Monday, March 16, 2009

Can My 12-Year-Old Decide to Live with Me?

No. One of the most common mis-perceptions about Texas law is that once a child turns 12, he or she can decide where he or she will live, meaning the child can decide who has custody.

I would ask all parents out there to think about how many major decisions a 12-year-old gets to make alone and have the decisions bind his/her parents.
  • Whether to attend school?
  • Whether to do homework?
  • Whether to drink or do drugs?
  • Whether to get a tattoo or piercing?
  • When to start voting?
  • When to start driving?
  • What films to view?

Those are all major decisions that parents, generally, don't abdicate to the children. Courts don't either. And state law doesn't either.

The reasons: lack of maturity, lack of experience, lack of knowledge and lack of legal capacity. Basically, we know children are usually not prepared to make serious decisions. Some children may be perfectly capable of making some of those decisions, but usually, that is not the case.

If you read the section of the Texas Family Code dealing with a choice of conservator, the Code does permit a child of at least 12 years of age to file a written statement to name the person the child prefers to decide his/her primary residence. In other words, a child can sign a written statement stating his/her choice for custody.

The key phrase follows that part of the Code: "subject to the approval of the court". In other words, the judge always makes the final decision. The child does not get to make a binding decision.

My suggestion is to keep the children out of the court system. They don't need to be involved in choosing sides. Kids usually lack the maturity to make a good decision. Plus, it puts kids in the middle between the parents, and that's not good. If necessary, the judge can interview a child (at least 12 years of age) to find out some facts about the case. Even then, it is unlikely that a judge will ask the child to name who should have custody. The parents are perfectly capable of finding and presenting all the necessary facts for a judge to make the decision.

What do you think about letting kids have a say on this topic?

Monday, March 9, 2009

Can I Get a Do Over?

Recently, a reader sent a comment in response to a post in this blog. The comment asked for legal advice about what could be done in a specific situation in her case. I do not answer such requests for advice for someone who is not a client, but the comment did raise some interesting points about a situation that many encounter. What can you do if you want to change the terms of the property division in your divorce decree after it is final?

The simple answer is: "Nothing." The real answer is: "It depends." Note -- on kid issues, such as possession schedules, custody or child support, you can simply file a petition to modify. On property issues, it's a different ballgame.

Technically, there's nothing that can be done once the judgment is final. Of course, if the second thoughts hit soon enough, the judgment may not yet be final and you can file a motion for new trial or a motion to reconsider. That generally needs to be done within 30 days of when the judge signs the decree of divorce or signs an order overruling a motion for new trial or takes some similar action. These deadlines are critical. If you figure out on the 31st day or later that you want the ruling changed, you are probably out of luck.

If you realize the need to change the terms, or if your circumstances change dramatically, soon enough, you can file a motion with the court and try to convince the judge to set aside the original decree of divorce. With the economic turmoil we are experiencing, there might be a new situation that is compelling to a judge, but don't expect a judge to reverse a prior ruling just because things haven't turned out the way you expected. Getting the judge to set aside the decree of divorce is still a long shot.

But, whether you can actually do something to change the decree of divorce, outside of the first 30 days of when it is signed, depends. It depends on whether you and your ex-spouse can reach an agreement. In many cases, you're probably out of luck. If you don't get along with your ex, you probably can't get him or her to agree to change the terms unless you can show that the change would be in his or her best interest.

What can you do to avoid the problem of being trapped by property division terms that just don't work? Here are my suggestions.

1. Think ahead. It's hard to see into the future, but be aware of what's going on in the world and try to anticipate your needs in the future. Don't just blindly ask for 50% of everything. Put a little thought into your proposal for property division.

2. Don't burn your bridges. Sometimes, you can't help it, but other times there is a possibility of having a mature, civilized relationship with your ex-spouse. That is especially true when there are children involved. Even though you may strongly dislike your former mate, try to be nice because you may need a favor down the line.

3. Try to be agreeable. If you reach an agreement to settle your divorce, you probably have a better chance of reaching other agreements if you need to change things in the future. You can often do things by agreement that a judge would not, and perhaps could not, do.

4. Don't procrastinate. If you see a problem developing that relates to the property division, consult a lawyer and look at your options. Do so at the earliest possible time so that you might be within the initial 30-day window. If you are well past that time, still act as soon as possible so that your ex-spouse will not be as entrenched as he or she may be later on.

5. Be persistent. If a lawyer tells you there's nothing that can be done, consult with another lawyer. Some attorneys are more creative than others and some are more willing to try out-of-the-box approaches. Lawyers have different experiences and perspectives, so keep looking around until you have exhausted the possibilities.

6. Find a reason for your ex-spouse to agree. Put yourself in your ex's shoes. What would entice him or her to agree to do what you want done? What's the benefit to him/her? Be prepared to sweeten the pot a little and give up a little extra to get the deal done.

7. Put your agreement in writing. If you are able to reach an agreement with your ex-spouse, be sure to get it in writing and spell it out so the agreement is clear. If nothing else, create a contract that is binding for both of you.

I don't mean to create false hope here. If you want to change the terms of the property division in your divorce decree, your chances are slim. But you do have a chance, if you act as soon as possible.

Monday, March 2, 2009

If You Need to Wait Because You Can't Afford to Divorce...

There is a lot of discussion going on about whether the number of divorces being filed is decreasing. Many observers say that is true because of the economy, and it makes some sense. As bad as a family situation may be, many people begin to feel that they can't afford to get divorced.

  • Some people are experiencing the mortgage crisis in their lives. Home values are plunging in many areas, although not as much in North Texas. Tarrant County home values, so far, are still doing pretty well and houses are selling, but who knows for how long. Even so, it is harder to get mortgages now.

  • Many people are losing their jobs. Again, although Tarrant County seems to be stronger than many other areas, unemployment has greatly increased. Everyone is eventually affected by what is happening everywhere else.

  • The stock market fall has badly damaged many retirement accounts and investment portfolios. The values are down by a third to a half, sometimes more.

  • With prices rising, even for those people lucky enough to hang onto their jobs, it is hard to pay for food, fuel, utilities and other necessities.

  • Insurance costs are going up and coverage is falling. Health care costs are increasing. Anyone with health issues now certainly faces greater difficulty in paying for necessary services.

Given those circumstances, it's no wonder that people may be deciding to wait on a divorce until they can better afford it.

For people choosing to wait, here are some other options:

1. Get a post-nuptial agreement. Many people are familiar to some extent with pre-nuptial agreements. I have written about them before. A post-nup is like a pre-nup, only later. Texas law allows a married couple to sign a partition agreement to divide their assets and liabilities. It can also provide for how present and future income will be managed. While it is not cheap, a post-nuptial partition agreement is probably much less expensive than a divorce and it will accomplish about the same thing as a divorce as far as property division. An attorney would be needed for each side. I would suggest using Collaborative Law to work out the agreement on the best possible terms for both parties, so you would be best served by contacting Collaborative lawyers.

2. Do financial planning. This is a less dramatic step than doing a partition agreement. The couple could meet with a financial planner to brainstorm ideas to find the best way to manage their finances during the downturn and into the future. A lot of the stress people are experiencing is from uncertainty about survival now and in the future. Getting qualified help to plan a strategy may resolve the concerns and leave the parties in a better frame of mind. A certified divorce financial planner or a regular financial planner can probably help you with this.

3. Take steps to enhance your marriage. Getting counseling is a common suggestion, but it makes sense. If you feel like you can't afford a divorce, but one or both of you is miserable in the relationship, then maybe you should try to make the relationship more bearable. Sometimes a marriage retreat can be helpful. There may be some groups around that you could join. Or, you could go to individual and couples counseling. Things around the house might really improve if you and your spouse follow through with counseling. Even if your marriage doesn't survive, at least the divorce later on might be more civilized. First, contact a marriage and family therapist and give it a try.

If you are haveing serious problems at home with your spouse, but you think you can't afford a divorce, you should consider the suggestions above.