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
Child support is one of the most heavily litigated issues in all of family law. To increase or decrease payments there are specific requirements that must be met to modify a previous child support order. Per Tex. Fam. Code § 156.401 the requirements necessary to modify a prior child support order are:
- The circumstances of the child or an affected party have materially and substantially changed; or
- Three years have elapsed since the order was entered or last modified, and the amount of child support differs from the statutory guidelines by either 20% or $100.00.
The second requirement is self-explanatory. The three-year limitation to file for another modification is for the benefits of the Courts. If there was no three-year waiting period to refill, then every conservator would constantly attempt to modify child support, thus creating endless litigation for clogging the Courts’ dockets.
The first requirement needs more explanation. A Material and Substantial change in the circumstances of the child or an affected party must be clearly shown at trial. Many Courts are meticulous in making the determination of what a Material and Substantial change is regarding the child and the affected party to insure this requirement is not abused for excessive litigation.
To prove a Substantial and Material change in circumstances, a conservator must show evidence at the final hearing of:
- The financial needs/expenses at the time of the divorce or prior modification for the children and the person affected, and;
- The financial needs/expenses at the time of the request for the modification.
If evidence of financial needs/expenses are not submitted and proved regarding both (1) the prior divorce/modification and (2) the recent modification, then no Substantial and Material change can be adequately proved. Further, if the request for modification of child support is predicated solely on one conservator’s increase in earning capacity, absent other compelling evidence, the change in circumstances is not Substantial and Material. Interest of L.R., 416 S.W.3d 675, (Tex. App.—Houston [14 Dist.] 2013, pet. denied.)
If one conservator decides to file a modification of child support within three years just because the other conservative received a better job, it may be dismissed. At the end of the day a Court has broad discretion on determining what is Substantial and Material and may allow the case to be heard and give an unfavourable ruling, but if that occurs you will have the ability to appeal the judgment and request attorney’s fees. It is important to know in any family law case the Judge has extremely broad discretion and interprets case law in a way that he deems fit using the Best Interest Test.
If you are a conservator that meet these requirements above and wish to increase or decrease the child support obligation, be sure to hire an experienced attorney. Nacol Law Firm will always fight for you and your children’s best interest.
Julian Nacol, Attorney
Nacol Law Firm, PC
Call (972) 690-3333
Co-parenting with an ex-spouse or partner gives children stability and fosters similar rules, discipline and rewards between households. It promotes a child’s ability to more effectively and peacefully solve problems and establishes a life pattern children can carry into the future.
Effective co-parenting means that your own emotions – anger, resentment or hurt – must take back seat to the needs of your children. Setting aside these feelings may be the hardest obstacle to overcome after a divorce. It is important that you remember, co-parenting is not about your feelings, or those of your ex-spouse, but rather about your children’s future happiness and stability.
The following are useful tips to assist you with co-parenting in the future.
- Do not talk negatively, or allow others to talk negatively, about the other parent, their family and friends or their home in hearing range of the child.
- Do not question the children about the other parent or the activities of the other parent regarding their personal lives. In simple terms, do not use the child to spy on the other parent.
- Do not argue or have heated discussions with the other parent when the children are present or during an exchange.
- Do not make promises to the children to try and win them over at the expense of the other parent.
- Communicate with the other parent and make similar rules in reference to discipline, bedtime routines, sleeping arrangements, and schedules. Appropriate discipline should be exercised by mutually agreed of both parents.
- At all times, the decision made by the parents should be for the child’s psychological, spiritual, and physical well-being and safety.
- Visitation arrangements should be made and confirmed beforehand between the parents without involving the child in order to avoid any false hopes, disappointments or resentments toward the other parent.
- Notify the other parent in a timely manner of the need to deviate from the order, including cancelling visits, rescheduling appointments, and promptness.
- Do not schedule activities for the child during the other parent’s period of possession without the other parent’s consent. However, both parents should work together to allow the child to be involved in extracurricular activities.
- Inform the other parent of any scholastic, medical, psychiatric, or extracurricular activity or appointments of the child.
- Keep the other parent informed at all times of your address and telephone number. If you are out of town with the child, provide the other parent the address and phone number where your children may be reached in case of an emergency.
- Refer to the other parent as the child’s mother or father in conversation, rather than using the parents first or last name.
- Do not bring the child into adult issues and adult conversations about custody, the court, or about the other party.
- Do not ask the child where they want to live.
- Do not attempt to alienate the other parent from the child’s life.
- Do not allow stepparents or others to negatively alter or modify your relationship with the other parent.
- Do not use phrases that draw the children into your issues or make them feel guilty about time spent with their other parent. For example, rather than saying, “I miss you,” say “I Love You.”
As you begin to co-parent, you and your ex are bound, on occasion, to disagree. It isn’t necessary to meet in person—speaking over the phone or exchanging emails is fine for the majority of conversations. The goal is conflict-free communication, so see which type of contact works best for you. Keep the conversations kid-based.
Remember, respect can go a long way, keep talking, don’t sweat the small stuff, and be willing to compromise.
Nacol Law Firm P.C.
tel: (972) 690-3333
Dallas Fathers Rights Attorneys
In the State of Texas there is one birth statistic that continues to rise: The Birth of Out of Wedlock Children! With dropping marriage rates and increasing non-married couples living together, the percentage of children being born out of wedlock is growing yearly. The Texas Out of Wedlock Childbirth rate of 2019 stands at 41.4%. How are the fathers of these children treated? Does a father have any rights to their children? In most states, the mother of a child has 100% of the custody rights until the paternity of the father is legally established. How does a Texas father legally establish paternity when the mother of their child refuses to allow him to sign the birth certificate and tells him that he will never have any type of communication or relationship with his child?
What are a father’s rights in the State of Texas?
Any and every right a parent may have is available to a father who seeks them.
How does the father file for paternity of the child in Texas?
1. Paternity Registry (Family Code 160.401-2)
The Texas Paternity Registry was created in 1997 to aid men (potential fathers) who desired to be notified of a proceeding for the adoption of or the termination of parental rights regarding a child that he may have fathered. They may register with the Registry of Paternity. The purpose of the Registry of Paternity is to “protect the parental rights of fathers who affirmatively assume responsibility for their children by registering or acknowledging their children (FC Chapter160, Subchapter E). To sign up with the Registry, the father or suspected father must file a Notice of Intent to Claim Paternity before a child is born or within 31 days of the child’s birth. (see form) https://www.dshs.texas.gov/vs/field/docs/vs130(2).pdf
Many men use this Registry when a Father and Mother do not have a continuing relationship and the man is not listed as the presumed father on the birth certificate or Acknowledgement of Paternity.
- Man and woman have a consensual sexual relationship for a brief time and no further contact. Man wants to make sure that if woman becomes pregnant and has a child, he wishes to assert his paternity
- Man and woman do no agree he is the father of the child. Man wishes to assert paternity.
- More than one man claims to be the father of the child. Each man would complete a separate Notice of Intent to Claim Paternity.
- Mother refuses to complete and sign the Acknowledgment of Paternity form.
The notice of Intent Claim Paternity form will not legally establish paternity nor be used to add a man’s name to the child’s birth certificate.
2. Alternate Means to Establish Paternity (Family Code 160.301-2 and 160.402, 160.601)
The mother of a child and a man claiming to be the biological father of the child may sign an acknowledgment of paternity with the intent to establish the man’s paternity.
An acknowledgment of the paternity must:
- Be in a record
- Be signed or otherwise authenticated by the mother and the man seeking to establish paternity
- State that the child whose paternity is being acknowledged:
1. Does not have a presumed father or has a presumed father whose full name is stated
2. Does not have another acknowledged or adjudicated father
- State whether there has been genetic testing and that the acknowledging man’s claim of paternity is consistent with the results of the testing
- State that the signatories understand that the acknowledgment is the equivalent of a judicial adjudication of the paternity of the child and that a challenge to the acknowledgment is permitted only under limited circumstances and is barred after 4 year.
A man is entitled to notice of a proceeding regardless of whether he registers with the registry of paternity if:
- A father-child relationship between the man and the child has been established under this chapter or another law.
- The man commences a proceeding to adjudicate his paternity before the court has terminated his parental rights.
The parentage of a child may be adjudicated in a civil proceeding by voluntary legitimation.
A Father should be proactive and enforce his rights promptly to enhance his probability of fair and equal treatment that is binding under the law!
Nacol Law Firm P.C.
Walnut Glen Building
4188 Walnut Hill Lane #1190
Dallas, Texas 75231
tel: (972) 690-3333
Effective September 1, 2019 The Texas Child Support Division of the Attorney General increased the Maximum child Support under the Texas Child Support Guidelines from $8,550 to the “new cap”of net monthly resources to $9200 annually. This change in the law will increase the amount of maximum child support from of $1,710.00 to $1,840.00 monthly (20% of $9200. For one child)
Texas Family Code §154.125(a)(1) requires that every six years the presumptive amount of net resources to which the child support guidelines apply shall be reviewed and adjusted for inflation by the Texas Office of the Texas Attorney General (OAG). That section sets out the formula for doing so based on the consumer price index. The last adjustment was done in 2013 when the current amount of $8550 per month was established.
How does the “cap” work and what could this mean for you? If your net monthly resources are less than $8,550, the child support obligation will not change on Sept. 1. You are under the “current cap” and lower than the “new cap”. All stays the same.
If you are currently going through litigation and your net monthly resources exceeds $8,550 and the Court orders child support prior to September 1, 2019, Texas Child Support Guidelines will mandate that the Court apply the appropriate child support percentage to the first $8,550 in net monthly resources based on the number of children. But, if the Court orders child support after September 1, 2019, it will apply the new appropriate child support percentage to the first $9,200 in net monthly resources.
Child support under the guidelines is determined by applying the applicable percentage, beginning at 20% for one child and increasing incrementally for each additional child, to the net resources amount. If a child support obligor has monthly net resources over $9200, a party seeking above the guideline’s child support has the burden of proving to the court that additional support should be ordered according to factors set out in Texas Family Code §154.126.
Important to Know: The new “cap” increase of September 1, 2019 will not automatically increase the obligor’s existing child support obligation. Any change in child support standing before September 1, 2019, can only occur through the court with a modification order to increase the child support to the new “Cap” amount of $9200. After September 1, 2019, any new suit for child support will be subject to the new “cap”.
Please review the Texas Office of the Texas Attorney General (OAG) website for a child support calculator for the new breakdown: https://csapps.oag.texas.gov/monthly-child-support-calculator
The Nacol Law Firm PC
8144 Walnut Hill Lane
Dallas, Texas 75231