Archive for January, 2018
WHY MEDIATION IS INVALUABLE IN A DIVORCE CASE
Divorce is difficult, but mediation can help resolve contested issues that otherwise have reached an impasse. Mediation reduces costs and time of a divorce, minimizes the stress and helps to reach the best decisions in an amicable environment.
Reducing Costs and Time
Texas Courts usually carry heavy caseloads that have become increasingly backlogged. Contested cases can take months to schedule on the Court’s trial docket, even if it is a relatively straightforward divorce. Instead of waiting, mediation can usually be scheduled within a week. If the parties are able to reach an agreement at mediation, the court will generally finalize the divorce rather quickly. In addition to saving time, mediation also cuts the costs of taking the divorce case to trial.
Why Parties Choose to Mediate
• Foster cooperation. You have made great efforts to protect your children throughout your divorce. One of the most important factors is the relationship between you and the other parent. Divorce mediation establishes a cordial relationship and fosters cooperation in your children’s affairs that will carry forward in the years to come.
• Create the best parenting plan. Texas offers a template parenting plan that the courts will generally follow if parents cannot agree. However, this may not be the best arrangement for you or your children. Instead of leaving this decision up to the courts, mediation allows you to come to an agreement that is most beneficial to all parties.
NEGOTIATING A DIVORCE USING COLLABORATIVE LAW
Deciding to end a marriage is not easy, but when couples do make the decision, their aim is to work out a settlement agreement that suits their individual and mutual aims while dealing with one another respectfully. When there are children involved, it is even more important to be able to deal with one another amicably and create a settlement that will advance the children’s best interests as well.
Collaborative law divorce is one way to achieve this. Rather than venture into the courtroom, collaborative divorce is a process whereby parties work with various professionals and work through the issues involved in the case. Known as interest-based negotiation, it focuses on creating agreements that highlight the goals each party hopes to achieve. The aim is to create a respectful and safe environment where each party can express their needs and negotiate without going to court. In Texas, couples sign an agreement that states that not only will they try to settle all their issues without going to court, they will also not threaten to go to court either. This way, they can talk through issues without any looming threats.
When a divorcing couple goes to court, they often end up handing over the control of their case and therefore their whole future to a judge who may not be familiar with their circumstances. Collaborative divorce allows trained professionals to work with the family, who knows their situation best, to come to a creative and customized solution that suits their unique situation.
CAN A CHILD DECIDE WHO THEY WANT TO LIVE WITH IN A DIVORCE CASE?
Many couples in Texas may be under the misconception that when a child reaches a certain age they can decide which parent they want to live with in the event of a divorce. However, this is not the case. There are certain provisions in the Texas Family Code regarding the right of children to express their wish of where they want to live, but there is no obligation for the judge to fulfill that desire.
According to the Texas Family Code, children who are at least 12-years-old will be interviewed in the judge’s chambers to determine their wishes regarding primary custody. However, this can only be done on the application of one of the parties, the amicus attorney or the attorney ad litem for the child in a non-jury trial or at a hearing. If the child is younger than 12-years-old, the judge can decide if they want to interview the child for an opinion on where they want to live.
The court’s responsibility when determining child custody is in assuring the child is brought up in a safe and stable environment and has continuing contact with their parents by creating a parenting plan that is in the child’s best interests. It is incorrect to assume that children’s wishes will be the final word, but it is also incorrect to say they won’t be considered at all.
ELIGIBILITY FOR SPOUSAL SUPPORT
A spouse requesting post-divorce support in Texas must be eligible to receive spousal maintenance before a court can grant the request. The court cannot award spousal maintenance to a non-eligible spouse on its own. However, parties are free to agree and contract for post-divorce support even when the court would not have the power to do so.
In order to be eligible, the spouse seeking maintenance must lack sufficient property once the divorce is final (including separate property) to provide for her minimum reasonable needs.
Additionally one of the following two scenarios must apply:
1. The paying spouse must have been convicted of or received deferred adjudication for an act of family violence as defined by Texas law. Additionally, the act of family violence must have been committed either:
a.) During the marriage (but no more than two years before the date the divorce suit was filed); or
b.) While the divorce suit was pending.
2. The spouse seeking maintenance is unable to earn sufficient income to provide for their minimum reasonable needs and:
a.) Their inability is due to an incapacitating physical or mental disability; or
b.) Their inability is due to their responsibilities as the custodian of a child of the marriage who requires substantial care and personal supervision because of a physical or mental disability; or
c.) They been married to the other spouse for 10 years or more.
If your spouse cannot meet the conditions set out in at least one of the above scenarios, then they are not eligible for court-ordered, post-divorce spousal maintenance.
WHAT TO DO IF YOU OVERPAID CHILD SUPPORT
Child support is designed to ensure that both parents are contributing to the financial needs of any shared children they might have. In cases where a paying parent overpays child support, it is possible to recover the excess support, though this depends on a number of factors.
In Texas, if you are still obligated to make child support payments, the attorney general will likely apply the excess payments to your future obligations, as per Texas Family Code.
On the other hand, if you are no longer obligated to make child support payments, you can file a request and demand a repayment or, if that fails, you can file a lawsuit. This is applicable whether or not your overpayment was made before, on, or after the date your child support obligation was terminated.
If a court rules in your favor, your ex-spouse would also be obligated to pay for your attorney fees and court costs, in addition to the amount of child support you overpaid.