Nacol Law Firm

Aug
22

Child Support Modification in Texas – Done Within Three Years

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:

  1. The circumstances of the child or an affected party have materially and substantially changed; or
  2. 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:

  1. The financial needs/expenses at the time of the divorce or prior modification for the children and the person affected, and;
  2. 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

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Jul
20

Texas Fathers Rights to Establish Paternity of Children Born Out of Wedlock

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. 
Other Examples: 

  • 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
 

By Nacol Law Firm | Paternity
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Jul
14

Getting a Texas Divorce? Know what Marital Property is Community or Separate

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:

    1. The property owned or claimed by the spouse before marriage

    1. The property acquired by the spouse during marriage by gift, devise, or descent

  1. 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:

    1. By gift

    1. By devise or descent

    1. By a partition or exchange agreement or premarital agreement specifying that the asset is separate

    1. As income from separate property made separate as a result of a gift, a premarital agreement or a partition and exchange agreement

    1. By survivorship

    1. In exchange for other separate property

  1. 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.

By Nacol Law Firm | Property and Asset Division
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Jul
14

Parental Alienation Hurts Your Children – Know the Symptoms

Are you now going through or commencing a “High Conflict” Divorce with children where one Alienating Parent is encouraging or programming the child to reject the other parent without legitimate cause or justification. An alienating parent makes a child choose sides to bolster the alienators own parental identity and to undermine the target parent through denigration and interference with the child’s other parent relationship.  

Parental Alienation is more common than thought in divorce situations and many alienation situations continue throughout the entire relationship with the target parent and the affected child.   

A report from Fidler and Bala (2010) reported increased incidences and judicial findings in parental alienation and estimated signs of parental alienation in 11-15% of divorces with children. Psychiatrist, Dr. William Bernet, Professor at Vanderbilt University and advocate of parental alienation (Sept. 2013) “Almost every mental health professional who works with children of divorced parents acknowledges the PA (parental alienation) affects thousands of families and causes enormous pain and hardship”

What are the warning signs of “Parental Alienation Syndrome”?  Beware when a child starts displaying accelerated signs of hatred and anger rejecting any relationship with the target parent. This is especially transparent when a normal relationship existed before the deviant behavior manifests.

Are you having these types of problems with your children?  What are the basic symptoms of Parental Alienation(PA)? There are many versions but in our law practice, these are the most visible:

    • Under the idea of just being honest, the alienating parent tells the child “the entire family situation” through their opinionated eyes causing the child to think less of the target parent.  Placing singular blame for who caused the breakup of the family?
    • Alienating Parent refuses to allow the target parent access to school records/activities, medical/doctor records/appointments, extracurricular activities, or anything that would be a shared part of the child/parent life together.
    • An Alienating Parent makes demands on the target parent that are contrary to court orders. Allows the child to make choices about parental visits with the target parent contra to existing court orders causing the child to resent the target parent when the changes request cannot or should not happen.
    • Alienated parent may schedule the child in too many activities to assure no time is left for the target parent to visit with the child. Both parents need to be flexible with visitation to respond to the child’s need to have a relationship with both parents.
    • A parent listens in on the child’s conversation with the target parent or does not allow the child to talk with the target parent at the designed call time.
    • Refuses to allow children to takes their possessions to the target parent residence.
  • Alienated parent blames the target parent for financial problems, having a boy/girlfriend, or causing changes in the family lifestyle. Forcing adult issues on a minor to gain advantage.
  • When the child shows constant anger towards the target parent that accelerates to the point where the child avoids being with the target parent. No justified or demonstrative reason is given or exists for the anger and the child will not discuss the issue.
  • The alienating parent will use the child to spy and gather information against the target parent. This can cause the child to demean and fear the target parent while scaring the child’s self-image.
  • Alienating parent asks the child about the other parent’s personal life causing the child extreme stress/tension. A child not alienated wants to loyal to both parents.
  • Alienating parents have secret codes, signals, and words that reinforce very destructive on-going alienation.

In today’s world Parental Alienation Syndrome (PAS) is now taken very serious in family law courts. Please review the symptoms of parental alienation and see if there are common elements in your relationship with your child to determine if parental alienation may be a factor.

If so, take action to help alleviate this this situation with your child.  Contact a medical professional who can help address this form of brainwashing.  The alienating parent always feels like they are helping the child, but in reality, by pushing the child into their way of thinking about the target parent, they are pushing the child into a life of low self- esteem, depression, lack of trust, and self- hate.  Many times the child will turn on the alienating parent when the real family picture comes out or as they grow and mature.

Nothing is ever gained by demeaning actions by one family member on all other members of the family unit. Many times it may also be necessary to contact a legal profession who is knowledgeable in Parental Alienation situations to legally intercede and help correct family issues before the child and parent regress to a non- existent relationship with each other.

Getting Even by using a child is never fair play.  The child has two parents and should be able to have a loving relationship with both.

By Nacol Law Firm | Parent Alienation
DETAIL
Jul
13

HELP! The Warning Signs of Divorce

When the warning signs of a fractured relationship with your spouse have been surfacing for quite a while, many people are still caught off guard when their spouse asks for “The Divorce”.  Although the husband may cause marriage problems, about 75% of divorces are initiated by the wife.  

Usually one spouse is in shock/denial and may want to truly try to salvage the marriage. At times a spouse will try to blame the other spouse of being a quitter for wanting to be legally released from an unacceptable marriage. Often the non-initiating spouse is at the point where it is a relief that “The Divorce” question has surfaced and will readily agree that divorce is the right option.

Marriage and family is not an easy proposition at times and sometimes it is easier to just say goodbye and return to single life. But if you truly love your spouse and family you should look at the warning signs and try to change the direction of the marriage.  Every relationship has its up and downs and needs new considerations at times. Take time to review your relationship and catch early warning signs that the marriage may be running off its tracks.  

What are some serious signs that you and your spouse could be headed for a DIVORCE?

  1. Spouse interaction is more negative than positive: Marriage researcher, Dr. John Gottman researched the negative/positive effect and found that stable marriages have 5:1 ratio of positivity to negativity during conflict. Whereas unstable marriages have .8:1 ratio of positivity to negativity during conflict (Gottman & Levenson 1999). The acceleration of verbal criticism, nagging, and sarcasm in a relationship can be a definite sign that there is trouble in the marriage.  
  2. Stonewalling when “you can’t break down the wall”: Stonewalling is a refusal to communicate or cooperate through body language or verbally shutting down when a situation with your spouse gets out of control and you don’t know how to handle the situation. This is very serious and may be the time to bring in a marriage counselor to help work through this problem.
  3. No Conflict Resolution: Marriage researcher, John Gottman, states that the lack of communication isn’t the marriage breaker but the lack of effective conflict resolution. This is a very serious problem when couples can’t reasonably work out their differences without causing injury to their relationship and finally quit communicating with each other to avoid more disagreement and conflict.
    Other times one spouse or both have reached the point where every conflict has become a situation that must be “won” by bullying the other spouse into submission. There must be a “winner” but with this win comes mutual loss of respect, increasing distance and eventual withdrawal from the relationship.
  4. Emotional and Physical Disengagement and Disaffection: When couples can’t communicate, they will find different avenues for emotional engagements.  Many neglected spouses will look out of the marriage at other values or priorities that helps them feel connected. A new religion, lifestyle, or job opportunity that the other spouse would never agree with can now be a reality for them.
    Emotional Disengagement is usually accompanied by withdrawal of affection. Couples in a divorce situation consider themselves “fallen out of love” with their spouse.
  5. Sudden Change in Behavior? Has your partner suddenly started caring more about their appearance and spending more time “away from” home. Or more time is spent with their children and instead of “our marriage” everything is centered around “our children”?
    Has your sex life disappeared? This is a good indicator that your emotional disengagement is advancing steadily and the spouses take no pleasure in each other. These are serious signals of rapidly eroding bonds in your marriage if not in a terminal state.
  6. Preparation for the “Single Life”: As people get tired of dealing with each other and the total indifference of the relationship, they will start living parallel lives and finally dissolve their personal relationship. Many couples heading for divorce will take up new habits and friends that differ from their spouses. New social networks will be centered around a single lifestyle.

Sounds like your current life with your spouse? DON’T GIVE UP YET! IT IS NEVER TOO LATE TO SALVAGE A FADING MARRIAGE! If people will realize that a marriage is not perfect and there will be conflict a certain percentage of time. Concentrate on working out a solution together to have a positive, loving relationship that can withstand the bad times. Just Remember: there was some spark that drew you to your spouse. Try to find it again or divorce.

By Nacol Law Firm | Prepare for Your Divorce
DETAIL

Please contact father’s rights Dallas Attorney Mark Nacol, or father’s rights Dallas Attorney Julian Nacol with the Nacol Law Firm P.C., for legal insight to your rights as a father. Both attorney Mark Nacol, and attorney Julian Nacol , provide counsel in the area of family law including divorce, father’s rights, interstate jurisdiction, child support, child custody, visitation, paternity, parent alienation, modifications, property division, asset division and more. Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization. Our attorneys at The Nacol Law Firm P.C. serve clients throughout Texas, including Collin, Dallas, Denton, Ellis, Grayson, Kaufman, Rockwall and Tarrant counties and the communities of Addison, Allen, Arlington, Carrollton, Dallas, Fort Worth, Frisco, Garland, Grapevine, Highland Park, McKinney, Mesquite, Plano, Prosper, Richardson, Rowlett and University Park, Murphy,Wylie, Lewisville, Flower Mound, Irving, along with surrounding DFW areas.

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