Archive for October, 2015
Divorce Jurisdiction in Texas – “The Consequences of Getting It Wrong”
My spouse and I both live in Texas, but were married in another State. Where do I file for divorce?
In Texas, it is not where you were married that matters. It is where you live and how long you have lived there. Specifically, if either spouse has been a domiciliary of Texas for the preceding six-month period and a resident of the county where the suit will be filed for the 90 days preceding filing then the divorce can be filed in the qualifying County.
There are extensive provisions in the Texas Family Code that govern other divorce jurisdiction scenarios, including divorce jurisdiction for military personnel, long arm jurisdiction for persons living outside of the State, and divorce jurisdiction for individuals who do not live in the United States. You should consult a qualified family law and divorce attorney to advise you on your particular situation.
What if I filed in the wrong county? What are the consequences?
First of all, before you meet with an Attorney you should determine what county you live in and be able to advise the Attorney of how long you have lived in the County and the State. An Attorney has to rely on his/her client to provide accurate information in order to file the case in the proper county. Generally, if I have a question about the County of residence I will check the on-line records for the appraisal district of the counties where I believe the party may reside. On more than one occasion I have found that my client was mistaken about their County of residence.
Why is this important? When a party fails to meet the Texas residence and domicile requirements and/or files in the wrong county the party who filed first may lose the perceived advantage of being the “Petitioner” in the case.
In some cases filing first can be an advantage, but this advantage can be lost if you file in the wrong county and the opposing spouse files in the proper county before the error is detected and/or corrected. Where you would have been the “Petitioner” in the case because you filed first, you are now the “Respondent”.
In some cases this change in roles can be overcome or is insignificant; but, in complex cases involving custody and/or other complex property and/or fault ground issues this disadvantage can be critical. This is because at trial the Petitioner presents his/her case first. The Respondent is left to respond to the Petitioner’s initial presentation while also attempting to promote his/her case. In these more complex cases, generally, an Attorney would prefer to be the Petitioner at trial.
In sum, before you meet with your Attorney you should research your County of residence to insure that your case is filed in the proper County. This simple step could serve to preserve your advantage in the case as Petitioner, and avoid the cost associated with having to refile in the proper county.
The Standard Possession Order (SPO) is a default visitation schedule defined by the Texas Family Code that is used in the vast majority of Texas divorce cases involving children. It is extremely detailed and lengthy and is one of the main reasons that divorce decrees in cases with children are usually 30 to 40 pages long. The Standard Possession Order statute is Texas Family Code Section 153.3101 through 153.317.
Every order has its own particular provisions, so please refer to the specifics of your own order for guidance if you have one. Also note that all of the terms are subject to alteration, either by negotiation or court order. This article is designed to give a brief overview of the statute and how its key provisions work when the standard language is used without tweaking. Here are some of the key provisions of the Standard Possession Order, as applied to parents who live within 100 miles of each other (the statute is somewhat different for those that live more than 100 miles apart).
The non-primary parent has weekend periods of possession beginning on the first, third, and fifth Fridays of each month. Note that not every month has a fifth Friday, but for those that do it means that the non-primary parent will have possession for two consecutive weekends (a fifth Friday in a month will always be followed by a first Friday on the following month).
The beginning time of the weekend period can either by 6:00 p.m. or when school is dismissed. The ending time of the weekend period can either be 6:00 p.m. on Sunday or Monday morning when school resumes, depending on which election is made by the non-primary parent. If the period begins when school ends on Friday the non-primary parent is responsible for picking the child up from school and if the period ends on Monday morning the non-primary parent is responsible for delivering the child to school.
The statute provides for the non-primary to have visitation every Thursday during the school year. The standard visitation is just a dinner period, from 6:00 p.m. on Thursday until 8:00 p.m. that same day. However, the non-primary parent can elect to extend that visitation to begin as early as school dismissal on Thursday and to end at school resumption on Friday morning. In effect, this gives the non-primary parent the option to have at least one overnight per week and avoids going the extended period of time between weekend visitation periods without having the child overnight.
I recommend you check the language in your order if you have one for all specific provisions that apply to your situation, or the language of the statute if you do not, and this is especially true for holiday visitation. Holiday periods are probably modified more than any other area of the Standard Possession Order schedule because every family is different and has different holiday traditions. Also, please note that the holiday periods trump the weekend and Thursday visitation periods. In other words, if there is a conflict the holiday schedule applies, not the weekend or Thursday schedules.
Summer – Generally, the non-primary parent gets 30 days in the summer. There are a number of ways this period can be scheduled under the SPO, with certain restrictions. The 30 days can be exercised in either one or two periods of at least ten days each. The non-primary parent is required to notify the other parent in writing of the summer schedule by April 1. If no notice is given then the default period is July 1 through July 31. There are a number of restrictions and details that are too lengthy to discuss in this post so see your order for the specific requirements in your case.
Christmas – In alternating years each parent gets either the first half or the second half of the Christmas break.The Christmas break is defined as beginning at either 6:00 p.m. on the day school is dismissed for the break or at the time of school dismissal, depending on whether the extension election is made. The break ends either at 6:00 p.m. the day before school resumes or at the time school reconvenes. The exchange time (the break between the two halves) is noon on December 28th. The non-primary parent gets the first half of Christmas during even-numbered years and the second half during odd-numbered years.
Thanksgiving – In odd-numbered years the non-primary parent has possession during the Thanksgiving break. In even-numbered years Thanksgiving goes to the primary parent.
Spring Break – In even-numbered years the non-primary parent has possession during Spring Break. In odd-numbered years this period goes to the primary parent.
Mother’s & Father’s Day weekends – Moms get possession of the child during the Mother’s Day weekend and dads get possession of the child during the Father’s day weekend.
Child’s Birthday – For the parent that does not have regularly scheduled possession of the child on the child’s birthday, that parent gets possession from 6:00 p.m. to 8:00 p.m. on that day.
So that is a somewhat brief overview of the Texas Standard Possession Order language. Again, please refer to your order and the language of the actual statute (and get advice from a lawyer) if you have specific questions regarding your situation.