Time is about up on the Amnesty Provision of the New Texas Mistaken Paternity Law: September 1, 2012!
Think you are the “Father” before the birth of the child and would like to find out using a new procedure? Now you are in luck! A new blood test has just become available which can determine paternity as early as the eighth week of pregnancy without an invasive procedure that could potentially cause a miscarriage. This new test requires only blood samples from the pregnant woman and the potential father. The price of the prenatal testing is currently around $1500.00.
What does Texas Family Code 160.502 say about this genetic testing before the birth of the child? A court shall order a child on prima fascia proof and other designated individuals to submit to genetic testing if the request is made by a party to determine parentage. If a request for genetic testing of a child is made before the birth of the child, the court or support enforcement agency may not order utero testing. If two or more men are subject to court-ordered genetic testing, the testing may be ordered concurrently or sequentially.
Now it is time for “fathers” or men who have been paying child support for children who are not their biological children to assert their rights.
Texas new law, Texas SB785, permits men on prima fascia proof who have been ordered to pay child support, without genetic testing, to request genetic testing in order to determine whether they are the genetic parent of the child.
But the clock is ticking. If you suspect that you are paying child support for a child who is not your biological child, you should file the petition before September 1, 2012.
After September 1, 2012, a man must file a petition to determine genetic parentage no later than the first anniversary of the date on which he becomes aware of facts indicating that he is not the child’s genetic father.
In order to file for relief under this new law, the man must have signed an acknowledgement of paternity or failed to contest paternity in the previous proceeding because of a mistaken belief that he was the child’s father based on misrepresentations that led him to that conclusion.
If the man had knowledge he was not the father at the time he signed the acknowledgement of paternity or the previous court order, the new law does not apply.
If the genetic testing concludes that the man is not the child’s genetic father, the court shall render an order terminating the parent-child relationship and terminating the man’s obligation for future child support. The law further provides that he may not be held in contempt by the court for arrearage if the test is negative.
The new order, however, does not affect the man’s obligations for child support or child support arrearages accrued before the date of the order. However, the accrued obligations are not enforceable by contempt proceedings.
If the court order states that the father listed on the birth certificate is not the biological father and the information can be removed from the birth record, then the birth certificate can be revised as well.
Even if the parent-child relationship is terminated, the man may request the court to order periods of possession or access to the child following the termination. The court may order periods of possession or access to the child only if the court determines that denial of possession or access would significantly impair the child’s physical health or emotional well-being. The law directs the court to focus on the child’s well-being, not on the man or the mother’s wishes with regard to the man’s desire to continue seeing the child.
If you have been paying child support due to a mistaken belief that you were the father, the time to act is now. Remember the clock is ticking! If you suspect that you are paying child support for a child who is not your biological child, you should file the petition before September 1, 2012. If you wait to file for relief, you may be barred! Contact an attorney now!
Financial costs of divorce may often be significant. Divorce lawyers, like any other professionals, are paid according to their skill, training and experience. In Texas, one can expect to pay an advance deposit from $2,500 to $25,000 depending on the complexity of the legal issues involved, as well as the quality and expertise of counsel selected. In addition to the legal fees, some cases require “expert testimony” regarding the value of certain significant assets, i.e. business interests, the marital residence, rental properties, art work and more.
One reason most experienced divorce lawyers want a substantial retainer is that once an attorney files an appearance, they are charged with duties in their role as an officer of the court. Under law and court procedure an attorney must make appearances and file specific legal documents with little or no discretion depending on the opponent’s conduct. Initial filings and other documents may appear deceptively simple, but can challenge even the most patient person. The devil truly is in the details, especially where haggling parties look for disagreement. Even minor issues can blow up, and evolve into unnecessary expense.
Divorces involve complicated issues and many times it is necessary to have a temporary hearing sooner rather than later to sort out legal and monetary issues for the pendency of the divorce proceeding. Who will continue living in the home? Who will make mortgage payments? Who will make payments on automobiles? Who will pay certain credit cards? Who will pay utilities? Who will maintain the property? Who will be responsible for the debts? All questions must be carefully considered and weighed out.
In divorces with child related issues there are more complicated factors to be considered. Who will receive primary custody of the children? Where will the children live and how often? What school will the children attend? How will their education be paid? How much child support will be paid? What visitation schedule will work for the parents and the children? How, when and where will the child exchange take place? Which parent will maintain health insurance? Will the child’s residence be restricted to a particular geographical area?
In all cases, marital assets must be divided; and even if there are few marital assets and only marital debt, there remains much to fight about, or resolve.
The state of Texas makes it unethical for lawyers to take a divorce action on a “contingency fee” basis. That leaves only two ways for a divorce lawyer to be paid: by the hour, which is the most common; or on a flat fee basis. Hourly fees in the Dallas/Ft. Worth metroplex area for a divorce lawyer range anywhere from $250 per hour to $550 per hour and up, depending on your choice.
In the cases where one party has a distinct financial advantage, the economically disadvantaged party can apply for temporary attorney fees and costs to be paid immediately by the party in control of the resources provided a fund is available for such use. In a proper case, such temporary motions often are granted by the trial court in order to level the playing field.
After every hearing, whether it concerns child related issues, marital assets, debts of the parties, or property owned by the parties, an order must be drawn by counsel based on either the court’s decision or the agreement of the parties. Many times these orders involve the drafting of further legal documents such as Deeds of Trust, Deeds of Trust to Secure Assumption; Special Warranty Deeds, and Real Estate Lien Notes relating to the parties home; Powers of Attorney to transfer title of automobiles; Wage Withholding Orders for the withholding of child support; and Austin forms (required by the Bureau of Vital Statistics in every divorce action). Often a Qualified Domestic Relations Order (QDRO) is necessary to divide retirement plans, accounts, pensions and the like. These are just a few of the necessary documents required in some divorce actions.
Bottom line is: the less the parties fight the less they will pay. Lingering animosities do not expedite resolution. Courts do not want to hear “he said/she said.” Whether that is right or wrong is for a social commentary, not a legal guide. That is why there are ‘irretrievable breakdown’ divorces.
Other factors that affect the cost of divorce are: whether the divorce is adversarial; how much you pay hourly for your legal counsel; if you and your spouse are battling over child custody issues involving children; the number of marital assets and debts you have to deal with; and whether your spouse’s attorney is unnecessarily aggressive and adversarial, without purpose.
When selecting a divorce lawyer know what you are looking for. Your counsel should be a person in whom you can put your total trust — after all your emotional health, the emotional health of your child(ren) and potentially the emotional health of your grandchildren could be at issue. The way to keep divorce costs under control is to select the right lawyer and to force your intellect to overrule your emotions when making decisions.