Many people going through a divorce are not familiar with what mediation entails. This article will describe the process and explain its uses and benefits in a divorce case.
What Mediation Is and What It Is Not
Mediation is essentially a settlement conference attended by both parties and both lawyers and facilitated by a third-party mediator who attempts to get the clients to reach an agreement on all issues in their case. Continue reading
At 2:00 p.m. on Wednesday, April 1, 2009, I will be holding a telephone seminar (aka teleseminar). The call is free (except for any long distance charges your carrier charges) and the topic will be “The 5 Keys to Getting a Fair Property Division in Your Divorce.”
I would recommend it for anyone who is getting divorced in Texas or preparing for the possibility of divorce. If you are interested in being on the call just visit the teleseminar registration page for details.
A relatively rarely used Family Code provision enacted in 2005 codifies the use of the “Informal Settlement Agreement” and makes it an especially effective aid in settling a divorce case. As long as the settlement document specifically and prominently provides that it is not subject to revocation and is signed by all parties and attorneys, a party is entitled to a judgment on the terms of the agreement. Effectively this gives the informal settlement agreement a very similar level of enforceability as a mediated settlement agreement and avoids issues that have arisen in the past regarding whether a party in a divorce case has the right to revoke a Rule 11 settlement agreement prior to entry by the court.
It is very common in my practice to use an informal settlement agreement early in a case. When sufficient information exists to address all issues it can be very helpful to make an early offer via an informal settlement agreement, ideally in the first month or so in the case. This will often settle the case outright, or at least begin a settlement dialogue. In my opinion in most cases this is far more advantageous to the client than waiting until the case is several months old. In other words, I like to begin with the end in mind and at least attempt to settle the case in the early stages. While the informal settlement agreement is a great tool in a divorce case, based on a precise reading of the statute its use is limited to divorce cases. As stated in the statute, “the parties to a dissolution of a marriage may agree” to reach an informal settlement agreement. Thus, the statute appears to not apply to other family law issues such as paternity cases or modification cases and those cases are still limited to the use of mediation agreements or rule 11 agreements.
It is important to note that some cases are not good candidates for the early use of an informal settlement agreement, such as ones that require immediate temporary orders or where the client has insufficient information on the finances and discovery will be needed. But in a typical divorce case it can be extremely helpful in reaching a reasonable resolution early, before the parties have expended a great deal in attorneys fees or gotten overly contentious about the case.
Here is an interesting article giving some good advice on how to reduce the trauma and expense of a divorce case. It was written by Cynthia M. Fox, a Missouri family law attorney. Most of her advice focuses on the client being efficient with the lawyer’s time (since that is how most experienced divorce lawyers charge) and not using the divorce process in an abusive or unnecessarily expensive manner.
This is a good read for anyone who is beginning the divorce process and wants to stay grounded throughout it. Her advice is actually quite similar to the advice I gave in an earlier article I wrote on keeping divorce costs down.
Here is an interesting post about relocation cases in the state of Nevada. The author is a college professor in Nevada who blogs about his divorce experience. He describes the relocation statute and how, in his opinion, it is usually applied in a way that allows the custodial parent to move the child away from the non-custodial parent.
The Nevada statute gives very specific guidance to the court making such a decision but some of the factors seem rather weak to me. For example, the statute lists factors the court should consider in making its decision, including “whether housing and environmental living conditions will be improved,” and “whether the custodial parent’s employment and income will improve.”
The Texas Family Code has a statute that requires that all orders naming the parties as joint managing conservators (typically, divorce and paternity cases) to give the exclusive right to establish residence to one parent (this is generally what determines which parent is “primary”). That statute further requires that the order state whether the residency is restricted to a specific geographical area (and if so what area) or that there is no geographical restriction. The vast majority of Texas cases include a geographical restriction. A typical example would be a restriction to Harris County, Texas and the contiguous (surrounding) counties.
Unlike Nevada, the Texas Family Code does not provide any specific guidance as to how the courts are to determine relocation cases. So when a custodial parent with a residency restriction wants to move that parent would file a petition to modify, essentially asking the court to remove the restriction. Ultimately, the standard applied by the court in deciding the case would be whether the move was in the child’s best interest.
Although a lot of factors would be considered, in most cases the biggest factor is how involved the non-custodial parent was in the child’s life. If that parent was very involved with child, the custodial parent probably would have a difficult case to win. If the non-custodial parent was uninvolved, the custodial parent would have a much stronger case.
For any of you who pay alimony under a Texas court order, just be glad you didn’t get divorced in Canada. Andrew Feldstein’s Family Law Blog had a very interesting (and from the perspective of an alimony payor, somewhat scary) post about a Canadian Court that modified post-divorce alimony upward (something that cannot happen under Texas law). Apparently, this can routinely happen in Ontario, the jurisdiction where Andrew practices.
Ben Steven’s excellent South Carolina Family Law Blog had an excellent post on Tips to Help Blended Families Succeed. I frequently do consultations with post-divorce clients on potential modification cases. Very frequently the real issues boil down to an inability for the parents and the new stepparent(s) to co-parent effectively and communicate reasonably with one another. A lot of people in that situation would do well to follow the advice given in Ben’s post.
One of the most far-reaching revisions to the Texas Family Code in decades was the increase in the child support guideline cap that went into effect in the Fall of 2007.
The statute is Texas Family Code Section 154.125.
This was the first time since 1995 that the amount of the cap had been raised. The increase will only impact cases were the payor makes over $100,000 per year, but my guess is that literally tens of thousands of divorce and paternity orders per year in Texas fall into this category and will now yield a higher child support amount.
Under the old guidelines a Court was limited to considering the first $6,000/ month of payor “net resources” (a statutorily defined term that is usually close to the payor’s after-tax pay). The amendment raised this cap amount to $7,500/ month.
The end result is that a court setting child support under the guidelines in a case where the payor has an annual gross income of $125,000 and one child will be setting the child support at $1,500/month. Under the old law this would have been $1,200/month.
It should be noted that the amendment did not automatically effect previous orders and applied only to cases filed on or after September 1st.
Anyone receiving child support under an existing order who was subject to the old cap may have the right to a child support increase based on this statutory change by filing a modification case. Given the large number of existing child support orders that were set based on the old cap, there are probably a huge number of cases in the state where there are very good grounds for a modification.