In today’s unpredictable economy there has been a continuing growth of small businesses and a substantial decrease of existing established businesses in Texas. In the regrettable instance of “Divorce” how may the “Family Business” be divided between a dissolving couple to reach a fair and reasonable result for both parties?
In such a situation, an experienced Family Law Attorney with the aid of economic experts becomes critical in establishing a fair and equitable price on the business, consulting the client on their rights relative to the business, helping with negotiations for a business entity to be sold, transferred, or appraised, and making sure the client’s rights are protected in the transaction.
The most important fact to establish is a credible determination of the true fair market value of a business and how the business or the business assets are to be divided between the spouses in the divorce.
The dividable interest is determined by the fair market value of the business. This value is the price a willing buyer would pay and a willing seller would give in a purchase with both buyer and seller having reasonable knowledge of the relevant facts of the business and neither being under pressure to buy or sell the business.
During a Divorce, the concept of a credible hypothetical buyer and seller may be determative and very complicated. Going through a divorce is difficult enough, but fairly determining the true value of the business in the process can be complicated and sometimes expensive. There are always two different ideas in every divorce and the family business will bring out the some very serious opinions of just what is the “fair market value”! Ideas may range from too high in today’s economy to too low base on emotional attachments, complicated further by feelings as to possible other family members who own or claim parts of the business. The value placed on proposed purchases that are not part of an arm’s length transaction may not be relevant to the correct fair market value.
To help determine the fair market value and complete the transaction fairly for both parties the family law attorney must be able to obtain and review all business and financial records, financial statements and tax returns, and any other pertinent information for the preceding 5-7 years. Often an independent business appraiser or CPA will be retained to help in determining a credible and correct valuation of the business that a Judge or Jury will respect.
Divorce, in many cases, has a life-altering impact on a child’s development and well-being. Given that one out of every two marriages ends in divorce, thousands of children are impacted each year. Divorce places enormous stress on a child trying to adjust to new feelings and rapidly changing situations in their lives. The resulting instability often leads to resentment towards the child’s parents and a difficulty acclimating to all the abrupt and immediate changes in a child’s life.
Children perceive divorce as a very traumatic event and are very concerned about their security. Many children internalize the dissolution and blame themselves for the breakup. They are scared that both parents may leave them.
Some very disturbing research on children and divorce has just been released by the Census Bureau Study, “The Marital Events of Americans: 2009”.
*1.5% of US children live in the home of a parent who divorced in the last year. The average age of the child is 9.8 yrs. old and the male/female ration is 1:1.
*64% of the children were White, non- Hispanic children, with the largest percentage living in the South (41%).
*Children living with a divorced parent are likely to be in a household below the poverty level (28%) and more likely to be living in a rented home (53%).
*Most children live in a mother headed households (73%). Because mothers have lower earning potential in the labor force, the family often lives below the poverty level.
*These children of divorce are often living with their parents’ unmarried partner (13%). Only 5% of the children are living in a household with a married couple.
Children of divorce often suffer from anxiety, depression and reduced self-esteem issues. Robert Hughes, associate professor in the Dept. of Human Development and Family Science, Ohio State University, found that children from divorce are more aggressive and more likely to get in to trouble with school authorities or police during adolescence. Also children from divorce are more vulnerable to becoming a victim of violence or become a perpetrator of violent acts on themselves and or others.
If you are considering divorce, carefully consider the impact on your children. To help children through this difficult time, parents must realize and accept that they are responsible for this situation and that their children often suffer as a result of the parent’s decision.
Parents should be very sensitive to the child’s emotional needs to ensure the best possible adjustment of his or her mental, physical, spiritual well-being towards a healthy, responsible adult. Remember! Your child is the “Innocent Bystander.”
Seek professional help if you child is struggling with the changes in his or her life. Your attorney knows a resource that may be available to address your child’s pressing needs.
Thirty seven percent of families in the United States are blended families. Sixty percent of second marriages end in divorce. A biological parent has his hands full, but as most step-parents will tell you, their job is even more complicated.
Following a divorce, it is not uncommon for a new step-parent to become the target of unprovoked spite or anger. In many cases, the previous-spouse harbors unfounded fears that their child will look to a new step-parent as a mother or father replacement figure. This can engender resentment to what may already be an uncomfortable situation between parties. Regretfully, these issues often escalate very quickly. Such resentments place the children squarely in the middle of a bitter fight between the people they love the most and are not healthy for anyone involved. The pain of conflicting loyalties to each parent and a child’s feeling of being “caught in the middle” of such disputes exacts an enormous emotional toll on a child. When a parent is in a rage, it is not uncommon for a child to withdraw. The child’s behavior towards the non-primary parent may abruptly change. This change in behavior may have more to do with keeping the primary parent happy than it does with how they really feel about the non-primary parent or step-parent. It is essential that you make it clear to your child that you love them and will always be there for them, regardless of the emotional or less than rosy current circumstances.
It is crucial to a child’s self-esteem and emotional growth that parents avoid putting children in the middle of such disputes. This can be incredibly difficult, however, when a selfish or manipulative parent does not think twice about wrongfully placing his or her child in the middle of conflict. Children are very perceptive and as they grow older they will ultimately realize when a parent has lied to them and used them for their own emotional or financial gain. Though they may temporarily identify with the aggressors, in time they will deeply resent the parent who has manipulated them.
Regardless of the circumstances, it is critical that biological parents avoid arguments or conflicts in the presence of the children. Such conduct is conducive to parental alienation goals of the misguided previous spouse. If the child sees that you maintain a calm and collected demeanor, it gives them reason to pause and feel safe.
If a previous spouse is making statements to the child regarding issues that should only be discussed between adults, tell the child that such discussions are inappropriate and you will take them up with the other parent at another time.
It is ok to tell your child “I am sorry,” if they are upset, even if you are not the parent upsetting them. This validates that they are hurting and relieves any false guilt they may have over things that are being said and done when you are not present. It is sometimes helpful to use everyday situations to explain conflict to your child. As an example, when dealing with conflict explain that “brothers and sisters fight, but they still love each other. Families have to work through conflict in order to stay together. I would not leave you if you made a mistake, I would not want you to leave me.” Such statements reinforces that reasonable conflict is ok and assures the child that you will remain a constant force in their life regardless of the situation.
If you feel that the conflict has escalated to a point of becoming emotionally abusive and/or destructive to the child, consult a Family Law / divorce attorney. It may be in the best interest of the child that he or she be removed from the primary parent and placed with the non-primary parent so that he or she is allowed to love all parental figures, parents and step-parents alike, unconditionally.
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.
Many professions create impositions on conservators making a standard possession order inapplicable and unworkable. The Court may deviate from a standard possession order if the order is inappropriate or unworkable in reference to the schedules of both the conservators and the child. Unique professions and irregular school schedules for children allow the Court to have flexibility to deviate from a standard possession order that is in the Best Interest of the Child. There are multiple ways in which the Court may depart from a standard possession order to fulfill the needs of all parties involved with the custody of the child.
First, the Family Code § 153.254 states that the Court will be allowed deference to modify the standard possession order if work schedules of either conservators or the school schedule of the child is irregular. The Court must attempt to narrowly tailor the modifications to keep the new possession order as similar to the standard possession order as possible. This instance most commonly occurs when the Managing Conservator and the Possessory Conservator cannot reach an agreement and one of the two Conservators has a unique profession such as a firefighter, police officer, or airline pilot. The working hours of these jobs allow the Court to modify the standard possession order even if both of the parties do not comply with the changes. The modifications must be made only if it is in the Best Interest of the Child.
Secondly, the standard possession order may always be modified if it is by the mutual agreement of both the Managing Conservator and Possessory Conservator. Family Code § 153.007 is the Agreed Parenting Plan Statute and allows for both parties to agree on a standard possession order for the child. This statute was passed to promote amicability in settlement for child custody issues and to give flexibility to the parents if they are willing to agree on custody terms. The Agreed Parenting Plan must be in the Best Interest of the Child for the Court to approve. If the Court grants the Agreed Parenting Plan then the Managing or Possessory Conservator will have a remedy as a matter of law for any violation of the agreement committed by either party.
Finally, both Conservators may enter into a Mediated Settlement Agreement under Family Code § 153.0071. A Mediated Settlement Agreement is the only time in which the Court will NOT look at the Best Interest of the Child when granting the custody agreement.
The Mediated Settlement Agreement § 153.0071 must be:
- In bold, underlined, and capital letters that the agreement is NOT REVOCABLE
- Signed by Both Parties to the agreement
- Signed by the lawyers (if represented) of each party
The Mediated Settlement Agreement is binding and not revocable so if the Conservators wish to go this route they must understand that what is in the agreement will be held as binding. This method can be used to modify or change a standard possession order and the Court will not look at the Best Interest of the Child regarding the agreement, unless there exists a credible threat of domestic violence.
These are the methods in which a unique possession order may be obtained to accommodate irregular schedules or working hours of both the conservators. Any possession order must be correctly drafted and all future contingencies must be accounted for. An experienced lawyer must be contacted to safeguard an individual’s custody rights of their children and to make sure that a fair custody arrangement is obtained.