Times have changed! Mothers’ having primary custody of the children is not always the accepted social presumption as in the past. Courts, legislatures and juries are becoming more aware of the vital necessity of father’s being involved in the lives of their children. Children with positive father involvement have fewer behavior problems, higher levels of sociability, and perform better in school.
Recent research suggests that father involvement is essential to a child’s social, moral, and physical growth during the adolescent period. A father’s involvement during pregnancy affects multiple areas of child development and family well- being, from prenatal care, to the likelihood that the father will provide ongoing financial and emotional support. This body of research is gaining momentum. Local and regional governmental agencies are focusing more and more on parental father involvement in the lives of children.
As a result of the continuing evolution of fathers’ rights, Courts are now recognizing a father’s ability to care for his children as an equal to that of the mother. Starting out on an equal plane, the Court may look to which parent is more stable, has a superior income, has a parenting plan in place for the child and is capable of providing proper child care and spending more quality time with the child.
As a father, how can you increase your chances of getting child custody in Texas? You must be a good father and spend time with your children by involving yourself in their daily lives. You need to be responsible and reliable to the needs of your kids. Know and participate in all aspects of their lives. This includes school activities, doctor’s appointments, extracurricular events and getting to know and bonding with their friends.
Reflect on your own personal experiences as a child growing up and think about what was really important to you and your parent’s interaction during that period.
If a father voluntarily gives up rights to his children based on prejudices of the past in the Court system, he will feed a mother’s confidence and sponsor unnecessary ongoing litigation. The number one mistake made by fathers in the court system today is a failure to take the time to learn how the system works. Failing to learn how the family law system works may doom your case. Once you have learned the ins and outs of the family law system you will need to form a viable plan, set goals and never relent in enforcing your rights as a father.
Five of the biggest mistakes men make in a legal action are: 1) failing to respond to the legal action itself; 2) obtaining incorrect legal advice (from friends and family rather than a legal expert); 3) signing a settlement agreement that is not in agreement with and later deeply regretting it; 4) failing to perform under the actual settlement agreement signed; and 5) getting frustrated and/or acquiescing to unreasonable demands and orders.
Some of the things you may want to consider as you prepare for the custody battle are as follows:
- Who has the financial ability to best care for the child(ren)? Be sure to have income tax verification, W-2 Forms and other financial information available.
- Form a parenting plan (child care, after school care, transportation, pediatrician, etc.).
- Who is more stable and/or can provide the best home for the child (ren)?
- Where has the child (ren) been attending school? Is it possible to keep the child in the same school district?
- Prepare a chronology of events leading up to the divorce including treatment of the child(ren), time spent with the child(ren), activities with the child(ren), the child(ren)’s schedule.
- Consider if a home study should be prepared regarding each home of the child.
- Consider whether a psychological evaluation should be done on the mother?
- Is drug testing necessary? (Be sure to request hair follicle drug testing.)
- Is there an alcohol or other addiction problem in the home?
- Who can provide the best moral upbringing for the children?
- Is there evidence such as pictures, video tapes, etc. that may help your case?
- Avoid unnecessary compromising photos or data on Facebook or other social networking sites.
List any other relevant issues you feel may be important to your child custody case before you meet with an attorney about your rights as a father.
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:
The property owned or claimed by the spouse before marriage
The property acquired by the spouse during marriage by gift, devise, or descent
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:
By devise or descent
By a partition or exchange agreement or premarital agreement specifying that the asset is separate
As income from separate property made separate as a result of a gift, a premarital agreement or a partition and exchange agreement
In exchange for other separate property
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.
Preparing for a Texas Divorce: Assets
Going through a Divorce is painful no matter what the circumstances are. Before you get into the Texas Divorce Process, reduce expense, stress and conflict by making sure you are financially prepared. Planning ahead helps you in making sound decisions, start preparing for post-divorce life, and avoid many post-divorce pitfalls. Below is a list of items you need to gather before counseling with an attorney. Financial Documents are a must to show what your true assets and liabilities are in your marriage.
We have included many assets that you may or may not have. This is only a financial checklist of multiple assets for your review so you will not miss an important asset that needs to be reported.
1. Tax Returns (at least three years) or Tax Liens and all IRS related documents
2. Wills and Trusts with all attachments reflecting corpus and trust holdings
3. Listing of all liabilities (including mortgages, credit card debt, personal loans, automobile loans, etc.):
—Name of entity, address and telephone number
—Property securing payment (if any)
—Most current statements and account status of lenders
4. A Listing of all Real Property, address and location, including (includes time-shares and vacation properties):
–Deeds of Trust
—Notes including equity loans and second liens
—Mortgage Companies and Loan Servicers (Name, Address, Telephone Number, Account —Number, Balance of Note, Monthly Payments)
—Current fair market value
5. Motor Vehicles (including mobile homes, boats, trailers, motorcycles, recreational vehicles; exclude company owned):
—Name on title
—Fair Market Value
—Name of creditor (if any), address and telephone
—Persons listed on debt
—Balance of any loan and monthly payment
—Net Equity in vehicle
6. Cash and accounts with financial institutions (checking, savings, commercial bank accounts, credit union funds, IRA’s, CD’s, 401K’s, pension plans and any other form of retirement accounts):
—Name of institution, address and telephone number
—Amount in institution on date of marriage
—Amount in institution currently
—Names on Account
—Company loans and documents related to benefits
7. A listing of separate property (property owned prior to marriage, family heirlooms, property gifted, inherited property):
—Records that trace your separate property. These assets will remain yours if properly documented
8. Retirement & Pension Benefits:
—Exact name of plan
—Address of plan administrator
—Starting date of contributions
—Amount currently in account
—Balance of any loan against plan
9. Publicly traded stock, bonds and other securities (including securities not in a brokerage, mutual fund, or retirement account):
—Number of shares
—Type of securities
—In possession of
—Name of exchange which listed
—Pledged as collateral?
—Current market value
—If stock (date option granted, number of shares and value per share)
—Stock options plans and related documents
10. Insurance and Annuities Policies and Inventory:
—Name of insurance company
—Type of insurance (whole/term/universal)
—Amount of monthly premiums
—Date of Issue
—Cash surrender value
—Current surrender value
—Other policies and amendments
11. Closely held business interests:
—Name of business
—Type of business
—% of ownership
—Number of shares owned if applicable
–Value of shares
—Balance of accounts receivables
—Cash flow reports
—Balance of liabilities
—List of company assets
—Possible hobbies or side businesses that generate income
12. Mineral Interests (include any property in which you own the mineral estate, separate and apart from the surface estate, such as oil and gas leases; also include royalty interests, working interests, and producing and non-producing oil and gas wells:
—Name of mineral interest
—Type of interest
—County of location
—Name of producer/operator
—Current market value
—needs leases or production documents related to the asset
13. Money owed by spouse (including any expected federal or state income tax refund but not including receivables connected with any business)
14. Household furniture, furnishings and Fixtures
—purchase receipts and documents
15. Electronics and computers including software and hard drive
16. Antiques, artwork and collectibles (including works of art, paintings, tapestry, rugs, crystal, coin or stamp collections) Other large collections need to be appraised! (Guns, quilts, action figures, books)
17. Miscellaneous sporting goods and firearms
18. Jewelry including appraisals
19. Animals and livestock
20. Farming equipment
21. Club Memberships
22. Safe deposit box items
23. Burial plots including documents of ownership
24. Items in any storage facility
25. Travel Awards Benefits (including frequent flyer miles)
Divorce is frustrating, confusing, and personally 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 by one of the spouses (the petitioner). Then, the Respondent spouse must be served with papers by a process server unless they will agree to waiver service.
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 these 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 documentation. 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 often 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 a 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 or need help call the Nacol Law Firm, experienced family law attorneys to represent your best interests throughout this painful process.
Nacol Law Firm P.C.
Julian Nacol, Attorney
It is 2019 and many fathers are facing a regrettable and inevitable DIVORCE! Either through Mom’s decision or Dad’s, it may be the end of a joint family life that includes both parents in one residence. No one is ever happy, but by doing some research and trying to make reasonable decisions, fathers will persevere and hopefully you will be able to maintain your loving relationship with your children and family.
Some things to remember:
- Your children love you and just because you are no longer living with their mom, doesn’t change your love. You keep your opinions to yourself and not share all your adult thoughts with your children. YOU LOVE THEM AND ALWAYS WILL! NOTHING HAS CHANGED IN YOUR INTEREST OR LOVE FOR YOUR Children. Mom is no longer in your home and love with the children. She has her own relationship with the family now.
- You do have definite rights to your children. When the decision has been made to file for divorce, employ an experienced attorney to help guide you through this process. Negative statements, even when true, ARE NOT HELPFUL! Uninformed opinions from your soon to be ex, concerning your rights with the children, are suspect, since you now are on opposing sides. A very knowledgeable Fathers Rights Attorney is up to date on all current issues in Fathers Rights domestic litigation and the courts, and this is who you should listen to for guidance.
- As the divorce proceeds and behaviors by the divorcing couple become hostile and estranged, just remember that self-control and acting rationally, without anger, will help in eliminating future ammunition to be used against you in the divorce and custody case. Self-control in your behavior and attitude will help you keep an upper hand in the Divorce proceeding and help the outcome.
- Finally, you are not the victim! Don’t lay down dead and let Mom run over you! There is life after the death of a marriage and you will learn that not only may your life be better, but your life with your children will be enhanced! The children will have watched you act like an adult and parent who loves them and wants the best for them, but also wants a good life with them in the after-divorce life.
Now the Divorce process has begun. Either you or your wife have “Lawyered Up” and the Legal Process has begun! Some very good advice to consider following at the beginning of a Divorce:
- Get your financial documents in order: Review our blog “Prepare for Your Divorce” to start getting ready in the financial part of the divorce. Subject to the outstanding standing order of the court, be sure to protect all joint bank accounts and open new ones for your individual use. Also, if indicated and necessary, delete spouse from all your credit and charge cards.
- Depending on the age, meet with your children and discuss what is happening to your family. Make sure they know that your relationship with them will never change and you will always be their father and show this by loving actions and affections. Confirm that you are divorcing their Mother, not them.
- Stay on your best behavior during this stressful time. Watch your consumption of alcohol intake and try to stay in good company. You need to show that you are not the aggressor. Never let Mom provoke you into a stressful situation where you may engage in a public spectacle with any form of emotional, physical or sexual abuse against Mom or others. The Judge or jury would not be impressed!
- If you have not hired an attorney, now is the time to “lawyer up”. You need to find a competent attorney who has a good reputation dealing with fathers and their rights to their children. Look on legal websites and blogs to see if an attorney relates to your legal needs. Check on fathers’ rights blogs and see if an attorney has answered questions about a similar family situation as yours and has suggested good solutions to help resolve the issues. Give this attorney a call and set up a consultation to see if he/she would be a fit for your legal need.
- If life and divorce pressures are making you depressed, search out for help with supportive family or friends, clergy or professional counselors. Studies have concluded that Divorce is one of the most stressful events in an individual’s life. Get the support you need to be able to make wise decisions and to promote honest interaction with others during this most stressful time.
Like death, Divorce is one of life’s worst events. Know that this difficult time will someday be over, but also along this path there will be unknown surprises and events, that will test your honesty and dignity as a father and a parent. But in the end, you will make it and still be the father that you need to be to your children.
Stay Calm. This too shall pass….
Nacol Law Firm P.C.
Dallas Fathers Rights Attorney