument from time to time partition between themselves all or part of their property, then existing or to be acquired, or exchange between themselves the community interest of one spouse or future spouse in any property for the community interest of the other spouse or future spouse in other community property then existing or to be acquired, whereupon the portion or interest set aside to each spouse shall be and constitute a part of the separate property and estate of such spouse or future spouse; spouses may also from time to time, by written instrument, agree between themselves that the income or property from all or part of the separate property then owned or which thereafter might be acquired by only one of them, shall be the separate property of that spouse; if one spouse makes a gift of property to the other that gift is presumed to include all income or property which might arise from that gift of property; and spouses may agree in writing that all or part of the separate property owned by either or both of them shall be the spouses’ community property.

What Is Community Property? Texas Family Law Code, FAM 3.002:  Community property consists of the property, other than separate property, acquired by either spouse during the marriage.

Texas Family Code, Section 3.003 states that all property possessed by either spouse during or at the dissolution of the marriage is presumed to be community property and that the degree of proof necessary to establish that property is separate property, rather than community property, is clear and convincing evidence.  Clear and convincing evidence is defined as that measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.  If property cannot be proved clearly and convincingly to be separate property, then it is deemed to be community property.

The Texas Family Code, Section 7.002, deals with quasi-community property and requires a court divide property wherever the property is situated, if 1) the property was acquired by either spouse while domiciled in another state and the property would have been community property if the spouse who acquired the property had been domiciled in Texas at the time of acquisition; or 2) property was acquired by either spouse in exchange for real or personal property and that property would have been community property if the spouse who acquired the property so exchanged had been domiciled in Texas at the time of the acquisition.

What about Property Acquired during Marriage? Property in which inception of title occurs during marriage is community property unless it is acquired in one of the following manner, in which it becomes separate property of the acquiring spouse:

    1. By gift

    1. By devise or descent

    1. By a partition or exchange agreement or premarital agreement specifying that the asset is separate

    1. As income from separate property made separate as a result of a gift, a premarital agreement or a partition and exchange agreement

    1. By survivorship

    1. In exchange for other separate property

  1. As recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.

During a divorce, it is important that both parties know what type of property is involved in the divorce and what is separate and community property. This knowledge may determine or influence what each party will receive at the end of the settlement.

By Nacol Law Firm P.C. | Property and Asset Division
DETAIL
Jul
14

Parental Alienation Hurts Your Children – Know the Symptoms

Are you now going through or commencing a “High Conflict” Divorce with children where one Alienating Parent is encouraging or programming the child to reject the other parent without legitimate cause or justification. An alienating parent makes a child choose sides to bolster the alienators own parental identity and to undermine the target parent through denigration and interference with the child’s other parent relationship.  

Parental Alienation is more common than thought in divorce situations and many alienation situations continue throughout the entire relationship with the target parent and the affected child.   

A report from Fidler and Bala (2010) reported increased incidences and judicial findings in parental alienation and estimated signs of parental alienation in 11-15% of divorces with children. Psychiatrist, Dr. William Bernet, Professor at Vanderbilt University and advocate of parental alienation (Sept. 2013) “Almost every mental health professional who works with children of divorced parents acknowledges the PA (parental alienation) affects thousands of families and causes enormous pain and hardship”

What are the warning signs of “Parental Alienation Syndrome”?  Beware when a child starts displaying accelerated signs of hatred and anger rejecting any relationship with the target parent. This is especially transparent when a normal relationship existed before the deviant behavior manifests.

Are you having these types of problems with your children?  What are the basic symptoms of Parental Alienation(PA)? There are many versions but in our law practice, these are the most visible:

    • Under the idea of just being honest, the alienating parent tells the child “the entire family situation” through their opinionated eyes causing the child to think less of the target parent.  Placing singular blame for who caused the breakup of the family?
    • Alienating Parent refuses to allow the target parent access to school records/activities, medical/doctor records/appointments, extracurricular activities, or anything that would be a shared part of the child/parent life together.
    • An Alienating Parent makes demands on the target parent that are contrary to court orders. Allows the child to make choices about parental visits with the target parent contra to existing court orders causing the child to resent the target parent when the changes request cannot or should not happen.
    • Alienated parent may schedule the child in too many activities to assure no time is left for the target parent to visit with the child. Both parents need to be flexible with visitation to respond to the child’s need to have a relationship with both parents.
    • A parent listens in on the child’s conversation with the target parent or does not allow the child to talk with the target parent at the designed call time.
    • Refuses to allow children to takes their possessions to the target parent residence.
  • Alienated parent blames the target parent for financial problems, having a boy/girlfriend, or causing changes in the family lifestyle. Forcing adult issues on a minor to gain advantage.
  • When the child shows constant anger towards the target parent that accelerates to the point where the child avoids being with the target parent. No justified or demonstrative reason is given or exists for the anger and the child will not discuss the issue.
  • The alienating parent will use the child to spy and gather information against the target parent. This can cause the child to demean and fear the target parent while scaring the child’s self-image.
  • Alienating parent asks the child about the other parent’s personal life causing the child extreme stress/tension. A child not alienated wants to loyal to both parents.
  • Alienating parents have secret codes, signals, and words that reinforce very destructive on-going alienation.

In today’s world Parental Alienation Syndrome (PAS) is now taken very serious in family law courts. Please review the symptoms of parental alienation and see if there are common elements in your relationship with your child to determine if parental alienation may be a factor.

If so, take action to help alleviate this this situation with your child.  Contact a medical professional who can help address this form of brainwashing.  The alienating parent always feels like they are helping the child, but in reality, by pushing the child into their way of thinking about the target parent, they are pushing the child into a life of low self- esteem, depression, lack of trust, and self- hate.  Many times the child will turn on the alienating parent when the real family picture comes out or as they grow and mature.

Nothing is ever gained by demeaning actions by one family member on all other members of the family unit. Many times it may also be necessary to contact a legal profession who is knowledgeable in Parental Alienation situations to legally intercede and help correct family issues before the child and parent regress to a non- existent relationship with each other.

Getting Even by using a child is never fair play.  The child has two parents and should be able to have a loving relationship with both.

By Nacol Law Firm P.C. | Parent Alienation
DETAIL
Jul
05

How To Avoid Major Financial Pitfalls in a Divorce

You are getting divorced!  After the emotional decision is made you must address financial situations impacting the family breakup.

What are the major financial pitfalls of a divorce? Are you prepared to stay on top of all financial problems and decisions in this divorce to strive for a financial win-win situation?

  1. Where’s the liquid cash? Divorce generally never goes as fast as you would like nor do you receive as much as you think you should! If divorce is imminent start saving up money now! You will need to pay divorce expenses and have support for your new household.  There will be many unanticipated costs that may drain you financially.

  • If you don’t have a credit card in your name get one now.  If you share credit with your spouse, close out as many credit cards as possible if he/she can charge on your credit. Even if you don’t use the cards, the account balance will still be owed and both spouses may be legally responsible for the debt.
  1. Not Prepared for this Divorce?  Divorce is a serious change of life event. Get Prepared Now! Timing is all important! When is the best time for you to get divorce?  Make sure your financial situation is good before you take the divorce leap. Need new tires, buy them. Kids need dental work, see the dentist.  Just remember: after the separation, your expenses will be paid by court order and not always be to your liking.

    1. Where are the important divorce financial records? Don’t leave without all your documents that identify what you and your spouse accumulated during your marriage and which can establish the fair market value! Even if you were not in charge of finances while you were married, you must secure copies of all records. You are entitled to your share of financial property and any additional income you find may increase the earnings that calculate child support or spousal maintenance support.  What are you looking for?  At least three years of tax returns, mortgage paper on your home, wills, trusts, bank, credit card, and financial statements, car registrations and titles, insurance policies, and deeds to real estate.  If you have separate property from inheritance or gifts from your family, make sure you have all records of these transactions.  Our blog, Texas Financial Checklist http://dld.bz/dqcej  is a detailed list of items and records needed to have before filing for divorce. A very good item to use for your preparation!

  1. Have you overlooked any Divorce Assets?  If a business is involved a forensic accountant may be hired to look of any signs of additional income or overstated expenses.

  • Hobbies and side businesses that use expensive equipment or generate income needs to carefully be looked out.  Are you entitled to compensation for expenses you paid to get your spouse through school?
  • All assets, big or small can add up. These assets can always be used for trade on something you can use.
  • Your spouse may try to hide assets. By keeping all documents and paystubs to make sure there are not any irregularities, things usually work out fine. Stay honest and reveal your assets.
    1. Do Not Ignore Tax Consequences!  Divorce may or may not create taxable events but you must report it on your tax return. Should you sell the house now to claim the capital gain exclusion? Who should be paying the mortgage until it sells? Should you take your spousal maintenance monthly or in a lump sum? What about retirement funds? An accountant can help to determine the best path for you on these questions.

    1. Passive Observer of your Divorce? NO!  Get control of this process, focus on practical things and work with your future Ex to get this divorce over! You can do this! There is a reason for this divorce and you are the master/mistress of your destiny. Your children need you now to be a responsible parent and wise decision making will save you time and legal fees. Listen to your attorney but you make the decisions!

    1. Is Divorce your survival plan?  Now that you have decided to divorce you must break it to your children. People engaged in a Divorce should be in survival mode.  The person who will be your future “EX” is looking out for themselves and you need to look out for yourself and your children.  YOU must insist within reason on getting what you need and deserve! Emotions and money do not mix!  You must be able to take care of yourself and your family financially so look at all property division decisions very carefully and make good decisions to bring the divorce to a successful conclusion.

    1. Prepare for the worst! When entering into a divorce, prepare yourself for the worst!  If you are prepared for anything, than your fears will not cause you to panic and you will keep control of your situation. Outside of death, divorce is considered one of the worst emotional situations that a human being will ever experience!

  1. How will you support yourself and the kids after divorce? Hopefully this is not a problem, but now would be a good time to get some career counseling at a community college, university or local job center. Having a fulfilling career is lucrative and helps your self-esteem!

  1. Get Good Advice! Decisions you make now will affect the rest of your life.  Find a good, knowledgeable attorney to help you though the rough spots. If you are emotionally a wreck, find a good therapist. If you feel there are hidden assets, hire a forensic accountant. Now is the time to get the best advice you can afford!  You will have to live with your financial decisions for a long time.

By Nacol Law Firm P.C. | Divorce Checklist . Property and Asset Division
DETAIL

Please contact father’s rights Dallas Attorney Mark Nacol, or father’s rights Dallas Attorney Julian Nacol with the Nacol Law Firm P.C., for legal insight to your rights as a father. Both attorney Mark Nacol, and attorney Julian Nacol , provide counsel in the area of family law including divorce, father’s rights, interstate jurisdiction, child support, child custody, visitation, paternity, parent alienation, modifications, property division, asset division and more. Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization. Our attorneys at The Nacol Law Firm P.C. serve clients throughout Texas, including Collin, Dallas, Denton, Ellis, Grayson, Kaufman, Rockwall and Tarrant counties and the communities of Addison, Allen, Arlington, Carrollton, Dallas, Fort Worth, Frisco, Garland, Grapevine, Highland Park, McKinney, Mesquite, Plano, Prosper, Richardson, Rowlett and University Park, Murphy,Wylie, Lewisville, Flower Mound, Irving, along with surrounding DFW areas.

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