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Attorney Stephen H. Gordon
Founder and President of
The Gordon Law Firm, P.C.
5820 IH-10 West, Suite 400
San Antonio, Texas
Attorney Stephen H. Gordon
voted as "Super Lawyer" in 2007 by
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Family law cases can be very traumatic. They are sometimes even more time consuming and acrimonious than criminal cases. Often both parties end up arguing that they are all good and the other party is all bad. Both have a tendency to throw as much dirt possible at the other side.
While this feeling is understandable, that is not necessarily the best approach to "winning" a case. In fact, oftentimes with this approach, neither party wins because they both end up looking like they are only interested in running the other person down. Most judges have a tendency to make a compromise ruling anyway, giving neither party exactly what they want.
Unfortunately, over half of all marriages end in divorce. Some are fairly simple and over with quickly. Others are very ugly and go on for months or even years. Which way it goes depends on what the issues are, what the couple is fighting over, and how much each side is willing to compromise.
60 DAY MINIMUM TIME PERIOD
The minimum time it takes to finalize a divorce is 60 days from the date you first file for it. Some couples are able to reach a general agreement about how to divide up their property, and split up custody of their children. If so, we can file for an "agreed" or "uncontested" divorce. This would require both parties to agree to sign off on the "Final Decree of Divorce."
Sometimes, a couple cannot agree on how to settle these issues. There are cases where one person is trying to be fair and the other person is not willing to be fair. In those cases, it is necessary for one person to put their foot down and go into to court to fight for their rights.
Unfortunately, there are sometimes when a person wants to fight mainly out of spite. Or there are cases where one side refuses to compromise at all because they feel they are always in the right. Each person has the right to go all the way to trial. However, insisiting on a knock-down, drag-out fight with your spouse at all costs can delay the process of settling your case for several months beyond that. And sometimes it can cost more to pay an attorney to fight over a piece of property than buy a new one.
That doesn't mean you should roll over and not put up a fight. But you should be prepared to do so in a reasonable manner, not focusing on getting every concession possible, but focusing on getting the things that are truly important and letting the little things go. (Of course, some attorneys may actually want you to fight on every detail because they can bill you more as you go along).
50-50 SPLIT & COMMUNITY PROPERTY
No matter what has happened in your marriage and who is at fault, the judges typically want to split up a couple's property 50-50. Even if one person had an affair. Even if only one of you worked and actually paid for the property. Even if the property is only in one person's name. Or even if one person has put funds aside in their own separate bank account, or has their own separate retirement.
The reason the judges do this is because the law starts by presuming that all the property each of you own is "community property." Also, all money earned and property obtained during the marriage is community property. There are a few exceptions to this rule - such as property obtained by gift or inheritance, and recovery of personal injury proceeds for physical injuries.
Property a person obtained prior to marriage is their separate property. However, if the property was not fully paid off at the time of the marriage, and if any payments were made during the marriage for the property, then the other party may be entitled to reimbursement for community funds spent to make these payments. They may also be entitled to reimbursement for money used for maintenance, upkeep, taxes and insurance paid to take care of the other person's separate property.
GETTING PREPARED FOR CONTESTED DIVORCE
If you are up for a fight, get prepared. What evidence do you have to back up your accusations? Letters? Phone messages? Cancelled checks? Pictures? Videotape? Witnesses? Is it going to be just your word against theirs?
And it is best to make sure you clean up your own life in a hurry. The dirt will most likely be flying both ways. If there are any skeletons in your closet, they will most likely be revealed. Make sure to tell us about any potential faults you have so we can prepare to defend you against them when the other side brings them up in court.
CUSTODY AND VISITATION
JOINT MANAGING CONSERVATORS (JMC)
If children are involved, reaching an agreed divorce can be very difficult. In Texas, the Court usually name both parents as "Joint Managing Conservators." This means that both of them retain all the basic parental rights. These rights include the right to be involved in all decisions concerning the child's health, education, and welfare. It also means they have access to all the child's records and need to be consulted about all the major decisions affecting the child's life.
PRIMARY RESIDENCE OF THE CHILD
However, one parent is typically given the right to decide where the child's "primary residence" is. That means they have the right to have the child live with them. Sometimes this comes with a specific geographic restriction (like Bexar County, or the State of Texas). Sometimes it doesn't. They are referred as the "managing conservator." This is also often referred to as having "primary custody" of the child.
The other parent typically gets something called "standard visitation." This allows them the right to have possession of the child: the 1st, 3rd & 5th weekend of each month; on Thursday evenings; and extended visitation during holidays, spring break, and over the summer. They are referred to as the "possessory conservator." They will also typically have to pay child support to the other parent, and pay for the child's health insurance.
The amount of child support a person is ordered to pay is determined by the guidelines in the Texas Family Code. Generally, it begins as 20% of a person's "net income" for 1 child; 25% for 2 children, 30% for 3 children, and so on, up to 50% total. The amount is reduced slightly if the parent also has children with another person.
The only time a person may not be forced to pay child support is when they are so seriously disabled that they cannot hold any type of job at all. Just being unemployed is not a good enough defense. The judge will typically assume that the person could at least be working a minimum wage job, and apply the guidelines based upon a standard 40 hour a week minimum wage salary.
When determing what a person's "net income" is, the judge typically includes all of the income a person receives, no matter the source.
FACTORS THE JUDGES CONSIDER
It may be hard letting the other spouse get primary custody because it may seem like an admission that the other spouse is a better parent. And of course if the other side gets custody, you will probably end up paying child support, money which a person sometimes can't afford. However, there are cases where both parties are good parents, but one of them has a little more experience taking care of the kids, and more free time to devote to them.
This is a key factor for the judge to consider. The will usually look to see who already has established a track record of being the primary caretaker of the child. If at all possible, it is best to try to settle this part by agreement, and shield your children from the battles with your spouse. Unless there is a history of abuse or neglect, the judges are going to ensure that neither parent is completely cut off from the kids. Also keep in mind that custody arrangements can be modified over time if there is a significant change among the parties' situation.
FIGHTING FOR CUSTODY
If you want to fight for custody, then you must start preparing in advance. Make a list of answers to some tough questions. Why do you want to be the one with primary custody? What specifically makes you be the better parent? If the other parent is so bad, why have you stayed together with them and allowed them around your kids for so long? How involved have you really been in your child's life? What witnesses can back you up on this? Who does your child really want to live with and why?
Get pictures of yourself and your child together smiling and having fun. Figure out where you would live and get pictures of the residence, the neighborhood, school, day-care, etc. and even videotape if you can. Document specifically when and where you have helped take care of your children in the past, and how you propose to do so in the future. Line up witnesses who can testify as to your involvement with the children's lives in the past.
If you have even the slightest doubt about the paternity of the child, you must request testing as soon as possible. If you wait too long (typically 4 years after you are first assumed to be the father), you will lose your right to challenge the paternity. There have been cases of men who have found out later and are still forced to pay child support even after DNA tests prove they are not the biological father.
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Family Law Cases - General Info