FAMILY LAW FAQ
What is family law?
Family law is an area of legal practice that deals with issues involving family relationships. These can include divorce, child custody, property division, and more. The purpose of family law is to ensure each individual’s interests are protected in a dispute and to ensure that any children involved are safe from harm.
What is a family law attorney?
A family law attorney is a legal representative who specializes in family law matters such as divorce, child custody, and more. They can act as mediators in a family disagreement, helping to ensure that no one’s rights are violated and no children are exploited or abused in a separation. Other issues that a family law attorney can help with include property division, alimony, prenuptial agreements, and domestic violence protection.
What is family law court?
A family court deals with cases involving family law, such as divorce settlements and custody of children. They’re designed to settle legal disputes within families and provide a resolution to the case. The specific protocol for how a family court operates can vary from state to state.
What is contempt?
Contempt is a remedy that is often used to compel the parent who has been ordered to pay child support and who has failed to do so, to appear in court to offer a legal excuse for failing to pay the support as previously ordered.
Contempt is also the remedy that is used when one of the parties violates an existing order by denying access to children, violating the other party’s rights in certain items of property or, on some occasions, by physical or verbal attacks that have been prohibited by the court.
The Court has the power to punish the party violating the court’s order by placing them in jail, fining them, or both. The Court can also enforce payment of support arrearage by placing the violator in jail until the monies are paid.
These are, of course, extreme remedies and before a court will use these remedies, the attorney bringing the motion must have met a great number of technical requirements. These are the most detailed motions that a family law attorney can bring, since the accused party can lose his or her freedom. It is essential, therefore, that any lawyer bringing a contempt motion be well trained and experienced in these matters since even a small technical defect can cause the motion to fail.
What does “community property” mean?
Texas is a community property state. Although there are exceptions to every rule, community property is subject to a division in the event of a divorce, including debts. Before the community estate can be divided, it must be characterized. The estate is not merely divided by giving each side 50%. Instead, several questions are asked to determine what a “fair and equitable” division of that estate should be. For example, items that would be considered as part of the community estate could consist of cars, houses, and other property obtained during the marriage.
In Texas, property that is considered the separate asset of a party is generally not divided. It is only the community estate that gets divided. For instance, if one party owned a house before the marriage, that house would remain the property of that person after the divorce is settled. However, there are also rules that might give the other spouse a claim of reimbursement if certain criteria are met. Other separate property items may include such things as stocks, businesses, inheritance, and gifts. Whether each item of the marriage is characterized as community or separate is one of the keys to the final outcome of the division of property.
Many times, the determination of how an article of property will be categorized can be difficult. In these circumstances, “tracing” is often used to make these determinations. Tracing develops relevant evidence for the tracking of an individual’s separate property through the entanglement with community property. Often when tracing is used, expert witnesses are needed to testify to the evidence or give appropriate appraisals of the property’s value.
Does Texas law allow for alimony?
Until recently, Texas was the last state without alimony. Recent changes in the law, however, have opened the door to very limited spousal support after divorce. The possibility and probability of spousal support will be evaluated by your lawyer and factored into their legal strategy.
How can we best avoid conflict in the divorce process?
Unlike other lawsuits, a divorce can be accomplished through a variety of ways. Collaborative law is one of the newest and most exciting forms of resolution. Even though both parties have attorneys, it is an avenue of divorce resolution that avoids formal litigation and the courtroom. The parties are free to use mediators, financial planners, counselors, extended family, members of the clergy, or anyone else that might be helpful in resolving the divorce issues. Attorneys practicing collaborative law must undergo specialized training that is not available in all areas of the country.
If you use a more traditional and formal approach to the divorce process, many cases can be resolved in formal mediation. This is a process whereby the clients are represented by attorneys and a third party – a mediator – works with each side to resolve disagreements without the cost and stress of a contested trial. Because the mediation process is so successful, many courts make mediation mandatory so that families avoid the cost and strife of formal litigation.
If your case goes to trial, it is important to educate the children about the process in a general way. Sometimes a judge will speak with older children. Sometimes children believe they will have to choose a side. Before you educate your children, talk with your lawyer and get guidance from professionals about what you should and should not tell the children.
Can my spouse and I settle our differences out of court and just get a judge to approve the settlement?
There are several different avenues for resolving marital dissolutions out of court-such as mediation and collaborative law-and these tools can greatly improve the financial and emotional factors of a divorce. However, your decision must be carefully thought through. After the divorce is over, it is often too late to change your mind. It is imperative that you consult with a qualified, Family Lawyer before agreeing to anything. Particularly if there are children involved, you want to make sure that their best interests are taken into account. Ultimately, most cases are resolved without a final trial.
My ex-spouse won’t follow the court’s order. What can I do?
Any violation of the court’s order may be addressed through enforcement. This will include a failure to pay child support on time or at all, a failure to allow visitation, or a failure to return a child at the end of visitation. In most states, an order may be enforced by a finding of contempt, which can include time in jail, fines, the award of attorney fees, or a requirement that a bond be posted.
It is also a general rule that child support and visitation have nothing to do with one another.
Therefore, if your former spouse refuses to pay child support, your remedy is a motion for Enforcement. You should not take matters into your own hands and withhold the child.
What can I do to make this process work out well for everyone?
Take good care of yourself and your children. Be aware of the effects of stress and do as much as you can to prevent stress from taking over your lives.
Remember to have fun with your children. Eat healthy meals. Exercise. Make sure they and you get a good night’s sleep. These stress busters will help your children cope with the upcoming changes.
Be optimistic about a better future for everyone. Optimism is contagious. If you cope well with the changes, your children will likely follow your lead.
My ex-spouse lives in another state now. What laws apply to cases like ours?
Issues regarding children are treated under 2 areas of law, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and the Uniform Interstate Family Support Act (UIFSA).
The UCCJEA deals with custody and visitation issues. It requires an original action to be started in the home state of the children. The home state is typically where the child has lived for 6 months or, if the child is not 6 months old, then where the child has lived primarily since birth. Suits to modify prior orders are brought in the same state and the same court from which the original order came, unless (1) there is a new home state of the children (they have been living in a new state for 6 months or more) and there no longer exists sufficient evidence in the original state to make a lawsuit there practical.
Child support is treated in a different area, under UIFSA. Under that law, so long as a parent is still residing in the original state where the first order was done, any modification of the support portion of that order will remain in that state. If both parents move from the original state, then the parent who wants to modify the child support must go to the state of the other parent and file the action. Once the action is filed and an order is entered, it will stay in that state until a parent no longer resides there.
My ex spouse has re-married and they’re planning to move to another state because of the new spouse’s job. What can I do?
A move to another state certainly must affect the relationship between the child and the parent left behind. Often that relationship is hurt. We have found that children of parents separated by distance most often miss the parent left behind a great deal. If the children have a close relationship with the non-custodial parent, then a move should be avoided if at all possible.
Many states have policies that prevent such a move unless there is a very compelling reason. Some states, however, have incorporated just the opposite view into their family codes and routinely allow a move unless the remaining parent can show a good reason why the move would be bad for the children. If your children have a very close relationship with the non-moving parent, travel will be hard, the child is very young, thus making travel even harder, etc., then a court, may well prevent the move.