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March 22, 2013 by Aaron Tress

Texas Collaborative Law

Collaborative Law History

Texas Divorce Attorneys, Mental Health Professionals, & Financial PlannersOne alternative to traditional, court litigated divorces is collaborative law. Collaborative law was invented in 1990 in Minnesota in an effort to find less destructive methods of divorce. Texas adopted collaborative law in 2000. The Texas Family Code states “It is the policy of this state to encourage the peaceable resolution of disputes.”

Divorcing parties should consider the possibility of collaborative law. Collaborative law divorces offer many benefits that traditional divorces don’t.

Collaborative Law Pros

First, divorcing parties in traditional divorce proceedings are subject to a judge’s ruling. To persuade the judge to rule in their favor, both parties paint the opposing party in the least favorable light. Not only is this system highly confrontational, neither party can directly determine the outcome. Collaborative law, on the other hand, allows the divorcing parties to negotiate their outcome. This method focuses on the interests of both parties and does so in a less adversarial fashion.

Second, traditional divorce proceedings aren’t concerned with the parties’ financial and emotional needs. Besides hiring attorneys, collaborative law encourages the involvement of neutral financial and mental health professionals.

Third, collaborative law keeps couples out of court. This means that information is more private and scheduling meetings is more flexible.

Fourth, collaborative divorces can be less expensive.

Collaborative Law Cons

First, if the collaborative process fails then both divorcing parties must hire new attorneys. The collaborative process fails when an attorney fires a client, when a client fires an attorney, or when one party abandons collaborative divorce for a litigated divorce.

Second, collaborative law is not appropriate in cases of domestic violence, mental illness, or substance abuse.

The Collaborative Law Institute of Texas

The Collaborative Law Institute of Texas is the premier association of professionals who advocate the practice of collaborative law. The mission of the Institute is to “create a culture in which collaborative law is the prevailing process for the resolution of family law matters.” Their website seeks to educate the public about the benefits of collaborative law, and provides names of local legal, financial, and mental health professionals who practice collaborative law. Bill McNamara is a member of the Collaborative Law Institute of Texas.

One excellent collaborative law mental health professional in Lubbock is Ray Holt Brown, PhD PsyD.

Filed Under: Divorce Tagged With: collaborative family law, Collaborative Law, Collaborative Law Institute of Texas, divorce, Lubbock, mediation, Texas

March 8, 2013 by Aaron Tress

HBO Documentary “Don’t Divorce Me!: Kids’ Rules for Parents on Divorce”

Educational Resources for Divorcing Parents

Many good resources help educate parents on how to maintain relationships with their children during and after divorce. For example, I highly recommend Dr. Richard Warshak’s book Divorce Poison: How to Protect Your Family from Bad-mouthing and Brainwashing. Dr. Warshak gives great advice to those parents who find that their ex-spouse is trying to alienate their children from them.

Another outstanding educational resource recently entered the market. HBO released a new documentary, Don’t Divorce Me!: Kids’ Rules for Parents on Divorce. The viewer is shown the effects of divorce on children from the perspective of children. Over two dozen children from the ages of five to ten are interviewed in the documentary. The documentary seeks to impress upon the viewer that they not forget to consider the child’s perspective.

“I recommend that all my clients watch this short documentary. It will make an impact.” —Bill McNamara

 

 

Filed Under: Children, Divorce Tagged With: divorce, divorce and parenting, divorce and relationships, divorce resource, Don't Divorce Me!: Kids Rules for Parents on Divorce, HBO documentary, parents resource

December 3, 2012 by Aaron Tress

When multiple courts may have jurisdiction over my divorce

Q: My spouse and I filed for divorce around the same time but in different counties. Which court has jurisdiction over my divorce?

A: The first to file acquired jurisdiction.

  • “The general common law rule in Texas is that the court in which suit is first filed acquires dominant jurisdiction to the exclusion of other coordinate courts.” Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974).
  • McAlister v. McAlister, 75 S.W.3d 481 (Tex. App.—San Antonio 2002, pet. denied) (applying the Curtis rule to a divorce case).

Q: If I moved to a different county in Texas, how long must I wait before filing for divorce?

A: At least one of the spouses must be a resident of the county for 90 days preceding the filing.

Q: If I moved to Texas, how long must I wait before filing for divorce?

A: At least one of the spouses must be a domiciliary of Texas for 6 months preceding the filing.

Filed Under: Divorce Tagged With: competing jurisdiction, concurrent jurisdiction, Coordinate jurisdiction, courts, divorce, first to file, Lubbock, overlapping jurisdiction, residency requirement, Texas

November 26, 2012 by Aaron Tress

How Tort Awards are Divided in Divorce

Q: How does Texas divide property in divorce?

A: Texas is among a small number of community property states. Community property states distinguish between separate property and community property. Property that constitutes separate property is set out in the Texas Family Code and case law. Everything that is not separate property is community property. Divorcing spouses keep all of their separate property. Community property, on the other hand, is divided between the spouses.

Q: What property constitutes separate property?

A: The Texas Family Code limits separate property to

  • property the spouse owned before marriage;
  • property acquired through gift, devise, or descent; and
  • recovery for personal injuries, unless the recovery is for loss of earning capacity.

Q: Which types personal injury damages are separate property?

  • Damages based on a loss of consortium are separate property. Whittlesey v. Miller, 572 S.W.2d 665 (Tex. 1978).
  • Damages based on a parent’s mental pain and anguish at the wrongful death of a child are separate property. Johnson v. Holly Farms of Texas, Inc., 731 S.W.2d 641 (Tex.App.—Amarillo 1987, no writ).
  • Recovery for medical expenses during the marriage and recovery for loss of earning capacity during marriage are community property. Graham v. Franco, 488 S.W.2d 390, 396 (Tex. 1972).

Q: What if I move to Texas from an equitable distribution state?

A: As long as the couple divorces in Texas, Texas treats the property as if the couple had always lived in Texas.

Filed Under: Divorce Tagged With: divorce, Lubbock, personal injury recovery, separate property, Texas, Tort awards

November 5, 2012 by Aaron Tress

Amarillo Court of Appeals rules that homestead proceeds are protected from creditors in divorce

In re Marriage of Christodolou, 383 S.W.3d 718 (Tex. App.–Amarillo 2012, no pet.).

This was a case I recently won on appeal. To read the Court’s opinion, see here.

In divorce, courts divide up community property between the spouses. This community property often includes houses. Here, a husband and wife had a house, which was classified as a homestead. (A homestead is a house used as the primary residence.) The designation of their home as a homestead was important because according to article 16, § 50 of the Texas Constitution, “[t]he homestead of a family . . . shall be, and is hereby protected from forced sale, for the payment of all debts.” This protection from forced sale to pay debts also extends to divisions of homesteads in divorce.

The trial court divided the home by awarding the home to the husband. The husband, in turn, was ordered to pay the wife about half of the home’s value in monthly installments.

Notwithstanding the designation of their home as a homestead, the trial court ruled that the money the wife received as her portion of the homestead would be used to pay a debt. The Amarillo Court of Appeals overturned the trial court’s ruling, clarifying that the wife’s portion of the homestead was not subject to pay a debt.

Filed Under: Amarillo Appellate Decisions Tagged With: 383 S.W.3d 718, Amarillo Court of Appeals, article 16 § 50, debt, divestiture, divorce, homestead, In re Marriage of Christodolou, Lubbock, protection from creditors, Texas

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Family Law Blog

  • Sample Voir Dire Questions and Sample Jury Charge – Custody August 6, 2014
  • The Marital Estate: Community Debts May 2, 2014
  • Divorce Myth: Courts Often Do Not Divide Property 50/50 March 28, 2014
  • Special Appearances: Personal Jurisdiction in Divorce March 7, 2014

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