What to Do if you are Served with a Divorce Petition, Citation, or Notice to Appear
A divorce proceeding is a difficult time for all parties involved. It is scary to be “served” with a petition for divorce. Fear, anxiety, and confusion are just some of the emotions that go through one’s mind when reading and absorbing an official Court document stating that a spouse wishes to end the relationship. Here are a few tips to keep in mind when you are served.
First, it is not the total end of the world. Do not give into immediate impulses and passions or fall prey to threatening or aggressive messages. Remember anything you say or do, especially in messages, texts or emails, may be used against you at Court. Do not give your spouse free arguments for the divorce.
Second, DO NOT use social media to vent frustration or talk about the divorce. Anything you write to third parties on social media may and will be used against you in Court. It may be hard but for your own benefit do not engage in frustrated tirades regarding your spouse on Facebook.
Third, find an experienced attorney, especially if children are involved. Be smart. It is not always prudent to hire a lawyer based on what appears to be the best financial deal possible when your children and possessions are at stake. The old axiom “you get what you pay for” is true when it comes to legal representation.
Fourth, be wary of Pro Se representation. Pro Se means that you have chosen to represent yourself in the divorce case. This may end very badly for you. Many people believe that if they research enough and familiarize themselves with the Texas Family Law Code they just might be able to receive a good outcome and drive up the attorney cost for the other spouse. Attorneys go to school for many years for a reason. The outcomes for Pro Se clients are not usually good and do not be tricked into taking on an inexperienced attorney to save money.
Fifth, save all hateful and scandalous remarks made by your spouse that have been emailed, texted, posted on social media or any other proof that can be saved against your spouse. Delete Nothing! Allow your spouse to dig his/her own hole. All of both spouse’s comments may be used in Court.
Finally, do not listen to your Spouse about any type of perceived legal outcomes. “I talked to a divorce lawyer and he said you better sign this or I will get everything…”. This is common in family law. Do not fall for the trap, seek experienced representation and let the divorce lawyer deal with your spouse or your spouse’s attorney. Do not be tricked into settling or giving up your children or possessions without competent assistance and advice from legal counsel.
Follow this advice and it will greatly help your probabilities with obtaining a favorable and fair outcome in your divorce case.
Nacol Law Firm P.C.
Dallas Divorce Attorneys
Children – The Innocent Bystanders of Divorce
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.
Divorce And Your Business: Who Gets What
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.
Division of Marital Assets in a Texas Divorce
Texas law requires trial courts to divide the estate of the parties in a manner that is just and fair having due regard for the rights of each party and any children of the marriage. Tex. Fam. Code Ann. 7.001. A disproportionate division must have a reasonable basis. Smith v. Smith, 143 S.W.3d 206, 214 (Tex. App. – Waco 2004, no pet.). The trial court has broad discretion in determining the disposition of property in a divorce action. If there is some evidence of a substantive and probative character to support the division, the trial court does not abuse its discretion if it orders an unequal division of marital estate. However, the division should not be a punishment for the spouse at fault. There is a difference between making a just and right division of the property with due regard for the children of the marriage and punishing the errant spouse. In general, the trial courts in Texas have perceived this distinction.
Generally, in a fault-based divorce, the court may consider the conduct of the errant spouse in making a disproportionate distribution of the marital estate. Young v. Young, 609 S.W.2d 758, 761-62 (Tex. 1980). This does not mean that fault must be considered.
The Texas Family Code sections 3.02 and 3.07 provide six circumstances when a divorce decree may be granted in favor of one spouse. These include the traditional fault grounds for divorce of cruelty, adultery, and abandonment. These sections were codified by the Legislature into the Family Code along with section 3.01 which provides for “no-fault” divorce based on insupportability because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation.
Texas courts have considered the following factors when equitably dividing a community estate:
- fault in breakup of the marriage;
- the benefits that the innocent spouse would have derived had the marriage continued;
- disparity in the spouses’ income and earning capacities;
- each spouse’s business opportunities;
- differences in the spouses’ education;
- physical health and need for future support;
- the relative ages of the parties;
- each spouse’s financial condition and obligations;
- the size of each spouse’s separate estate and any expected inheritance;
- the nature of the spouses’ property;
- the rights of the children of the marriage;
- waste of community assets or constructive fraud against the community;
- gifts by one spouse to the other; and
- tax liabilities.
The court need not divide the community estate equally. Smallwood v. Smallwood, 548 S.W.2d 796, 797 (Tex. Civ. App. – Waco 1977, no writ). The court has a broad discretion in making a just and right division, and absent a clear abuse of discretion, such decision will not be disturbed. Murff v. Murff, S.W.2d 696, 698-99 (Tex. 1981); Boyd v. Boyd, 131 S.W. 3d 605, 610 (Tex. App. – Fort Worth 2005, no pet.)
When there is no evidence or insufficient evidence to support the property division or an award of attorney’s fees, the appellate court must reverse or remand such decision for a new trial. Sadone v. Miller-Sadone, 116 S.W.3d 204, 208 (Tex. App. – El Paso 2003, no pet).
A party who seeks to assert the separate character of property must prove that character by clear and convincing evidence. Clear and convincing evidence is that measure or degree of proof that will produce in the mind of the trier of fact (judge or jury) a firm belief or conviction as to the truth of the allegation.
In a popular decision Phillips v. Phillips, 75 S.W.3d 564 (Tex. App. – Beaumont 2002, no pet.), Chief Justice Walker opined that because legislature has now authorized “no fault” divorce, fault could no longer be considered in dividing community estate. However, In Re Brown, 187 S.W.3d 143, 2006 Tex. App. LEXIS 686 (Tex. App. Waco 2006) states that what is “just and right” in dividing the property should not depend on the ground on which the divorce is granted; the just and right division of property is separate from the dissolution issue. If one spouse’s conduct causes the destruction of the financial benefits of a particular marriage, benefits on which the other spouse relied, a trial court should have discretion to consider that factor in dividing the community estate – regardless of the basis for granting the divorce.
To prove a disproportionate division of assets in a divorce case, counsel must put on clear and convincing evidence. Without such support, there will be no disproportionate division of community estate. The circumstances of each marriage dictate what factors should be considered in the property division upon divorce.
I Need A Father – (A Fathers Role in Child Custody)
The number of fathers caring for their children is growing at a rate almost twice that of single mothers. The bottom line is more men are choosing to be hands-on fathers. In addition, presumed joint custody — or shared custody by both parents of children of divorce — is now the law of the land in most states.
Scores of research have documented the positive effects of a father’s involvement in a child’s life. Regrettably, currently approximately 30% of American children live without their father’s involvement in their life.
As the number of women in the work force has increased, some men appear to have become more involved in fatherhood and show greater interest in child-care responsibilities. With more women in the workplace than ever before — 68% of women with children under 18 — divorce courts in most states are not simply awarding custody and care of children to mothers by default. In some cases, the mother has neither the time, nor the will, to care full time for her offspring. In other cases, she may not have the financial means. The gradual progress towards leveling the playing field for women at work has resulted in slowly leveling the playing field at home. The law is beginning to catch up as well. Divorce laws of more and more states are taking into account the importance of children maintaining relationships with dads as well as moms after divorce.
Following is a sample of what other sources have had to say about the risks faced by fatherless children:
- 63% of youth suicides are from fatherless homes (Source: U.S. D.H.H.S., Bureau of the Census)
- 85% of all children that exhibit behavioral disorders come from fatherless homes (Source: Center for Disease Control)
- 80% of rapists motivated with displaced anger come from fatherless homes (Source: Criminal Justice & Behavior, Vol 14, p. 403-26, 1978.)
- 71% of all high school dropouts come from fatherless homes (Source: National Principals Association Report on the State of High Schools.)
- 70% of juveniles in state-operated institutions come from fatherless homes (Source: U.S. Dept. of Justice, Special Report, Sept 1988)
- 85% of all youths sitting in prisons grew up in a fatherless home (Source: Fulton Co. Georgia jail populations, Texas Dept. of Corrections 1992)
After economic factors are excluded, children reared in fatherless homes are more than twice as likely to become male adolescent delinquents or teen mothers.
Recent studies have suggested that children whose fathers are actively involved with them from birth are more likely to be emotionally secure, confident in exploring their surroundings, have better social connections with peers as they grow older, are less likely to get in trouble at home and at school, and are less likely to use drugs and alcohol. Children with fathers who are nurturing, involved, and playful also turn out to have higher IQs and better linguistic and cognitive capacities.
The divorce process is difficult for all involved. It is far better for the children if the parents are able and willing to place them outside of difficult divorce issues. Children want to run and laugh and play. In many cases they are not mature enough to process adult issues. Keep heated issues between the adults and away from hearing range of the children. No matter how angry a parent is, they should promote the children viewing the other parent in a positive light. Children need positive role models. Even if a parent feels the other parent has wronged them, it is just as wrong for that parent to take away the ability for their children to have a parent they can be proud of and look up to.