Did you watch Christina Jimenez and Josh Floyd from The Jimenez Law Firm discuss Divorce in Texas on Monday? Here is your opportunity! Join us again next Monday at 7 am when the attorneys at The Jimenez Law Firm will discuss Child Custody in Texas.
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The Jimenez Law Firm, P.C., provides representation through legal advice and experienced courtroom litigation in a wide range of family law practice areas, including:
-Family Law
-Child Custody
-Grandparents Rights
-Child Visitation
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-Divorce
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The Jimenez Law Firm, P.C. specializes in Family Law. Our offices are located in Flower Mound, Lewisville, and Odessa, Texas and we provide representation to residents throughout North Texas and West Texas who are struggling through a wide range of legal dilemmas. Many legal situations can be resolved through negotiation and mediation. When this communication breaks down, however, it is important to have an attorney on your side who has courtroom experience.
We are not only skilled negotiators but accomplished trial litigators. In fact, we prepare for every case as if it would be decided in court. Clients appreciate our attention to detail and our thorough preparation. We represent residents of the Dallas-Fort Worth Metroplex in communities such as Lewisville, Denton, Dallas, Fort Worth, Flower Mound, Westlake, Southlake, Frisco, Plano, Carrollton, Farmer’s Branch, Irving, Grapevine, Highland Village, Richardson and in residents of West Texas such as Odessa, Midland, Monahans, Andrews, Crane and Fort Stockton.
At 00:05 We are live on Facebook. Good morning everyone my name is Christina Jimenez and we have Mr. Floyd as well, say hello Josh.
At 00:21 Hello Josh and today is our first time using Facebook live. We are going to do our best to work out any bugs. We’ve never done this before kind of thing. I’m sure that we will have some technical difficulties along the way and for that, I apologize.
At 00:41 My name is Christina Jimenez and I am an attorney over in Texas. We have three firms. One in west Texas two in the Metroplex. I am board certified in family law. I’ve been doing this for about 14 years. Floyd tell the folks a little bit about yourself. So same thing I mean I practice in Texas in all three offices.
At 01:10 I’ve been practicing for nine years now. I think we primarily handle family law cases. We do dabble in some criminal stuff but primarily handle family law cases.
At 01:20 We’ve tried thousands of cases of all types and so we’re hoping to be able to answer some questions. What we are going to do today is we’ve kind of gone online.
At 01:33 I’m trying to figure out how to look at these comments as well to see if anybody posts anything, asking any questions.
At 01:41 Floyd if you could do that as well that would be helpful. But we did kind of pull some questions that we had found online from various sources.
At 02:04 It’s very important to remember that when we’re kind of talking about these things we’re speaking in generalities, kind of with just hypothetical information. It is so very important that when you find yourself in a situation like this and hopefully you don’t find yourself in a situation like this but if you do that you go out you find an attorney that you think is going to be able to suit your needs, discuss these issues with you, and really pay attention to all the nuances of a case.
At 02:44 After doing this for so long, the one thing that I have come to realize is it’s really the specific information about people’s cases that can really make a huge difference. So don’t just listen to what we’re saying. This is kind of general info. Go out and hire a really good attorney that you feel comfortable with.
At 03:01 Make sure that you share your story with them so that they can help you. Floyd, going to the questions, one of the questions that we had was, can I have one attorney for both me and my wife for an uncontested divorce if we agree on the terms of the divorce?
At 03:20 Yes and no. You can have one attorney handle the entire divorce. But, an attorney can only represent one person. I think it would be a conflict of interest to represent both. The way I always do it is I’ll represent one party whoever it is, I’ll do the consultation.
At 03:49 My job is to primarily look after their interest. I think would be a conflict of interest to represent both. One way I always do it is I’ll represent one party whoever it is, I need a consultation with. My job is to primarily look after their interest but that’s going to be a conflict of interest to represent both.
At 04:05 You were saying that it is a conflict of interest for you to represent both. Yes, so we could draft the paperwork and handle it for both parties but only represent one. Typically, what I like to do if in that particular situation is obviously, I’ll consult with the person that wants to hire us.
At 04:43 Every now and again I’ll get both of them that want to call in. They both want to talk to us at the same time and I’ll say no we can’t do that. Let me just talk to one party first and engage in that with that one party.
At 04:57 Then we will negotiate with the other party. We kind of get all the terms together and then at that point I will reach out to the other party and say hey it’s my understanding that this is what you guys have discussed. This is what you want to do. Are you okay with that? If she or he says yep then like you said Floyd we draft all the paperwork and kind of facilitate the process.
At 05:25 In that instance Floyd I always have this question of we want to get this done like ASAP. We want it done you know within the next weeks or so. Is that possible? It’s possible to have the paperwork done as long as there are no complex issues of any kind. But in Texas, you’ve got to wait 60 days before you can be divorced.
At 05:48 What we do in those cases, we’ll go ahead and file the petition, start that 60-day waiting period. In that 60-day period, we’ll get you know the rule 11’s orders, everything drafted up, signed off on, and then we’re just waiting on the 60th day. We can do the prove up and basically announce it to the judge what the agreement is and then be done.
At 06:04 In a lot of times in those situations when I know I have that 60-day waiting period, depending on the type of case and you know how solid my client wants to make this agreement or the other side may even want to make this agreement a lot of times, I will encourage the parties to go to mediation.
At 06:31 Mediation is basically a process where you can go in and you have a third party attorney that is assigned or selected to mediate the case. I would be in the room with one spouse and then the other spouse would be in the other room pro se on their own.
At 06:49 Then the mediator would kind of go through, talk through the terms and then he would say is everybody in agreement.
At 06:58 He would kind of go through the entire process and then at that particular point, we would sign a mediated settlement, immediate settlement agreement is binding.
At 07:09 Once that is signed, even if we have to wait those 60 days, everybody’s in the clear. We don’t worry about anybody backing out on the agreement.
At 07:20 I really like it because it gives my clients peace of mind. It gives the other side peace of mind and really is just kind of a formality of waiting for the final court hearing and getting that order entered.
At 07:36 Sometimes the deal that they’re willing to agree to is so good for a client we want to get it done within the next day or two before anybody backs out so it depends on the case.
At 07:50 If it’s a deal that they’re going to come to, we want to just enter the agreement, sometimes try to persuade them to listen to my great legal advice.
At 08:07 Sometimes if the day they want to enter into it after hearing my peace of mind on it then fine. But if it’s not such a good deal for our client, I’m certainly going to let them know that this isn’t a great deal.
At 08:21 We do have that a lot, unfortunately. But you know like you said at the end of the day we have to just do let them do what they want to do. Next question, can I withdraw the money in my 401k account and give it to my parents so I won’t have to divide it and give half to my spouse? Perhaps I should take this question given your last response. No please, please, please don’t do that.
At 08:57 I guess technically the question is, can I? Well yes, you can. Should you? Probably not. There are different things that the court can take into consideration when dividing the marital estate.
At 09:12 Even if let’s say you know that you’re going to be filing for divorce in a month and you say I’m going to go ahead and put all this money into my parents’ savings account and withdraw it. If your spouse hires a good attorney they’re going to track all of that.
At 09:32 There’s going to trace it. There are these rules called a rule 194s. Under the rules, you have to turn over those types of statements even if they don’t. If you don’t turn them over and with the rule 194, there’s discovery, there’s depositions, ways that we can find out that information.
At 09:49 If in fact, you did that, the court could find that you’ve committed some sort of fraud. They can potentially reconstitute the estate.
At 10:02 Let’s say hypothetically speaking you had forty thousand dollars in that 401k. Well, $20,000 of it is technically, $ 20,000 is your spouse’s.
At 10:15 If you’ve given that to your parents and let’s say for whatever reason, we can’t get that money back. What the court could say is well you had $40,000 in that account and there was $40,000 in equity in the home.
At 10:30 I am going to go ahead and just give your other spouse or the spouse the entire equity and the residence to make up for the money that you took from her right. Not only could they do that but it’s not really looked upon very fondly. I don’t think you would be getting a lot of bonus points with the court if you were to do something like that.
At 10:50 Floyd, thoughts? I agree. Then you’re talking about pre-filing rights. There are also the issues with post-filing. If one party is already filed, most have standing orders. If they don’t generally a temporary restraining order will be signed.
At 11:07 That will prevent you from doing exactly that. That’s the purpose of the TROs and the standing orders so that you don’t do that. If it’s post-filing and one of those are in place, then you would be violating a court order also so which has a whole other ramifications.
At 11:24 What are those ramifications, Mr. Floyd?
At 11:33 They could follow enforcement against you and punishment for enforcement. You can be held in contempt. You could be sentenced to jail for six months and you can be fined for $500 for each violation. You could also be required to pay the other party’s attorney’s fees in addition to paying all the money back.
At 11:46 So can you? Yes, you can. Should you? Please don’t. You’re just going to make your attorney’s life much harder if you choose to take that route. Ninety percent of the time it will not accomplish what you’re trying to accomplish.
At 12:06 That’s kind of the unfortunate. I guess depending on the perspective it’s the fortunate thing. That happens a lot in these cases. Typically the attorneys are going to find out. The courts are going to find out.
At 12:24 I try to encourage my clients to just do everything properly. Based on the circumstances of the case, I can get a pretty good idea if it’s going to be a 50-50 split or maybe a disproportionate share where one spouse gets a little bit more.
At 12:42 All these things that people sometimes try to do, they just really never work out in your favor so it’s not something that you’re the first person to think of. We’ve seen this over and over and over.
At 13:00 It’s something we know to look for. We know to pull all the old account statements. We know to go through the bank statements to see where the money’s gone.
At 13:07 You’re not going to be pulling the wool over anybody’s eyes especially if there’s an experienced attorney on the other side. We know to look for these types of things.
At 13:16 Next question, I divorced my wife in 2004. I signed a special warranty lead so I can take my name off the mortgage. What do I need to do?
At 13:40 You can’t assign a special warranty to take your name off the mortgage that wouldn’t do that. It’ll allow the other party to take your name off the mortgage.
At 13:51 I don’t know what their problem is. I guess the other side hasn’t. Is that what the question is? So they go on. They say the divorce decree, it awarded the house to my ex-wife.
At 14:00 I now want to buy a house but I can’t because my name is still in the mortgage. I did sign a special warranty deed and I filed it with Dallas County.
At 14:12 What we call the legal term I think is cluster because it really depends on what’s in the order. Was the person ordered to remove the spouse’s name from the house? If so you can follow motion compel potential emotion for enforcement.
At 14:29 It’s not potentially. It’s going to be more difficult for you because there’s nothing that ordered them to do it. You know this is one of those instances where I really encourage people. When I’m doing consultations or if I’m just talking to a friend or family member to hire an attorney.
At 14:56 I don’t know why but for some people, for some reason, and people have this idea that they can represent themselves in family cases. You know and I tell people all the time, I consider myself to be a fairly intelligent person but if my washer breaks I’m going to call a repairman.
At 15:13 I could probably figure it out but more likely than not I’m going to screw it up more than what it already is. I know that lawyers are expensive. I know that we are not necessarily very likable. I get it.
At 15:34 We are valuable and this is exactly why you know, so what I anticipate may have happened in this case. Either this person didn’t have an attorney or they hired an attorney who was not that experienced and they did not talk to them about the difference between a deed and an ordering the other side to refinance. The way that it works is when you have a contract with a mortgage company that is a binding contract between you and that mortgage company. Even if we come in on the civil end saying hey we’re going to give this house to the other side and it’s now their responsibility and it’s going to be solely theirs, the mortgage companies basically can say I don’t care.
At 16:22 That doesn’t really affect me because you have a contract with me. You’re still on the hook for making sure that that mortgage is paid.
At 16:33 It’s also going to affect your credit and I presume that’s what’s happening to this person is their debt to income ratio is completely out of whack and so they’ve tried to go and get a new home. They can’t get finance for that home and now they’re out of luck. So it’s just one of these important things that you’re talking to your attorneys about that. Typically what we try to do in our cases is we say okay you have a certain amount of time…90 days, six months, a year. I think I’ve done it up to like three years because this dad wanted to make sure that the kids and the mom were taken care of.
At 17:13 We gave them an extended period of time to go in and refinance it. If they don’t refinance it to remove the spouse who’s not going to be awarded the house, remove their names. Then they have to sell it and that’s really the only sure-fire way to make sure that those issues are resolved. The other thing is typically what we would want if you are the spouse that is not being awarded that home.
At 17:42 You’re going to want the other side to sign what we call a deed of trust to secure assumption. Basically what a deed of trust to secure assumption is, it’s a document that if they don’t pay that mortgage, it gives you the right to go in and take that house back and not take it back.
At 18:02 Let me rephrase. To order that it be sold so that they can finally remove your name from that mortgage so you’re not liable for it. That makes me feel really bad for this person, but again this is why it’s important to hire a good attorney.
At 18:22 Next question, we’re still dealing with the home. It says my wife kicked me out of the house. I live in Texas and my wife kicked me out of our home, changed the keys, although my name is on the deed what am I supposed to do?
At 18:44 Can I call the police? We are still married, so you can call the police. They probably won’t do anything because it’s a civil matter. If you broke a window and entered into the home they also wouldn’t do anything either because it’s your house.
At 19:05 Legally, you couldn’t get kicked out of the house. It’s community property. It’s owned by both of you. You can forcefully enter your way back into the house.
At 19:14 I’m assuming since there’s no mention of it, there’s no protective or anything like that, that resulted in the kick out. If she just locked you out then you can go back in.
At 19:26 If there is a protective order or you have orders like that then you need to get an attorney quick. Yes, you are still married. Just because she kicks you out doesn’t mean you’re not married. I thought he said we are still married.
At 19:43 That’s not, it doesn’t. I thought it said, my dyslexia kicked in you are correct we are still married. I’m very good, but I guess we didn’t answer what are you supposed to do? If no case is filed then what you do is get an attorney, file a case, request temporary orders, and request that you get to break exclusive use of the home or that you’ll be allowed to live in the home. That’s the best way to go about it. But if you don’t want to do that, you just want to forcefully go back to the home; you can do that as well. You typically won’t get in trouble with the police assuming that your name is on the deed.
At 20:28 You all are married. They’re going to say you know ma’am this is his property too or her property too. There’s really nothing that we can do about it until you guys go to court.
At 20:42 The judge says that only one of you has to live here. House, is it separate or community property if I purchased a house before marriage outright with no mortgage and in the course of marriage we use community funds for the taxes. Is this considered common funds causing the house to become community property?
At 21:08 Do you want me to answer? You can. I can answer this. Go ahead, I answered the last one. Okay, thanks, Floyd. So purchase the house before marriage that means it’s going to be your separate property. Anything that you own prior to marriage is either gifted to you or you inherited during the marriage is going to be your separate property which means that the other side is not going to have any rights to it.
At 21:38 So, long as like in this example they said that the mortgage was paid off and the only thing that they’ve done is pay for the taxes for the residents. So the taxes don’t really concern me. That doesn’t give them any rights to the actual residence.
At 21:57 It really doesn’t give them any rights to anything just because they helped pay the taxes for community funds. The house would be yours. Now let’s say hypothetically speaking that you had purchased the home before the marriage and then there was a mortgage and you started, you and your spouse started making monthly payments against that mortgage, and then what would happen is you would have a potential reimbursement claim.
At 22:23 Basically the way that that works is any reduction in the principal balance of that mortgage would be subject to reimbursement back to the community. Let’s say hypothetically speaking you buy this house and you guys owe you know $300,000 on this home and you’re married for several years and at the end of it you owe let’s just say $200, 000. You reduce that principal balance of that mortgage by a hundred thousand dollars. What that means is one spouse gets $50,000 the other spouse gets $50,000. The person who’s awarded that separate property residence would have to somehow pay back that $50,000 reimbursement claim at the time of divorce.
At 23:08 You can get that from other assets. You can get a lien on that residence to make sure that it’s paid back. There are all different ways to secure that reimbursement claim, but in any event that house is going to be awarded to the spouse who purchased it prior to the marriage.
At 23:34 These are kind of like bar exam questions.
At 23:51 My wife and I have a pending divorce that has not been finalized. We both agree to nullify the pending divorce.
At 24:10 We have reconciled and no longer wish to pursue a divorce. How do we accomplish this? You would just not suit the case assuming that there’s nothing outstanding that needs to be dealt with.
At 24:24 The other party has an attorney. You would both want a non-suit. You’d make sure you did a joint non-suit that way you did not see your pleadings and their pleading stay active. If you have not suited the case, it would undo everything that was done in the case. If there was any spouse for child support anything like that it was awarded during the case. All that would go away. You would not see the case.
At 25:02 I always get calls or during consultations where the people say we just want a separation agreement.
At 25:20 A legal separation that’s sometimes what they’ll say. That doesn’t exist technically in Texas. If things are happening in your marriage and you’re kind of like I just need to have a little bit of peace of mind and I’d like to have some orders laid down or rules laid down so that we both know what we’re supposed to be doing, don’t just write something down on a piece of paper.
At 25:52 Take it to a notary. If I had a nickel for every single time a client or potential client came in and said well I have this paper and so you know he’s breaking the law. No, he’s not because it’s just a contract that you have and that’s not a separation agreement.
At 26:09 In Texas if you want something that is enforceable by contempt, that we can make sure that everybody’s doing what they’re saying they’re supposed to do or they’re going to do, then you have to file an original petition for divorce. Then the other side will typically file an original counter-petition for divorce.
At 26:35 They don’t have to, but the original petition for divorce is what gets this party started. Then from there, you would draft temporary orders. That is a quote-unquote legal separation agreement.
At 26:51 It is an order where you guys say listen we’re not ready to get divorced just yet. We just want to have rules in place that can cover custody. It can cover visitation, child support, spousal support, use of property insurance if we’re selling something, who’s going to get the proceeds. You can put all sorts of things in there and most importantly we get a judge to sign it.
At 27:21 Because once the judge signs it if people are not doing what they’re supposed to do then the court has the ability to throw that person in jail, fine them, make them pay attorney’s fees. That’s what you want, right? You want accountability when you’re making these agreements.
At 27:36 Do that and it’s worth your peace of mind. It’s worth every penny that you spend on getting that temporary order entered.
At 27:48 I’ve had this happen several times where we do this temporary order and months go by. I typically encourage therapy especially if people are kind of on the fence on whether or not their marriage is going to work out. Go to therapy.
At 28:05 My husband and I, we’ve been married for 14 years. We’ve been in therapy for 14 years. All it does is teach you how to communicate with one another. Go to therapy if that works out for you guys then all we do is non-suit that temporary order.
At 28:18 It goes away. It’s no longer enforceable. If it doesn’t work out for you guys now we have an enforceable order that we can all follow. Then we use that until we get to the final divorce decree.
At 28:38 The only thing I’ll add to that is just clarify, I guess the temporary orders in this situation you were talking about. Yes, legal separation agreement, but that’s not all it’s used for. I guess it kind of is a legal separation agreement.
At 28:56 I always view this more like let’s put a patch on things for right now while we get everything together. We need to finalize the divorce and, like you said, hopefully, we don’t have to. Hopefully, they reconcile and everything goes well.
At 29:09 In a contested divorce case it’s a Band-Aid. It’s this will be for right now. So everybody knows what the rules are while we’re gathering all the documents.
At 29:19 Everything we need to finalize. We have a question on the Facebook comments feed. If I file for divorce, how difficult is it to get some sort of spousal support? I believe she should know the answer to this question. Hi Greta, I’m kind of concerned that you’re asking this question.
At 29:41 We need to do a review. In the state of Texas, everyone is going to be eligible for temporary spousal support at the time of filing for divorce.
At 30:07 There’s a difference between temporary support and a difference between post-divorce household maintenance. The temporary support. Basically what the courts are going to be looking at is there a need for you to get assistance to pay your reasonable monthly living expenses.
At 30:33 If there is, so if you don’t have sufficient income because you’re not working or you don’t get child support or some sort of benefits, then the court can look at all of your expenses and say they need to have additional assistance each month until this divorce is finalized. There’s really no prerequisite other than that on a temporary basis.
At 30:58 A lot of courts are not big fans of spousal support. That’s just something to kind of keep in the back of your mind. We have been successful given the right circumstances, getting some sort of support for our clients. As post-divorce spousal maintenance is concerned, there are certain requirements. You have to have been married for at least 10 years; the other side had to have been convicted of family violence. Is it the proceeding two years Floyd or five years?
At 31:33 I think if you’ve been married for three years with the founding of family violence. There’s also if you’re disabled or if you have a disabled child there are all sorts of prerequisites to be able to get it after or post-divorce spousal maintenance.
At 31:44 You can get temporary spousal maintenance and in most circumstances. She just asked about spousal support in general, not temporary.
At 32:01 We’re going a little more into post-divorce and those qualifications that you were just talking about you know the 10 years, three years, plus family violence, that’s to be eligible for it right to actually be awarded.
At 32:15 You have to show that you have insufficient means to provide for your minimum necessities in addition to having been married for 10 years.
At 32:24 I always tell my clients like this is a big difference in spousal support in Texas and alimony in California. Alimony generally the way I describe it is one spouse is going to keep up the lifestyle of the other spouse right to make sure they still get to drive a Mercedes and all of that, right? In Texas not so much. We’re going to make sure you can eat, you have a place to live, and you have clothes. If you can do that you’re not getting spousal support in Texas.
At 32:50 How complicated is it to get in Texas depends on a lot of things. The length of your marriage, income of both spouses, and also your judge.
At 33:01 There’s some judges that are just no you know go out and make it on your own. There are some judges a little more lenient with it. I mean so typically we’ll do this thing called the financial information statement.
At 33:16 It outlines all your income and it outlines all of your expenses. A lot of times for my men I’ll have my hunting trips as an annual expense.
At 33:28 For my ladies, I’ll have nails and hair and very expensive stuff to continue to maintain. I have found that actually doesn’t go very well with these judges. If you’re going through a divorce and you’re saying hey I need $400 a month for my hair. I need a thousand dollars a month for entertainment. Those are not reasonable living expenses.
At 33:59 Unfortunately most of the time the judge is going to kind of make you cut all that stuff out because like you said Floyd this isn’t you to maintain your lifestyle.
At 34:10 It’s to make sure that you’re taken care of. If you’re contemplating divorce and if you think that you’re going to take your spouse to the cleaners, they’re going to have to maintain all this stuff, that’s unfortunately not typically the case.
At 34:25 It’s so important to go and talk to an attorney in your area because we’re kind of speaking from the metroplex perspective and West Texas perspective. In Houston, the courts there may have a completely different perspective on all of these issues. Go to a local attorney, talk to them and then see what they would recommend.
At 34:47 We have another question. What if my car is in my husband’s name? Can I keep it if we get divorced?
At 35:17 If cars are in my husband’s name can I keep it if we get divorced? Yes all right if it’s purchased during the marriage, it’s community property.
At 35:33 He can cyber power of attorney allowing you to transfer it over to your name. Yes, you can, but it’s always such a pain dealing with that. Here’s the thing. If the husband has a car and wife has a car, the judge is going to make sure that everybody walks away with the vehicle.
At 35:57 What if I have a husband who is not good at paying bills and is going to get behind on the car payment and screw up my client’s credit?
At 36:12 We’re assuming they’re still alone on the car, okay I got you. If there’s still a loan and you give that car to them and then they don’t make payments, I don’t know that they could sign the car over to them if there’s a loan on it without getting it refinanced. I don’t think the lender would let them do that.
At 36:40 You can sign a power of attorney over to them without the obligation of it getting refinanced. The other problem with the vehicles is a lot of times it’s extremely difficult to get it refinanced because they’re upside down, there’s very little equity.
At 36:58 Maybe they have bad credit and you know it’s one of those things that I mean, if at all possible, let’s sell the home and I would, excuse me sell the car, and get them a new car have and them traded in pre-divorce.
At 37:18 We can put in language in the order that if they miss a payment and at that particular point you can go in and you can repossess the vehicle. I have questions with regard to enforceability on that particular order. Messing with vehicles always makes me super nervous if it’s only in one spouse’s name.
At 37:41 If it’s on in both of their names, they both have an incentive to make sure that it’s paid for, so that it doesn’t ruin their credit.
At 38:14 We always try to find a workaround to make sure that both parties are protected.
At 38:34 The wife walks away with a vehicle that husband doesn’t have to worry about his credit each month. Divorce mediations can turn negatives into positive. Is there any way to avoid a flurry of negativity and still carry out a divorce?
At 39:07 There are lots of ways. Don’t be a jerk. I don’t know what they’re asking here. I guess they’re asking about mediation. Should I go to mediation? Yes, go to mediation. We recommend it nine times out of ten. I have had cases where I thought no way in hell is this case ever going to settle and they do with a good mediator, with the right mediator.
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At 39:36 There’s something about the cost associated with going to mediation, the idea of sitting down and just really working through these issues and kind of being able to bargain. Maybe I don’t know post for spousal maintenance in exchange for property, really kind of determining what’s important to you and what you’re willing to give in order to get that. Here’s the thing about litigation, litigation is really fun for the lawyers. I mean I’m sure Floyd agrees.
At 40:13 I would much rather be in a courtroom than in mediation. It’s not typically what’s best for clients and especially if there’s kiddos involved because at the end of the day once the lawyers are out of it you guys are going to have to continue to deal with one another. If you go into that courtroom and if you drag each other through the mud there’s kind of no going back from that. I don’t know that you’ll ever forgive your spouse for putting me through that situation if you go to mediation. You have the ability to talk through things, bargain for things.
At 40:54 Go to mediation. I tell people all the time, just do the right thing like and I know that sometimes it sucks to eat crap. I get it. At the end of the day that is the way that you typically, that’s what the judge is going to do anyway.
At 41:19 Everybody’s going to eat a little bit of crap in the process and that’s how you know you’ve had a good mediation because that’s what the judge is going to do. Make sure that whatever lawyer you hire they’re having those conversations with you. They’re not just listening to you go on these emotional rants and saying all right let’s go into the courtroom because maybe that attorney is just looking for billable time. Talk to them about what do you think the judge is going to do because that’s how you avoid this nonsense of ruining each other and putting your kids and your entire family through this hellhole of litigation. I agree, I mean litigation is nasty. I don’t know how many times I’ve heard I never thought he would use that against me.
At 42:02 They hold no punches when you go to court. Your deepest darkest secrets that you never thought would be revealed are coming out of court. This just gets nasty. Mediation is a much better way to go if you can settle there. Both parents will be reasonable if you can avoid litigation. As much fun as it is for us, settle remediation. For the record Mr. Floyd, Mr. Morgan has just said that I was the best lawyer in DFW.
At 42:30 I’ll speak with Mr. Morgan when we get done here. We had another question about if I have a protective order against my husband will it affect child custody? The answer is yes. If there’s a protective order that means that there’s been family violence. It’s your pattern and judges found that it’s likely going to occur in the future.
At 43:10 If that happens the presumption is the person that has been assaulted it’s my husband. So, mom would be appointed as sole managing conservator which means she would be awarded more of the decision-making rights than the father.
At 43:30 She only asked about custody. There’s a presumption that the husband should only get supervised visits. So yes, it will, in numerous ways also with regard to property, result in disproportionate division. But, that’s not what she asked about.
At 43:52 Here’s what I’ll say about those situations. Number one; there are several hotlines that you guys can call if you find yourself in a situation where family violence is occurring. There are shelters that you and your children can go to if you find yourself in the situation. Please make sure that you are seeking out those resources because a lot of times I feel like mostly women, but I have had men also who find themselves in that particular situation. They feel like there’s no hope and there’s no way to get help. There is, so make sure that you’re seeking out those resources.
At 44:41 Make sure that you’re reporting this stuff. I cannot tell you the number of times that I have had a client come in and say well you know my spouse punched me, they choked me, they scratched me, they grabbed me, they threw me, they kicked me, whatever and I’m like, did you file a report because we need that.
At 45:01 In order to prove all of this stuff, in order to get you this protective order, in order to make sure that you keep custody of your children, and the answer is no. It’s so disheartening. I understand why people do that or they feel like they have to do it. I have had situations where we’re making these allegations and there are no reports, there are no photos, there are no third-party witnesses. We go in and we try to convince a judge that all of the stuff really happened and then the other spouse comes in and they’re super convincing and, you know, most of the time manipulative.
At 45:46 They are able to convince the court that nothing happened and if you cannot prove that by clearing, convincing evidence which is a significant burden then the court may not grant that protective order. The court may walk away with this perception of you that you’re making this up in order to gain some sort of strategic advantage.
At 46:10 If you find yourself in that position, get help. Make sure that you’re documenting it because your lawyer is going to want and need that in order to help you get out of that situation permanently. All the time we hear I didn’t call the police, there are not any witnesses.
At 46:26 There are not any pictures. I always tell them we’ll do this. We can, but it’s not what happened, right? What I can prove, right? If I can’t prove it you know the judge may not believe it. The judge doesn’t believe it then we’re not going to get what we need and it’s not so much what we want.
At 46:45 Sometimes it’s vindictive. I want more property but sometimes it’s an actual need like I need this protective order to protect my kids, protect myself without that evidence. Like you said the burden is high without that evidence. We’re not going to be able to get there to make sure that you are protected.
At 47:02 You are protected so make sure you’re documenting, calling the cops all of that good stuff. Floyd, I think that concludes our questions for today. We’re going to continue to try to do Facebook live. Right now we’re aiming for Monday mornings at 7 00 am, but sometimes we have port mediation and so it might interfere with that.
At 47:26 We’re going to make sure that we’re posting it on all of our social media so that you guys can stay up to date. We will post this on our feed so that way if you know anybody who feels or you feel may get some benefit from this information.
At 47:45 Please feel free to share it. Like I’ve said several times throughout this video is make sure that you’re consulting with a good local attorney. Find somebody who you feel comfortable with, that you think really understands your needs and what you’re after. This is meant to just be general information.
At 48:10 By no means is going to be applicable to every single circumstance because the nuances are what is important. Thank you to all of our lovely friends who commented and asked questions. We really appreciate you guys. Have a wonderful week!
