What is mediation in divorce or custody case?

Mediation is a term/process that almost anyone who has had to deal with a legal case recently, specially a family law case dealing with a divorce or custody matter, have become familiar with. When a new client comes to my office or sets up a free zoom consultation or free phone consultation, the question arises, “What is mediation?”

What is mediation?

Mediation is a formal settlement process so that the parties can attempt to resolve the case without court intervention.

Who conducts mediation?

Mediation is conducted by a mediator, who is generally a former/retired judge or a current attorney. Both you and the other side (spouse or other parent in a family law case), along with your attorneys will also be present in mediation. Each side will be in a separate room and do not have to face each-other as the mediator goes back and forth to try to reach a resolution for the case.

Is mediation required?

Yes, in most courts, mediation is not required. You and your attorney can file a motion to waive mediation, but must show the judge good cause for waiving mediation; for example, if there is an emergency situation where time is of the essence or someone’s safety and well being may be in danger.

When is mediation conducted?

Mediation will be conducted at some point before a temporary orders hearing or final trial, or both.

Is a signed mediation agreement binding?

Yes, once you sign a mediated settlement agreement, often called a MSA, it is binding and cannot be changed, in most cases, even by a judge and/or agreement of both parties.

Am I required to come to an agreement in mediation?

No, while you are not required to come to an agreement in mediation, it is strongly recommended that you do everything you can to come to an agreement in mediation, with an agreement that you would be okay with. However, don’t feel forced to settle in mediation.

Why is settling in mediation beneficial?

Settling in mediation is often beneficial for both parties for several reasons, including but not limited to:

• You have more control over the outcome of your case and don’t have to deal with a possible shocking ruling/judgment from the court that may be unfavorable to you.
• You can save significant time and stress, as divorce and custody cases can often be emotionally and mentally draining and time consuming.
• You can save significant money on attorney’s fees you would spend in continuing to fight the case. Attorneys are not cheap. And other reasons…

Contact Us

If you are looking for a family law attorney, divorce lawyer, or custody lawyer feel free to call or email me, Amir Tavakkoli, Houston attorney from the A.T. Law Office. My office phone number is 832-800-5590 and the email is info@atlawoffice.com. While we primarily practice in Harris and Montgomery County, we also travel to other counties such as Liberty County, Chambers County, Galveston County, Ford-Bend County, Waller County, Brazoria County, etc. Contact the A.T. Law Office by calling (832) 800-5590 to schedule a a free consultation by zoom, by phone, or in person.

Originally posted on the Law Office of Chad Zubi 

Many people don’t know that the vast majority of family law cases end up settling out of court. Most of the time out of court settlements are for good reason and can greatly simplify a family law case for all involved and eliminate some of the strain that is placed on the Texas family courts.  Not only is it very expensive to take a case all the way to trial, but you know your situation better than a judge does and you are in a better position to decide what is going to work best for you and your family.  A judge on the other hand is limited in the amount they know about your unique situation and is forced to make the best decision they can with the limited facts they can obtain from the parties during a divorce and/or child custody trial.  That being said, mediation is not always the solution, sometimes one party or their attorney is completely unreasonable and you need court intervention to give them a reality check.  This is certainly the more expensive route, but sometimes it can be worth it, especially given the important things that are at stake in many family law cases and their long lasting impact on people’s lives.  Judges work hard to apply Texas family law and a good outcome is possible.

If you decide you would like to attend mediation, or if the court makes you which it commonly does, then this office can work to achieve a desirable outcome.  Negotiation skill and knowledge of Texas family law is key.  That being said, before you attend mediation it is important for you to  understand something completely.  A MEDIATED SETTLEMENT AGREEMENT IS BINDING.  Texas laws give mediated settlement agreements a lot of weight and if you make an agreement then both parties are entitled to a court order that is based on the agreement.  What I really want you to know, and if you take nothing else from this post, is that you should be sure about what you are agreeing to in mediation. You should be fully aware that you cannot take back the agreement no matter how much you think you should be able to. If you later realize that something in a mediated settlement agreement is unfair or that it isn’t going to work as well as you thought it would then you are going to be out of luck.  Even if you hire the best lawyer that money can buy to explain the situation, a judge is almost certainly going to tell you that there isn’t anything that they can do for you because they lack the authority to alter the agreement you made in mediation.  So again, be careful when making a family law agreement in mediation.  It is wise to hire an experienced family lawyer to help you craft a good settlement strategy and agreement.  Family lawyers have seen several cases in their careers and will be able to give you valuable insight as to whether what you want to do or what the other party proposes is a proper agreement.

Another thing about mediation is that although an agreement is binding and you cannot change your mind, remember that it is binding on both parties, not just you.  Once you reach an agreement, and the judge of your particular court signs an order based on your agreement, then you can make the other party comply with the agreement.  If the other party isn’t complying with a court order than you would file what is known in Texas family law as an enforcement.  An enforcement accuses the other party of non compliance and asks a court to make them do what they are supposed to and to possibly punish the offender with fines, jail time, or both.  Make no mistake about it, it is very serious to have an enforcement filed against you and if you bring one against someone else then you should be sure that you are doing it for the right reasons.  If you are on the receiving end of a family law enforcement case then I encourage you to enlist the services of a qualified family attorney to help you defend yourself.  It is not uncommon for people to have a defense to the enforcement or for the attorney who is trying to enforce a court order to make vital mistakes that should be pointed out in a court.  It is also useful to have someone on your team who knows what to do in court, not only is it harmful to your case for you to make missteps in court, but it can be an extremely unpleasant experience.

If you want to bring an enforcement against an offending party then you should know that their are very specific requirements under the Texas Family Code that must be met in order to be successful.  It would be wise to hire an attorney to do this for you as to not make a serious mistake that could jeopardize what you are trying to do.  Family law is so serious and can have such a long standing impact of people and there families that this isn’t the time to pinch pennies.  Hire a lawyer that will work hard for you and who will keep you informed and who will offer their services to you at a competitive price.  The first step is to claim your free consultation and you can do that by giving us a call.

Thanks to our friends and contributors at the Law Office of Chad Zubi for their content on this blog.

Division of assets in a divorce:

In determining the division of assets in a divorce, people must think logically. For people going through a divorce, other than dealing with typical issues such as broken hearts, lost trust, frustrations, confusion about the future, ruined plans, etc, couples must also somehow keep their composure among all these negative feelings and make logical decisions regarding finances. Although dealing with so many emotions and feelings is hard, it is imperative to keep in mind that you have big decisions to make that require clear logical reasoning, decisions that can have life-lasting impacts. As hard as it may be, you must remember to keep emotions separate from your logical reasoning before you dig yourself in a deep hole you can’t get out of.

In this article, I discuss community assets and debts division in a divorce and will follow it up with another article about how to get a disproportionate share of assets and/or debts.

How are assets typically divided in a divorce?

While many states have the equitable division doctrine when it comes to dividing assets and debts in a divorce, Texas applies the community property division doctrine.

In equitable factor doctrine states, the assets or debts in a divorce are divided as the court deems “fair and equitable.” In Texas, and other community property division states, the assets or debts are usually divided down the middle, 50/50, with some exceptions which will be discussed in a follow up article.

Reasoning behind the 2 different doctrines:

The splitting down the middle of debts and assets applied by Texas and a few other states, makes dealing with the case much more simplistic and avoids lengthy and costly litigation between the parties. However, this can also create feelings of injustice or unfairness received by one or both parties who feel they had more of an impact in accumulating the assets acquired during the marriage. For example, for a stay at home woman who has not worked during the marriage and does not have the skills to get a high paying job that meets her need post-divorce, she may feel that getting the same cut of the assets as her high income husband, would be unfair.

On the other hand, the equitable division doctrine considers a variety of different factors in determining the division of assets or debts in a divorce. Some factors include but are not limited to: future earning capacity of spouses, efforts in creating the community assets, future expenses for the spouse, spending lifestyle, etc. The issue with this approach is the amount of intense, exhausting, lengthy, and costly (among other things) litigation that could be involved.

Contact Us:

If you are looking for a divorce attorney or are simply interested in division of assets in a divorce, or a potential divorce, call or email me, Amir Tavakkoli, Houston attorney from the A.T. Law Office. Our phone number is 832-800-5590 and the email is info@atlawoffice.com. We also travel to different counties including but not limited to Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Ford-Bend County, Waller County, and Brazoria. Contact the A.T. Law Office by calling (832) 800-5590 for a free consultation.

Dividing a 401(k)-retirement account in a Texas divorce

401K division in a Texas Divorce is one of the most discussed topics when it comes to getting a divorce in Texas. Many of you have 401(k) plans through your employer that provide you with a terrific savings and investment vehicle for your later years. Specifically, a 401(k) plan is a defined contribution plan that allows you to contribute $19,500 per year. Depending on the type of 401(k) that you have- traditional or Roth- your money will either be taxed in the year it is deposited into the account or you will pay taxes on the money as you withdraw it. Should you choose to withdraw any portion of your 401(k) before you reach age 59.5 there is a 10% penalty assessed on top of those aforementioned taxes.

The nice part of a 401(k) is that often times your employer will choose to “match” contributions that you make, up to a certain percentage. Essentially you can earn “free money” on your account for doing nothing more than working for that firm and contributing money to your retirement account. Additionally, you have a fairly wide range of investments from which to choose in most cases. Without a doubt, the 401(k) is a great option to be able to take advantage of as far as retirement savings is concerned.

One of the most important aspects of a divorce is conserving as much of your 401(k) as possible. While most people want what is “fair” in a divorce, there is a fine line between fair and getting taken advantage of unnecessarily. You have worked hard and contributed for years to that account. While what was contributed (and its growth) during the course of your marriage is community property, you are able to negotiate on how to divide it- if it is to be divided at all.

It is my experience that many attorneys and even judges do not understand a majority of the critical issues that surround the division of these retirement accounts in a divorce. In today’s blog post we will discuss a few important topics. Namely: what portion of your 401(k) is community property and which is separate property, as well as what reduction in value of the 401(k) is necessary to estimate due to taxes not yet having been paid?

• What portion of your 401(k) will be divisible in a divorce?

Before we talk about anything else within the framework of your 401(k) we first need to figure out how the account will be viewed under the community property laws of Texas. After all, it is only the community property portion of the account that is potentially divisible in the divorce. The remaining separate property portion is yours, free and clear, and cannot be divided by a family court judge.

It used to be that courts would simply figure out how much your 401(k) was worth at the time of your marriage and then subtract that amount from what it is currently worth. The remaining portion is the community property portion and is subject to being divided up in your divorce. This is not a great method, given that the shares of mutual funds and stocks in the account has likely increased a great deal, even if the number of shares that you own have not increased at all.

The end result is that because the increase in value of the original shares of stock, (while the number of shares the remains the same) that is all considered separate property under Texas community property law. The end result is that your separate property portion of the account is likely much greater than what we would arrive at had we simply done the “subtraction method” that I laid out in the previous paragraph.

What you and your divorce attorney need to know is that your separate property interest in your 401(k) will be determined using tracing and community property law that we use in to value any other nonretirement account. Any dollars added to the 401(k) during the marriage through your own contributions, the contributions of your employer, as well as interest earned would be considered community property. On the other hand, the increase in value of individual shares of stocks or mutual funds that were owned before your marriage would be separate property.

For your specific circumstances, you would need to look at what your 401(k) is invested in and what sort of buying and selling has occurred with those individual investments. In many cases, an expert witness may need to be brought into your case to trace the 401(k) account to see what is separate and what is community property. This is, of course, unless you all can come to an agreement yourselves on what that ratio ought to be.

• What role will your future tax liability have on the current value of your 401(k) in a divorce?

Most courts will not reduce the value of your 401(k) because it has not yet been taxed. A Roth 401(k) should certainly not have its funds reduced for a future tax burden due to the fact that this is all after-tax money in the account. When you and your employer have contributed to your 401k) those contributions are not taxed, however. Once you withdraw the funds in the account those withdrawals will be taxed.

There is nothing in the Texas Family Code that states that a retirement account’s value should be reduced even if it is subject to a future tax burden. By the same token, there is nothing that says your court should not do so, either. The whole principle of deferring the tax burden until you start to make withdrawals is that for many people, your tax rate will be lower at the time of retirement than when you and your spouse are both earning an income.

Consider the following example. If your spouse (who is 56 years old) is awarded half of your 401(k) plan in a divorce, she would not pay any taxes on that amount awarded to her at the time of your divorce. However, when she starts to make withdrawals on that money later in life she would pay taxes at a lower rate most likely. We don’t know if that happen exactly as planned, however. Tax rates may go up and we don’t know exactly how much and when the money will be withdrawn.

Most of the time, attorneys and judges will take a look at your entire 401(k) balance and will not reduce it by some tax rate that is purely hypothetical. There are enough uncertainties when discussing this subject that to do so would be unwise and unjust. There are always exceptions to consider, such as if your spouse must cash in a portion of the 401(k) immediately to pay a debt. In that sort of scenario a court and your attorneys will know that the present value of the account is not actually its face value.

• What to do in the event that loans were taken out from the 401(k)?

Some employers allow for employees to take out loans from their 401(k) accounts. This is often a problem for attorneys. A 401(k) may have a community property value of $250,000 but if a $25,000 loan is owed to the account then that must be listed as a debt rather than an asset by your attorney when figuring out how to divide up the property in your community estate.

Here is where some attorneys will guide clients incorrectly. Keep in mind that the loan balance (here it is $25,000) should not be deducted from the current balance of the 401(k). This loan is not treated like a credit card debt. You owe that money to yourself- not a bank or other lender. As a result, your 401(k) loan is like a debt and an asset that you expect to receive at a future time. All in all, the end result is that the value of your 401(k) should actually not be reduced at all due to an unpaid loan taken out on the account. The loan must be listed in order to show all parties, and potentially the judge, that it exists.

What your settlement will look like as far as your 401(k) is concerned

 Now we can talk about how things look once the dust has settled and you and your spouse have settled upon a method to divide up your 401(k). Keep in mind that just because you and your spouse have settled your case in mediation does not mean that your divorce is over on that day. It may feel like that from an emotional standpoint, but in reality there is much work to do on behalf of your attorney and that of your spouse.

Sometimes it can take a couple of months to get to the point where the plan administrator for your 401(k) actually divides up the account from the date on which you all settled your divorce. The interim months will likely see the value of your 401(k) increase or decrease. You are not likely to stop your contributions during this time, either.

As a result, it is crucial that your mediated settlement agreement (MSA) describe with specificity how much of your 401(k) is being awarded to your spouse. As long as the wording is consistent, there should not be any problems when attempting to enter your final decree of divorce or a Qualified Domestic Relations Order (QDRO).

For most divorces, it is the wording contained in the settlement agreement that will hold your divorce up rather than the wording in the Final Decree of Divorce. Most attorneys will draft your final decree based off of templates contained in the family code, so there is less he or she could make an error in regard to.

On the other hand, your settlement agreement will likely be written very quickly by your mediator at the end of a long negotiation session. Everyone involved in that mediation was motivated to get out of that office quickly- yourself included. As a result, mistakes, or at the very least unclear statements- could have been included in that settlement agreement.

Some of the more common mistakes that are made when drafting a settlement agreement is whether the entire value of the 401(k) is being divided up or just the community property portion. When it comes time for your divorce to specify what is going on with your 401(k) make sure that the date of the division of the account, the manner in which it is being divided a swell as how increases/decreases in its overall value should be taken into account.

• Final steps to drafting a Qualified Domestic Relations Order (QDRO)

Having arrived at a settlement, you can now begin the process of drafting a Qualified Domestic Relations Order (QDRO), or hiring an attorney to do so on behalf of you and your attorney. This should be done at the same time as the drafting of your final decree of divorce.

Information will need to be obtained from the plan administrator for your 401(k) plan. How the plan handles QDROs and what language needs to be included in a QDRO are among the most important pieces of information that can be shared. Once a draft QDRO is ready your attorney will forward it to your spouse’s attorney for their review. A QDRO that can be pre-approved by a plan will make it much easier for everyone involved once you and your spouse have given it your ok. Finally, as soon as the judge has signed the QDRO your attorney will send a certified copy of the QDRO to the plan administrator. From there, your spouse will be paid their portion of the account, per the terms laid out in the QDRO.

Thanks to our friends and contributors at The Law Office of Bryan Fagan for their insight into dividing a 401(k) retirement plan in a Texas divorce.

Thanks to our friends and contributors at the Law Office of Bryan Fagan for the following new blog:

Instead of having to resort to asking your friends and neighbors questions about child custody and divorces in Texas, we wanted to provide you with a list of commonly asked questions and some (hopefully) thought provoking/entertaining answers. While your specific question may not be included in our list we hope that many of these questions and answers are relevant to your situation and can help you gain some knowledge.

For those questions that you have that are not covered in today’s blog, please contact us today for a free of charge consultation. We offer these consultations six days a week with one of our licensed family law attorneys. These are a great opportunity to sit down with an attorney who practices family law every day in order to ask questions, receive honest answers and learn more about our office and how we work on behalf of our clients.

What effect will an extra-marital affair have on your child custody or divorce case?

If you or your spouse have had an extramarital affair then that will certainly be an important factor in your divorce or child custody case. However, the extent to which that affair impacts any child custody determinations made by the judge is left up to the particular circumstances of your case. Specifically, a judge will be looking at whether or not the relationship has harmed your child in a particular way.

Let’s consider an example for you to think more about this subject. Suppose that your spouse has had an affair during your marriage but that you nor your child knew about it. In this situation it is unlikely that the judge in your divorce would put this is a deciding factor when determining which parent (you or your spouse) will be given primary custody rights over your child.

The same sort of relationship in the post-divorce phase of your life will have little impact on any subsequent modification cases. If you were engaged in a relationship after your divorce with another person and your ex-spouse is now asking for some aspect of your divorce decree to be modified, your relationships will likely not factor into the decision making unless there has been a negative impact on you or your child. If you have a “live in” girlfriend or boyfriend then the nature of that relationship will be looked at from the vantage point of what impact it has had (if any) on your child.

On the other hand, many extra marital affairs have a much different impact on children than the one that way laid out in the prior paragraph. Suppose that your wife not only had an affair with another man during your marriage, but would bring that man to the social functions, sporting events and school functions of your child. That is not only embarrassing to you, but it is also embarrassing to your child. Since this relationship would have had a negative impact on your child then it would become more of a factor in your divorce proceedings when determining child custody.

This is again a circumstance where, as we discussed yesterday, the personal biases and opinions of the judge will come into play. If your judge views extramarital affairs of any sort with a stern view then even those that have had no impact on your child may be viewed harshly. On the other hand, there are those judges who, while not approving of the relationship, will not impute much weight to the affair as far as your divorce proceedings.

Parental alienation and its effect on your divorce proceedings

The basic premise behind child custody laws in Texas are that the state encourages both parents to have relationships with their child. For instance, the default setting in a divorce or child custody case is for parents to be named as joint managing conservators. This means each parent will share in the rights and duties of raising their child and will each have significant time allotted to them in order to spend as they see fit with their son or daughter.

With that said, it sometimes happens that one parent or the other will try to undermine the relationship between their child and their ex-spouse. This is referred to as “alienation” in the world of family law. If it is proved in court that you have engaged in this sort of behavior it is likely that your judge would view this as extremely poor behavior and contrary to the goals of their court. As such, it may become a determining factor when deciding important custody issues such as with one of you will be the primary conservators of your child after a divorce.

How will religious preferences impact your divorce/child custody case (if at all)

Our federal constitution allows you and your spouse to freely practice your religious beliefs and allows for you to direct the religious training of your child as well. In conjunction with your divorce case a judge should not and likely would never make a determination that your religious practices are something that needs to be discussed or debated. Your decision whether or not to engage in religious practices with your child should not be an issue, in other words.

In the event that you and your spouse practice different religious beliefs or come from different religious backgrounds it is typical that your divorce decree would hold that you and your spouse are able to each direct the religious practices of your child when you are in possession of him or her. There is not supposed to be any preference given to your faith or that of your spouse.

On the other hand, if your spouse or you engage in religious practices that are harmful to your child in some way (harmful as determined by the judge) then that changes the equation somewhat. However, the likelihood of a judge determining that your child is in harm’s way because of either of your religious practices is extremely low.

How can a child custody determination made in your divorce be changed down the road?

As time moves on, circumstances change and what was agreed upon or decided by a judge may not work well for you and your family. This is to be expected- after all, your children will age and their needs will change as well. You will change jobs, your ex-spouse will change jobs or one of you will move residences for any given reason. My point is that you cannot expect that your divorce will be your last interaction with a family court.

In some instances you and your ex-spouse are able to work together to come up with informal agreements that will hold together well enough for you all to not need to head to court to have a judge hear your reasons why your divorce decree should be modified in some way. These are usually situations where you and your ex-spouse are on good speaking terms and are able to come up with and stick to new agreements without a problem.

However, if you and your ex-spouse do not function at this level and cannot see eye to eye on many issues you may need to file a lawsuit in order to have any changes occur to your divorce decree. These are called modification cases and they will be the subject we first discuss in tomorrow’s blog post.

Thanks to our friends and contributors at The Law Office of Bryan Fagan for their insight into dividing a 401(k) retirement plan in a Texas divorce.

Grandparents do not have a constitutional right to see their grandchildren. According to Troxel v. Granville, a US Supreme Court case, the due process clause protects the fundamental rights of parents to make decisions regarding care, custody and control of their children. Therefore, as a grandparent your possession and access is limited to what the parent will allow. Getting visitation as a grandparent when your child does not want you to is almost impossible.

Grandparents seeking managing conservatorship must show the grandchild has lived with them for six months and within ninety days of filing suit; the Court has named the grandparent as the guardian OR the child is being harmed by people caring for child or by the current living situation; OR both parents, surviving parent, or court appointed managing conservator agrees that the child should live with grandparents. However, if someone else files a lawsuit for custody, the child’s grandparents can intervene with a showing of a lot of past contact with child and the child being harmed by current living conditions

Can a Grandparent Petition for Access or Possession?

In Texas, grandparents have a cause of action to obtain access to grandchildren only if at least one biological or adoptive parent’s rights have not been terminated and the parent who is the child of the grandparent is dead, incapacitated, jailed for at least three months, or does not have court-ordered possession of or access to the child.

A.T. Law Office

If you have any questions regarding the rights of a grandparent in Spring, TX, North Houston, Woodlands, Klein, Tomball, Cypress, FM 1960, Galveston, and surrounding areas, call the A.T. Law Firm for a free consultation. We also travel to different counties including but not limited to Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Ford Bend County, Waller County, and Brazoria County. Contact the A.T. Law Office to set up a free consultation.

The bond a father has with his child is a strong one. Sometimes these bonds are built between father and child without the child being his biological son. In Texas, a man is a PRESUMED FATHER if: (1) he is married to the mom and the child is born during marriage; (2) he was married to the mom and the child was born within 301 days after the date the marriage is terminated by death, annulment, invalidity, or divorce; (3) he married the mother in compliance with law (even if the attempted marriage is later declared invalid) and a child is born during the purported marriage or within 301 days of the termination of the marriage by death, annulment, invalidity, or divorce; (4) during the first two years of the child’s life, he continuously resided in the household and represented the child as his own; or (5) he married the mother after the birth of the child (even if the attempted marriage is later declared invalid) and he voluntarily asserted his paternity. Assertion of paternity is done when the assertion is made in a record filed with the Bureau of Vital Statistics, he is voluntarily named the father on the child’s birth certificate, or he promised in a record to support the child as his own.

What about the Paternity of Artificially Inseminated Child?

A child resulting from artificial insemination is not considered the child of the donor unless he is married to the mother and has consented to the insemination. Therefore, if a man has donated to a sperm bank he will not be presumed to be the father of the child that is conceived with his donation.

How can I Overcome the Presumption? 

Even though a man can be presumed a father, Texas allows a presumed father to overcome the presumption. This presumption can only be rebutted by adjudication or by the filling of a valid denial of paternity in conjunction with the filing by another person of a valid acknowledgement of paternity.  In other words, there has to be a man who has already acknowledged his

How can the parental rights be established?

In Texas, establishing parental rights of a father is known as adjudication of parentage. A proceeding to adjudicate parentage may be brought by: (1) the child; (2) the mother of the child; (3) a man whose paternity of the child is to be adjudicated; (4) the support enforcement agency or another government agency authorized by other law; (5) an authorized adoption agency or licensed child-placing agency; (6) a representative authorized by law to act for an individual who would otherwise be entitled to maintain a proceeding but who is deceased, is incapacitated, or is a minor; (7) a person related within the second degree by consanguinity to the mother of the child (the grandparents, siblings, niece, and nephew), if the mother is deceased; or (8) a person who is an intended parent.

However, a child without a presumed, acknowledged, or adjudicated father may be the only one to commence suit once he becomes an adult. When trying to adjudicate parentage for a child with a presumed father, the proceeding must be brought by a presumed father, the mother, or another individual no later than the fourth birthdate of the child unless: (1) the mother and presumed father did not live together or engage in sexual intercourse during the time of conception; (2) or the presumed father was precluded from commencing a proceeding to adjudicate the parentage of the child before the expiration of the four year time limit due to the mistaken belief that he was the biological father based on misrepresentations that led to that conclusion. If a child has a known father, anyone wanting to prove otherwise must bring the suit by the child’s fourth birthday.

A.T. Law Office

If you have any questions regarding the paternity of a child in Spring, TX, North Houston, Woodlands, Klein, Tomball, Cypress, FM 1960, Galveston, and surrounding areas, call the A.T. Law Firm for a free consultation. We also travel to different counties including but not limited to Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Ford Bend County, Waller County, and Brazoria County. Contact the A.T. Law Office to set up a free consultation.

Over the past several months, we have had quite a few people inquire about whether Mehr (also known as “Mahr” or “Mehriye”) is enforceable in a U.S. Court. Mehr is a payment, usually in the form of certain amount of money, or gold coins, promised by husband to be paid to wife in the event of a divorce. Mehr is determined prior to marriage and is generally commonly practiced in Arabic and Persian cultures. Mehr is somewhat equivalent to a prenuptial agreement (read more about prenuptial agreements here: http://atlawoffice.com/no-one-likes-the-word-prenup-what-is-it-and-how-to-avoid-it/.)

After talking to one of my colleagues, and doing some research, I decided to write a blog about it. To summarize, whether Mehr will be enforced in a U.S. Court depends on the judge and sometimes the circumstances and details of the Mehr.

Many courts require for Mehr to be enforceable, it must meet the elements of a valid prenuptial agreement, those mainly being: 1) the full disclosure of financial assets; and 2) confirmation the agreement was entered voluntarily. Historically, courts were reluctant to enforce Mehr because it was believed that Mehr encourages a divorce as it is only payable upon a divorce. However, recently U.S. Courts have been less strict and willing to enforce Mehr.

Sometimes, the enforceability of Mehr gets a little more complicated. For example, according to local law in Persian or Arabic cultures, a wife may be deemed to have forfeited Mehr if she initiated the divorce (the first to file for divorce) and was the at fault party in the marriage. At least one court decided it was irrelevant whether the wife was at fault, and decided she forfeited Mehr simply by filing for divorce first. See In Re Marriage of Dajani, 251, Cal.Rptr. 871 (1988). On appeal, the wife again lost but based on a different and more common reasoning at the time, which was Mehr is against public policy because it encourages divorce by only providing for payment in the event of a divorce. However, another court in Florida awarded wife Mehr even though she filed for divorce first. See Akileh v. Elchahal, 666 So. 2d 246 (1996).

Some courts require that for Mehr to be enforceable, both parties had to have been given proper legal advice. For example, in Choudhary v. Ali, No. 0956-94-4, 1994 Va. APP. LEXIS 759, one of the reasons the court rejected the enforceability of “Nikah Nama” (another word used for Mehr), was because the wife received no legal advice prior to the agreement.

Another important factor to consider, which has not directly been addressed by the courts but easy to assume based on the pattern of holdings by different courts, is that courts are more likely to enforce Mehr if the agreement and marriage ceremony were completed in the United States rather than a foreign country.  For example, in both Aziz v. Aziz, 488 N.Y.S.2d 123 (1985) and Akileh v. Elchahal, which enforced Mehr, both the marriage ceremony and contract were completed in the United States. On the contrary, in Dajani v. Dajani and Chaudhary v. Ali, the marriage contracts were completed abroad. This is in line with the courts’ thinking that for Mehr to be enforceable, the elements of the Mehr contract have to be in line with the elements of a premarital agreement, as a Mehr contract written in the United States is more likely to comply with U.S. law than those written in a foreign country.

If you or someone you know is involved in a divorce or thinking about getting a divorce, but want to know whether your Mehr will be enforced, it is important to talk to a divorce attorney in North Houston, Spring, Woodlands, Klein, Tomball, Cypress, FM 1960, Galveston, and surrounding areas, call the A.T. Law Firm for a free consultation. We also travel to different counties including but not limited to Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Ford Bend County, Waller County, and Brazoria County. Contact the A.T. Law Office to set up a free consultation.

Involuntary Termination

Sometimes a parent does things that may seriously jeopardize the emotional and physical well being of a child. In these situations, the other parent may feel hopeless and stressed. On one hand, the good parent wants his/her child to have a meaningful relationship with the other parent; on the other hand, spending time with the other parent could mean being at risk and a dangerous lifestyle for the child. Although the A.T. Law Office supports the union of a family and strongly recommends for both parents to stay in the child’s life, we also support the emotional and physical well being of the child. The most important issue is whether our children are safe and healthy.

The good news is that under certain circumstances, a court can terminate a parent’s rights as the father or mother of the child without the parent’s consent. First, the court must believe that it would be in the best interest of the child for a parent’s parental rights to be terminated. Second, the parent whose rights are being terminated must have done one of the following:

(A)  voluntarily left the child alone or in the possession of another not the parent and expressed an intent not to return;

(B)  voluntarily left the child alone or in the possession of another not the parent without expressing an intent to return, without providing for the adequate support of the child, and remained away for a period of at least three months;

(C)  voluntarily left the child alone or in the possession of another without providing adequate support of the child and remained away for a period of at least six months;

(D)  knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;

(E)  engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;

(F)  failed to support the child in accordance with the parent’s ability during a period of one year ending within six months of the date of the filing of the petition;

(G)  abandoned the child without identifying the child or furnishing means of identification, and the child’s identity cannot be ascertained by the exercise of reasonable diligence;

(H)  voluntarily, and with knowledge of the pregnancy, abandoned the mother of the child beginning at a time during her pregnancy with the child and continuing through the birth, failed to provide adequate support or medical care for the mother during the period of abandonment before the birth of the child, and remained apart from the child or failed to support the child since the birth;

(I)  contumaciously refused to submit to a reasonable and lawful order of a court child abuse investigation under section 261 of the Texas Family Code.

(J)  has caused the child to miss school or taken the child from home without intent to return;

(K)  executed before or after the suit is filed an unrevoked or irrevocable affidavit of relinquishment of parental rights (see our blog regarding relinquishment of parental rights: http://atlawoffice.com/termination-of-parental-rights-what-documents-can-help/);

(L)  been convicted or has been placed on community supervision, including deferred adjudication community supervision, for being criminally responsible for the death or serious injury of a child under the following charges: murder, capital murder, manslaughter, indecency with a child, assault, sexual assault, aggravated assault, aggravated sexual assault, injury to a child, elderly individual, or disabled individual, abandoning or endangering child), prohibited sexual conduct, sexual performance by a child, possession or promotion of child pornography, continuous sexual abuse of young child or children, trafficking, and compelling prostitution;

(M)  had his or her parent-child relationship terminated with respect to another child based on a finding that the child had been placed in dangerous conditions.

(N)  constructively abandoned the child who has been in the permanent or temporary managing conservatorship of CPS, and:

(i)  CPS has made reasonable efforts to return the child to the parent;

(ii)  the parent has not regularly visited or maintained significant contact with the child; and

(iii)  the parent has demonstrated an inability to provide the child with a safe environment;

(O)  failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in the permanent or temporary managing conservatorship of CPS for not less than nine months as a result of the child’s removal from the parent for the abuse or neglect of the child;

(P)  used a controlled substance in a manner that endangered the health or safety of the child, and:

(i)  failed to complete a court-ordered substance abuse treatment program; or

(ii)  after completion of a court-ordered substance abuse treatment program, continued to abuse a controlled substance;

(Q)  knowingly engaged in criminal conduct that has resulted in the parent’s:

(i)  conviction of an offense; and

(ii)  confinement or imprisonment and inability to care for the child for not less than two years from the date of filing the petition;

(R)  been the cause of the child being born addicted to alcohol or a controlled substance, other than a controlled substance legally obtained by prescription;

(S)  voluntarily delivered the child to a designated emergency infant care provider without expressing an intent to return for the child; or

(T)  been convicted of:

(i)  the murder of the other parent;

(ii) attempted murder of the other parent, or;

(iii)  criminal solicitation of capital murder or first degree felony

If you have any questions regarding obtaining sole managing conservatorship or sole custody of your child in Spring, TX, North Houston, Woodlands, Klein, Tomball, Cypress, FM 1960, Galveston, and surrounding areas, call the A.T. Law Firm for a free consultation. We also travel to different counties including but not limited to Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Ford Bend County, Waller County, and Brazoria County. Contact the A.T. Law Office to set up a free consultation.

CALL THE A.T. LAW OFFICE FOR A FREE CONSULTATION:
When faced with a difficult situation such as when your child’s emotional and physical well being at risk, because your ex is a deadbeat parent, you should talk to a knowledgeable parental rights, termination of parentage attorney in Spring, TX, North Houston, Woodlands, Klein, Tomball, Cypress, FM 1960, Galveston, and surrounding areas, call the A.T. Law Firm for a free consultation. We also travel to different counties including but not limited to Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Ford Bend County, Waller County, and Brazoria County. Contact the A.T. Law Office to set up a free consultation.

You got joint custody, so now what? Who gets your child/children on what days?

Now you have completed the divorce process and have been given joint custody (conservatorship) you wonder how does this work? In Texas, when it comes to parental time with the children, the courts follow the Standard Possession Order (SPO), which is presumed to be in the best interest of a child. A court can vary from the standard possession order based on the circumstances of a particular family or if the parties agree. There are certain expansions that can be requested to the standard possession order in Texas, resulting in an extended possession order.  Below you will find the details of a standard possession order.
Standard possession order

When parents are granted joint custody, the court requires a possession order. Parents with joint custody can agree to any schedule that works for both of them. If they can’t agree, then the court will usually order them to follow the Standard Possession Order (SPO). The terms of the basic SPO allows the noncustodial parent to have possession of the child a couple of hours every Thursday night; on the first, third and fifth weekends of each month from Friday afternoon when the child is dismissed from school (or 6PM) until the following Monday morning; on alternating holidays, and at least one month in the summer to be used on two separate occasions. The SPO tells the parents where the exchanges of the child will take place (generally at the managing conservator’s place of residence), and where the child will spend the holidays. The court does not have to follow the SPO if a child is under three years old or if the SPO is not in the best interest of the child.

Holidays under the SPO:

CHRISTMAS:

The possessory conservator shall have possession of the child in even-numbered years beginning at 6 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and the managing conservator shall have possession for the same period in odd-numbered years

THANKSGIVING:

The possessory conservator shall have possession of the child in odd-numbered years, beginning at 6 p.m. on the day the child is dismissed from school before Thanksgiving and ending at 6 p.m. on the following Sunday, and the managing conservator shall have possession for the same period in even-numbered years

BIRTHDAY:

The parent not otherwise entitled under this standard possession order to present possession of a child on the child’s birthday shall have possession of the child beginning at 6 p.m. and ending at 8 p.m. on that day, provided that the parent picks up the child from the residence of the conservator entitled to possession and returns the child to that same place.

FATHER’S DAY:

The father shall have possession of the child beginning at 6 p.m. on the Friday preceding Father’s Day and ending on Father’s Day at 6 p.m.

MOTHER’S DAY:

The mother shall have possession of the child beginning at 6 p.m. on the Friday preceding Mother’s Day and ending on Mother’s Day at 6 p.m.

What are your rights and duties when the child is in your possession?

Now, that we have determined each parent will have their own allotted time to spend with the child(ren) there are duties and rights that the parents have when the children are in their custody. These rights include, the duty of care, control, protection, and reasonable discipline of the children; the duty to support the children, including providing the children with clothing, food, shelter, and medical and dental care not involving an invasive procedure; the right to consent for the children to medical and dental care not involving an invasive procedure; and the right to direct the moral and religious training of the children.

A.T. Law Office

If you have any questions regarding the standard possession order and need a custody attorney in Spring, TX, North Houston, Woodlands, Klein, Tomball, Cypress, FM 1960, Galveston, and surrounding areas, call the A.T. Law Firm for a free consultation. We also travel to different counties including but not limited to Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Ford Bend County, Waller County, and Brazoria County. Contact the A.T. Law Office to set up a free consultation.