Adoption in Texas

Family law attorneys handle all kinds of legal matters that are not known for their pleasantness - divorce, custody, child support, etc. Although helping people with their family issues is rewarding, one of the most rewarding things we help people with is adoption.

An adoption is the beginning of a new life not only for the child but for the parents and the entire family. And what a wonderful thing to be a part of and to help make happen!

Adoption is a two-step process. First you must terminate the rights of the biological parents, followed by the actual adoption; step two.

Occasionally a mother will call me wanting her husband to adopt her child but she doesn’t really want to notify the biological father. Unfortunately, that can’t happen. The biological father must be told of the adoption. Sometimes the father will agree to have his rights terminated so the stepfather can adopt. When that happens, it makes the adoption much easier in that the biological father will sign an affidavit of relinquishment of parental rights. When the biological parent or parents will not agree to relinquish his or her parental rights, you have to have a full trial where you must prove that it is in the best interest of the child to terminate the biological parents’ parental rights and prove any one of the statutory reasons for terminating parental rights.

Once the parental rights of the biological parents are terminated, the adoption is pretty much a formality.

I also have people ask me if they can do their adoption on their own without a lawyer. I do not recommend someone attempt to do so. Termination and adoption is a very technical paper-driven process and if you have not done everything exactly right and filed the correct paperwork with the Court, you will not be successful in your adoption.

If all the paperwork and pleadings are not in order, you might show up to the final trial only to be turned away because something is missing or incorrect. Further, if you complete your termination and adoption and one thing is wrong, someone can call in question a part of the process or procedure which means the adoption could be reversed. Something like that could be devastating to the child, the parents, and the family.

In Tarrant County, Texas, the judges like the termination trial and adoption to happen on the same day whenever possible. In Child Protective Services cases that can’t always happen but in private cases, the judges want the termination and adoption to happen all at once so that a child is not left fatherless, motherless, or parentless for any period of time.

When all the paperwork is in order, in Tarrant County, the judges do a great job of making adoption day something special not only for the adopted children and the parents, but for the entire family and their friends. The judges include everyone in the hearing; some will even swear in the children at the same time as everyone else just so they feel a part of the process. The judges do things at an adoption they don’t allow any other time. The entire group of people, family and friends are allowed to approach the bench for the actual (and very brief) adoption hearing. Taking pictures is not only allowed but encouraged. The judge even allows the immediate family to take the steps up to the bench where the judge sits for a photo opportunity with the judge. With all the ugly things judges see in family law courts, they love adoptions too.

Adoption can be a rewarding event for everyone involved. If you are looking for an adoption of any kind, I highly recommend meeting with an attorney and eventually hiring one to make sure everything is done correctly. As rewarding as an adoption can be, if it is not done properly, it can be a nightmare for the children and parents.

Ami J. Decker
www.famlawtex.com

Temporary Orders

Sometimes divorces take a while and when you have children and/or significant debt or property like a house, it needs to be determined what is going to happen with everything during the pendency of the divorce.

That’s when temporary orders come into play.  Temporary orders identify what custody, visitation and child support will be while the parties are working out the details of the divorce.  Temporary orders will also identify who lives in the house during the divorce and who is going to pay which bills.  If one spouse hasn’t worked in a while or makes significantly less than the other spouse, temporary spousal support may be in order.

So how does this happen?  When a spouse files for divorce and he or she knows there will need to be temporary orders, the lawyer will set a hearing for temporary orders.  If you can agree to what is going to happen with everything temporarily, then there may be no need to go to court for a hearing.  However, if you cannot agree, you will go to court, a judge will hear the facts, and decide for you.

Sometimes if the temporary orders are close to what you want things to look like in the final divorce, you may be able to iron out all the other issues and incorporate the terms of the  temporary orders into the final decree of divorce.  Once the final decree of divorce is entered (signed by the judge), the temporary orders go away and the final decree is then in effect.

If you know you will need temporary orders, it is a good idea to go to court for the Temporary Orders Hearing represented by a lawyer; particularly if your spouse has a lawyer. It may be your inclination to blow off a temporary orders hearing thinking it is not a big deal because it is only temporary.  Temporary orders hearings are important because there are certain temporary orders that are very difficult to reverse.  For example, if your spouse is awarded use of the house while the divorce is pending and you want to kick him or her out because you want to live in the house during the divorce instead, you will have a problem.  So long as your spouse is meeting all the financial obligations with respect to the house, it is nearly impossible to move back in that house.  Another reason to pay attention to Temporary Orders Hearings is because those orders last the life of your divorce proceedings and if you have a contentious divorce those temporary orders could be in effect for months if not years.

You should always be vigilant throughout the divorce process to assure your rights are protected and temporary orders hearings are no different.

Ami J. Decker
www.famlawtex.com

Telling Your Lawyer the Truth

You have probably heard of attorney-client privilege or the confidentiality between lawyers and their clients.  What is this?  Confidentiality between a client and his lawyer is sacred.  It means that what is said between a client and his or her attorney regarding the case remains private.  One reason for this is to allow a client to feel comfortable telling his attorney everything about his case.  No misrepresentations of the truth.  The reason it is critical for a client to be honest and straightforward with his attorney is so the attorney can present the best possible case for the client and diffuse any negatives, if possible.

This means, never lie to your attorney about anything.  Not only is there no benefit, it is a detriment to you as the client to lie to your lawyer.  As in any legal matter, with a family law case - be it divorce, custody, child support, or whatever - the opposing party may very well have evidence or testimony to prove you are lying.  And if your lawyer finds out about the lie at the time it is proven to be a lie in a hearing or final trial, there is nothing she can do to help you.

It is absolutely critical to tell your lawyer the truth about everything, no matter how bad it is or how badly you think it makes you look.  At least if you tell her the truth, she will have an opportunity to mitigate the damage.

Another reason to tell your lawyer the truth is that if he or she finds out you have lied, he will not and can never trust what you tell him again.  Your communication with your attorney is shot.  He cannot trust you anymore.  And if he cannot trust you to tell the truth, your attorney may very well withdraw.

Lastly, if your attorney cannot trust you to tell the truth and believes you will lie on the stand, he cannot put you on the stand and risk your perjuring yourself.  If your lawyer puts you on the stand, knowing you will lie, then you lie, and it is found out, your lawyer could very well lose his law license.  And an attorney will not risk his livelihood by allowing you to testify.

Just remember, it is infinitely better for your attorney to know all the bad stuff about your case so he is not surprised with it when you are in front of the judge on a witness stand.  Without your permission, he cannot tell anyone about your bad stuff.  But at least if you tell him, he can mitigate the damage.

Your case is a partnership between you and your lawyer.  You know all the facts and the lawyer knows the law, the courts, and how to apply the law to your facts.  If you fail to tell your attorney the truth, the lawyer’s course of action and strategy could be totally wrong for your case.  Don’t worry about your attorney judging you; that is not his job.  Chances are he or she has heard it before or some version of it.  Attorney-client confidentially is there to protect and help you!  Please take advantage of its benefits.

Ami J. Decker
www.famlawtex.com

Video Overview of Collaborative Law

Managing the Relationship Between Moms and Stepmoms

One of the recurring issues I see in my practice is problems between mothers and stepmothers; particularly if Dad has primary custody of the children. I was one of those stepmothers whose step-child primarily lived with his father. And me, of course.

I didn’t really have many problems with mom. But then again, I was very careful not to step on her toes. As a stepmother, it is important to remember you are not mom; no matter how many motherly things you do for your stepchild. Or how much better a mother you may think you are to your stepchild.


Stepmoms, whatever you do, don’t make the kids call you some form of mom. They should be allowed to call you whatever comes naturally, provided it is not derogatory. If that is some form of mom, that’s fine. But if it is something other than "mom," take no offense to that. You are not mom. Have enough respect for the person who gave birth to your step child to allow her that title without your interference. You are step mom no matter what you feel or want. It is just a name or a title. What the kids call you is not reflective of your relationship with the child. The kids are just lucky to have another person to care and love them.


On the other hand, moms, try not to get offended or hurt if your child wants to call step mom, "mom" or some form of it. Kids understand that role and when they are with dad, there is a woman there who fills that role. Your children mean no hurt to you. They are just kids - they don’t have the capacity to understand why that might hurt you.


Step moms: It is important, whenever possible, that your husband handle the discipline and the communication with Mom. But moms, you have to keep in mind that from time to time, as much as you may not like step mom, you will have to communicate with her so it is good to have a working relationship with her. You don’t have to like her, but you will have to communicate with her in such a way that will not cause your children grief or stress. For example, there may be times you are both at a doctor’s appointment or at a school event.


Neither Mom or step mom should talk badly to the kids or around the kids about the other mother (yes moms, the step mom is a mother). If your child likes step mom, you don’t want him to feel like he is doing something wrong. Try not to feel threatened by step mom.

Speaking as a step mom, it is not an easy role. I think it is more difficult than being a mom. As a step mom, you walk a fine line every day. No matter what happens, it is your fault; not dads and sometimes that is a difficult thing to live with.


From time to time, I have seen step moms driving the family bus; pushing litigation in modifications. Step moms - you are not in charge! Not of your stepkids or their mom. Step moms must take a back seat in the decision-making process with respect to the kids, even if the kids live primarily with you. Major decisions regarding your step kids are made by dad and mom; not you. You have to step back and take a back seat to mom. If you don’t, all you will do is cause everyone grief - your husband and the kids.


The important thing to keep in mind is respect. Whether you are Mom or step mom. Respect the other mother and her role in the kids’ lives. You can’t change that role and if you try to, the kids will pick up on it and resent you for putting them in the middle. They will never forget it and may never overcome it.

Ami J. Decker
www.famlawtex.com

Introduction to The Decker Law Firm, a Fort Worth Family Law Firm

We are trying out some videos.  This one is an introduction to The Decker Law Firm.  Tell me what topics you would like to see us cover in a video.

Dating Someone Divorced With Children

Not only am I a family law lawyer but I am a wife and step-mom which means prior to marrying my husband, I dated him and had to build relationships with his children.

Dating a man or woman with children is not always easy but for me it worked out. In the process of dating my husband, I learned a few things that may help others in the same situation.

Always remember the children really are the most important people in your dating relationship.  They did not choose for their parents to be divorced, for their parents to live apart, and for you to be part of their family or in their lives.  They had no say in any of it and they are the most affected by all of it.  While you and your significant other are enjoying each other’s company, they may be resenting your intrusion into their already upside down lives.  And because they are children, even if they are teenagers, they do not have the capacity to process the situation in an adult manner.

The first thing to keep in mind is you never know when your significant other will be embroiled in a custody battle and he or she needs to act accordingly.  You can help him do that by being understanding of limitations your relationship will have because he has children.

Here are some guidelines if you are dating someone with children:

1.    Don’t spend the night in your boyfriend or girlfriend’s bed when the kids are with him/her.

2.    Don’t insist on doing everything with your significant other and his or her children.  Give them space and time to be together.  You really are an outsider and even if the children really like you, they want to spend time with their father or mother alone, without someone else around.  That is their family.  At this point you are not family. If you insist on spending all of the parent’s time with his or her kids, the kids will eventually resent you.

3.    If your boyfriend or girlfriend is not the primary conservator and has a visitation/possession schedule, schedule your dates and alone time together when the children are with the other parent.  You don’t want to be known by the kids as the person who is taking their father or mother away from them all the time.

4.    Never talk badly about your significant other’s ex to the kids or in front of them.  Talking badly about the ex hurts the entire situation in several ways.  It hurts your significant other’s custody battle.  The children will not appreciate their parent’s new boyfriend or girlfriend talking badly about their parent; they may even resent you for it.

5.    Don’t get discouraged if the children don’t like you.  Eventually they may come around.  Just don’t try too hard.  Kids can sense this.

6.    Don’t get mad, frustrated, or take offense when your boyfriend or girlfriend wants to spend time with his/her kids without you.  Time alone with his or her kids is important.

7.    Don’t date a person with children if you are not willing to come second to the children.  This is perhaps the hardest of all.  Your relationship will not work if you have to come first all the time and are not willing to be flexible.

8.    If there are plans to marry your significant other, don’t be in a hurry.  Kids need time.  You and your boyfriend or girlfriend need time to work through all the relationships involved to make sure it will work.  It is not good for the kids at all to go through yet another divorce. Sixty-seven percent of second marriages end in divorce and seventy-three percent of third marriages end in divorce (See http://www.huffingtonpost.com/2012/03/07/why-second-and-third-marriages-fail_n_1324379.html).  So there is no need to be in a rush.

9.    Never discipline your significant other’s children in any way.

Dating a person with children is not always easy - you have to have thick skin, but the rewards can be great if you persevere and observe these guidelines.

Ami J. Decker
www.famlawtex.com

Collaborative Law Divorces

Divorce is a difficult process to go through. Particularly if you have children. Divorce uses the same adversarial litigation process that all other court proceedings use, pitting one party against the other. Even as a divorce attorney, I have to wonder if this process is best for the children involved in the divorce. By its very nature, the litigation process fosters at the very least, ill will between a divorcing husband and wife. This ill will makes it more difficult for mom and dad to parent the children together moving forward.

Recently, I was trained in collaborative law. Collaborative law is a structured process whereby you and your spouse work with specially-trained attorneys to reach an agreement for your divorce, for your children, and your property. Some say it is a more civilized way to divorce. There are several benefits to the collaborative process. The major benefit if you have children is that it sets you up for a much better working relationship with your soon-to-be former spouse once you are divorced.

The collaborative process has three core principals that make it an effective way to divorce without completely decimating any sort of working relationship between the former spouses:

1. A pledge to not go to court;
2. An honest and open exchange of information by the spouses; and
3. An agreement factoring the highest priorities of both spouses and their children.

By encouraging cooperation and fostering respect, the Collaborative Law process helps parents and their children maintain their family connection while embracing new lives and learning to operate within the new family dynamic. Whether you choose the litigation route or the Collaborative Law process, divorce will be a significant event in your life and a difficult thing to go through, but Collaborative Law can guide you and your family through the process with compassion and lead you to a healthy new beginning. The Collaborative Law process may not be right for you; the litigation process may be the only method that will work for you.

There are other benefits to choosing the collaborative route. First, it allows the divorce process to be private; you will not be in and out of a courtroom, which is and must be open to the public. There is no such thing as a closed divorce proceeding in a courtroom.

Another benefit to collaborative law is that to a great extent, you get to manage the time line. When you divorce using the traditional litigation process, you are at the mercy of the availability of the court. It is very possible for the litigation process to take much longer if you were to take your divorce to final trial.

Another benefit is that often a mental health professional and financial professional are involved in the process to help you manage your emotions during the divorce process and aid in the division of your property. You don’t get this in the normal litigation procedure.

If you are interested in more information about the collaborative law process, The Decker Law Firm can answer your questions. We continue to handle divorces in the traditional manner. Providing collaborative law divorces provides us yet another way to effectively serve our clients. Every person must decide which method of divorce will work best in their particular situation. The Decker Law Firm is there to help you through the process whatever direction you choose to take.

Ami J. Decker
www.famlawtex.com

Tips for Dating During and After Divorce

Not only am I a Texas family law attorney, I am also a wife and step-mother.  As a result of being both a family law lawyer and step-mother, I have specific ideas and recommendations for those dating while going through a divorce and those dating after the divorce is final.

You never know when you will be caught up in a custody battle so it is important to keep that in mind as you date.  It is not a particularly romantic notion, but when you have children, a certain level of practicality is necessary.

As a Texas divorce lawyer, I know the Texas Family Code requires courts to always act in the best interest of children.  As a result, it is important to conduct yourself in your dating life in such a way that the court will see you are acting in the best interest of your children.

Since you never know when you will find yourself embroiled in a custody battle and because they are truly in the best interest of the children, here are some guidelines for a divorcing or divorced and dating parent:

1.    Don’t introduce every single person you date to your children particularly if you tend to date multiple people at the same time or move from one person to another person rather often.  This may mean for a period of time, you are only seeing the person you are dating during the times you do not have possession of your children.  Make sure if you introduce your boyfriend or girlfriend to your kiddos, you are certain your relationship is going to last.

2.    Don’t have your boyfriend/girlfriend spend the night in your bed when the children are with you.
 
3.    Do not allow your boyfriend or girlfriend to discipline your child in any way.

4.    It is best not to live with the person you are dating.

5.    Don’t invite your boyfriend or girlfriend to every outing you have with your children; your children want time alone with you and judges want to see that when you have your children, you spend quality time with them and not with them and your significant other.  And if your boyfriend/girlfriend begrudges your time with your children, you need to seriously consider if this person is really the right person for you.  Your new boyfriend or girlfriend must realize that your children are your top priority and if he or she doesn’t get this, it is time for you to move on.           

6.    Do not dump your children at your parent’s house or other family member(s)’ homes so you can go out or spend time with your girlfriend/boyfriend.

7.    Do not allow your significant other to talk badly about your ex-spouse or soon-to-be ex-spouse in front of your kids.

8.    Do encourage your boyfriend/girlfriend to speak kindly and respectfully about your ex when with your children.  This may mean you have to curtail your badmouthing your ex to your new boyfriend/girlfriend.

9.    Put your children first; that is what the Court expects you to do because it is in the best interest of your children.  Remember, the best interest of your children is what the judge has to determine so make it easy for him/her
.
10.    Do not make life-altering decisions for your boyfriend or girlfriend like packing up the kiddos and moving somewhere far away from their other parent or packing up and moving yourself far away from your children such that you cannot see them on a regular basis, attend extracurricular activities, or actively participate in their education by attending school events or parent-teacher conferences.

These things are often difficult but in the end it will pay off, if not in a custody battle, in the lives of your children.  Your children will remember and as adults will appreciate that you put them before anyone else.

Ami J. Decker
www.famlawtex.com

Parental Alienation

Children don’t ask for their parents to divorce.  It happens with no input from them and they are left to deal with it and the two people in their lives who are suppose to protect them and help them deal with their feelings may be perpetuating bad feelings for the other parent.

Saying bad things about one parent by the other parent to the children should never happen.  You may hate the spouse you are divorcing but that person is still one of the two most significant people in your child’s life and your child needs to know it is still OK to love him or her even though you all don’t live together anymore.  If you are trashing your spouse saying he’s “controlling” or “mean”  or you say she is the cause of the divorce, your children are not going to feel free to love that parent or may even feel guilty for loving the other parent.  And maybe that is your goal.  Keep in mind, what you say about your child’s other parent will affect your child for the rest of his life.

You don’t even have to say anything for children to pick up on your disdain for your spouse and that, too, will affect your child.  Your children will sense your feelings for your spouse.  They will feel your hate and see the anger on your face.  And that, too, will affect their relationship with their other parent.  Whether you want it or not, your child needs and craves a positive relationship with both of his parents.

In some cases, parents actions may reach the level of Parental Alienation.  Parental Alienation is when children express an unreasonable hate or dislike for one parent making visitation or possession by the parent hated by the child difficult.  In Parental Alienation situations the child’s feelings have been influenced by the negative comments or actions of one parent about the other parent.  Sometimes the actions of the parents are overt but others are covert in their alienation.

Parental Alienation can take many forms: 

1.    Denying phone contact with the other parent by turning off the phone, not answering the phone, or simply making sure you are not around when the phone calls are suppose to occur.

2.    Discouraging or even withholding contact with the other parent by flat denying contact, cutting visits short, moving to a location making visitation on a regular basis difficult if not impossible, or requiring the other parent to meet unusual criteria to be able to visit with his/her children.

3.    Verbally criticizing the other parent with derogatory comments, pointing out the other parents faults or mistakes, or telling stories about the other parent.

4.    Intimidating the child by mocking or criticizing the child’s interest or affection for the other parent, making them feel bad for loving the other parent, punishing the child by removing privileges or affection after time spent with the other parent, or requiring the child to perform additional chores or meet strict criteria to be rewarded with time with the other parent.

It is vital to a child’s feelings of self-esteem and security to be allowed to love both of their parents free from punishment, shame, manipulation or control.

Parental Alienation is a form of child abuse that most judges, and all family law judges in Tarrant County are familiar with.  When it is shown in court that one parent or the other is engaging in any of the above activities, the Judge knows the parent is attempting to alienate the child from the other parent and rules accordingly.  Judges want to know that the parent with primary custody of the child is not only going to refrain from engaging in alienating activities but will encourage and foster a positive, loving relationship with the other parent.  And judges will award custody accordingly.

Sure it is natural for one parent to be angry at the other parent during a divorce, and to display that anger in front of the kids.  But you should never put your kids in that position.  Find a friend, counselor, or therapist to vent that anger to.  Leave your children out of it.  Remember they love you both, need you both, and didn’t ask for the ugliness that often accompanies divorce.

Ami J. Decker
www.famlawtex.com

Dying Without A Will

A will is a very important document to have.  But it seems many people put off creating a will because their own mortality is a difficult thing to face.  If you are not going to have a will, your property is distributed in a very specific way.  If you die without a will, you have no say in who gets your stuff.  The Texas Probate Code section 38 identifies who, by law, will get your property upon your death.  Dying without a will is called dying intestate.

Your property is divided differently if you are married versus if you are unmarried.                                           
Dying Intestate with No Spouse

If a person dies unmarried, his or her property is divided in the following manner:

1. If the person has children, all property is divided equally among all children and the descendants of any deceased children.  If the person only has one child, then all property goes to that child.
    
2. If there are no living children nor descendants of and previously deceased children, then the deceased person’s property is divided equally between his or her father and mother.
    
3. If only one parent is living, then the estate is divided into two equal portions: Fifty percent goes to the surviving parent and the other half will pass to the siblings of the deceased, and to their descendants.  But if there are no siblings or descendants of the siblings, then the surviving father or mother receives the entire estate.
    
4. If there is no surviving mother or father, all property passes to the brothers and sisters of the deceased and to their descendants.
    
5. If there are no parents of the deceased, no siblings, and no descendants of the siblings, then the deceased property is divided one-half to the paternal side of the family and the other half to the maternal side of the family in the following manner: 

• To the grandfather and grandmother in equal portions but only if one of them is living; one half goes to that grandparent and the other half to the descendant or descendants of the deceased grandparent.
   
• If there are no descendants of the deceased grandparent, then the whole estate is inherited by the surviving grandparent.
   
• If there are no surviving grandfather or grandmother, the whole of such estate goes to their descendants, “and so on without end” in the same manner to the next lineal ancestors and their descendants.
  

Dying Intestate with A Spouse
If a person dies and is married at the time of death, the surviving spouse is entitled to keep all marital property (that which was acquired during the marriage) if the deceased has no children or the only children the deceased has are the children of the surviving spouse. 

If the deceased has children or descendants who are not children/descendants of the surviving spouse, then the spouse retains his or her half of the marital property and the children/descendants of the deceased receive equal shares of the deceased’s half.

For any personal property the deceased owned, it is divided differently.  Personal property is all property acquired by the deceased prior to the marriage, any inheritance the deceased received at any time, and any gifts given only to the deceased during the marriage.

Personal property is divided in the following manner:

1. If the deceased has one or more children or living descendants of those children, the surviving spouse shall take a third of the personal estate with the balance of the personal property going to the surviving children of the deceased and their descendants.  The surviving spouse is also entitled to a life estate in one-third of the land of the deceased with the remainder to the children of the deceased and their descendants.
2. If the deceased does not have any children or any descendants of their children, then the surviving spouse is entitled to all the personal estate and to half of the real property of the deceased without remainder to any other person.  The other half will pass according to the rules set out above for a person dying without a spouse.  But if the deceased has no surviving father, mother, brothers, sisters or any of their descendants, the surviving spouse will get the entirety of the estate.

One final note: For purposes of intestate division of property, a step-child is not considered a child of the deceased.

Ami J. Decker
www.famlawtex.com

Geographic Restrictions

Texas Family Code section 153.001 says it is the public policy of the State of Texas to assure children have "frequent and continuing contact" with both parents so long as each parent has proven the ability to act in the best interest of the child.

How do courts do that? They assure frequent contact with both parents with what is called geographical restrictions. A geographical restriction is an order of the court preventing the parent with primary custody moving the primary residence of the child outside of an identified geographic area. Sometimes the person with primary custody is called the custodial parent and the person with the possession schedule is the non-custodial parent. For both parents to have "frequent and continuing contact" with their child, the parents must be located in the same geographic area. If one parent is living in Lansing, Michigan and the other parent is living Fort Worth, Texas, there is no way both parents will have frequent or regular contact with his or her child. The non-custodial parent will not be able to go to the child’s soccer games or school events on a regular basis.

So what does a geographical restriction look like? In Tarrant County, Texas, a geographical restriction often says the custodial parent cannot relocate the child outside of Tarrant County and counties contiguous to Tarrant. Sometimes that restriction is limited to Tarrant County only. The parents can also agree to some variation. For example, parents might agree the parent with primary custody cannot move the child outside a specific school district or a 20-mile radius of a particular municipality.

It is common not to bind the parent with primary custody to this geographical restriction if the non-custodial parent moves out of that same area. For example, if there is a geographical restriction in place for Tarrant and contiguous counties, mom has primary custody and dad has a standard possession schedule. Mom cannot move with the child outside of this defined geographic area. However, if Dad, packs up and moves to Austin, Mom is free to move anywhere she wants with the child. The purpose of the geographic restriction in this situation is to allow Dad the opportunity to see his child frequently. If he moves to Austin, he has already forfeited that ability so Mom is free to move wherever she wants.

Is a geographical restriction automatic? Not necessarily. If a parent asks for it, that parent will most certainly get a geographical restriction in a Tarrant County court. Usually the parent who wants the restriction is the parent who does not have primary possession of the child.

So what happens if, several years after the divorce, the non-custodial parent lives in the geographically restricted area but the custodial parent wants to move somewhere outside of that area? Lifting the geographic restriction rarely, if ever, is allowed by a Court in Tarrant County if the non-custodial parent does not agree. If for some reason a Court allowed the custodial parent to move outside of the geographic area, that custodial parent usually is ordered to pay all travel expenses for the child to see the other parent.

This payment of travel expenses would also hold true if the non-custodial parent moved outside of the area and the custodial parent remained in the geographical area. Any parent who moves outside of the geographically restricted area ordered by the court will have to pay travel expenses for the child to visit so long as the other parent remains in the geographic area.

Just remember, the overarching requirement is for Courts to act in the best interest of the child at all times. It is presumed it is in the best interest of the child to have "frequent and continuing contact" with both parents. To get around a geographical restriction, you will have to prove to the Court that the other parent cannot act in the best interest of the child.

Ami J. Decker
www.famlawtex.com

Mediation and Family Law

How does mediation work in a divorce?  In Tarrant County, many of the judges require parties to attempt mediation before a contested final trial to see if an agreement can be made thus eliminating the need for a final trial.  The family law courts in Tarrant County are very busy courts and have very heavy dockets.  Mediation is used to increase judicial efficiency and provide families a non-adversarial resolution to their family law matters including divorce.

It is important to use a mediator who is experienced in mediating family law issues.  If your divorce is primarily concerned with child issues, you want a mediator who is effective at reaching mutually beneficial agreements in that vein.  Same goes for a divorce that is heavy in property concerns.

Mediation is a good option for divorce as it gives the parties more control over the outcome of their situation.  If you go to trial, your fate and the fate of your family is left up to a complete stranger or strangers - either the judge or a jury.  At least in mediation your concerns and your feelings are  heard.  In a trial, you are bound by the rules of civil procedure and rules of evidence and it is a matter of what you can prove with evidence.  It doesn’t matter so much how you feel about things in a trial.  The judge won’t care how you feel; he only cares about what you can prove.  And saying something on a witness stand is not necessarily proof.

So what does mediation look like?  Well, it doesn’t look like the TV version.  The parties and lawyers don’t sit across from each other at a table and try to broker a deal.  A neutral third party acts as a mediator.  Mediators are trained in alternative dispute resolution.  Some are also family law lawyers; others are former judges and some are even former family law judges.  Your lawyer will help identify a mediator who will work well for your situation.  What normally happens is you and your attorney sit in one room and your ex/spouse sits in another room with his or her lawyer.  The mediator will shuttle back and forth between rooms to try to reach an agreement.

If a deal is made, a Mediated Settlement Agreement (MSA) is drafted and signed by the parties, the lawyers and the mediator.  In Texas, that MSA is binding.  There are no do-overs.  An order is drafted and a judge must sign it so long as it comports with the MSA.  The order cannot deviate from the agreement made at mediation and memorialized in the MSA.  If it does, the judge cannot sign it.

You do not have to walk away from mediation with an agreement.  If you cannot live with the agreement, you should never sign the MSA because if you do, you are stuck - you are bound by the agreement.  I always tell my clients, if you don’t think you can live with the agreement, you should not sign the MSA.

If an MSA is signed at the end of mediation, one of the attorneys for one of the parties is identified to turn the MSA into an order the judge will sign.  Because all of the details cannot be put in the MSA, the order is always much longer than the MSA assuring required language is in the order.
   
The final very important aspect about mediation is that it is confidential.  If you do not reach an agreement, the mediator cannot testify to anything that happened in mediation.

In the majority of cases, I recommend mediation as I believe it is best for children if you can keep your divorce out of the courthouse.

People initially may believe mediation is costly because not only are you paying your lawyer to prepare for mediation and attend it, you also have to pay the mediator for that time.  But going to final trial will end up costing you five to ten times what mediation would cost. Not to mention the stress of a trial.

Ami J. Decker
www.famlawtex.com

Texas is a Community Property State

From time to time, you may here this phrase: Texas is a community property state. What does that mean? It means that everything acquired during a marriage is considered property of the community or marital estate. This includes assets and debt, regardless of whose name is associated with it. For example, even if a credit card has only your name on it, all debt on that card is community property and all community property is subject to division in a divorce.
Contrary to community property, separate property is any property purchased or owned by one party prior to the marriage. But if you think you have separate property in a divorce, you must prove it is not community property.

With regard to community property, there is a statutory "rebuttable presumption" in the Texas Family Code that all property and debt in either spouse's name is considered community property and thus divisible in a divorce. A rebuttable presumption means the person who claims the very opposite of the presumption has the burden to prove his point. For example, if a spouse owned a 1968 Chevrolet Camaro prior to marriage, he or she must prove that the car is not community property thus subject to division in divorce and should remain his or her separate property. This means the spouse must prove he or she purchased the car before the marriage and that is was not purchased during the marriage.

Other items considered separate property, so long as it is proven, is a gift to one spouse and an inheritance to one spouse. As an example, if the husband's father gave the husband, and the husband only, the 1968 Camaro during the marriage, it is the husband's separate property.  Further, if the husband's father died while the husband was married and the Camaro was given to the husband from the father's will, it would also be the husband's separate property and not to be divided in a divorce.

Ami J. Decker
www.famlawtex.com

Why Should I Hire an Attorney for My Divorce when I Have Children?

I do not recommend anyone with kids represent themselves (pro se is the legal term for being your own lawyer) in a divorce or try to use some forms you find somewhere to do your divorce on your own. Have you ever heard someone say "I don’t know what I don’t know?" This phrase rings true in the area of family law.

I realize because I am a family lawyer, my saying this may hold little weight to you as you may think I am saying this because I make money as a divorce lawyer. But before you make up your mind on this, please hear me out.

For the majority of folks, their family is the most important part of their lives. Doing your divorce on your own may strip you of rights you have with respect to your children. Maybe even rights you didn’t even know you have.

For example, which parent is going to make the educational decisions for the kids? Your initial reaction may be "We both will." But what if, at some point, you don’t agree with your ex spouse? If the language in your divorce decree says you both must agree before any action is taken with respect your children’s education, and you disagree, nothing can ever be done.

Additionally, you have no idea what your situation is going to be in ten years. And what is an educational decision? Educational decisions are not limited to simply what school your child will attend. Should she be tutored in a certain subject? Who will the tutor be? Where will she go to get the tutoring? Is a choir trip to New York City educational? If so, who should decide if your daughter goes on that trip? What happens if one of you want your son to attend SAT preparation classes and the other parent believes it unnecessary. Should you and your former spouse have the independent right to make educational decisions? If so, then your former spouse could have your child doing something you don’t agree with. Or you both could do something similar at the same time. Should you have the exclusive right to make those decisions? Should your spouse have that exclusive right? Or should one of you have the exclusive right after conferring with the other parent?

When there are children, there are a myriad of issues in a divorce an experienced family lawyer can help you with. Educational decisions are just a drop in the bucket.

Who will make medical decisions? Will you get a second medical opinion when an invasive medical procedure is needed one of your children? Who will decide if my minor child can join the armed forces? Or get married? If you don’t have primary custody of your child, can you assure you are on the school records to get information about your child’s education? How can I prevent your ex-wife from moving across the country with your kids? Can you even prevent that? Can you call your kids when they are with the other parent? Your child is special needs, can you get more child support than the statutory minimum? What is the statutory minimum child support? If your child plays a sport, do you have to take him to practices and games when you have him? You want you ex to pay half of the sports costs, can you get that? You need to get a passport for your child, how do you get your ex to sign the paperwork? Your ex-spouse is taking the children out of the country on vacation, do you have the right to know where they are going and when? Do you have to agree to see your kids every other weekend? Your spouse and you want to agree no one should pay child support; can you do that?

This list of questions is just the tip of the iceberg. You really don’t know what you don’t know.

Further, it isn’t enough to simply consult an attorney at the beginning of the divorce and then write your decree yourself or check some boxes on a form. The wording of your divorce decree is everything. The absence or existence of a single word in a decree could determine if you have a specific right or not. Once you give up a right either accidentally or intentionally, it is difficult, if not impossible, to get that right back at a later date.

Remember the effort you put into planning your wedding? Please don’t spend any less time or effort in your divorce than you put into your wedding. Your family is at stake.

Ami J. Decker
www.famlawtex.com

How Much Does It Cost to Get Divorced?

People often ask me how much it costs to get divorced. Or how much their divorce is going to cost. That is not a straight-forward, easy question to answer. Especially with no information about a person’s particular situation.

Asking an attorney how much your divorce will cost is like asking a home builder how much will it cost to build a house. Answering that question requires a great deal of information. What type of foundation? How big do you want your house? One story or two? Brick or siding? What type of roof? Granite countertops in the kitchen? The list of information needed to determine the cost of a house goes on and on.


Same goes for a divorce. What do you and your spouse agree about? Anything? Do you have kids? How many? What are their ages? Do the children have special needs? Do both you and your spouse want custody? What kind of property do you have? What type of debt do you have? Is your spouse going to hire an attorney? Who is your spouse’s attorney? What issues does your spouse want to fight about? Is it everything? Or just one or two? As with a house, the list of information needed to determine how much your divorce is going to cost goes on and on. And as your divorce goes on, the estimate can go up or down depending on what happens. For example, if your spouse agrees to everything at first, the initial cost of your divorce could be relatively low. But what if sometime during the divorce process, your spouse discovers you have a new significant other. Now he wants to fight everything. With that change, the cost of your divorce just went up.


I always feel bad that I can’t give clients or potential clients a straight and clear answer regarding the total cost of their divorce. But to quote a solid price is unfair to you. I might be able to get in the ballpark, but if something in your case changes, that ballpark goes out the window.

Ami J. Decker
www.famlawtex.com

Structure of Family Law Courts

Tarrant County has six courts who hear all family matters for the County. Smaller counties not in metropolitan areas have what are called courts of general jurisdiction. Courts of general jurisdiction hear all kinds of matters: criminal, civil, and family. But because of the larger populations, counties like Tarrant and Dallas have courts that specialize in civil, criminal or family law.
Such is the case in Tarrant County. We have six district courts who hear all family law matters including Department of Family and Protective Services (DFPS): the 231^st, 233^rd, 322^nd, 324^th, 325^th, and 360^th. Additionally, the 323^rd District Court hears some DFPS cases as well as all juvenile matters.

Each of the six family law courts have two judges: the Associate Judge and the District Court Judge. Some people refer to them as the "big" (District Court) and the "little" (Associate) judges. This is because the District Court Judge is essentially the "boss" of the Associate Judge. The District Court Judge is elected while the Associate Judge of the court is selected by the District Court Judge and appointed to the seat.

The Associate Judge and the District Judge have defined areas regarding what they hear. All hearings for Temporary Orders and enforcements (of child support and visitation) are heard by the associate judges. The District Court Judges generally hear all of the final trials, motions for continuance, and appeals of the rulings from their associate judges. In some courts, if both parties agree, the Associate Judge can hear the final trial for a case.

Hear are a few questions I am often asked about the courts here in Tarrant County:

Q:      How do I know what court my case is in?
A:      At the top of anything filed with the court is what is called the "caption." The first line is a number in the following format: XXX-XXXXXX-XX. The first three numbers is the court. The last two number is the year the case was initiated. You can also find the court on the right side of the caption.

Q:     How is the court for my case picked?
A:     It is randomly chosen by a computer program.

Q:     Can I pick what court I want for my case?
A:     No. Even if you get a court you don’t want and cancel your case (called a nonsuit) in hopes of filing again and getting a different court (this is called forum shopping in the legal community), the computer is smart enough to recognize the names of the parties and children and put you in the same court you had in the first place.

Q:     What if I had a divorce years ago and now want to modify child support or visitation for my children? Will I get a new court?
A:     No. When a court has jurisdiction over a child in any matter, that court has what is called "continuing, exclusive jurisdiction" over that child. Therefore, if three years after your divorce you want to modify your child support, you will end up in the same court you had for your divorce. The only way to potentially change this is if the child moves out of the county and remains for at least six months. In this situation, you would need to consult a lawyer to find out how you can change courts.

Ami J. Decker
www.famlawtex.com

Calculating Child Support

Every state calculates child support differently. This article addresses determining child support in Texas according to the Texas Family Code as of 2012.
In Tarrant County, Texas, if you are the parent who does not have primary conservatorship of your children, you will be required to pay child support. It doesn’t matter if you and your former or soon-to-be former spouse agree that neither of you will pay child support. Tarrant County has six family law district courts and none of them will allow parents to agree to no child support if a parent has a greater amount of time with the children than the other parent.

Please consult your attorney to determine what you should pay for child support. There are many ins and outs to child support so you need confer with an attorney to validate your net resources and identify if your situation qualifies to deviate from guideline child support. This is meant to give you a general idea of what to expect.

To determine the amount of child support a parent will pay every month the court must:

1. Determine the net resources of the person paying child support;
2. Apply the guidelines for child support to the net resources of the person paying child support; and
3. Consider any factors that might allow for deviating from the guidelines.

Determine the net resources of the person paying child support

Child support is based on the net resources of the person paying child support. The Texas Family Code identifies what is included in net resources. Net resources include the following:

1. Wage and salary income (If there is no evidence of a salary, the court presumes a salary of the federal minimum wage at 40 hours a week.);
2. Self-employment income;
3. Severance pay;
4. Retirement pay;
5. Social Security benefits;
6. Unemployment benefits;
7. Disability and workers’ compensation benefits;
8. Alimony;
9. Child support (received for other children);
10. Net rental income;
11. Interest income;
12. Capital gains;
13. Trust distributions;
14. Annuity income;
15. Gifts and prizes;
16. Deemed income; and
17. Other income (examples: cash inheritance, athletic scholarship).

The Texas Family Code also identifies items not included as net resources:

1. Return of capital or principal;
2. Accounts receivable;
3. Welfare benefits;
4. Foster-care payments; and
5. Spouse’s income.

When you calculate net resources, you must subtract the following items from all net resources before calculating child support:

1. Federal income taxes;
2. State income taxes;
3. Social Security Taxes;
4. Nondiscretionary retirement-plan contributions;
5. Union dues; and
6. Child’s health insurance or cash medical support.

   
Apply the guidelines for child support to the net resources of the person paying child support

Child support is calculated based on a person’s monthly net resources. Once you have determined the monthly net resources of the person paying child support, you have to apply the child-support guidelines in the Texas Family Code. If the child support payer’s net monthly resources are $7,500 or less, child support is calculated as a percentage of the net resources.

When all the children requiring support by the person paying child support live in one household, the amount of monthly child support is calculated based on the following percentages:

Number of Children     Amount of Child Support
1                                    20% of monthly net resources
2                                    25% of monthly net resources
3                                    30% of monthly net resources
4                                    35% of monthly net resources
5                                    40% of monthly net resources
6+                                  Not less than 40%

These percentages are adjusted if you have other children you are required to support. For example, if this is your second divorce and you are already paying child support for 2 other children, your child support for the children of your second marriage will be reduced accordingly. You should consult a family law lawyer to determine how the other children affect what you child support should be in your current case.


Consider any factors that might allow for deviating from the guidelines

The amount of child support a person pays can be adjusted up or down from the guidelines based on specific factors identified in the Texas Family Code. Some of those factors include the age and need of the child, the child’s education expenses beyond secondary school, uninsured medical expenses of the child, travel cost for exercising possession of and access to the child, child-care expenses that allow either party to maintain gainful employment, and spousal maintenance paid or received by a party. This list is not all-inclusive. If you feel you have circumstances allowing for a deviation from guideline child support, it is a good idea to discuss those with your attorney to determine if a deviation is possible for your situation.

Child support is usually just a math problem but because of the many exceptions and oddities, it is always a good idea to consult an attorney to make sure you are paying or receiving the right amount.

Ami J. Decker
www.famlawtex.com

What is Attorney-Client Privilege?

Attorney-client privilege protects communications between a lawyer and his or her client. The theory is if communications between an attorney and client are confidential, it will foster open and frank disclosures by a client to his attorney.
The privilege is owned by the client and not the lawyer. This is important to note because it is only the client who can waive this privilege thus allowing the attorney to share disclosures made to him by the client.

For a communication between two people to be bound by attorney-client privilege, the communication must be made by a person to a member of the bar or someone who works for that member of the bar, and that member of the bar is acting in the capacity of an attorney. Lastly, the communication must be made for the purpose of obtaining legal advice.

This attorney-client privilege is created as early as the initial consultation before you hire an attorney. That privilege remains in effect even if you choose not to hire that lawyer. Remember, privilege is owned by the client and not the attorney; therefore unless you waive it, everything shared in an initial consultation remains confidential.

There are some exceptions to the privilege clients should be aware of:

1. If the communication to the attorney was made in the presence of a third party who is not an attorney nor works for the attorney, or if that communication was later shared with a third party, the privilege is waived - that communication is NOT bound by the privilege.
2. If the communication is publicly disclosed, the privilege is waived.
3. In Texas, if the client communicates in a way such that the attorney reasonably believes the client is going to commit a criminal act likely to result in imminent death or substantial bodily harm of another, the lawyer is required to disclose information to prevent the harm.

Remember, it is always important to be honest and forthcoming with your lawyer. Attorney-client privilege protects your disclosures and provides your lawyer with the ability represent you in the most effective manner.

Ami J. Decker
www.famlawtex.com

Your Case Is Important

My first year in law school I had the opportunity to learn from one of the most intelligent and difficult professors at the University of Oklahoma College of Law. This professor taught me Constitutional Law and Criminal Law.  I learned a great deal in his classes, but nothing as insightful as one comment he made.  He made this comment more than once and it has never left me. This one comment has driven how I practice law every day.

On more than one occasion he said  “As a lawyer, you may have many cases, but each client’s case is the most important thing going on in his or her life.”  I have never forgotten this.

It’s true, I have many cases.  But I am a family law attorney.  Each case I have deals with the most important aspect of a person’s life: his or her family.  There is nothing more personal, more all-consuming, or more stressful.  As I work on my clients’ cases, I try to keep in mind there is nothing more critical happening in that person’s life than their divorce, or the enforcement of child support, or their adoption.

This one tidbit my law professor shared with his class years ago has stayed with me and drives how I manage every case, how I work with every client, and how The Decker Law Firm operates. I always ask myself if it were my divorce, how would I want my lawyer to handle it.  As an attorney it is important for me to recognize that this isn’t just a job it’s about my client’s future. I never take my duties lightly; it’s just too important to my clients.

Ami J. Decker

www.famlawtex.com

Out of the Mouths of Babes

I often tell my clients the most important people in a divorce are the children.  When parents get caught up in their feelings for their spouse - the hate and the anger- they tend to forget how their actions and what they say affect their children.

I was reminded of this as I read an article on huffingtonpost.com which identified rules children would want their parents to follow after a divorce.  Something as simple as one parent talking badly about the other parent can cause a child distress.  The children didn’t ask for the divorce.

As much as you may hate your spouse or former spouse, that person is still your child’s other parent; a person your child loves just as much as he loves you.  It is the person your child looks to just as much as he looks to you for direction, for a hero, for love.

If you have children and are going through a divorce or have already gone through a divorce, please take the time to read this article, and keep it in mind if you’re going through this very stressful event:  http://www.huffingtonpost.com/kara-bishop/if-your-kids-could-make-t_b_1171554.html.

Ami J. Decker

www.famlawtex.com

How to Choose a Family Law Lawyer

How do you find a lawyer that is right for you if you are going through a divorce, fighting a custody battle, or trying to get your ex-spouse to pay child support in Texas? First things first: It is important to choose a lawyer whose primary focus is family law. If you are located in a more rural area of Texas, most lawyers handle a variety of legal issues so look for someone who regularly handles family issues.

To start, ask around. Chances are you have family members or friends who have needed a lawyer for family law issues. They may have had someone who worked out really well for them or didn’t work out at all. A lawyer who focuses on family law, will know the ins and outs of the Texas Family Code and the idiosyncrasies that would easily trip up a lawyer who does not work in family law on a regular basis.

Also important is choosing a lawyer who regularly practices in your county. A lawyer who stands before the judges in your county on a regular basis will, in many cases, be able to tell you what is likely and unlikely to happen in your court in your particular situation. Further, you won’t have to be concerned about your lawyer being "hometowned." In some jurisdictions, particularly in less-populated counties in Texas, a lawyer coming from another county who does not normally practice in the jurisdiction may not be treated as welcoming as a lawyer who is in that court all the time. An out-of-town attorney may have to figure out what the local court rules are and what the normal practices may be. For example, do you stand when you question witnesses or is it customary in that court to remain seated at the table? Even on both sides of the Dallas/Fort Worth metroplex you have to be aware of how often your lawyer practices in that county. In some situations, it is better to find a lawyer who regularly practices in Tarrant County. A Dallas lawyer traveling to Tarrant County who rarely, if ever, practices in Fort Worth may have struggles.

Always meet your potential lawyer in person. Although it may be annoying or pricier paying for an initial consultation with a lawyer, and then doing so with several lawyers, it is the best way to see if a lawyer is the right one for you. An initial consultation serves several purposes for someone on the hunt for a family law attorney. It is a great way to get a feel for what the law says about the important matters in your specific divorce. Look at an initial consultation as an interview of someone you want to hire. Does the lawyer have experience in the areas most significant to your situation? For example, if you have a family business and you are getting a divorce, does the attorney have experience with business valuations and negotiating the division of businesses? If Child Protective Services (CPS) is involved in your case, does the attorney have experience in CPS cases? If you are going to have a custody battle on your hands, does the lawyer have a good bit of experience in this area? If an attorney is strictly a family lawyer, chances are they have plenty of experience in all these areas; but it is good to ask the questions to make sure.

Something else important when meeting with lawyers is to determine if you think your personality will work well with the personality of the lawyer. Additionally, does the lawyer have the personality you need for your case? For example, do you want an aggressive lawyer who will need to fight for everything because the opposing party (your spouse, your ex-spouse or parent of your child) is confrontational about everything? If so, a lawyer who seems meek may not be the right fit for your situation. Conversely, if you and your spouse are getting a divorce and are relatively amicable about everything, you probably don’t want a lawyer who thrives on going into court and fighting it out for every little item. It is also good to keep in mind that some lawyers can play both roles - if the situation calls for aggression, the lawyer can take the reins and fight it out. But if you and your spouse are fairly amicable toward each other, that same lawyer can work with you to reach a resolution.

In the initial consultation, you will want to find out what the lawyer’s hourly rate is and what his or her initial retainer is. Keep in mind that a lawyer’s initial retainer is NOT necessarily what your case will cost. It is just the amount that gets you started.

The bottom line is, spending some time and money at the beginning of your case to find the right lawyer, will save you pain and suffering later on and can even save you money on the back end.

Ami J. Decker
www.famlawtex.com