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Torn Apart: Children and Divorce

Despite the difficulties faced in a divorce, the children should not be placed in the center of the crossfire. During the divorce process, and sometimes following the divorce process, it is not uncommon for a parent to become so wrapped up in anger, vengeance or simply being “right” that they forget the effect the whole process is having on the children. Below are some behaviors to avoid and some suggestions to assist you with improving your communications during the divorce process:


1. Do not use children as messengers between “mom” and “dad.”


2. Do not criticize your former spouse in the presence of your children because children realize they are part “mom” and part “dad.”



3. Resist any temptation to allow your children to act as your caretaker. Children need to be allowed the freedom to be “children.” Taking on such responsibility at an early age degrades their self-esteem, feeds anger and hinders a child’s ability to relate to their peers.


4. Encourage your children to see your former spouse frequently. Promote a good relationship for the benefit of the child.



5. Do not argue with your former spouse in the presence of the children. No matter what the situation, the child will feel torn between taking “mommy’s” side and “daddy’s” side.


6. At every step during the divorce process, remind yourself that your children’s interests are paramount, even over your own.


7. If you are the non-primary parent, pay your child support.


8. If you are the primary parent and are not receiving child support, do not tell your children. This feeds a child’s sense of abandonment and erodes their stability.



9. Remember that the Court’s view child support and child custody as two separate and distinct issues. Children do not understand whether “mommy” and/or “daddy” paid child support, but they do understand that “mommy” and/or “daddy” wants to see me.



10. If at all possible, do not uproot your children. When a family is falling apart, a child needs a stable home and school life to buffer the trauma.


11. If you have an addiction problem, whether it be drugs, alcohol or any other affliction, seek help immediately. Such impairments inhibit your ability to reassure your children and give them the attention they need.


12.If you are having difficulty dealing with issues relating to your former spouse, discuss such issues with mental health professionals and counselors.


13.Reassure your children that they are loved and that they have no fault in the divorce.

Though these steps are not all-inclusive, they will assist you in dealing with the complex issues of a divorce and hopefully minimize the impact of the divorce process on the children.

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STAY AT HOME DADS – A Shift in the Trend!

If you turn on the television you will see a Mother seeing Dad off to work and then tending to the children and baking some brownies for the upcoming bake sale. In actuality, such a lifestyle in America rarely reflects the real modern day family.

The number of stay-at-home dads has increased in popularity and occurrence over the years and is notably on the rise in Texas. Could a reversal of old traditional roles be on the increase in this recession? Women are less affected by layoffs and have a better legal posture due to Affirmative Action. Recent studies from the Pew Research Center found a third of all wives earn more than their husbands. Or, is it simply a honest and legitimate desire for some men who recently became fathers in the past decade to be the primary caregiver? Whatever the reason is, many men enjoy it, and many current studies are positively supporting this untraditional position.

Researchers and psychologists are finding a father’s role to be as or more influential than that of a mother in the first five years of the child’s development and that fathers play a key role in the “gender” role identification of their children. Some proclaim that having the dad as the primary caretaker properly prepares children for life lessons. Mothers reassure their small ones during a frustrating situation, while fathers encourage their little ones to manage the situation. Statistics have shown that children are smarter with a stay-at-home dad and are less likely to focus on gender issues, such as a “No Boys Allowed” sign outside their bedroom door. A father’s guidance can promote a greater level of curiosity, greater emotional balance, and a stronger sense of confidence. The Center for Successful Fathering in Austin, Texas cites that fathers who are an active participant in parenting produce children who makes higher grades, have greater ambition, show fewer anxiety disorders, and enjoy a reduced risk of juvenile delinquency or teen pregnancy.

Mothers are getting a pretty good deal as well. They have the security in knowing that their babies are being looked after by a loved one. This relieves stress and worry that occurs while children are in day care. Apart from the safety and family treatment of their children, mothers know that a strong bond is forming between their little one and dad. Fathers who work outside the home sometimes have a difficult time connecting with their babies, but that doesn’t appear to hold true for mothers. Mothers can build bonds despite working outside of the home and not spending as much time with their children. No one can be 100% sure why this holds true, it just appears to be the case. Mothers can also find comfort in knowing that the fathers will instill values. Its one thing knowing your child is being molded by someone else’s values; it’s quite another knowing you are paying top dollar for it. Fortune Magazine reported that over a third of its “50 Most Powerful Women in Business” had a stay-at-home spouse.

As far as social integration, stay-at-home dads may have an advantage. For example, at school the “alpha” mom doesn’t feel threaten by a dad taking a leading role in the PTA, nor does a dad feel like he has to compete with the “alpha” mom. People are more likely to cater to a father when he walks into a store with his children, whereas if the mom walks in with kids she often receives a look like: Please don’t let her children break anything.

What are the disadvantages of dad staying at home? A father who chooses to stay home and not work may suffer from the employment gap. Future potential employers may think they have lost or reduced their business skills and expertise when trying to reenter the work field. Alternatively, not all dads who stay home choose not to work. The numbers of stay-at-home dads consist of not only fathers who do not work, but also fathers who work part time or work from their homes. Another disadvantage may be that the arrangement is simply not financially workable, so the family may struggle with implementing their decision.

The mom stays at home trend has shifted and the growing idea of Stay-At-Home Dads is becoming an accepted reality in today’s world. In the next five years, you may turn on the television and see dad seeing mom off to work and then tending to the children, and possibly even baking some brownies for the upcoming bake sale.

Stay-at- home dads are still fighting old myths and prejudices, but make no mistake: kids are in very good hands with dad.

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Father’s Rights: Visitation Enforcement

What is needed for visitation enforcement?

1.A valid court order that has been signed by a judge or issued by the district clerk’s office, certified as having been signed by a judge.

2.Be sure to read your order thoroughly. If you do not understand any of the provisions, take it to an attorney and have them explain it to you.

3.The custodial parent must have been validly served with the court order or it must be shown that the they had prior knowledge of the court order and its content.

4.The custodial parent must have full knowledge of the above two factors and must be intentionally and willfully violating the court order.

Despite the fact that you may have a valid court order, many police departments do not want to get involved in enforcing civil orders. If you call the police department and show them the order they may or may not assist you in gaining access to your children. Despite whether you get your children or not, you need to ask them to create a police report stating that you were there to pick up your children and noting the time and date you were present. If the police refuse to prepare a report, go to a local grocery store or fast food restaurant and purchase something so that you have a receipt stating that you were in the area and stating the date and time you were there.

How to prove a denial of visitation.

Take a witness along with you – preferably an off-duty constable or deputy or neutral party. Have your witness stay in the vehicle, but with the window down so that he/she can hear any conversations that take place. Have your vehicle parked in such a way that the witness can see you at all times.

Take a copy of your divorce decree along with you which shows you are suppose to have possession of your children on the date and time you arrive to pick them up.

Always be on time, and if possible a few minutes early.

If the custodial parent does not answer the door or have the child available to exercise visitation then call the police and request a Police Incident Report. If the police will not issue a police report then make sure you document the incident as best as possible. After two or three violations, take the reports, along with any witness statements, to an attorney to discuss how to bring an enforcement action against the custodial parent who is violating the order.

Take a tape recorder with you, have it running from the time you approach the residence, and do not stop it until you leave. Keep the tape recorder running as you leave the area.

As you approach the residence state the following facts in the recorder: your complete name, the address you are approaching, the reason you are there “I am going to pick up my children as stated in the final decree,” state who is with you and why, state the time of day, state when you are leaving and a brief description of what occurred. Keep a written record of each recording and label them according to date.

Keep a calendar of each denied visitation.

Make sure you have a credible witness each time you try to exercise your possession with your children.

Do not argue with your exhibit-spouse regardless of how angry you are or whether you get your children or not. Staying calm will work in your favor in the long run.

If you file an enforcement action, if the custodial parent continues to deny you visitation after the suit is brought, continue to go and knock on the door to exercise your visitation, as each separate violation of the court order can be used in the enforcement action.

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I Need A Father – (A Fathers Role in Child Custody)

The number of fathers caring for their children is growing at a rate almost twice that of single mothers. The bottom line is more men are choosing to be hands-on fathers. In addition, presumed joint custody — or shared custody by both parents of children of divorce — is now the law of the land in most states.

Scores of research have documented the positive effects of a father’s involvement in a child’s life. Regrettably, currently approximately 30% of American children live without their father’s involvement in their life.

As the number of women in the work force has increased, some men appear to have become more involved in fatherhood and show greater interest in child-care responsibilities. With more women in the workplace than ever before — 68% of women with children under 18 — divorce courts in most states are not simply awarding custody and care of children to mothers by default. In some cases, the mother has neither the time, nor the will, to care full time for her offspring. In other cases, she may not have the financial means. The gradual progress towards leveling the playing field for women at work has resulted in slowly leveling the playing field at home. The law is beginning to catch up as well. Divorce laws of more and more states are taking into account the importance of children maintaining relationships with dads as well as moms after divorce.

Following is a sample of what other sources have had to say about the risks faced by fatherless children:

•63% of youth suicides are from fatherless homes (Source: U.S. D.H.H.S., Bureau of the Census)
•85% of all children that exhibit behavioral disorders come from fatherless homes (Source: Center for Disease Control)
•80% of rapists motivated with displaced anger come from fatherless homes (Source: Criminal Justice & Behavior, Vol 14, p. 403-26, 1978.)
•71% of all high school dropouts come from fatherless homes (Source: National Principals Association Report on the State of High Schools.)
•70% of juveniles in state-operated institutions come from fatherless homes (Source: U.S. Dept. of Justice, Special Report, Sept 1988)
•85% of all youths sitting in prisons grew up in a fatherless home (Source: Fulton Co. Georgia jail populations, Texas Dept. of Corrections 1992)
After economic factors are excluded, children reared in fatherless homes are more than twice as likely to become male adolescent delinquents or teen mothers.

Recent studies have suggested that children whose fathers are actively involved with them from birth are more likely to be emotionally secure, confident in exploring their surroundings, have better social connections with peers as they grow older, are less likely to get in trouble at home and at school, and are less likely to use drugs and alcohol. Children with fathers who are nurturing, involved, and playful also turn out to have higher IQs and better linguistic and cognitive capacities.

The divorce process is difficult for all involved. It is far better for the children if the parents are able and willing to place them outside of difficult divorce issues. Children want to run and laugh and play. In many cases they are not mature enough to process adult issues. Keep heated issues between the adults and away from hearing range of the children. No matter how angry a parent is, they should promote the children viewing the other parent in a positive light. Children need positive role models. Even if a parent feels the other parent has wronged them, it is just as wrong for that parent to take away the ability for their children to have a parent they can be proud of and look up to.

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Step-parent Conflict: Put the Kids First

Step-parent Conflict: Put the Kids First

Thirty seven percent of families in the United States are blended families.  Sixty percent of second marriages end in divorce.  A biological parent has his hands full, but as most step-parents will tell you, their job is even more complicated. 

 

Following a divorce, it is not uncommon for a new step-parent to become the target of unprovoked spite or anger.  In many cases, the previous-spouse harbors unfounded fears that their child will look to a new step-parent as a mother or father replacement figure.  This can engender resentment to what may already be an uncomfortable situation between parties.  Regretfully, these issues often escalate very quickly.  Such resentments place the children squarely in the middle of a bitter fight between the people they love the most and are not healthy for anyone involved.  The pain of conflicting loyalties to each parent and a child’s feeling of being “caught in the middle” of such disputes exacts an enormous emotional toll on a child.  When a parent is in a rage, it is not uncommon for a child to withdraw.  The child’s behavior towards the non-primary parent may abruptly change.  This change in behavior may have more to do with keeping the primary parent happy than it does with how they really feel about the non-primary parent or step-parent.  It is essential that you make it clear to your child that you love them and will always be there for them, regardless of the emotional or less than rosy current circumstances. 

 

It is crucial to a child’s self-esteem and emotional growth that parents avoid putting children in the middle of such disputes.  This can be incredibly difficult, however, when a selfish or manipulative parent does not think twice about wrongfully placing his or her child in the middle of conflict.  Children are very perceptive and as they grow older they will ultimately realize when a parent has lied to them and used them for their own emotional or financial gain.  Though they may temporarily identify with the aggressors, in time they will deeply resent the parent who has manipulated them.

 

Regardless of the circumstances, it is critical that biological parents avoid arguments or conflicts in the presence of the children.  Such conduct is conducive to parental alienation goals of the misguided previous spouse.  If the child sees that you maintain a calm and collected demeanor, it gives them reason to pause and feel safe. 

 

If a previous spouse is making statements to the child regarding issues that should only be discussed between adults, tell the child that such discussions are inappropriate and you will take them up with the other parent at another time. 

 

It is ok to tell your child “I am sorry,” if they are upset, even if you are not the parent upsetting them.  This validates that they are hurting and relieves any false guilt they may have over things that are being said and done when you are not present.  It is sometimes helpful to use everyday situations to explain conflict to your child.  As an example, when dealing with conflict explain that “brothers and sisters fight, but they still love each other.  Families have to work through conflict in order to stay together.  I would not leave you if you made a mistake, I would not want you to leave me.”  Such statements reinforces that reasonable conflict is ok and assures the child that you will remain a constant force in their life regardless of the situation.

 

If you feel that the conflict has escalated to a point of becoming emotionally abusive and/or destructive to the child, consult an attorney.  It may be in the best interest of the child that he or she be removed from the primary parent and placed with the non-primary parent so that he or she is allowed to love all parental figures, parents and step-parents alike, unconditionally

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Torn Apart: Children and Divorce

Despite the difficulties faced in a divorce, the children should not be placed in the center of the crossfire. During the divorce process, and sometimes following the divorce process, it is not uncommon for a parent to become so wrapped up in anger, vengeance or simply being “right” that they forget the effect the whole process is having on the children. Below are some behaviors to avoid and some suggestions to assist you with improving your communications during the divorce process:

1.Do not use children as messengers between “mom” and “dad.”

2.Do not criticize your former spouse in the presence of your children because children realize they are part “mom” and part “dad.”

3.Resist any temptation to allow your children to act as your caretaker. Children need to be allowed the freedom to be “children.” Taking on such responsibility at an early age degrades their self-esteem, feeds anger and hinders a child’s ability to relate to their peers.

4.Encourage your children to see your former spouse frequently. Promote a good relationship for the benefit of the child.

5.Do not argue with your former spouse in the presence of the children. No matter what the situation, the child will feel torn between taking “mommy’s” side and “daddy’s” side.

6. At every step during the divorce process, remind yourself that your children’s interests are paramount, even over your own.

7. If you are the non-primary parent, pay your child support.

8. If you are the primary parent and are not receiving child support, do not tell your children. This feeds a child’s sense of abandonment and erodes their stability.

9. Remember that the Court’s view child support and child custody as two separate and distinct issues. Children do not understand whether “mommy” and/or “daddy” paid child support, but they do understand that “mommy” and/or “daddy” wants to see me.

10.If at all possible, do not uproot your children. When a family is falling apart, a child needs a stable home and school life to buffer the trauma.

11.If you have an addiction problem, whether it be drugs, alcohol or any other affliction, seek help immediately. Such impairments inhibit your ability to reassure your children and give them the attention they need.

12.If you are having difficulty dealing with issues relating to your former spouse, discuss such issues with mental health professionals and counselors.

13.Reassure your children that they are loved and that they have no fault in the divorce.

Though these steps are not all-inclusive, they will assist you in dealing with the complex issues of a divorce and hopefully minimize the impact of the divorce process on the children.

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Cohabitation and Domestic Partnership Agreements in Texas

Premarital and post-marital agreements in Texas have a complex history immersed in the community property presumption, the sate constitution, statutes and case law. Originally, such agreements were found to be unenforceable. But with amendments to the Texas Constitution, evolving statutes, recent case law, and improved draftsmanship, such agreements are now enforceable under contract law.

For some couples living together is a precursor to marriage; for others, there is no intent to ever marry, or the law prohibits the marriage, as in Texas with same sex marriages. The simple fact is, domestic partnership agreements involve a wide variety of circumstances, which may or may not involve the gay or lesbian couple.

Many couples choose to live together so they do not lose certain benefits under current rules of social security, military and insurance disability programs, or to stop those benefits from being taken away from their children. In other cases, couples who are divorced, and who may have children, may want to protect certain assets. In situations such as trust funds or inherited funds, beneficiaries simply do not want to place family money at risk. Other couples choose to shelter their own resources from the real or perceived obligations of their partner.

The marital agreement is considered to be a contract under Texas law. The premarital agreement must be in writing and signed by both parties. No actual consideration is required; however, to conform with contractual law, it may be wise to provide benefits for the non-monied party to avoid a later finding of unconscionability, particularly if the financial condition of the non-monied party under the agreement will be poor.

Matters that may be dealt with in a premarital agreement include, but are not limited to, the following:

1. the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;

2. the rights and obligations of each of the parties in any of the property of either or both of them whenever or wherever acquired or located;

3. the disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;

4. the modification or elimination of spousal support;

5. the making of a will, trust, or other arrangement to carry out the provisions of the agreement;

6. the ownership rights in and disposition of the death benefit from a life insurance policy;

7. the choice of law governing the construction of the agreement; and

8. any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

Child support may not be adversely affected by a premarital agreement. Therefore, provisions providing for the elimination of child support upon separation or divorce are unenforceable. However, provisions for private education, college expenses, and choice of residence may be included, but may still be reviewed by a court to determine if they are in keeping with public policy.

In post-marital agreements, it has been noted that a fiduciary duty exists that is not present in pre-marital agreements between spouses or prospective spouses. Case law states that a confidential relationship between husband and wife imposes the same duties of good faith and fair dealing on spouses as required of partners and other fiduciaries. However, adverse parties who have retained independent counsel may not owe fiduciary duties to one another. Texas Legislature enacted Section 4.105 with the understanding that married spouses owing fiduciary duties to one another would negotiate and execute post-marital agreements. Not withstanding these duties, the legislature manifested the strong policy preference that voluntarily made post-marital agreements are enforceable.
Cohabitation, domestic partnership, premarital and post-marital agreements may be as creative as a party determines necessary. However, care must be given to see that such agreements protect the party, keep with public policy, and adhere to current Texas family law and applicable contractual law.

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BEWARE: Social Networking Sites and the Law

Social Networking Sites originated in the mid-1990’s, but only recently began to expand across the web. Two of the largest social networking sites are MySpace (with over 118 million members) and Facebook (with over 120 million members).

The concept of social networking is easy enough. You begin by filling out a profile, then you look for people you know. When you find someone, you click to add him or her as a friend. Once this is done, you can see who your friends know, who your friends’ friends know, and so on. Social networking is a wonderful avenue for connecting with persons across the globe, but must be done with caution. Keep in mind, pictures, comments, and other information placed on your site may be accessed in any number of ways and may upon proper predicate be used against you in litigation.

Family law practitioners can uncover a wealth of information using social networking sites. Many firms are now making it routine to perform MySpace, Facebook and Match.com searches to see if they can obtain useful information on the opposing party, witnesses, or experts. Such diligence has paid off in some cases. In one case in particular, pictures were discovered of a wife’s sexually explicit boasts on her boyfriend’s MySpace page. The evidence obtained assisted lawyers in securing child custody for the husband. In another case, an attorney was able to undermine an opposing spouse’s credibility when she confronted him with his MySpace page describing him as “single and looking.” While yet another case was won because a husband presented himself as “divorced” and gave a long description of the type of woman he wanted to meet. Information obtained from these sites can be very useful when counsel is trying to provide proof of a spouse’s infidelity. Therefore, is important to carefully and periodically monitor what you place on your social networking site.

Social network evidence may in most cases also be used in child custody cases. Pictures of a parent in various compromising situations while a child or children are in the parent’s custody can present a major problem in a custody lawsuit. Partying, drinking, and negative statements about children used on social networking sites can be offered as evidence in Court. Parents should use caution when placing pictures and other information on their social networking site.

Keep in mind that your employer can access your social networking site. In one case, a partner in one of Dallas’s larger law firms used MySpace and Facebook to uncover details of a client’s former employee and her plans to circumvent a non-compete agreement.

Social networking has also been used in sexual harassment cases. In Houston, Texas, a plaintiff was portrayed as a modest, innocent “wannabe nun.” The opposing counsel found a MySpace page that painted a very different picture of a plaintiff, with numerous photos of her in scanty or provocative attire and engaged in suggestive horseplay at bars and with friends.

Evidence obtained from social networking sites has been used in personal injury and in criminal cases. Attorneys are running cyber checks on jury pools. Many firms are running cyber searches on new clients, witnesses, opposing parties and experts.

In the ever growing and expanding world of cyberspace, it is becoming increasingly important that you inform your counsel of any and all internet usage, sites and blogs which you have joined or participated in so that they may represent you and be properly prepared.

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In Sickness and in Health: When is the Right Time to Prepare a Will

Despite the recent drama over Michael Jackson’s death, he did many things right when it comes to end-of-life estate planning. The most critical thing Jackson did was to name a business associate as executor to carry out his wishes and designate a guardian for his minor children. He also set up a family trust that should keep the division of his estate out of the public eye.

As opposed to Jackson, Steve McNair, former NFL quarterback, died intestate (without a will). According to reports not personally verified by the writer, McNair had a wife, two children from a former marriage, and two children from a previous relationship. Now, instead of being able to decide for himself how his property should be distributed, the distribution of his assets will be determined by a formula set forth under state law.

Too often people do not get around to making a will. The problem is there is no deadline to make sure it is done before your death, and people do not like to think about dying. It is important to remember that if you die without a will state law dictates what happens to your property and assets and a court of law may determine who has custody of your children.

While mortality is a difficult topic to discuss or think about, leaving your family with large financial decisions isn’t pleasant either. Start by assessing your overall financial picture – your net worth. You need to identify not only your financial investment assets but also the value of your real and personal property.

Craft a will. With the assistance of an attorney, you can outline how you wish your estate – your assets and liabilities – to pass through after your death. Your assets along with your debt will need to be handled by your family. Identify anything that may need to be taken care of in case you are incapacitated. Check on taxes that may need to be paid by your estate. Remember to keep your will updated if you move, remarry, divorce, or experience any significant change in your life.

In some cases you may wish to discuss your desires with trusted family members. By letting others know what your plans are, you can prevent misunderstandings after your death. In some cases complete privacy is indicated. Choose an executor. Whether it is a family member or friend, the executor needs to be someone that can be trusted to handle the decisions and paperwork surrounding your death and the probate of your estate. Choose a successor. Be careful when choosing a spouse whose health may be failing along with your own.

Protect your assets with a trust. Setting up trusts can allow you to provide for your family and beneficiaries after you are gone and in some cases bypass probate and the associated expenses altogether. Plus, in the appropriate case and jurisdiction a trust may aid in lessening the potential taxes on your estate. Talk over your planning and estate needs with a financial advisor. You can provide an income to a surviving spouse and children, safeguard your assets until your children reach a set age or establish a trust for a charitable organization. The benefits of a trust are: federal unified tax credit to leave assets tax-free; providing income to one beneficiary for his or her lifetime, and the balance to others; professional investment assistance and management; and postponing estate taxes with property transfers. The various types of trusts you may want to consider and/or discuss with your attorney are: revocable living trust; testamentary trust; living trust; and irrevocable and charitable trusts.

Keep your children in mind. Make sure that you name a guardian who will care for them into adulthood. Establish how you want your children to inherit your estate, whether it is through investments or trusts. Choosing the guardian of your children is very important. Be sure that whomever you name is aware of and willing to take on the responsibility. You may want to also take into consideration their age and health.

Periodically review your plan (especially in the case of divorce or death of a spouse or beneficiary). Your estate will change over time. Do not assume that what you set up five years ago will be what is best for your present estate. Money grows, investments change, you may downsize your housing needs – reassess your plan and make the changes in writing.

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A Father’s Uphill Battle – I Love My Children

A regrettable truth in family law often finds one parent unilaterally removing a child from the other parent while dissolving a marriage without any grounds or evidence of wrongdoing. Not surprisingly, disturbing numbers of children are routinely separated from loving, responsible parents for reasons that have nothing to do with their wishes, safety, health, or welfare and many times have to do with a lack of proper legal counsel.

In 50% of the marriages that end in divorce, 80% of these are over the objection of one spouse (close to 100% when children are involved). I am sure you have heard about “custody battles,” but you probably do not know that many start out with one parent taking a child from the other and refusing visitation until a court orders possession sometimes months down the line. You have heard about the witch hunt for “deadbeat dads,” but did you know that many of these fathers are well educated men who have lost their jobs due to a downtrodden economy and still love their children and want to play a leading role in their lives and upbringing. You have heard the hysteria over “child abuse,” but did you know that many accusations against fathers are shown to be false and used by one parent as a weapon to alienate the children from the other parent.

David Popenoe in his book “Life Without Father” tells us that negative consequences of fatherlessness are all around us. Evidence indicating damage to children growing up in fatherless homes has accumulated in near tidal-wave proportions. Fatherless children experience significantly more physical, emotional, and behavioral problems than do children growing up in intact families.

Children from fatherless homes are:

• 5 times more likely to commit suicide


• 32 times more likely to run away


• 20 times more likely to have behavioral disorders


• 14 times more likely to commit rape


• 9 times more likely to drop out of high school


• 10 times more likely to abuse chemical substances


• 9 times more likely to end up in a state-operated institution


• 20 times more likely to end up in prison.

(Information from Mark Hall, Father’s Manifesto).

In “My Rewar, My Punishment…My Son, Sons of Divorce,” Steven Manchester describes the situation many dads are dealing with when exercising visitation:

“I’d take my son for our court-ordered visits, only to drop him off two hours later, so another man could bounce him off his lap. Ironically, each new boyfriend was given all the time he wanted with my son. At first, it killed me, but I decided, “Whatever’s best for my boy. His happiness must come first!” Though it stung terribly, that attitude sustained me all the way to Christmas.

I waited in my old driveway for 4 excruciating hours, while three inches of snow muffled the screams from the cab of my truck. When they finally pulled in, my ex-wife snickered, “I must have lost track of time?” and handed over my son. I was livid! My boy was dead tired and half-asleep. And the EX…well…she just grinned, confident that there was nothing I could do about it. It took everything I had left to conceal my tears. I didn’t plan to give her anything for Christmas and was doing my best to stick to the plan.”

It is a sad scenario. 

In divorce court, many fathers are left feeling that everything they have done, years of hard work, years of tender love, years of unstinting devotion to their family and children count as nothing.

In the 1960’s women fought hard to get laws passed to protect them against family violence, stalking and sexual harassment.  The shame is that women of the 1990′s now use these same needed and appropriate laws wrongfully to their advantage and feel justified in punishing their spouse for wrongs they feel have been done to them by misusing the legal system; and in the process erase fathers from the lives of their children!

The facts are that many times the courtroom becomes a legal battleground.  Inadequate counsel or absence of counsel can result in decisions that negatively affect children and the family for years to come.

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Psychological Impact Of Marital Dissolution On The Nuclear Family – or

The cost, effectiveness, pain, and complexity of a divorce is frequently directly related to that point in time in which the man and woman accept an emotional divorce. Generally, the divorce commences at the time of the filing of the petitioner’s original petition and ends, absent appeal, thirty days following the entry of a final judgment of divorce. The emotional divorce, however, may occur prior to the commencement of the action, during the commencement of the action, or following entry of a final judgment. Likewise, the emotional divorce may be accepted prior to the commencement of the action, following the filing of the original petition or after entry of a final judgment. Although there are a number of cases in which fault primarily rests with one spouse, experience has shown that emotional acceptance, in the vast majority of divorce cases, can only occur when both husband and wife accept partial fault. In other words, at the core of all marital disputes is the unrecognized and repressed reality that both parties may have made a poor judgment in electing to commence the marital compact in the first place.

 

Absent adult and real emotional acceptance of some level of partial responsibility for failed judgment, divorce wars can evolve primarily to establish who is “wrong” or “responsible” or “at fault” and generally lead to higher costs, attorney’s fees, expense, expert fees and other strategical expenses necessary to fully put forward the position of the client. The ammunition employed by the attorney on behalf of the client is available from a number of categories, including temporary and, in some cases, post-divorce alimony, asset distribution, asset allocation, child support, possession periods with the children, holidays with the children, payment of attorney’s fees, depositions, document discovery and analysis, psychological evaluations, drug testing, etc.

If, in fact, the emotional acceptance of the dissolution has occurred prior to or relatively near commencement of the divorce proceeding, it is much simpler and emotionally constructive to address the underlying core issues in the divorce more quickly and effectively. Those issues in a relationship with children, blended or otherwise, should and frequently do in an acceptance situation, revolve around the best interest of the children and the constructive approach to an adult respectful resolution that takes into account the future stability and workability of the husband and wife and particularly the children to a relationship. Frequently, the key to a quick, more cost effective and therapeutic result is the employment of qualified counselors to aid the parties on this very difficult and complicated road that must be walked prior to commencing a different life following dissolution. When there are children involved, the sooner the parties recognize that though they may divorce one another they are not divorcing their children, the sooner the recovery process can begin. Regardless of fault, responsibility or other adversarial issues, for both husband and wife, there will be future soccer games, T-ball games, graduations, marriages, funerals, reunions and other social events which in all reasonable probability, they will both be in attendance. So long as both spouses place the best interests of the child above their own best interest, in a large majority of the cases, regardless of who is at fault, a reasonable and cost effective result may be expeditiously accomplished.

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Boomer Prenups – Sign Now or Forever Hold Your Peace!

Baby Boomers are increasingly deciding to enter into prenuptial agreements prior to marriage to protect and manage their assets should they part ways through divorce.

What is a Prenuptial Agreement? It is a legal document that establishes in advance how property, assets acquired or received by gift during a marriage and family heirlooms passed from family members to one of the parties will be owned or divided in the event the couple should part ways.

Prenuptial Agreements have become very popular with Baby Boomers (born between 1946-1964) since they have on the average accumulated more money and assets and can afford to pay for adequate protection. Since 2006, 80% of Family Law Attorneys have seen a marked increase in couples who sign prenups, according to a survey sponsored by the Matrimonial Lawyers Group.

In the current financial crisis, with a 31% drop in home values and a 53% drop in stock portfolios, Boomers have been hit the hardest, which has accelerated the trend. Boomers have therefore become more cautious in holding on to their remaining current assets.  Boomers are also blending homes and corresponding obligations. Prenups are becoming the Estate Planning Tool of the future!

Given Boomer age ranges, they are more likely to have been married and divorced multiple times.  4 out of 10 Boomers have experienced a divorce and by their 50th birthday, 27% have moved on to a second or third marriage.

So When Should Boomer Couples Consider Having A Prenup?

1. When significant assets are involved such as a home & property, retirement funds, stocks and bonds, or liquid assets.
2. When there are children of a previous marriage. The children’s interest, past and future, need protection since most states by law give the surviving spouse up to half of the estate.
3. When one spouse owns all or part of a business.
4. When one spouse is much wealthier than the other spouse.
5. When one spouse is much older than the other spouse.
6. When one spouse is supporting the other while he or she attain an educational degree.
7. When there is an inheritance involved.

When both spouses feel that the possibility of a divorce and expenses related to it are a bad idea and wish for a premarital binding understanding, what should they do?

1. Hire a qualified lawyer to prepare a fair and binding agreement according to their wishes and needs.
2. Make full disclosure of all property, financial accounts, debts, and assets involved.
3. Comply with requisite state laws.

If one acknowledges that nearly half of all marriages end in divorce, a prenuptial agreement can avoid a number of unnecessary expenses, reduce attorney fees, and avoid state mandated arbitrary divisions.

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Foreclosures in Texas – Can I Save My Home?

Amidst the Government’s halt on foreclosures, Bank of America has stopped seizing foreclosed homes in all 50 states, but is continuing to sell homes that have already been foreclosed on and is still processing new foreclosures. 

Outside the major banks and even in states that do require a judge to look over the bank’s shoulder, foreclosures are going forward at a head-spinning pace.  The nation’s regrettable mortgage crisis continues.  One million residences have fallen into foreclosure since 2006 and an additional 5.9 million are expected over the next four years.  Lenders and investors will have to acknowledge huge losses and try to figure out how to keep borrowers making at least some monthly payments. 

However, when the housing disaster ends, the lenders’ contention that they have done as much as possible to limit foreclosures and follow appropriate laws in doing so is hollow at best.  The industry simply has not stepped up to address the volume of the problem.  And as the crisis moves forward, more people are falling through the cracks.

For lenders and loan servicers, civil lawsuits claiming deceptive sales practices or violations of consumer protection laws are becoming more prevalent as foreclosures grow in numbers.  The Mortgage Electronic Registration System, which was created to handle mortgage transfers between member banks, is facing its own legal problems.  A lawsuit filed on Sept. 28 in federal court on behalf of Kentucky homeowners claims that MERS was part of a conspiracy to create false promissory notes, affidavits, and mortgage assignments to be used in mortgage foreclosures.  Similar class action suits have been filed in Florida and New York. 

Title insurers will also be in court bringing and defending lawsuits.  The insurers will be going after banks or whoever has assured them there was a clear title.  The costs for title insurers to defend customers and reimburse for lost properties rose 14 percent, to $480.5 million in 2010’s first half. 

Persons buying homes in foreclosure are facing their own worries as paperwork errors raise question about the validity of the titles needed to prove ownership.  Defective documentation has created millions of blotched titles that will plague the nation for the next decade. 

Meanwhile, as public outrage continues to mount, many homeowners are reclaiming their homes through the Courts.

In general, Judges are unlikely to look favorably on a bank that claims paperwork flaws do not matter because the borrower was in default on the loan.  There must be some integrity in the foreclosure process and the conduct of lenders pursuing their right under loan documents.

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By All Means – Stop the Foreclosures (Part II)

Being forced to move from one’s home because one can no longer afford to make the payments is a problem devastating thousands of families throughout the United States in today’s tough economy.  Borrowers whose equity has evaporated in the struggling economy have little or no excess funds to use to save their homes.  Mortgagees have turned to the banks for assistance with home loan modifications and refinances as an alternative to the unavoidable humiliation and financial disaster resulting in a foreclosure, making it difficult – if not impossible – for them to maintain or acquire a new home mortgage for years after. 

How bad is it?  RealtyTrac, the online foreclosure listing service, reports that during the three summer months, the number of default notices, scheduled auctions of foreclosed homes and bank repossessions climbed to 930,437, up by nearly 4 percent from the previous quarter. During this period, one in every 139 houses in the United States received a foreclosure filing.  Foreclosures in the United States grew 21% in 2009.  At this time, there is no set number for 2010; however, one can bet it will be a daunting figure.

Foreclosures involve documents that must be properly submitted before the actual foreclosure can proceed legally. Homeowners, lawyers and analysts have been citing problems with foreclosure documentation for the last few years, but it appears to have reached such intensity recently that banks are beginning to re-examine whether the foreclosure papers are being prepared properly and whether homeowners are receiving proper statutory notice prior to foreclosures.

Today it is not uncommon for the original note and deed of trust signed by the parties to be sold to a mortgage servicer who does not maintain the original signed documents on-site.  A deed of trust contains specific foreclosure language and procedures that must be followed in the event of a default.  The servicer therefore has no clue as to what notices may exist in the note and deed of trust.

One of the leading culprits of the foreclosure crisis is a lack of communication within the banks themselves.  While the loan modification department begins working with mortgagees to refinance and/or modify their existing loan, the delinquent loan is forwarded to the foreclosure department to initiate foreclosure proceedings.  In some cases the home mortgagees are told to stop making payments so their loan will become “toxic.”  They are led to believe that this will assist with the modification being pushed through.  Unfortunately, by the time these families find out that they do not qualify for the loan modification, the home is already set on the foreclosure block or sold without proper notice to the homeowner.

Lawyers are discovering documents signed by Lender employees who say they have not verified crucial information such as the amounts owed by homeowners. Other problems involve questionable legal notarization of documents, in which, for example, the notarizations predate the actual preparation of documents — suggesting that signatures were never actually reviewed by a notary.  Affidavits are placed on foreclosure documents that swear to the accuracy of the foreclosure proceeding even though the procedures stated have not been followed.  Frequently the “affiant” has no personal knowledge when the affidavits are signed.

Other problems occur when notarizations take place so far from where the documents were signed that it was highly unlikely that the notaries witnessed the signings, as the law requires.

On still other important documents, a single official’s name is signed in such radically different ways that some appear to be forgeries. Additional problems have emerged when multiple banks have all argued that they have the right to foreclose on the same property, a result of a murky trail of documentation and ownership.

The sad shame of it all is that the industry that helped create the home mortgage crisis, is now feeding the crisis through bad business practices.  Many believe the foreclosure crisis is having a ripple effect, a drop in city revenues, a spike in crime, more homeless and vacant properties.  Cities are cutting revenues.

If you have received notice of foreclosure or you believe that your home has been improperly foreclosed on, contact counsel immediately.  It is far easier, more effective and less costly to stop a foreclosure from taking place before the fact than it is to reverse a foreclosure after the fact.

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Preventive Legal Care - Relatively Simple Things Make Large Differences in Legal Costs

A commentary by Dallas Attorney Mark Nacol

During the last 37 years of general practice in a number of civil areas, I have had the opportunity to observe repetitive mistakes and decisions made by clients in regard to whether or not preventive legal care is cost-worthy.

Most prudent people do not think twice about having their teeth cleaned, becoming vaccinated for the flu or other childhood illnesses, going to their doctor if they are dizzy, having speech problems or other symptoms of stroke diagnosed or changing the oil in their automobile.

The average person clearly acknowledges the flu shot is definitely preferable to two weeks in bed. Basic dental hygiene trumps a root canal every time. A blood thinner medication is far preferable to paralysis or brain damage, and early detection of cancer or other invasive diseases, may significantly improve prognosis for recovery.

On the other hand, when it comes to the ordinary individual’s legal needs, I have noted throughout the years and continue to note a juvenile and somewhat cavalier attitude. The result is denial and refusal to consider relatively small fees required to bring preventive legal care into play.

Depending on the size and nature of a man, woman or a couple’s estate, probate planning in the form of wills, durable powers of attorney, medical directives, medical authorizations, medical powers of attorney, testamentary and/or intervivos (living) trusts can avoid future attorney’s fees from 50 to 100 times the amount required for preventive care. Probate and/or litigation without a will in a large estate, disability, dementia, Alzheimer disease or other medical issues requiring guardianship and/or extraordinary legal procedures vastly exceed the basic costs of preventive care. The cost of fixing the legal problem after the event is extraordinary versus the simple matter of preventive legal care in the first place. Fees ranging from $500 to $5,000, depending on the complexity of the estate or matter, at first blush might appear large but may frequently be increased by 2 to 3 zeros in complicated, complex litigation that can last for years.

Marital prenuptial agreements are emotionally delicate, but may be a useful and significant tool to provide creditor protection throughout a marriage and reduce the cost of dissolving a marriage, an unfortunate circumstance, by thousands and thousands of dollars.

A properly prepared and executed contract for the purchase and sale of land or for the purchase and sale of a business when accomplished before the transaction is essential in fixing the rights of the parties, establishing enforceability of their promises and the cost necessary to force compliance with those promises. Time after time, I find a client who comes into my office and looks at me with dog eyes and says, “Can you help me in this business transaction? I’ve already signed the contract.” My response, of course, is “Yes, it is my pleasure. But, it is going to be far more expensive now than if you had simply prophylactically entered into an enforceable agreement prior to the conduct you allege is fraudulent or the subject of a breach at this time.”

The examples above may be extended into almost every area of the law. Why in the world would anyone want to market an invention, a well known mark of their business or trade, a manuscript or other written document without first having protected those items through trademarks, patents, copyrights or, at the very least, non-disclosure agreements? A common complaint echoed throughout the years has been the significant cost of the judicial system and the financial burden of enforcing ones right in the courts of law of the state or federal government. With a bit of foresight and ingenuity and the help of an ethical, competent attorney, and the willingness to spend a smaller sum of money, many of the problems, disappointments and disenfranchisements with the judicial system may be bypassed altogether.

In closing, I am reminded of the classical advertisement by Mr. Goodwrench. “Pay me now or pay me later.” Preventative maintenance of the most important legal aspects of your life are as important as preventive maintenance of your car. Have you priced a new engine versus a can of oil lately?

Supervised Visitation in Texas – Part 1

Former spouses often use informal visitation arrangements as an opportunity to assault, harass, stalk, and emotional abuse their children and former partners. In addition, some parents will use their children as a means to hurt the other parent by denying access to the child(ren) even though such access has been ordered by the court, i.e. failing to be at home during scheduled visitation periods, failing to bring the child(ren) to a scheduled location for the other parent to exercise their court ordered visitation, faking illness, etc.

Supervised visitation takes place between the non-custodial parent and his or her child(ren) in the presence of a third party who observes the visit to ensure the child’s physical and emotional safety. Though sometimes reasonably and successfully ordered, visits voluntarily supervised by friends and family in their homes can be fraught with danger for the child and parent, as well as the monitor, especially in cases of domestic violence. Family members may trust the parent whose visits are being supervised and therefore may not take proper or sufficient measures to assure the child(ren) are watched or monitored at all times during the visit.

Consequently, when supervision is indicated, possession / visitation supervised by a neutral third party with the capacity to enforce effective safety measures is normally ordered and enforced by the courts. The expenses of such supervision are often excessive and may in themselves create a detriment to possession by a parent. Such agencies may also provide reports and recommendations to the court based on the success or failure of the supervised visits. Such recommendations assist the courts in making informed decisions regarding supervision and whether continued supervision in the best interest of the child(ren).

If supervised visitation is requested, some type of compelling reason and evidence, based on the circumstances surrounding the child(ren) must normally be established. Such evidence may include denial of access, drug addiction, mental or physical abuse, neglect, or severe mental illness of a parent. The following is a potential list of acts and/or circumstances that may be considered contrary to a child’s best interest.

• Violence or physical endangerment – A noncustodial parent may be denied visitation rights if the parent has abused the child or threatened physical violence.
• Emotional harm – Where sufficient proof is offered of potential emotional harm or that standard visitation has detrimentally affected a child’s welfare, supervised visitation may be ordered.
• Child’s wishes – A court may consider the child’s wishes as to visitation. The weight given to a child’s preference is dependent on the child’s age, emotional stability, maturity and motives.
• Abduction – There must be a showing that there is a strong imminent probability of abduction to limit visitation on this basis.
• Substance abuse – A parent who abuses drugs or alcohol may be ordered to supervised visitation restrictions if the conduct endangers the child or if the parent uses abusive language and/or mistreats the child.
• Mental illness –Mental incapacity may be a reason for supervised visitation only if it is determined by the court that there is a reasonable potential for harm to the child due to such mental illness.
• Sexual behavior – Courts rarely deny visitation solely on the basis of a non-marital heterosexual relationship. Courts will, however, cancel overnight visitation by a child with a parent because of the parent’s cohabitation on a showing of an adverse and material negative impact on the child.
• Incarceration – Visitations due to incarceration may be suspended only on a showing that such visits are detrimental to the child.

To have more of your questions answered on supervised visitation in Texas, or for answers to any other Texas child custody concerns you may have, call Dallas Divorce attorney Mark Nacol of the Nacol Law Firm P.C.

Texas and Federal Confidentiality Laws – Use Caution with Your Texas Divorce

There are many legal and proper ways to obtain proof of a spouse’s infidelity. Take care to avoid tactics used to obtain private information that may violate federal and Texas confidentiality laws and a spouse’s right to privacy. You may be tempted by others to obtain proof of a partner’s infidelity by various inappropriate and/or illegal methods. Reading emails, recording telephone calls, installing spyware or geographical tracking devices or even setting up hidden cameras are just a few methods a spouse may be offered when entertaining the thought of catching a cheating spouse. However, such actions may expose both parties and their attorney to civil liability and possible criminal penalties. Under Texas law, it is a crime to install a geographical tracking device on a vehicle owned by another person. When emotions are running high, it is imperative that you seek proper counsel as to the proper legal action to be taken when establishing facts.

Both federal and state wiretapping laws apply to divorcing spouses. A spouse may sue the other spouse or their agents for invasion of privacy. Federal law regulates electronic surveillance of conversations and access to emails, faxes and voicemail. The law imposes civil and criminal sanctions for intentional interceptions of electronic communications. However, accessing email after it has been transmitted, i.e. downloading a text from your telephone or email from the hard drive of a family computer, is not an offense under the Federal Act. Texas has laws that also prohibit the interception of communications. Under such laws, counsel may also be held liable if they disclose information received from the intercepted communications provided by their clients.

Federal and Texas laws both allow recording of telephone calls and other electronic communications with the consent of at least one party to the communication. Under the one-party consent statutes, a spouse may record conversations in which he or she is participating. This has been extended to include parental recording of a child’s conversations with a third party, including the other parent. The parent can consent to the recording on behalf of the child so long as the parent has a good faith objective and a reasonable belief that it is in the best interest of the child, even if the child is unaware of the recording.

It is important that a spouse take great care in their means and methods of gathering information for your divorce in Texas. Information obtained by illegal means can expose one, even if he or she is a spouse, to civil liabilities and possible criminal prosecution. Texas recognizes that every person has a certain right to privacy. Such right is violated if a person intentionally intrudes upon the private affairs of another by offensive means. Accessing stored email or secretly recording a spouse can be a violation of a spouse’s right to privacy. If a suit is filed, the damaged spouse may recover monetary damages, including punitive damages.

For answers to your questions on gathering information for your Texas Divorce, contact Dallas Divorce attorney Mark Nacol with the Nacol Law Firm, P.C.

Forming a Corporation in Texas

A corporation is a legal entity that is granted a charter recognizing it as a separate legal entity having its own privileges, and liabilities distinct from those of its shareholders. When it is formed it becomes a separate entity from the people who own the stock of the corporation. For this reason, a corporation’s actions are made by the corporation and not by an individual person. This legal distinction is what separates the liability of the Texas corporation from the individual and is a major consideration in deciding to form a corporation.

Anyone can form a corporation in Texas. A corporation can form another corporation. Once the corporation is formed, the entity formed is responsible for all actions done in the corporate name. The new entity is required to file state and federal taxes and acquire any licenses to do business in the name of the corporation. The corporation can purchase insurance, own real estate and cars and other assets or personal property as if were a natural person. It is responsible for actions both good and bad done in its name. If a corporation fails, shareholders normally only stand to lose their investment, and employees will lose their jobs, but neither will be further liable for debts that remain owing to the corporation’s creditors.

Corporations can exercise human rights against real individuals and the state, and they may be responsible for human rights violations. There are five core characteristics of a business corporation:

•Legal personality
•Limited liability
•Transferable shares
•Centralized management under a board structure
•Shared ownership by contributors of capital

Generally, the corporation files articles of incorporation with the government, laying out the general nature of the corporation, the amount of stock it is authorized to issue, and the names and addresses of directors. Once the articles are approved, the corporation’s directors meet to create bylaws that govern the internal functions of the corporation, such as meeting the procedures and officer positions.

•Some of the advantages of a corporation are as follows:

•Shareholders have limited liability for the corporation’s debts or judgments against the corporation.

•Generally, shareholders can only be held accountable for their investment in stock of the company.

•A Texas corporation may deduct the cost of benefits it provides to officers and employees.

•A corporation pays 15% federal income tax on taxable income up to $50,000; 25% tax on income from $50,001 - $75,000; 34% tax on income from $57,001 - $100,000; 39% tax on income from $100,001 - $335,000; and 34$ tax on income over $335,001

There are some disadvantages to a corporation. The process of incorporating a business in Texas may require more time and money than other forms of organizations and the corporation may be monitored by federal, state and some local agencies and as a result require have more paperwork to properly comply with regulations. Incorporating may also result in higher overall taxes in some circumstances.

If you are in the Dallas, Fort Worth area and need help with forming a Texas coporation, contact The Nacol Law Firm, P.C.

2009 IRS Tax Changes for Claiming Children for Exemption Deductions

2009 tax year and forward, the Child Dependent Exemption Tax Deduction rules related to divorce have been amended by the Internal Revenue Service.

The changes to the 2009 tax code are as follows:

1. The custodial parent, for 2009 & forward, is the one with whom the child resides the greater number of nights during the year, regardless of the divorce decree terms.
2. You must obtain IRS Form 8332 (Release of Claim to Exemption for Child of Divorce or Divorced Parents) to claim the exemption if you are the non-custodial parent. The divorce agreement or court order will not be used to substitute for IRS Form 8332.
3. The custodial parent can unilaterally revoke the release of a child exemption for calendar years 2009 & forward, even if the release was made prior to 2009.

The parent claiming a dependency exemption on the child/children is the only parent eligible for the following tax benefits:

* Dependent Exemption Deduction
* Child Tax Credit
* Child & Dependent Care Credit
* Education Credit or Education Expense Deductions
* Earned Income Credit
* Head of Household Filing Status

With all the new changes, all non-custodial parents who plan to take a dependency exemption should obtain IRS Form 8332 for 2009 & forward tax years. A divorce agreement or court order cannot be substituted!

In any future settlement agreements that include a provision for a non- custodial parent to take a dependency deduction for one or more children in one or more future tax years, have the custodial parent complete IRS Form 8332 when executing the settlement agreement. Sometimes it is very difficult to get ex-spouses to sign off on papers at a later date!