Christina Jimenez and Josh Floyd from The Jimenez Law Firm answer your Family Law Questions every Friday at noon on Facebook Live! Join us weekly as they discuss Divorce, Grandparents rights and Child Support issues.
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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
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-Grandparents Rights
-Child Visitation
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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.
00:05 I’m going to need you to get it together like you’ve had all week to get together.
00:11 Yeah, I’m just not very good at getting it together or keeping it together.
00:16 I was saying I almost wore my red shirt today too so we could have been twinsies. So welcome to the consultation and my name is Christina Jimenez and this is also Mr. Floyd he is an attorney as well. I’ve been practicing all now for 14 years. Floyd, you’ve been practicing for almost 10 and today we are getting it together.
00:55 Now can I hear you?
00:56 I don’t know can you hear me?
00:57 Nope oh wait because I’m on mute. Now?
01:05 Hello.
01:06 Got you. All right where are we?
01:10 We well I was just introducing you and myself. Okay, so what we do during the consultation is if you send a comment on Facebook live, we will do our best to answer those questions as we receive them. We also have other questions that we have been asked in the past and we kind of walk through those fact patterns. We tell everyone to take this kind with a grain of salt it’s general information for you to get a little bit of insight on different family law issues, for you to have some information about issues that may or may not be relevant to your situation, but you always have to take the time the opportunity to go and seek out independent counsel, sit down and visit with an attorney, and get your story out there and let that attorney tell you “this is what we need to do in a particular situation.” Okay, and the hope is just that we’re kind of getting some good stuff out here that will maybe eventually help some people in their family law cases we’re just trying to spread a little good in this kind of ugly world sometimes. So, first question.
02:23 First question you have already read it which is why I got the first question I assume. Okay, warrant will expire…
02:34 Oh hi Ashlyn, hi bestie.
02:37 Hi love you. Okay, so Ashlyn’s my daughter by the way for those of you that don’t know. So, “warrant will expire if start pay child support, I went to overseas to take care of my parent got sick and stuck. I could not come back.” Also, for the record, that’s misspelled which is while I was struggling with the word stuck. “I missed my court day and I’m behind so much on child support. After six months I finally came back to the states. I got a job and will start to pay child support. If I start a portion of my child support will my warrant expire?” Okay, so…
03:25 I get to answer the question if you ask the question.
03:35 Okay, Christina, I guess this is a question that you want to answer go ahead.
03:40 Thank you Floyd, I appreciate that. Okay, so, no, your warrants will not expire. The only way to get rid of that warrant is to be detained, to potentially do a walkthrough, pay the bond, and it gets really tricky when it comes to child support because a lot of times, what happens is, the court’s going to, well, whenever they issue a capias because you didn’t appear, typically what they’re going to do is they’re going to set that bond for either what you owe in support or a really high amount. Typically, it’s a cash bond right Floyd?
04:20 Yes, and sometimes it’s no bond.
04:24 Yeah, and so I’ve seen some of these bonds at like 13,000 16,000 and you basically have to pay that to get out. What happens is they hold that money and then once you get out of jail, they will release that money to the mother or the father as support. Now the code does require that when you’re released because of a capias bond on a motion for enforcement, I guess let me back up. Don’t act like you knew. Don’t act like you knew.
05:00 That you’re presuming facts.
05:02 Not enough, okay, so well, wait what do you think I’m presuming.
05:10 That there was ever an enforcement filed
05:12 He says that he missed his court day. And he’s behind so much on child support and they issued a warrant. So, I think that I am safe in presuming that a motion for enforcement had been filed and that, basically, is whenever you don’t pay your support, they’ll file a motion to put you in jail, right? And when they file that motion, they’re also going to file what we call an order to appear and, in this order, it basically says you need to show up on this day, and at this time and if you are served with those documents. And if you do not show up when you’re supposed to, then the court at that time can issue a warrant for your arrest and they will set a bond. And when they set the bond, you have to get arrested clear that bond and then you can kind of go on and start dealing with your child support issues. Now, the code does require that if you’re picked up on a warrant on a failure to appear, isn’t it 72 hours Floyd? Three days or as soon as reasonably practicable or something like that?
06:17 Yeah to set up a bond.
06:18 Yeah to appear before the court so that they can address that issue and potentially allow you to potentially pay a lesser amount, or to let you get out, or to potentially sentence you. So, your warrant’s not going to expire and you’re going to have to unfortunately deal with it. And so, it is very important that if ever you are served with an order to appear that you do show up when you’re supposed to and kind of a side note is, if you are facing contempt charges (that’s what we call a quasi-criminal proceeding) and if you do not have the ability to hire an attorney you can request that the court appoint you an attorney. You have to file what we call an affidavit of independency where you basically say “hey judge, this is how much money I make. I don’t have money to hire an attorney.” And then the court could potentially appoint an attorney to help kind of walk you through those issues. And you most certainly need to take advantage of that, because if not you can go to jail for up to six months on these things. And I guess technically it can be longer, but the standard is six months.
07:29 So, there’s also the possibility of the criminal amount of support, right? Of being a criminal. Which I think in this case you’re probably right. It’s probably just a civil warrant. But there could be a criminal amount support, where you’d be facing like a state jail felony, but have you ever seen that charge? I’ve never seen a charge.
07:50 I haven’t either, but I know it’s a thing.
07:58 Now all the police departments are going to hate us because they’re getting a bunch of phone calls like “I want them charged with criminal non-support.”
08:05 Yes, okay, so motion free trial on a divorce. What’s next? “Ex-husband wants a new trial, and it was granted. He thinks he put in more money than I did on the house. In the first year and a half we lived at our home he was incarcerated, so I was paying the mortgage and even got a loan to pay off property taxes we owed. I left because I knew he had someone else and yes, he had a child with a mutual friend. He thinks it’s separate property, but we bought the house while engaged. He feels he should get more than 50 percent of the property.”
08:44 Yeah, this is a good one. Okay, so first I’ll just answer the what’s next, right? So once the new trial is granted…
08:55 Wait, what’s a new trial Mr. Floyd?
09:00 So it’s not an old one, but it new one. So, after there’s been a judgment rendered, a final order, you have 30 days to file a motion for new trial. There are various grounds under which you could file one. I don’t really understand his basis. Maybe a disproportionate division? Not the correct findings? Something like that, but whatever the case may be there are various reasons why you can file a motion from the trial and so once the motion for new trial is granted, if it’s granted, then it basically it starts everything over again from scratch, and you go back through it. So that’s what’s next. As far as the house being separate property, my gut is telling me that’s the reason new trial was granted. Because the court wouldn’t have the authority to divide that, if it was in fact separate property. They both bought the house while engaged. I’m going to assume it’s in both of their names. But it’s still separate properties, so just putting property in both your names doesn’t make it community. You are joint owners of it, so you each own fifty percent of it as separate property. And yeah so, the court can’t divide it you’re going to have to follow separate civil proceeding and have it divided out that way. That’s the only reason I would understand the argument of paying the mortgage.
10:38 Are you okay today?
10:42 I’m perfect, are you?
10:45 I feel like you’re a little like all over the place
10:46 I don’t. I thought I was right on. Did you think I said something incorrectly?
10:54 I don’t know you just seem a little bit scattered today with that question. So, I was thinking through it, right, because for the purposes of this case it doesn’t really matter. And it kind of does. The mortgage that was paid. The community may have a reimbursement, like they’re really complex. I was trying to figure out how much to get into because I could go on for an hour with this one question.
11:19 Oh yeah, I get it. But you said something that the court wouldn’t necessarily have the authority to divide the property. But the court has the authority to confirm the house as each party’s 50 ownership of separate property, right?
11:47 Right.
11:48 But the court can’t make any party sell it because the court doesn’t have the legal authority to divest you of your separate property. So separate property is property that is owned prior to the marriage, if it’s gifted to you, or if it’s inherited during the marriage, okay? And so, in this case, because they’re saying that they bought it while they were engaged. It would be 50 percent separate property to now buy the 50 percent separate property to now husband. And so, the court, at the final divorce proceeding couldn’t say, “okay, well I’m going to give this entire house to husband, or I’m going to give this entire house to the wife.” Because they can’t do that if it’s your separate property. And so, what Floyd was saying is you have to file a separate civil proceeding. It’s like if you had a partner and you and your partner had purchased a home together, it’s the same concept. You have to go to civil court and ask the court to then force a sale or buy out or something of that nature. And so, as far as the new trial is concerned, I think that that’s sometimes incredibly frustrating for people. So all of your pleadings and everything that happened, even like your temporary orders, all of that still stays in place if a new trial is granted. But you may think that you were divorced, right? And then the motion free trial is filed and then it’s granted, and if you purchased anything after you thought you were divorced, now it gets to come back into the community. And that really potentially sucks because it would be subject to division. I understand what you’re going to say. “Well, the judge might not just give it and they can use discretion.” I understand that and technically it’s community property. And so the motions for new trial are a pain. And I don’t know that you if you were a separate property was the issue like why it was granted? But that whole process is just going to suck.
14:02 Well, so, in this case she’s talking about she paid more of the house than he did because he was in prison or whatever. In the divorce case, none of that’s relevant, right? Except for if she’s claiming I mean the community would have a reimbursement claim but I don’t know if they have other property or not but where do they get it if they have a reimbursement claim? Anyway, it could get really complicated. Hi Nancy! She said Hey to me nobody said Hey to you.
14:36 I know everybody’s saying, oh wait Ashlyn did say hi to me so I’ll take it. Okay, next question. Is it your turn to ask or mine?
14:50 It’s my turn to ask.
14:51 Okay, go.
14:52 Which one do I want to go with?
14:53 We’re going in order Floyd.
14:55 Okay, “how do I get grandparent rights?” Oh good. “My son’s baby Mama does not let me see my granddaughter. It’s going on a year since I’ve seen her. I’ve messaged her to talk to my granddaughter and she doesn’t respond to my messages at all. Last time, I asked her if I could pick her up. She said no. She never had a problem before. Now that my son got out of prison after doing two years is when she started not to let me see or talk to my granddaughter.”
15:29 Okay, I immediately regret my decision.
15:30 Nancy said hi to you as a sympathetic hi.
15:46 Hi Nancy. Okay, so, grandparents rights are so frustrating, so frustrating. And I hate this for grandparents. I understand it but I hate it. So as parents we have constitutional protections to raise our children the best way that we see fit, right? And in order to get past the constitutional right the Texas legislature has placed a very high burden on grandparents to be able to come in and fight for visitation. And so basically, what a grandparent has to do, is a grandparent has to prove to the court that if the court does not permit the grandparent to see the child that that child is going to suffer some sort of emotional or physical or psychological harm, right? And so, the question then becomes, “how in the world do you prove that?” Right, so if my grandbaby doesn’t get to see me, how is it going to hurt her, right or him? It’s an incredibly high burden and it’s one of those where, really in very limited circumstances, if I kind of thought I might have a shot at getting possession and access, right? So, I think it’s important that we, I differentiate between fighting for custody of the grandchild and fighting for visitation, okay? This lady is talking about just visitation. In order to get visitation, that’s what she’s going to have to prove. And the only times that I’ve really felt confident about one of those cases was when I had a grandchild who had basically been raised by a grandparent. And then the parent for whatever reason you unilaterally ranked that kiddo away from the grandparent and basically our argument was there’s no way that this is inevitable for this kid. I honestly don’t know that we really met our burden, but we were able to glean some sort of sympathy and we ended up getting visitation in that case but it’s pretty difficult.
18:15 Yeah, I agree. I mean, we’ve handled a few of these cases and they’re always difficult. In this case it doesn’t say that there’s an order, right? But I mean if there is an order for dad to have visitation then even if she could prove significant impairment, she can’t she can’t get it because her son has visitation, right?
18:52 Well, no, if she can prove significant impairment against both parents for conservatorship…
18:55 Right for possession and access. I think that if the child, her child which would be the dad in this case, if he has the right to possession access then she can’t get it, right?
19:16 Right. And I think if she had filed maybe while he was in prison, she would have better chance. And if there’s no order, I mean to me it’s an easy resolution, right? If there is an order, then he can designate her to pick up and drop off and all that stuff. If there’s not an order has him go get an order, right? So that he has visitation and then she can, if not exercise that visitation, certainly see the baby and talk to the baby during those periods of possession. That’s going to be a heck of a lot easier than trying to fight for grandparent rights.
19:45 And that is typically, in these types of cases, what we do, right? It’s easier to represent the parent. And although clearly, person may have had some issues because he just got out of prison, it you know, what I would probably tell this person if they came in for a consultation is I would say, “Let’s see if we can represent your son and perhaps have you as the supervisor of the visits, right?” Because the court might have concerns as you just get out of prison, and that will give you some access to your granddaughter, so that you all can start developing a relationship with her. But I probably, I mean we don’t have any dirt on mom other than she’s denying visitation, I probably wouldn’t proceed with any sort of grandparents right in this case.
20:39 Yeah, it’s been a year since she’s seen her, right? I’m proving a significant impairment when the child has gone a year, I had a very a case very similar to this and it was a, we were able to get some very minimal possession at mediation, but it was an uphill battle all the way.
20:54 On that one case that I had, it was or not the one but one of the cases I had, it was actually a grandmother who had custody of the kiddo and we were representing it. That was the, I think the paternal grandmother, and we were representing the maternal grandmother, and, in that case, we were able to find some case law to say that that constitutional protection, right? That height burden of proving that the kid was in danger, that doesn’t apply if it’s not a parent. That’s only to protect the parent. And so, in that case we were able to get him lots of visitation and that was actually really good. But for sure, if you’re a grandparent and you’re having these types of issues you need to hire somebody and talk to them about those little nuances because you can potentially develop a strategy, right? So, when it comes to visitation its difficult. When it comes to getting conservatorship it’s also difficult, but you could if the child is in danger, if you can prove what we call significant impairment, then you have a chance of potentially getting custody. But that’s a whole other question.
22:11 I think the big distinction between those two rights is for conservatorship you’ve got to show that the child is in danger, right? For possession and access, you got to show that if the child does not have possession and access, or the grandparent does not have possession access to the child the child will suffer.
22:25 How do you prove that?
22:30 That’s the complicated part, right? The last grandparent case that I had, you can get a temporary order for counseling, right? Even if you can’t establish it at that point. But it’s standing it’s a threshold issue, so you get kicked out before you can even get in the door.
22:54 Yeah, I can tell by your head scratching.
23:03 Very frustrating for some grandparents they’re really just trying to be there. I Know. I know. Okay, my turn to read?
23:05 Yes, it is.
23:06 Okay, “In Texas, can I get out of paying child support if the custodial parent allows someone else, not me, to claim job as a dependent? The custodial parent has been allowing their grandmother to claim our child as a dependent on taxes for many years. They both lived with this family for almost their entire life with my child. Since this child was 16 years old the custodial parent moved out and left the child with the grandmother. The child is now 18 and lives with me, but I still have past-due child support debt. In my eyes, when this individual started allowing someone else to claim the child as a dependent and not allowing me, they legally stated that someone else is supporting the child over 50 percent of the time. Surely there should be a course of action I can take with the situation. How can I use this, for anything else to at a minimum lessen my past due child support, if not eliminate it?
24:12 Poor guy. So, unfortunately, there’s nothing you can do. You can’t retroactively modify support. I mean hindsight’s 20/20 but you should have hired somebody when she was a lot younger. I don’t really know. I mean I don’t do tax stuff, but I don’t think that grandmother claiming the child as a dependent would impact anything that the court did. It certainly wouldn’t reduce child support. I mean, he couldn’t be obligated to pay grandmother child support unless grandmother was a party of some sort so, yeah, I mean, I think that he would still have to pay child support. Yeah, she’s 18 now, so I’m presuming she’s graduated high school his obligations ended, right? So, nada. Nothing he could do? When the kiddo was 16, he should have gone in and taken custody. Why 16? The child was 16 when the custodial parent moved out and left the child with a grandmother.
25:24 Oh, okay, yeah, I thought she moved out with the child, but yes left child with grandmother. So, I’ve heard the argument, and I guess, I had it argued once against me that the parent has the right to designate the primary residence. It doesn’t say the child has to live with the parent, right? And they can designate that residence to be with grandmother.
25:53 So how’d you like that argument?
25:55 I mean it sucked when it was used against me. But I don’t even remember what case or how the outcome was, but I’m sure I won because I win all my cases. So, then it would be a best interest argument, right? Is it best for mom to continue to be able to designate that as grandmothers, or is it the best interest of the child for dad to then have the right to designate and child will live with dad? But I mean worst case scenario, not worst case but the possibility you file when she’s 16 and say okay I’ll let her stay there but give her the child support or something like that, right? So anyways nothing you can do now.
26:44 But here’s the thing like this claiming the child as a defendant, it is something that comes up all the time when I’m negotiating cases. And it’s a big question. So, we’ll just go ahead and cover it. So, the IRS code basically says that, at least this is my understanding I’ve never actually read it, but my understanding of it is whoever the child lives with for 50 percent or 51 percent or more of the time, that is the person who has the legal right pursuant to that code to claim the child as stated, okay? Now the parent that …
27:24 Would you just say?
27:25 That the parent who the child is living with for 51 percent or more of the time is the parent who gets to claim the child as a dependent.
27:35 Okay, that’s by the tax code, the federal tax, right?
27:36 Yeah, that’s what I mean. And so, you do have the ability to negotiate that or barter that, right? And sometimes we do it in our final orders where we’ll say, “okay, father in odd years will claim the children and even years mother will claim the children. Or, you know, each party is going to claim one child and there’s a special form that you guys have to sign in order to convey, I guess that right to the other parent, okay? So, you can put that in your decrees and put that in your order. I’ve never had the issue of somebody trying to back out of that and say, “No, we’re going to, you know default to the tax code.” I don’t, I mean I’ve never had it come up, I would presume that if it’s in your final degree or in your final order that you’re going to be expected to comply with it, because now you fall under the jurisdiction of the state of Texas. So, with that being said, if the child is living with mom, I don’t care if you’re paying twenty-three hundred dollars a month in child support, mom’s going to be able to claim the child as a dependent unless you put it in your order, and it says that you get to claim the child as a dependent.
28:55 So, my understanding of, if you do come up to an agreement and you agree to alternate years or whatever, that because we’re dealing with federal versus state courts right and federal trump’s state and state courts can’t tell the federal court what to do, they can’t modify the federal codes, right? And so, the IRS doesn’t have to, and won’t honor that, right? I think your remedy then is an enforcement for their failure to follow the court order. But there’s nothing you can do to force the IRS to remove mom from claiming the child and allowing you to claim the child.
29:35 Yeah, and I mean way back in the day, when all this stuff started and when I was just starting there was a couple times where we tried to litigate that issue. And in both cases the judges said, “I don’t have jurisdiction of this, there’s nothing that I can do.” And now we just try to negotiate. Maybe we offer some property. We offer additional support. We offer something to try to get that ability if it’s that important to our client. But if they won’t agree then you’re just stuck.
30:09 So, I don’t think it’s been addressed yet, and I said I don’t do taxes so if it has,
I don’t know it. Texas particularly is moving more and more towards a 50/50 possession state. Particularly with the new addition to the under 50 miles provision. And I know they’ve been trying to get there for a while, haven’t quite got there but I’m curious what the IRS code does with that once it becomes 50/50, because then there’s no primary parent. I mean, typically when we do, when we agree to a 50/50 possession, or if a judge orders it, the judge can’t order how the taxes will be done, right? But then we’d alternate years, right? Because there is no primary parent. But curious what the IRS does with that once we do get to a 50/50 state and how they’re going to treat that. First to file, I guess? I don’t know. That’s going to be a mad house.
30:54 Well, and that brings up another issue that I see a lot a lot of phone calls that I get in tax season. You know, mom shows up to file her returns and she’s claiming the kids on tax returns and when they’re trying to process it, it kicks back and says hey these kids have already been claimed by, presumably father, right? And obviously chaos at that point ensues. And so, kind of the work around that is you can’t file an electronic return. You have to file a paper return which sucks because it takes a lot longer to process, right? But you file mom, you file your paper return, then it gets kicked into over to the IRS and it’s going to get a red flag which that means that dad potentially screwed up for both of you guys, because now the IRS is looking at your stuff.
31:54 I have no problem with the IRS looking at my stuff, for record.
31:56 Yeah, but what will happen at that point is, the IRS is going to want to see a court order or documentation or something to prove which parent actually has that right. And then what will happen is the right to designate the residence and who’s had the kiddo for more than 50 percent of the time. And let’s say, hypothetically speaking, that dad had received a ten thousand dollar return because he claimed all these kiddos and then the IRS determines, “Well you shouldn’t claim the kids.” Now they’re going to garnish, or they’re going to go after their ten thousand from dad and then the mom will be able to claim the children. And it’s just a mess, so don’t do that if the kids are not living with you. If you don’t have permission, because then everybody’s just delayed in getting their money and the kids suffer and yeah don’t do it. So, my turn for the question.
32:50 I think you just asked that question to me. So now I get to ask you a question. Oh, really?
33:05 You could go to the next one because that one’s kind of easy.
33:07 Well I think you should still answer it. You’ll answer it quickly. So, does my husband have to sign the title for me to sell a car? Car was purchased by both of us and in both of our names. I was awarded it in the divorce. Now she wants to sell it, does he have to sign it?
33:26 Now I want to sell it; does he have to sign the title in order for me to sell it? So, I say it was easy, typically what we do is, we do a power of attorney to transfer the vehicle whenever we’re closing out our divorce decrees. So, if wife is awarded a car husband will sign the power of attorney to transfer the motor vehicle. Wife will have those in her records, and then when she goes to trade it in or sell it or do whatever that’s going to be the document that kind of gives her that legal right, or that title to be able to do that. So, no he doesn’t have to sign the title if he signs that, and that’s fine. If you have the title that’s already paid off, then you probably want to put that in the decree that he has to sign that title, but I don’t think it’s necessary.
34:11 Well, so if there’s not a power of attorney, then yes, it’s necessary. That’s what I meant to say. So, I’ll go to the next question for you. “In a joint conservatorship, if only one parent needs daycare during their custody period, can they force the other parent to pay half?” This comes up. All right, so they have a joint managing conservatorship. I like their use of the legal terminology. We don’t see that a lot in these questions. But ex needs after school care during their custody period. But I do not and will not use it during my custody period. Ex says I must still pay half. Decree states it is ordered that each party shall pay 50 percent of all after school and or daycare tuition fees. Has no language about mutually agreeing to the daycare but does the duty of care during the custody period override this?
35:06 So, this is why it is so important that we are paying attention to the fine print, and we are thinking of all of the worst possible scenarios. I always say that I’m a paranoid Patty, right? Because I’m always, when I’m looking at this language, I’m always thinking like how is this going to potentially screw my client over, right? Is this going to be a disaster if I put this provision in? And, you know thankfully, we’ve been doing it long enough and we both have so many cases, and our other attorneys that work with us, we’ve had so many cases where we can kind of come together and we learn from these types of mistakes, right? So that we’re not making them anymore but that was just bad drafting on the behalf of that lawyer because, yes, you’re on the hook if you need it or not. That order says it is ordered that each party shall pay 50 percent of all after school and or daycare tuition fees, and so if that is a fee that they are incurring monthly whether or not you need it, you’re on the hook for it. And I don’t know that you could even get a modification on it. If you go back to court and say, “Judge, I don’t need this after school care and I don’t want to have to pay for it.” The judge may say, “Well you shouldn’t put it in your original order to begin with, that was part of the deal, right?”
36:51 I mean, I guess it I guess it depends, right? I mean, if this order was entered into when they were two and the child was going to daycare and they were splitting that, now the child’s eight, right? And only using after-school care, yeah maybe not. I don’t know.
37:01 Yeah, so if ever, and we see this a lot when parents are doing 50/50 possession right, and that’s kind of the problem with it, is presumptively mom may have agreed to give you 50 percent of the time and they have waived child support in exchange for you covering 50 percent of the day care expense, and so then it kind of becomes this issue of, “Is it now fair to go back and complain about it?” And will the court allow you to do that? So, I say you should have put in this order that, as mutually agreed upon, you know or as long as that parent is utilizing the daycare and/or after school care, but otherwise I think you need to pay. I will say, again going to the kind of technicalities of this language, I don’t know that that’s enforceable, right? As support it doesn’t have a date, place, a manner. So, in order for somebody to be held in contempt of court for not doing something, the code is very specific, right? Because if they can put you in jail, then you have to know what your obligation is, right? And so, in this particular case, what I would have wanted to see that is something to be effective it is worth, that each parent shall pay, on November 1st, 2021, and the first day of each month thereafter, one half of the tuition fees. You have the amount, put the amount in. Directly to name of the daycare facility and maybe at that point, you can get a content chart. I don’t think he goes to jail; I think the court clarifies it and then he has to pay for it though.
39:00 Yeah, or you could do it and track the unreimbursed language, right? So, once they incur the expense, they send to the other party that party has 30 days to reimburse the party. But another problem with this language is, he could pick any school, right? He could pick a school that’s five thousand dollars a month and you’re paying half of it. It’s that this language is very crazy if you have this, I’m sorry.
39:19 Yeah, this is we’re like Debbie downers today.
39:34 These questions are like, nope, sorry. I promise there are something we win on, just not today, I guess.
39:37 Oh my gosh. Oh, okay, so, “My son wants his name removed from our house. When my wife and I purchased this house, we added our son’s names to try and help them with their credit. Now my son is trying to purchase his own house and it is holding up the purchase. How can we remove his name quickly?”
39:56 It’s not really a family law question, but he could just sign the deed over to them.
40:05 Negative, ghost rider. Okay, because the reason why it’s holding up the son’s purchase is because of its debt-to-equity ratio. So, it’s an issue with the note of the mortgage. And so, they’re going to have to go in and they’re going to have to refinance that home to get the son off the note so he can then go and purchase his new home.
40:36 Yeah, if it’s the more, yeah. I didn’t see anything about a mortgage, but I see your logical walk through there.
40:46 Why? This is like the third question or second question that we’ve seen like this, where people are putting their kids on their notes to build up their credit. I mean, maybe I’m just like a bad parent because I’m like not worried about my kid’s credit. Just like you’ll figure it out I figured it out.
41:00 Well, I put my son on my credit card.
41:07 Did you really? Yeah, Jason’s rolling around with the black visa or what?
41:10 No, my 16-year-old Caleb.
41:13 Okay, well you’re a good dad.
41:15 That’s true.
41:17 Yeah, so, but putting them on a house though …
41:22 No. Don’t love them that much.
41:26 Yeah, I just think that that’s it just different to me. I never thought about it. I guess it might be smart. I just don’t know enough about that.
41:30 If you do that can you go after them for one third of the payment.
41:36 Maybe. So, yeah that’s the problem so they’re going to have to go through a refinance of this residence. So, it’s an important distinction and people always kind of get this confused but when you’re dealing with property. There are basically two issues, right? So, your first issue is your contract with the bank, that’s your note. And whoever signs that contract, you guys are on the hook for that note. And I don’t care if in the divorce they say that this house is awarded to wife, if you’re on that note and you don’t resolve that in your divorce, you’re going to have problems, right? So, you have to put in refinance provisions or sell provisions when you’re in what we call a deed of trust to secure assumption, in your final degree of divorce because we’ve seen this so many times where they basically say okay, house is going to go to wife and then her husband has to sign the deed to transfer the house to the wife, but then there’s nothing about the note. So, then fast forward two years later, husband wants to go and buy a new house with his new wife, and he can’t because he still has a $200,000 note on his ex-wife’s house, and he’s like “Hey I need to sell this, I need to get my new home and I can’t.” And I don’t know if there’s anything that you can do about that at that point.
43:13 So, I don’t know I don’t know exactly what the banks and stuff would look at but, if you were to in this case if son, sorry if husband and wife were to sign a deed of trusting to secure assumption relieving son of that obligation, would that help with his, was actually going to look at, is that your obligation? Yeah. That sucks. Tell yourself pony up pay the house off.
43:43 I mean it should hopefully be simple enough, if they only did it for his credit and he wasn’t actually contributing, then I think a refinance would probably be easier. You’re going to take a little bit of time and pay a little bit of money, but I think you’ll get it done and it’ll be fine. And nowadays you can get those revised fairly quickly but that’s what they’re going to have to do.
44:08 Well, and depending on how long they’ve had the house, right? And how much equity they have. Because problem I’ve run into is when people want to refi, right you can only refi for 80 percent of the value. Is that going to be enough to pay off the other note? But it sounds like they’ve had it a while, you know I’m going to go with they’ve had it for about seven years, so they should have some equity.
44:25 Okay, all righty, my turn to ask the question.
44:36 Sure.
44:40 Oh shit, no, sorry.
44:47 Okay, is it my turn, or is it your turn?
44:50 Go ahead.
44:51 Language Ashlyn. I’m sorry Ashlynn. Daddy said no-no word there. Lord, okay, is it my turn or is it your turn?
45:03 We need somebody that’s like feeding us through and doing the bleep thing
45:06 Yeah, we need to be delayed about 20 seconds for your potty mouth
45:12 Go ahead and ask the question, I’ll answer.
45:14 Oh, I think we already did this one. We had a question like this a few weeks ago. No, we can ask it again. So, “Can I, 18, take legal guardianship of my little brother, who is eight, who doesn’t want to live with his dad.” Hello, I’m here on behalf of my younger sibling who is eight years old who isn’t happy living with his dad, who I believe doesn’t understand the person he is. Did we have this? No? “I’m 18 with a full-time job as salesman I’ve also graduated high school, going to attend a four-year college, and hope to pursue my own degree in law. However, let me explain more in depth. I, myself, had to mature at a young age due to parental complications and I know how he feels. My little brother has told me that he wishes to he could live just with me because of how much he dreads living with his father. I’ve tried to get my mother back on track numerous times, but it doesn’t seem to work. I’m wondering if I can legally take custody of my younger brother if I can prove that I can supply his needs as well as a happy healthy household, please respond, I’ve been up many nights thinking about what to do to get him out of this poor situation.”
46:32 Okay, so I mean, the burden is going to be the same as a grandparent, right? I mean you’re going to have to show that the child is in danger. It sounds like there won’t be an issue with mom because mom’s off-track but I’m curious to know what dad’s doing to make it so miserable for the poor little guy. So, I don’t know. I mean, it’s the same standards you got to prove significant impairment. So, if you can do that, you can do it.
47:04 Sound legal advice.
47:06 Well, I mean we already explained the burden. We can go back through it but the exact same answer we gave for grandparents now apply it to this.
47:15 Rewind and listen to that answer and then come back.
47:18 Right, okay, and then listen to the last part where we distinguish between possession access and conservatorship because this one is for conservatorship. So, in this one you’ll have to show that the child’s circumstances, as they are now, are a danger to him.
47:40 It is though, this idea of an eight-year-old who isn’t happy with his dad. I mean he doesn’t say dad’s hitting him, dad’s abusing him, dad’s starving, him dad’s doing any of that, right? And so just because a kiddo may not be happy living with a parent, doesn’t mean that you win, right? The burden is way higher than that.
48:18 As a matter of fact, it means you’re going to lose if that’s the only reason.
48:20 Yeah, and so while I do think it’s admirable what this kid is doing and thinking about, he’s going to have to develop this a lot more. And, you know, typically when I have parents or siblings or grandparents or whoever that when they come to us, and they say, “I just know that there’s something wrong. I just feel it in my gut, I know he’s not happy.” And I get that, because I’m a mom. You know those things. But it’s one thing to know it, and it’s another thing to prove it, right? And, so, what I would want to know is, do you have any ability to get him into any sort of therapy? Do you have any, you know, were there any social media posts that he’s made? Any outcry that he’s made to friends? Any things that he’s told you, right, like “I’m going to run away. I’m going to hurt myself.” That type of stuff. That’s when you start getting to being able to prove that burden of significant impairment, because, you know, sometimes when kids aren’t happy those are the things that kind of run through their mind. And if those things are going on, then he obviously is emotionally impaired, and it needs to be addressed. I don’t, I’m not worried about the age of the kid, or the fact that, you know, he’s still in high school. I think he’s considered an adult. He has the ability to be able to fight for custody. So as long as he can prove that his little brother’s actually in danger, which based on the question I don’t know that he can.
50:00 So, I think where the age may come in, and I’m just going to add a bunch of facts here, but if he can prove that the child’s present circumstances are a danger to him, then dad’s brother, dad’s sister, dad’s whatever could intervene and then we’re looking at a best interest standard, right? And what will the court think about that, right? I mean you’re 18, you’re about to go to a four-year college, and try to take care of an eight-year-old versus dad’s brother, dad sister, or whatever who’s established with a family and can better care for him. If I represented dad and I was afraid they would be able to prove that that’s what I would do. I would have family come in and intervene.
50:51 Well, and it’s interesting. I can’t tell from the question, but he says, “I had to mature at a young age due to parental complications and I know how it feels.” I wonder if I’m assuming that it’s a different father because he says with his dad instead of our dad. But I wonder if he had any personal experiences with this gentleman, with the father in the situation, that he could then relate to the court to say this is what he did to me, and although I may not have seen it, I surmise based on things that my brothers told me that maybe it’s happening to him. And so, yeah, I mean he needs to go, and he needs to visit with an attorney and kind of flesh out all the facts because you might have a chance, maybe.
51:40 Depends.
51:41 You’re saying there’s a chance, okay. So …
51:50 I guess my turn to read, but I don’t know that this is a family law question.
51:54 Yeah, go to the next one.
52:01 “In Texas, if a temporary restraining order is granted, what happens next that final trial?” “In Texas, if a temporary restraining order is granted, mother has primary. So, it means temporary order then. Father has standard possession every week. Okay. What happens next at that final trial 60 days from now? What does the judge expect to see? What will happen at final trial?” I asked the question you answer it.
52:46 Okay, so I feel like in order to give this question some context, we kind of have to explain the process of what child custody suit affecting their parent child relationship. So, the way that goes down is a parent, let’s just say in this particular case mom files an original petition and suit affecting their child relationship to establish rights, conservatorship rights, visitation, child support, okay. And when she files that typically what will happen is one of two things. Either a temporary restraining order is going to be signed by a judge or a standing order will already be issued, depending on the county that you’re living in, okay? And when that happens dad gets served and then dad has to show up for a hearing on the day and time that it says in that document that he’s given. That’s your first year. That’s what we call a temporary orders hearing, okay? Your attorney should be treating your temporary orders hearing the same way that they treat a final, because it is just as important, if not more important in my opinion, than your final child because that’s what’s setting you up for success in the future. Typically, what happens at the temporary, it’s going to stay the same and final unless there’s something crazy that happens in between that. Okay, so you go in and present all this evidence and at the conclusion of that temporary hearing judge is going to say, okay, in this case mom got primary, dad has standard visitation. And then presumptively in 60 days, it’s probably a divorce, now that I’m thinking about it that’s why they put the 60 days in there, in 60 days sometimes I don’t know what court he’s in, but it typically doesn’t take 60 days it takes months before you get in for your final trial. When you go in for your final trial it is basically everything that you presented at your temporary hearing, plus a bunch of extra steps, like anything that’s happened since then. You typically get a lot more time at your final trial to present evidence, so that’s the big difference. Most courts, like if you’re over in column county, you have 20 minutes to present your case. That means you get 20 minutes to explain to this judge why you should have primary custody and why the other parent should just have visitation or no visitation or whatever, right?
55:06 At temporary.
55:10 At temporary, yes. And over in Texas we get 30 minutes to 45 minutes but, I mean, you’re talking, you’re flying, to get all this information out to try to convince this court that you’re the parent that should have these rights. When you go to a final trial your attorney can typically request whatever amount of time they want, a day, two days, half a day, whatever it is. So, you have the ability to present more information which could potentially change the court’s mind, but I mean we don’t know what this father wants, I mean if he wants primary custody there’s lots of things that he should be doing in the interim, right? If he’s okay with standard visitation then we’ll exercise his visitation. If everybody’s kind of just doing the same thing and there’s no big change, well probably at the final trial he’s getting a standard visitation, then that’s going to be it.
56:10 Yeah, so I mean, I was confused because it’s standard possession every week. So, I don’t know if he’s talking about like a week on week off, but at least in my experience most of the time particularly, if it was a contestant temporary, then the judge doesn’t want to rehear what they heard, right? And I guess if it was agreed to, right because it’s at that point you agreed to it, so most judges will say pick it up temporary, right? And what’s happened since the temporary orders? How’ve they been working? How’s the child been doing? So, as far as what the judge will expect to see, and if you want to change something then I mean you need to look, at I don’t know how the kid is, but you know grades, and extracurricular activities, and if the child’s been going to counseling, any issues the child’s having, issues with visitation, you know fair pay child support, basically what’s happened since that court order that helps your case that’s what judge wants to see at final.
57:06 And it’s important to know that you can always request, obviously fight for, something different than what you fought for at the temporary. Potentially get something different, right? And so, you know, just because you won at a temporary doesn’t mean you’re going to win at a final. You have the opportunity to screw that up, so make sure you’re minding your Ps and Qs because judges don’t like it when you misbehave.
57:33 Is that what that means? Minding p’s and q’s?
58:00 So it just says pints and quarts
58:05 Minding your pints and quarts?
58:06 Yeah, I don’t know
58:07 We digress
58:14 That wasn’t one of the questions
58:18 Well figured out that that’s a cliffhanger we’ll let everyone know next time
58:23 Whatever that means
58:24 Come back next week. All right so at the conclusion of every single one of our meetings here, we always publish this. It’s a disclaimer basically, same thing that I said when we started, don’t take this it’s legal advice, it’s more general information. Go out find yourself a good lawyer, somebody that you trust, somebody that you are comfortable with and ask them these questions, and tell them your situation, and they will hopefully lead you down the right path. And with that, Mr. Floyd I shall see you in a minute, unfortunately.
