Articles Posted in Family Law

In any family law dispute, it is in the best interest of the parties involved if they can  come to an amicable agreement as to how issues should be resolved. Settlement agreements in family law cases are also viewed favorably by the courts. Under Texas law, if the parties in a divorce action enter into a mediated settlement agreement (MSA), the agreement is like any other contract in that the terms of the agreement are binding upon the parties. Similarly, the court must respect the terms of an MSA in issuing a divorce decree.

If the courts enter a decree that is contrary to the terms of an MSA, it can result in a reversal of the decree, as was illustrated in a recent case decided by a Texas appellate court. If you are considering pursuing a divorce, it is in your best interest to meet with a seasoned Texas family law attorney to discuss your options for pursuing your desired result.

Terms of the Mediated Settlement Agreement

Reportedly, the parties were married for six months when the husband filed a petition for divorce. The petition alleged, in part, that the parties were the parents of two children of the marriage. The wife filed a general denial in response to the petition. The parties then entered into an MSA which stated, in part, that the husband would continue the adoption process of the first minor child, and that the wife consented to the adoption. The MSA also stated it was not subject to revocation. The husband subsequently filed a motion to enter a final divorce decree. The wife retained new counsel who then filed an amended answer, denying the husband’s parentage of the first minor child. The court held a hearing as to the child’s parentage, and ultimately entered a decree stating that the parties were the parents of both children. The wife appealed.

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As with any contract, parties drafting a pre-marital agreement prior to getting married should take the utmost care to ensure they fully understand the terms of the agreement and how their conduct can affect their right to recover under the agreement. The Texas courts favor the right to contractual freedom, and it is very difficult to get them to overturn a pre-marital agreement. In the Matter of the Marriage of I.C. and Q.C., the Texas Supreme Court recently denied a wife’s request to rescind a pre-marital agreement due to husband’s failure to make required payments, and found that her effort to rescind the agreement resulted in a forfeiture of her right to certain assets. If you are held to a pre-marital agreement and are considering ending your marriage, a Texas family law attorney can assist you in understanding the terms of your agreement and how certain actions can impact your right to distribution of marital assets.

In The Matter of the Marriage of I.C. and Q.C., wife and husband signed a pre-marital agreement that stated wife would receive a lump sum payment of $5 million if the parties divorced. The agreement contained a clause that stated, in part, if wife tried to invalidate the agreement she would forfeit her right to the lump sum payment.

Husband filed for divorce. Wife petitioned to enforce the agreement, which required husband to make certain payments to wife. Husband fell behind in payments, and wife petitioned the court to require him to pay past due amounts, which the court granted. Wife then filed a counter-petition for breach of contract and breach of fiduciary duty and requested rescission of the agreement. In response, husband filed a declaratory judgment asking the court to rule that by seeking rescission wife waived her right to the lump sum payment, and filed a motion for summary judgment on his declaratory judgment. Following a trial, a jury found wife’s request to rescind the agreement was excused due to husband’s breach by failure to make payments. Husband requested a new trial, which the court granted. The court subsequently granted husband’s motion for summary judgment on the issue of whether wife waived her right to the lump sum payment. Wife petitioned the Supreme Court of Texas for review, which they granted.

Issues surrounding Texas family law, particularly child custody and visitation can be highly contentious. There may be various adults in the child’s life who are concerned for the wellbeing of the child and have an interest in seeking custody or visitation. These adults may be parents, guardians, grandparents or other relatives. The laws surrounding child custody and visitation vary widely from state to state and will be applied differently, depending on who it is that is seeking to obtain custody or visitation rights.

For instance, where a grandparent is seeking custody or visitation, there are certain considerations and conditions that may be required. Conditions for custody differ from those for visitation. A grandparent may petition a court for either custody or visitation but should be familiar with the conditions for each, as well as the laws of their state.

One common thing that the courts in all jurisdictions must consider is the best interest of the child. Some of the common factors in determining the best interests of the child include, the needs of the child such as physical and emotional health, safety and welfare of the child. The court will also consider the capability of the grandparents to meet these needs of the child. Additionally, the court may consider the wishes of the parents, the child and the grandparents, as well as the relationship between the grandparents and the child. Evidence of abuse, neglect, and substance abuse are also factors the court may consider.

Getting a divorce can be a complicated and emotional process. It is never easy and often isn’t always amicable. So, what happens when you can’t agree on who gets what? One of the most complex parts of a divorce can be dividing up assets; this is particularly true with the division of property. But, in addition to assets, a married couple may also share their debt. So how is the property and the debt divided in a divorce?

The simplest solution is for the couple to decide amongst themselves and work out an agreement that both parties are happy with. However, this is often easier said than done, and most couples have difficulty reaching such a resolution. As a result, the matter often ends in court. Divorce and property division laws vary state to state, but there are two general types of property division: community property and equitable distribution. Texas is among the handful of states that follow community property division. This means that all property is divided into two categories, marital property and separate property, all marital property gets divided equally, while each individual gets to maintain their separate property. In the majority of states following the equitable distribution rule the judge will determine what is a fair distribution of the property rather than simply dividing everything equally.

In states like Texas that subscribe to community property distribution, the question then becomes how to determine what is community property and what is separate property. Generally speaking, community property includes all property and debts that are accumulated during the marriage, unless otherwise specified. Separate property is property that was acquired by either party before the marriage, or property acquired separately such as a gift, inheritance or pension. These acquisitions do not always fit clearly into one category or another and often can end up as commingled property; commingled property then gets treated as community property for distribution purposes.

In every case, issues like divorce and child custody can have a lasting effect on families. Such situations are highly personal and emotional, and they can often be legally complicated and challenging. It is easy to see how people face difficulties and often run into trouble when they try to take these matters into their own hands.

Divorce in Texas can be a lengthy process and may involve complicated issues of alimony, property division and child custody. However, this doesn’t have to be a costly or a stressful process with the right legal help in your corner, advocating for you. An experienced attorney can help you avoid common mistakes and find settlements and resolutions that can work for you. By taking the time to truly understand what matters in a particular case, the appropriate legal steps can be taken to achieve the desired outcome.

In areas of divorce, mediation, custody disputes, adoption, grand parental rights or other family law issues, Rick Davis & Associates is a firm that specializes in these fields and has tremendous expertise in family law. Attorney Rick Davis started his law firm over 20 years ago coming into the practice with extensive experience as a judge who formerly presided over many family law disputes, and as attorney he is believed to have tried one of the first grand parental rights cases in the State of Texas.

As is true in other parts of the country, many grandparents in and around Bryan, Texas, are actively involved in the lives of their grandchildren. They may see their grandchildren at least more than once a week, and some may even care for and see their grandchildren daily. Sometimes, a grandparent may even be the caregiver for their grandchild, stepping in to the shoes of the child’s parents to give them the food, clothing, shelter and love they need.

Although it is true that Texas, like other states, ultimately prefers that parents raise their children and thus usually will give them the final say on whether a grandparent can continue to see and have relationship with their grandchildren, there are certain grandparents’ rights a Bryan resident can assert if they are involved in their grandchildren’s lives but find themselves suddenly cut off.

Fortunately, Texas law is somewhat generous when it comes to giving grandparents ongoing access and visitation to their grandchildren. For instance, a grandparent can seek custody of their grandchildren even if the state has not intervened because of abuse or neglect. Again, though, the Constitution requires that a Texas court give preference to the child’s parents in such instances.

Adoption is one way to grow a family. Because of this, it is important for those considering adoption to be familiar with the adoption process. Potential parents may have many questions associated with adoption. Adoption is part of the family law process that helps families grow in different ways. It is important to be familiar with the adoption process and different options available to help decide if the adoption of a child or an infant, domestically or internationally, is best for that adoption seeker.

In Texas, adoptive parents must be over the age of 21, financially stable, mature and responsible and they must complete the home study process. The home study process involves an inspection of the home and background of the potential parents. It also involves an inspection of the financial ability of the potential parents to raise the child, the parenting skills of the potential parents and the marriage of the potential parents, if they are married. Potential parents are also subject to a criminal history background check and an abuse and neglect check.

Adoptions are commonly conducted through adoption agencies, which can be both public and private. Adoption seekers may wish to begin a family through adoption or add to their family through the adoption process. The adoption process can sometimes seem intrusive and bureaucratic to potential parents seeking to adopt. To help lessen the burden of what can sometimes be a complicated process, it can help for adoption seekers to be familiar with the steps of the process and what to expect.

Life does not stay the same following a divorce, as well all know. Life changes and circumstances change as life moves on following dissolution. As a result, parents may wonder if a child support modification is available to them following divorce. Child support orders can generally be modified through the court or by agreement of the parents. In general, there are two circumstances when child support orders can be modified.

One circumstance a child support may be modified is if it has been 3 years or greater since the child support order was established or last modified, and the change from the monthly child support order would be $100 or 20 percent according to child support guidelines. Alternately, a substantial change in circumstances following the child support order may also merit a post-divorce modification of child support.

A significant and material change in circumstances potentially warranting a child support modification can include a change in the paying parent’s income, if the noncustodial parent is legally responsible for the care of additional children, if the medical insurance coverage for the child has changed or if the living arrangements for the child have changed. It is important, however, to never simply ignore a child support order and to also keep in mind that, although parents are encouraged to reach agreements whenever possible, a child support modification requires a new child support order.

The divorce process is not without its challenges. For one, there can be difficulties in getting a divorce. Certain state laws can make getting a divorce harder.

Recently, a couple of bills have been proposed here in Texas which would raise the barriers to divorce in the state.

One of the bills regards the state’s divorce waiting period. Under current state law, a divorcing couple has to wait a minimum of 60 days before receiving their divorce. The bill would increase the required waiting period for divorcing individuals who have children under 18. Specifically, it would make it so such parents would have a required divorce waiting period of 180 days.

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