A question that we get often is whether or not filing first in a divorce has any benefit. The answer is yes. The most important benefit of filing first is that at any hearing or trial in the case, you will get to present your evidence first before the other party. While everyone in the legal system will tell you that we keep an open mind and wait for all the evidence before making a decision, everyone is human. Once you hear the story from one perspective, it is hard to wait to make a decision before you hear the other side of the story. This is the arguably the most important benefit to filing first.
There are some additional benefits as well. First, you determine the jurisdiction. The Family Code is very specific about where a divorce should be filed. However, there are some grey areas in the Code and times when a divorce could be filed in a variety of locations. If you file your petition and have the opposing party served first, you have a better chance of determining where the case will be heard.
Second, you keep your spouse from obtaining an ex parte temporary restraining order or protective order without you knowing about it. In family law in the DFW area, in order to get an ex parte temporary restraining order or protective order, the party seeking the order will file an affidavit, go down to the courthouse, present the affidavit and proposed order to the Court, and the Court will grant or deny the request based on such facts. If there is an oppoing counsel on the other side already, you have to give notice to the other side that you plan to request and present such order to the Court. On the other hand, if there is no opposing counsel yet, no notice is required and you can present the request and proposed order to the Court without notifying the other side. This is another benefit of filing first.
We are happy to discuss additional benefits to being the first to file in a divorce matter. You can reach us at 214-741-2662.
—Erin Bogdanowicz, Partner
The most common question we family law attorneys hear in our first meeting with a client is “how long will it take for me to get divorced?” Unfortunately the answer is not the same for every case and the majority of us answer with “it depends.” However, the general process is often the same in each case.
First, one party has to file a Petition for Divorce and more likely than not serve the other party. Then, the other party will file a Counterpetition for Divorce, asking for whatever relief they believe they are entitled to. Normally, the Court will schedule what’s called a “temporary orders hearing” within 30 days. However, if the parties are agreeable to temporary terms, they can agree and bypass this hearing. This hearing normally consists of each side’s attorney eliciting testimony from their client about what they want, whether that’s custody of the children, the house, or attorney’s fees. Each attorney, provided they have enough time, will also be able to cross examine the opposing party.
Once the Judge makes his rulings regarding the temporary orders, these orders will govern throughout the pendency of the case, until there is either an Agreed Decree of Divorce or the case is resolved through a final trial. It’s very important for parties to follow these orders carefully to avoid contempt of court or an unfavorable ruling at a final trial.
Most jurisdictions also require each party to fill out what is called an “inventory and appraisement.” This document details all of the community property owned by the estate as well as what your client categorizes as his or her separate property. Courts normally want to see this document from both parties so as to assure a fair division of the estate. Additionally, it aids the attorneys in drafting a Final Decree of Divorce.
Also, most divorces will go through a discovery process, where each side can ask the other side to produce certain documents, disclose any expert witnesses, and disclose any persons with relevant knowledge of the issues in the case. There can be many other hearings throughout a case depending on the animosity of the parties, such as a hearing on a motion to compel (when one party refuses to produce documents or answer proper questions), a de novo hearing (when one party is not satisfied with the ruling of an associate judge and appeals to the district judge), and even a protective order hearing if family violence occurs.
Because all cases are different, there is no set timeline for resolving a divorce. However, if the parties are able to work together and reach an agreement through mediation or informal settlement offers, a case can last as short as 5-6 months. If a final trial is required along with many hearings, this process can take up to 2 years in some cases, maybe longer.
~Whitney Keltch, Associate Attorney
“You live longer once you realize that any time spent being unhappy is wasted.” -Ruth E. Renkl
If there is no current Order for child support in place a parent can later be ordered to pay retroactive child support. Retroactive child support refers to back child support that a parent can request from the court. Although a court has the authority to order retroactive child support, it is not mandatory.
In some instances the court may deny a request for retroactive child support if the parent presents evidence that he or she voluntarily paid some support in the past for the child. Even if the amount paid towards the support of the child is less than what the court could have or would have ordered, this is evidence that the Court would consider in making an initial determination of whether or not to award retroactive support. A good rule of thumb if you are unmarried and have a child with someone is to keep records of what support you have paid on behalf of the child. This can include the payment of medical bills, receipts for clothing, direct payments made to the other parent, etc.
In instances where the court decides to order retroactive support, there is a rebuttable presumption that retroactive child support not exceeding the amount that would have been due under the child support guidelines for the proceeding four years is reasonable and in the child’s best interest. However, this presumption can be rebutted with evidence that the man knew or should have known that he was the father of the child and was evading the establishment of a support obligation. Tex. Fam. Code § 154.131(c)(2).
Thus, if a parent wants to try and obtain retroactive child support spanning back more than four years, he or she will need to present evidence rebutting the presumption. In order to do so, the parent will have to show that the other parent knew or should have known that he was father of the child and attempted to avoid a child-support obligation. If this can be shown, than the court can award retroactive child support back to the date that the other parent knew or should have known of the obligation. See Tex. Fam. Code § 154.131(d). If this cannot be shown, than the parent will only be responsible for past child support going back up to four years prior to the date of the order.
-Jennifer L. Hankinson, Associate
Many people believe that when a paternity test shows that someone is not the biological father of the child, they’re automatically off the hook. Unfortunately, it’s not that simple, especially if you’re married or living with the mother of the child. In Texas, there is something called a “presumed father” which means a man is simply presumed to be the father of any child that is born during his marriage to the mother or if he lives with the child for the first two years of the child’s life and represents to others that the child is his son or daughter.
So what is a man to do when he discovers that a child may not be his, even though he is the presumed father under Texas law? Some may think taking a Wal-Mart paternity test will fix the situation. This is not true; the presumed father will actually have to initiate a paternity suit and request the court to order a paternity test. This court-ordered paternity test will be what the court relies on to adjudicate parentage. However, sometimes the courts will prohibit a presumed father from bringing a paternity suit, because it is not in the best interest of the child.
For example, an individual who is a presumed father will be barred from disputing paternity once the child turns four years old. The only way to get around this obstacle is for the presumed father to show (1) he and the mother of the child did not live together or engage in sexual intercourse with each other during the probable time of conception or (2) he did not bring a paternity action earlier because misrepresentations led him to believe he was the biological father. This can sometimes be a difficult burden to meet, as the courts will always lean towards what is best for the child.
Thus, the moral of the story is – if you’re unsure whether you’re the biological father of a child, you can take a paternity test on your own to determine the initial results. However, if that test proves you are not the father, you will most likely have to seek legal assistance in bringing a paternity action, take a second test, and have the court confirm you are not the father.
- Whitney N. Keltch, Associate Attorney
With the holidays coming up, it is time to take a closer look at your Decree or Order containing the possession schedule for your children! Remember, the holiday possession schedule will take precedence over the regular possession schedule.
The standard holiday schedule found in the Texas Family Code provides that one parent will have the children over Thanksgiving break from the day they are dismissed from school for the Thanksgiving holiday until they return to school following the holiday (or the Sunday prior to their return to school depending on your order) and that parent will also have the children from December 28th at noon until the children return to school following the Christmas vacation (or the Sunday prior to their return to school depending on your order). That year, the other parent generally has the children from the day they are dismissed from school for the Christmas vacation until December 28th at noon. The following year, these schedules will flip flop. Essentially, each year, one parent has the kids on Thanksgiving and the other has them Christmas Day. Who gets what will alternate each year. If you have a custom schedule, the exchanges could be different, so make sure you read your order carefully to avoid confusion around the holiday season.
I always encourage my clients around the holidays to spend extra time on co-parenting. With so many different traditions, vacations, and family events, don’t feel like you have to stick to what is in black and white. Do what is best for the kids and what allows them to participate in the most family activities possible. Work with each other to make the holiday season memorable for everyone!
—Erin M. Bogdanowicz, Partner
Halloween is a holiday that many kids, and definitely their parents, look forward to each year. Dressing up and going trick-or-treating, to parties, or any other family activity can be the highlight of the year. Unfortunately, for divorced or separated parents, the standard holidays in the Texas Family Code do not include a possession schedule for Halloween!!
This can be included or added to an order or decree of divorce by your attorney if you let your attorney know it is important for you to be able to share in these events with your children. So, remember to ask your attorney about this and other non-standard holidays. Even if it is not included in your order, try co-parenting with each other to work out each parent’s involvement with your children on this holiday. The memories can mean all the difference to them.
—Erin M. Bogdanowicz, Partner