Oct. 11, 2021 | The Jimenez Law Firm with guest Bryan discuss Family Law Questions

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by | Oct 11, 2021


Christina Jimenez and Josh Floyd from The Jimenez Law Firm are joined by Bryan Gutierrez to answer Family Law Questions. Questions from our viewers this week included Alienation of Affection, Custody disputes, 401K settlements and other Family Law Topics!
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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 and criminal defense practice areas, including:

-Family Law
-Child Custody
-Grandparents Rights
-Child Visitation
-Modifications
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The Jimenez Law Firm, P.C. specializes in Family Law and Criminal Defense. 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 My name is Christina Jimenez, and I am an attorney over in Texas. Every Monday morning at 7 00 am Mr. Floyd and myself we get together, and we answer different questions about family law, just to try to do our best to spread information and give some general knowledge about some of the cases that we deal with. Hopefully, at least give people a little bit of a leg up when you are unfortunately having to go through either a custody battle or divorce suit or something like that. Floyd, go ahead and introduce yourself.

00:43 My name is Josh Floyd I’ve been practicing for nine years. We primarily do family law and that’s me that’s what I do.

00:57 And today we also have Bryan why don’t you introduce yourself

01:04 Hey I’m Bryan I’ve been practicing for about seven years I come to that number because I’ve been married to a lawyer for about 14. So that gives me qualifications – no I’m kidding. I’m actually Christina’s husband and so she invited me to this and hopefully, I can add some value

01:18 So here’s the thing whenever I kind of made the decision to ask you to join the reason why I wanted to do that is because I do think that you have valuable insight when it comes to these types of cases. So, number one before we got married, Bryan was married and unfortunately, that marriage resulted in a divorce.

01:40 Is it unfortunate because if it hadn’t …

01:45 Well, I think it was unfortunate for them at the time. Not for me now

01:54 Okay just trying to figure out the dynamic, that’s all

01:57 Okay, very good. So, I very much remember, and I kind of think – like when I was thinking about this over the weekend, that maybe that’s one of the reasons why I am so passionate about these types of cases and anytime there’s any sort of like alienation or like denial of possession and it just makes me really angry. And thank the lord we never had those issues with you and with your ex-spouse because she always was really gracious, but I do remember those drives back from Lubbock when you were having to leave Taylor for the weekend and how hard that was on you. And how hard the whole process was on you and so, I mean I guess that’s why I wanted to kind of have you been on some of these questions because I think that you can add a different insight as opposed to just our legal opinions on stuff, right? We have never neither one of us, Floyd and myself, have ever been through something like that. So, do you want to kind of talk about that a little bit about your experience?

03:05 Oh sure yeah, I mean to answer you know Josh and your initial comments it was fortunate and unfortunate you know. I think just like anything in life when you have a failure, you can choose to look at it as a time to learn or you can choose to kind of fall down that hole. And luckily for me and a lot of the support I had around me, which is huge by the way, I was able to pull myself out of that hole and to this point, having a great time with a wife like Christina and my family all that stuff. but yeah, as far as being a divorced dad, I always say that although I do think it’s the wrong thing to abandon your children no matter whether you’re divorced or not, I do think I understand a lot those dads that make the choice to stay out of their child’s life, as hard as that is. I went to San Antonio to finish my bachelor’s degree right after my divorce and so Taylor because it was the right situation for her at the time stayed with her mother in Lubbock. And San Antonio and Lubbock are a good five and a half six-hour drive away. So, yeah, it took a big commitment for me and to and my ex-wife to be sure that we stayed with that even though the emotion was very raw. And changing mine and my daughter’s relationship at the time took a lot of strength from both of us. So absolutely it was difficult, and I think a lot of people that are going through a divorce deserve that empathy, deserve that that sympathy, no matter what the reasoning for it, no matter who’s right or wrong. It’s a tough time and you can get through it but saying it’s not tough or discounting that is kind of fantasy to me.

04:53 I remember those rides home were pretty rough.  And then the other reason why I thought that maybe you could provide some additional insight is because, as you said, we have been married for so very long – 14 years. And the whole time that we’ve been married –

05:14 it’s about time to think about a change

05:19 not funny Floyd. but you know it’s so number one I think any time you’re in a marriage for any extended amount of time it’s difficult, right? and I know because I deal with divorces every single day and I talk to people and when I’m talking to them, I’m not just talking about the actual process of divorce I’m talking about what led up to the divorce. like what was going on in your relationship that caused you to finally get to this point? And I do think that it’s one of the reasons why I think you and I have worked pretty hard to try to stay on task. and we haven’t always been great on it, but I think that you also have that kind of interesting dynamic in that you’ve been married with me, what I do for a living you hear all the chaos and everything that I deal with and then on the back end having to I guess navigate that through therapy for 14 years. So, what do you have to say about that?

06:22 Yeah, first off Christine is an amazing wife, no joke she’s an amazing mother. It’s been a change for me because growing up as a man in 2020, being married to a woman who is very interested in her career and has been kind of walking down a path that’s never been cut before in a lot of ways. I grew up in a small town with you know with parents who kind of had an old-fashioned lifestyle where mom stayed home. And so, it’s been a challenge, but just like I’ve always said anything worth having in life is not going to be easy. And Christina and being her partner is worth having right. And so, what Christina referenced as far as therapy, I’m a big believer in when you need help asking for it, and Christina and I have been in therapy off and on for about 14 years. And sometimes we’ve let our marriage get to the point where we needed to go to therapy

07:16 It’s mostly been on though, there’s not a lot of offs.

07:21 Sure, sure. Yeah, it’s all perfect. It’s all roses and lollipops, right? But no, there’s times even when things are going well that we check in with a therapist, right? Just like with my car, I take it to get worked on even when the tires aren’t falling off right? Because it’s important to not let it get to that point, even though it does happen. So, therapy, absolutely I think there’s a stigma sometimes in society about asking for help. I don’t really understand that, but at the same time I do. So yeah absolutely, therapy’s been amazing for us. I’m sure we’ll continue to work on ourselves as life continues to throw us curveballs. And I still get, you know, every time I bring up to friends, I might be having a beer with a buddy, and they say, “Oh what does your wife do?” And I say, “She’s a divorce lawyer.” And I think 90 percent of the time I get, “Oh man you better be cool about that. You better not let that go.” So yeah, I think society thinks it’s probably tougher or somehow being married to you is somehow tougher than being married to any other partner. Every marriage has its issues so it’s always funny when I get that. I think Josh said it a few times too.

08:36 Yeah, I don’t know if it’s because she’s an attorney or just because Christina is the way she is that makes very difficult to be around.

08:47 I’ll take that. That’s fair. With that being said let’s start getting into some of these questions. So, question number one: “Can I modify the custody agreement if the non-custodial mother is absent? I gained custody of my five-year-old when he was two. The non-custodial mom hasn’t ever paid child support. She was inconsistent with a visitation through the first year until she stopped picking him up or seeing him at all. It’s going to be two years of her not coming. She messages me twice a month asking how he is and that she misses him so much. She says every now and then that this day she is going to come that she is going to video call him, but she always has an excuse to cancel it. One of her daughters got sick, something’s spilled on her clothes, etc. I’ve been discussing with my wife about the possibility of moving to another city. I would like to move to another state, Pennsylvania, and my wife would like to move to Austin to go to school there someday. We want to know if there’s any chance in removing the limits from the custody agreement. Right now, we can only live in Dallas. It doesn’t make sense to stay tied to a custody agreement with a parent that is simply not trying to be present. She was gone before he was able to speak. My five-year-old doesn’t remember her and believes his stepmom is his real mom. What are my options?” Floyd, I feel like we should switch the format like I should ask the question and then you should answer it so I’m not talking so much.

10:23 I see that you start that on a very lengthy question that has many parts. Yeah, that’s a good time to start.

10:28 Thank you, thank you.

10:30 You couldn’t have started on question two that’s like two sentences long, right? That’s the question you want okay.

10:35 That’s why you should pay attention at all times Floyd.

10:39 I was paying attention. However, this could go many different ways. So, what are my options? First option is: you can look at a termination, right? One of the grounds for termination is non-compliance with a court order for a period of 12 consecutive months. Essentially what that would do is remove mom completely out of the child’s life. You stated that –

11:04 Hold on, non-compliance with an order? What do you mean?

11:10 If they don’t pay child support for a period of 12 months. So, if there’s a court order for child support and they don’t pay child support for a period of 12 months they can be a ground to terminate. You do have to be able to show that they had the ability to comply right, which can sometimes be the difficult part. But the advantage to a termination is that you had stated that your five-year-old believes his stepmother is his mother anyway so it would just remove mom altogether and it would make legal what is really happening already right? The stepmom would then become the legal mom. That’s the benefit of it. The downside, I guess, would be if something happened between you and stepmom she can fight for custody and you may have to pay her support if she wins, and she would have to pay support vice versa. So, termination option one. Option two, you could just seek a modification. You know ordering some type of step-up visitation, some notice provisions things like that. But more importantly it looks like you want to be able to move out of state, so you could ask to remove that geographical restriction. And I think with the showing of, if you have evidence to prove what you’re saying here which is that she hasn’t really been around, I don’t think most judges are going to make you stay to a restricted geographical area. And I don’t think you’d have trouble getting some type of supervised step-up visitation, but that’s the way you should go, one of those two options.

12:52 Yeah, so one of the things that I was thinking as I was reading this is it’s probably better for him to make a move sooner rather than later right because if he waits too long and if bio mom starts exercising visitation, then all of the sudden courts are going to be mostly inclined to not allow him to be able to relocate. So, there’s a code provision in the Texas Family Codebook that basically says that the goal of the court should be to ensure that parents have a constant, what is it, Floyd? A constant and continuous relationship?

13:33 Close to continuous contact

13:36 You know, same thing, same thing. But that’s the burden, right? Or that should be the ultimate goal. And so that’s why geographic restrictions are ultimately imposed and so, whenever you have a situation like this gentleman when one parent is not really being active in that relationship then the concept of close and continuous contact is kind of resolved on its own right? Because mom’s not exercising this close and continuous contact or having that relationship with the child when she has ample opportunity to do so. That’s why, in these types of cases, geos can get lifted. But if mom starts coming around and exercising her visitation pursuant to the order then the judge may say, “Well listen for four or five years she wasn’t doing what she was supposed to do, but now she is and I’m going to give mom a chance.” Most judges are going to always give that person a chance and, I know for dad in this situation it is probably incredibly frustrating, but that is that is what most courts are going to do. So, you know as far as a termination, Floyd, I don’t, I mean, I guess a court could, but I think that if they filed for termination and then mom showed up to try to contest it –

14:58 Yeah, I think you definitely want to do the modification first, right? But kind of as a long-term goal look at termination in the future. But certainly, do the modification to protect your child now so that they’re not having to, I don’t know what the possession order is, but go to overnight visits and things like that. Allow you to move, or whatever, but I think termination is a real possibility in the future. I wouldn’t do it before the modification because with termination they get a court appointed attorney and the burden’s a lot higher and things like that, but I would certainly do the modification and then kind of look at the termination.

15:34 Yeah, and I mean just to take the time to kind of talk about geos in general. So, everybody, not everybody but a lot of people get really, really frustrated with this idea of, “Well, why do I have to stay in the metroplex, right? Why do I have to stay in this city? It’s my life, I should be able to move and go wherever I want to.” And my response to them is always, well, you can. You can go wherever you want to, but your kid can’t. They have to stay here, right? Because it’s not really binding on the parents, it’s binding on the child and I think it’s important for you to attempt and it’s really, really difficult sometimes for clients to do it, but to attempt to look at it from the inverse, right? If your ex had the child and was trying to move across the country, how would you feel about that? The other thing is that I kind of understand and I kind of don’t, and I’m kind of on the fence this, but you know we had a client once who her husband was in the military and he was stationed in California and she had a geo to west Texas and she really, really wanted to move to California. And in that case, she wasn’t able to do so, and she and her husband had a child that was born between them. That’s why they wanted to relocate to California. And even that wasn’t sufficient, and I think it kind of depends on the court. Some judges have different perspectives on it. If you can ever render at the onset of your original custody agreement to make that geo as big as you possibly can if you are the primary conservator, it’s always going to be helpful potentially if you’re anticipating a move. If you are the possessory conservator, so the person that has visitation, you need to make sure that you’re trying to fight to keep that geo limited. So, Bryan you actually have some personal –

17:37 Objection, interrogative, what does that have to say?

17:42 I’m going to go with improper objections.

17:48 All right, if we were doing bird law then then I would totally have it but anyway, no I’m trying to be funny. So yeah, absolutely. I mean I’ve got a little bit different perspective, obviously. I think me and my ex-wife, my co-parent, one thing that I will say that we’re very happy, or at least I’m very happy about, what we did as co-parents, and now our daughter’s 22, and she’s we’re not having to co-parent as much. You’re always going to have, your child will always be a part of that other party, in my opinion, right? I think it’s obviously not my opinion it’s physical, psychological all that and so I’ve always tried to give my ex-wife as much grace as possible from that perspective, even when it was definitely me giving more than I should have. Because no matter what, our daughter will always desire a relationship with my ex-wife no matter what she’s like, no matter what negative things she might do, there’s a psychological impact to my daughter if I were to not let that happen and then give as much grace as I can to try to encourage that, right? I do understand that there’s some situations where it’s just not possible and to protect your child you do have to do some things legally, but I think I’ve got a different perspective in reading this particular story. I guess my coaching if that’s what I was doing, would be you know if you’ve got to do something to better your life for your child then I think you should make those legal and adjustments. But it sounds like, just from the message, that there’s some wanting to move to Pennsylvania and some future dreams about Austin. If they’re not locked down and you, can’t you know prove to yourself that that’s the right thing for your child and maybe giving some grace to your ex-wife a little that she’s going through something and that your son or daughter, my apologies, is going to want that relationship and maybe give her enough grace to try to let her get through what she’s going through, for your child. Because it is tough to co-parent, and I think I said as much as your new wife or your girlfriend your is very good to your child, and that’s amazing that’s good for her, your child still wants a relationship with their parent and will desire that and their mental health or psychological health will be really impacted by your decision to give a little more grace when you can. It’s just my thought.

20:24 So, you actually had this geo situation come up in your situation with Taylor.  Basically, in Bryan’s case mom had been limited, I want to say to Lubbock. She was limited to Lubbock and then Bryan, when they divorced, he moved to San Antonio to finish his degree. So, what typically happens in these geos is a parent will be limited or confined to an area. What’s the county again?

21:00 Lubbock County

21:02 Oh yeah, I need that. So, Lubbock County, she was limited to Lubbock County and if dad moves out of Lubbock County, then the geo was lifted. So, in that particular case, and if I remember correctly, this was a long time ago. But in your order, it didn’t have the language that the geo would automatically be lifted. It had that she was limited to Lubbock County and so she had to take you back to court and, this is when we’re still dating. She requested that the geo be lifted so that she could move to Pittsburgh with her new husband, and I think she was having a child at the time, as well. I think she was pregnant when all that happened and so in that particular case, we didn’t have much leverage. There was really nothing that we could do because Bryan had already relocated outside of that geographic area and so it was kind of this thing of, well, you know if we go to court and we argue that, she’s probably going to be able to move and so we ended up trying to negotiate a deal, the best that we could, to make travel arrangements and to make sure that we were getting as much visitation as we possibly could but that was also really, really tough.

22:22 Yeah, let me add a little color there. I think we didn’t fight mostly because at that time, because I was still trusting my ex-wife, and what’s ironic is, I was just coaching your questioner about giving grace to their ex-wife, and that’s what I did at first with the notion that the trust would be kept on the other side. The way my ex-wife positioned it was that they were trying to find a job for her new husband and just were having trouble in Texas, but he could find one in Pittsburgh and that she didn’t want to move there but would temporarily so they could support their new family, they would move there and within about 18 months to three years they’d be back in Texas. So as painful as it was, and with the with the factor of we might not do well in court, and once again trying to give as much grace as I could, I kind of okayed it without a fight. Then in another three years when it became very clear that it wasn’t the plan to move back to Texas, in fact they made another decision to move to Boston at that time. I finally, you know, my grace kind of ran out as far as that, and I needed to do something to protect our daughter. And that’s when she moved in with us and she’s about 10 or 11.

23:41 Luckily, at that time I was dating Christina. Christina was knowledgeable enough that that we found a good lawyer in Lubbock and positioned ourselves to be in the right place so Taylor could have the choice to move here. It’s a tricky one for sure, but I do think that the key feedback would be to be sure you’re paying attention to that as you exit a marriage legally because it can get you.

24:10 So, number one, we weren’t dating when Taylor came to live with us babe, we were about like four years in something like that.

24:22 I’m going to leave now. See y’all later.

24:24 And we had kids. It was kind of a thing.

24:27 Bryan, I got you call me.

24:29 I’m always dating my wife, we’re still dating today, sweetie. There you go honey.

24:37 When Taylor hit around 11, she had already kind of started voicing to mom and to us that she wanted to move to Texas.

24:47 We were very cautious and, so you know, I always talk to you about “don’t speak negatively to mom or about mom and don’t try to get in the kiddos heads and try to convince them to say or do something” like I just think guys, from a litigation perspective, that’s an absolute disaster but more importantly from a parenting perspective and the impact that you’re having on your kiddos it’s an even worse decision to make. So, when Taylor kind of started voicing that we were we were very clear with her, like listen when you come to the weekends we’re out at the movies and the put-put and doing all the fun stuff but when you live with us it’s not going to be that way. This isn’t you know Disneyland, right?

25:40 And so we kind of gave her several months before we actually made that move. And when we were making that move, Bryan you were you know communicating with Christy and kind of saying like hey what do you want to do before you even involved attorneys? And then the other thing that I will say is knowing that you had a really good opportunity to kind of take advantage of that situation and to basically you know make things really, really difficult on her on mom, you didn’t do that. You, from a financial perspective you carried the brunt of it, from a travel perspective you carried the brunt of it because we knew that it was really going to be difficult. The dynamic of her coming here was already difficult enough and you didn’t want to kind of kick her when she was down. Now perhaps she will feel significantly different about that situation, but from a lawyer’s perspective there were a lot of things that you could have done that you didn’t do.

26:49 Yeah, I think what your referencing, we paid for travel to from Texas back to Boston I guess once at least once a quarter and some holidays you know really that wasn’t even difficult for us to say yes to. She may not have even asked for that, but it is important to me that that my little girl keeps a relationship with my ex-wife

27:14 Yeah and let me touch on that real quick. Because you were talking about the geo, Christina, and how as a managing conservator you want to try to get as large as you can, and as a possessory as small as you can. I’m going to disagree with that.

27:27 I think that if you are legally, yes that’s what you should do. But if you’re really looking after what’s best for the child, what’s best for child is to be close to both parents. And it doesn’t seem like a lot but if you move 100 miles away, basically you’re eliminating the other parent’s ability to coach extra critical activities, attend school events, go eat lunch with the kid at school, right? All these little things one parent misses out on because one parent chose to take the child and move 100 miles away. A lot of times it’s whatever county you’re in and contiguous counties, like Dallas and continuous counties. That could be 200 miles. I mean surrounding counties to still stay within that geo and so I think if you’re looking at it from what’s best for the child, you want to be as close as you can. So, if they’re both good parents, be as close as you can so that both can be actively involved. You can rely on one another to help out with pick-up and drop-offs, and “hey I’ve got an emergency can you watch the child today?”

28:35 I think that’s what’s best for the child, strategically speaking. Yes, Christina you are correct from a strategic perspective you would want a big geo if you’re managing

28:45 But from a human being perspective?

28:48 From a human being perspective, and what’s best for the child you want that to be as small as possible so both parents can be involved.

28:53 Hold on though here’s the thing. So what if mom is a teacher and she’s living in a really small remote county in west Texas and she has an opportunity to go to Houston and make three times the amount of money that she’s earning right now and dad bio dad is paying nominal child support, and the kiddos are stuck living in a shack because she doesn’t make enough money and when they move to Houston, this new school that she’s going to be teaching at is a private school that’s going to set these kids up for an ivy league education. So best interest doesn’t necessarily mean just being close to the other parent, there’s so many different factors that you –

29:43 I disagree

29:45 Well agree to disagree, because here’s the other thing dad could move to Houston. We have had fathers who have done that before and we’ve had mothers who have done that before just to be close to their children because they ultimately knew that relocation was in the best interest of their children.

30:06 In that scenario, if both parties were agreeing, yes. But I think it would be a very extreme circumstance when you could convince me it’s best to move a child away from a good parent.

30:18 I think the operative term in what you said, Christina, was best interest. I mean there’s an argument that being close to your father and your mother is of more interest than an ivy league education and the extra income that might come from Houston right now. That’s a very vague line to even throw out without the real data, but I think yeah, it depends on what your definition of best interest of the child is. Sometimes, some people think that that going and driving these big drives towards an ivy league education and more money is the way to go. And I completely get that. You need money to pay the bills and we live in a society where you’ve got to have money to do things. But, at the same time, is there a value to having both parents near that child that will end up keeping that child in a good mindset throughout their life? In a happy place, money or not? I think I’m kind of in the middle with you Josh on that

31:22 Well that means he’s more towards me, but for the sake of the marriage he’s going to go in the middle. I got you Bryan.

31:29 I’m okay with that. So, for instance in this question that we asked many moons ago, if you have a parent that is not really active, even if you have a parent that’s coming twice a month to see the kiddo for a few hours under your logic, oh well, we have to stay because it’s always better for the kid and the geo.

31:58 Don’t twist my words Miss Jimenez, okay?

32:00 You literally just said that the deal it’s always going to be the best interest for two parents to be near one another.

32:06 Now I said if you have two involved good parents. If you have

a parent that is only seeing their child once a month, and if you move to Houston and get a better education and they still get to see their child once per month, you’re not having any impact on the parent-child relationship. But if you have an active father or mother, whatever the case may be, that is going to the football games is going to the parent-teacher conferences, and you move to Houston and take all that away from them that’s where it’s detrimental.

32:40 With everything that we do, Floyd, you know this, it’s never black and white it’s gray. All different shades of gray.

32:52 We have to, and that’s why I guess we forgot to give our little disclaimer that we normally give but what we say when we’re talking through these scenarios is, number one this isn’t legal advice. We’re basically talking through fact patterns, but secondly you need to go, and you need to talk to an attorney about your specific fact situation. It could be one little nuance that that you mentioned that could change the entire trajectory of your case.

33:27 So, like Floyd said if dad has standard visitation, but he can only come

once a month because of his work schedule and you have this golden opportunity then maybe the courts will be inclined to let you do it. If dad’s seeing him every Thursday and every weekend and he’s the coach of the football team probability, even if you get remarried and want to relocate to California to be with your military husband, probably not going to happen. Whenever we’re going through these scenarios, we really do look at everything holistically and we try to give our best guess as to what we think the court may do.

34:06 But I will tell you there are plenty of times when I thought a judge is going to do something and he doesn’t, or she doesn’t.

34:15 Talk to a good lawyer that is there, local in your area, that practices before your judge because they’ll be able to tell you “Yes, do this” or “don’t do that” because I know, with some of my judges you’re not getting a geo lifted. Don’t even ask, don’t waste money it’s never going to happen. I also know that there’s other judges that are inclined to grant geos or remove geos if you have the right fact pattern so talk to a good lawyer in your area. And Floyd and Bryan, we will agree to disagree. Honey we’ll talk afterward, okay?

34:50 Don’t do it.

34:53 I’m sure we will. Lead off to 8 o’clock for a therapy session

35:03 Yes, okay.

So, my final divorce decree

35:05 Wait, my turn to read the question remember?

35:08 I’m reading the question and then you’re answering the question, right?

35:10 I think I want to go to number three then. Let’s go to number three. I’m just kidding, go.

35:17 My final divorce degree was issued by the judge May 2007. In it my ex was supposed to pay me 50 percent of his 401k retirement. I would like to know if it’s too late to get my portion from the divorce. In the decree the judge ordered my ex to pay me 50 percent of his retirement and pension. I never got the 401k. However, he changed jobs since then, but I never got my portion of the money. Is it too late to go after my portion?

35:45 I really don’t like you right now. This is a very, very… I mean I guess it’s not complicated but it’s just difficult to navigate. So, whenever you go through the divorce process you have your final decree of divorce. That final decree of divorce is what’s going to award you certain property. In this particular case fifty percent of this 401k that belong to her husband. Really best practice is, when you file that final decree of divorce, you also file what we call a qualified domestic relations order. It’s basically a separate order where your attorney rather sends this order in to the plan administrator for the 401k plan and they basically go through, and they sign this order. That’s what gives you the right to be able to get your 50 percent.

36:57 And the reason why it has to go through a separate order is because this plan administrator is kind of charged with figuring out what funds were put in during the marriage, what are any gains, what are any losses. It’s this huge math formula. Then they come in and they say all right here’s your award. So best practice is always to do the QDRO at the time of divorce. I have had people who have said listen I don’t have money to do this QDRO because I just paid all this money for the divorce and my advice to them is you got to figure it out. We have to get the same process because otherwise you end up in a situation like this.

37:28 Now, we have had cases in the past where they’ve waited a long time to try to issue the 401k and by the time they try to go in and get their 50 percent, the money is gone. Now can you file a suit to recover that money? Potentially. But you know there’s this saying that you can’t squeeze blood from a turnip. That’s a saying, right?

37:55 Close enough, yeah go ahead?

37:56 What is it? Can’t draw blood? You can’t get blood out of a turnip? I mean squeeze, yeah. I feel like my adjective is more descriptive.

38:05 Yeah that’s a verb. It’s great. Well, you know the whole thing with blood and turnips. That whole thing. So, you can’t if he doesn’t have any money, and if you spent all your money then what the heck are you going to do? Which is why you want to do it at the time of divorce. And there has been plenty of times where this happens. We try to go after them years later, we figure out there’s no money. The other thing that you can have, which is really a pain in the neck is trying to trace if he has changed from one employer to another to another and those 401ks are rolling over. Trying to track down what he actually had in 2007 is a logistical nightmare and you spend so much money trying to recover those funds in attorney’s fees and just for us to try to figure out what to do with it and so the short answer is yes, you can try to pursue it. You’d have to file a new lawsuit. What is it called, Floyd? A motion to enter qualified domestic relations order.

39:12 Is that the doctor in the brown statute? No, honey, I don’t know what you’re talking about. Okay, so you’d have to follow a new lawsuit to enter the qualified domestic relations order and then all of that headache that I just talked about would ensue what you may want to do if you know, if you find out that the money isn’t there if you find out that it’s rolled over and it’s too difficult to trace you may just want to agree to a dollar amount just to try to get something out of those funds. The other thing, just on a side note, any gains or losses that that account has made, assuming that you can track it down, if it’s made over the course the past eight years whatever you know twenty thousand dollars. That twenty thousand dollars will be yours now. What they’re going to do is if it’s granted,

or once it’s granted, they take your account they separate into your own account and they can roll it over into an IRA or any other retirement fund that you ask them to do, so that way you get your money he keeps his money and everybody goes away

40:23 So how do you feel about, in addition to under the family code, filing under the civil code for violation of a trustee relationship?

40:34 I mean, I like that idea. Except it’s the whole turnip thing. It doesn’t sound very trusty to me; I’m just throwing it out there.

40:43 And have you heard of someone facing criminal charges for spending that money?

40:48 I have not. I have heard of it recently actually, from somebody that we know very well. I haven’t investigated it but recently I heard about somebody.

41:04 That’s a good piece for the next episode Josh. Josh investigates. Josh, don’t they call that the Emmett Brown statute?

41:20 Oh my gosh can you stop please?

41:24 I forgot to give the disclaimer of the dad jokes

41:28 I forgot you don’t watch movies. Back to the Future. You’re going back in time so Emmett Brown, right? Doc Brown? No?

41:39 moving on.

41:41 So the other thing that I will say is, if you’re the husband, don’t spend the money. Just don’t and I know that it’s so very tempting. But just don’t. Because if it comes back that you did, well it may be difficult to recover if you have a second home or other vehicles or whatever. They can try to levy all of that stuff, potentially criminal charges, I think absolutely attorney’s fees would be awarded, there’s all sorts of different issues. So, just do the right thing.

42:15 Well it’s been 14 years. What if he got divorced and that 401k got divided again between the new wife because old life didn’t take her 50 percent.

42:25 Yeah. I had a client in the past where it was like a year after the divorce, and the wife still hadn’t done the QDRO and he’s like what do I need to do to do to get rid of this this money because I don’t like the fact that my money still co-mingled with hers and if I keep waiting for her, she’s never going to do it. So, he just paid to do the

QDRO because he just wanted it split and he didn’t want to have to mess with it because he wanted to take out a loan and he didn’t know how much he could take out and it was just a disaster. So, there’s always that option too if you’re the husband and you don’t want to find you know have issues down the road.

43:05 So, Floyd, what are the odds of me getting custody of my children? My wife constantly threatens to take my kids and move away while I’m out of town working. She has a problem with alcohol she gets highly intoxicated alone with the children and once I caught her leaving the children home alone while intoxicated. She has claimed to be suicidal on two different occasions I recently found out that she has attempted to cheat on me with men and women. I have filed for divorce and have a temporary order in place that states she can’t take the children out of our county. Do I have a good chance of getting primary or am I going to lose my children because I worked out of town in construction primarily for five years?

43:45 It depends. Can I go with that answer? You’re on mute. Finally, you found the mute button Bryan?

44:04 No am I on mute? No, Christina.

44:05 So, yes you can go with it depends.

44:11 Okay, so yeah it depends on a number of things. One is how old are these kids? Are we talking 15- and 17-year-old are you talking one- and three-year-old?

44:20 Why does that matter? Well because if they’re like 15 and 17 and leaving them home alone? Not a huge deal. If they’re one and three? Kind of a big deal.

44:30 But if she’s highly intoxicated, threatening to move away, having suicidal ideations, you don’t think that matters if they’re 15 and 17?

44:40 No, I don’t think it matters nearly as much as if they’re one and three because a 15–17-year-old, if they are having problems or if their life is in danger, they can generally pick up the phone and call and say “hey dad moms lost her crap.”

44:55 where one- and three-year-old –

44:59 Don’t you think that’s detrimental to their emotional and mental welfare?

45:00 Yes, but not as detrimental to a one- and three-year-old. A one- and three-year-old can’t go to the kitchen and grab a sandwich if they’re hungry because moms passed out on the couch, right? A 15- to 17-year-old they can drive to the store, well a 17-year-old not 15.

45:17 Okay

45:17 Two different things and …

45:22 Also, this this idea that a one- and three-year-old, if all this craziness is happening, they’re probably not going to remember any of that whereas the 15- and 17-year-old, they’re like in it at that moment so –

45:34 I don’t think josh is saying that there’s no impact on the teenagers, but to a judge… right?

45:44 I just, yeah okay go ahead. I don’t know I like you two ganging up on me all morning I don’t know how I feel about this.

45:50 No, to me, if I could give my perspective on what’s going on here it’s an interesting story, right? That all these issues with mom it definitely sounds bad, and it sounds bad to any age kid. But the last part about construction out of town, you know that’s an interesting question I’d want to dig into as far as the human side of this right.

46:17 If these situations are so dire as a father isn’t it easier at least initially to

change your employment to maybe construction in town if the children are in such danger, you know? Why not go there first before maybe disintegrating a marriage even though it does sound from the perspective of this writing that that moms in a really bad situation.

46:40 Did you say disintegrating a marriage?

46:42 Sure, yeah, pulling out the ray gun and just shooting it right in the heart. Absolutely. I know you guys are good at that like the wild west

46:50 Typically we dissolve it, but we don’t disintegrate.

46:58 You act like I haven’t been around for 14 years. I’ve seen some destructions happen for sure.

47:02 Are you basically saying that dad should come home and take care of his wife and try to make that work?

47:10 Not necessarily. I think every marriage should make every adjustment to stay together before it’s time to divorce. And I don’t think that divorce is obviously anything wrong if it needs to happen. But I think too many times we look to that answer versus some adjustments we might be able to make in our lives and so that’s what I’m saying. Just from this perspective of this paragraph you know that last piece, if I’m a father and I have employment out of town where I have to travel, and I see this going on at home and I’ve made a commitment to this family I’m probably going to make some sacrifices first before going to the death penalty if you will for the marriage. Now, is there grace after that and a way to recover? As I told you when we started this, absolutely. But that definitely pauses me and obviously having a deeper conversation to get a better picture of the situation would be important but that’s all I’m saying, that was peculiar to me about that story.

48:10 Yeah, I agree it kind of reminds me of a case I had a few years back, out in west Texas where the children’s dad was a better dad. The children weren’t as well off with mom. But dad worked in the oil business, and you know how that is. I mean its long hours, late nights, sometimes gone for 14 days at a time. And so, we had this very, very difficult conversation at the beginning. It was like, if you want your kids you need to change jobs. Well, I can’t make as much money. I don’t care you have to decide what’s more important. This dude started driving for Pizza Hut delivering pizzas and got custody of his kids. That’s kind of what that reminds me of. I mean if you feel like your children are in danger, start working locally. You know, you have to decide what’s more important to you. Is it more important that you’re out of town in construction making $150 000 a year or that your kids are safe and you’re at home making $15 an hour?

49:05 That’s a very interesting point but the other thing is there’s already a temporary order in place, right and so presumably all of this was brought up at the temporary hearing. What is that temporary order now? How much of this evidence did the judge already hear and what was the ruling?

49:22 I think that was a TRO Floyd, it says temporary order, but I think that it’s a TRO. That’s the way I read it because he’s asking if he has a good chance of getting primary.

49:35 I was thinking at a final. Why would there be a TRO that says she can’t take the children out of the country?

49:43 Out of the county.

49:47 Oh okay. County, country, kind of the same thing. Just one letter. It’s really all that is different. Okay, I think that if you’re able to establish all of this stuff, and assuming there’s nothing bad against you, because there’s usually two sides to every story, save and accept you working out of town, you’re willing to move back in town to make sure your kids are taken care of, do you have a chance?

50:17 Different judges view mental health differently. Some judges take it very, very, very, very, very… I think they all take it seriously, but some judges are more forgiving if someone’s getting help and some are less forgiving so maybe.

50:37 These types of situations are so tough because… So, number one, he filed for divorce. This is where I do think that it’s important that before you make a move you should be consulting with a good attorney that knows their stuff when it comes to

family law. I cannot tell you the number of times I’ve done a consultation, and somebody comes in and they say all the stuff that this gentleman said. Well, this is what she’s done, and this is what she’s said.

51:16 I say okay, prove it. Show me. What do you have? Well, nothing. She just told me, she called me, my kids told me, but I don’t have any proof.

51:28 I can’t do anything with that and once you file, then you don’t have any evidence and so what happens when you walk into the courtroom and mom comes in and says, “I would never, never have done that, would never do that, he’s lying because he doesn’t want to pay child support.” And you’re coming in and you’re saying, “Well, no, absolutely not, she did do this, and you know she called me and I didn’t record it because I was just worried about my wife and worried about my kids and I wasn’t thinking about that at the time.” Then basically, what the court is left with he said/she said. Who do I believe? Don’t really know but I do know that dad’s been gone most of the time and mom’s been there with the kids and even if all this stuff was true then why would dad continue to leave the children alone with mom?

52:12 And I’m going to go ahead and award the children to mom because dads always away. Now you have left your children in a very unsafe situation all because you didn’t stop to take the time to gather the evidence before making the move. I see that a lot with young attorneys where they’re so overzealous. They’re anxious to get their things on file and they’re just going to make a move and then when they show up to court, they don’t have what they need. Make

sure, you’re talking to your attorneys about the strategy before you walk into that courtroom. I tell all of my clients and all of my attorneys we want to win that case before we ever step foot in the courtroom.

52:58 I want all my ducks in a row to where they can’t really wiggle out of this situation but for whatever path I’m giving them. So that’s the thing that concerns me about this case I think if he doesn’t have any of that stuff, he loses all day.

53:20 I think they should definitely stop, drop, shut them down and open up shop.

53:36 So, Floyd, can you sue my wife’s lover for causing emotional stress and alienation of affection? My wife got caught while cheating on me. We had a wonderful marriage until then. Can I sue her lover for the stress he caused? Alienation of affection in Texas

54:02 First of all you’re rude. There were eight questions in between that one.

54:07 I know but it was such a good question. We had to get it in we have five minutes. Go ahead Brian.

54:17 I mean this is not a legal answer by any means, but it’s funny being… Christina will tell me the highlights of all the things she’s done, and I find a similar thread in some tough divorces or parties that take it tougher and that is trying to force the other party to make emotional decisions through litigation. In other words, if you know at the point where your partner is making that strong decision, and once again the caveat disclaimer is that every situation is different, making a decision to violate your trust and your respect like, maybe your time and money is better spent on improving yourself and finding that happiness that you want outside of somebody that’s making that really, really egregious decision. Now have I seen relationships come back from something like that? Absolutely and that’s for every singular relationship to decide. I don’t want to make light of the situation because I’m sure it’s hard on both parties involved. At the same time, I would coach a person, if I was just having a beer and telling them what to do is, “Okay, don’t waste your money to pay a great firm like Jimenez law firm to help you make them do something. Why not take that money and invest in a gym membership and maybe read some books and embed yourself for the next partner?

55:45 Honey, I think that you’re not quite understanding what we’re trying to do by hosting these Facebook events. The idea is that maybe people will want to come and hire us.

55:55 He’s definitely decreasing our clientele.

56:02 This will be my last time on the podcast, so I appreciate you letting me

56:00 So, we always say we don’t encourage divorce, but good god Bryan we do need to make a living.

56:15 Well, I mean there’s there may be a divorce to be had in here, I’m not saying that but trying to compel somebody to be the person you want them to be through litigation… so, I mean there’s money in it for you

56:25 I feel like maybe we should become counselors, Christina

56:30 I feel like so too, yes.

56:33 If this guy came in and said, “Can I sue for emotional distress?” I would say no, or maybe I’m not the attorney to do it. I just don’t know that it would be fruitful and that it would be a good use of your money and a good use of your time.

56:55 There is a cause of action for alienation of affection. I can’t tell you what the elements are because we don’t do that, but I think this would fit.

57:07 And I don’t think it’s because you have affection with an alien, I don’t think that’s what it is.

57:15 I can’t with the dad jokes on a Monday morning guys. Can y’all please stop? Make it go away.

57:25  I would certainly refer them to a civil attorney or bring in a civil attorney to help me litigate the divorce with along with the civil causes of action

57:37 We have cases all the time when people will come in and they’ll say, “I want to pursue this, and this is why I want to do it.” I can’t even tell you the number of times when I’m talking to clients or potential clients and I’ll tell them, don’t do it. I understand that you’re upset I understand that you’re frustrated but this is not in your best interest to move forward. Then I’ll kind of lay everything out. Here’s what’s probably going to happen. Here’s your net gain. Here’s your ROI. And, at the end of this, all that’s happened is you have run yourself through the ringer for really nothing.

58:20 So, number one, I always have a problem when people come to us and they’re upset with the mistress or the, what do you call a man that has the affair like the not the mistress. I don’t know what do you call him?

59:00 When you blame the other person for the affair. I mean I understand they have a role to play, I get it especially if they knew that this person was married. But really the person that violated your trust was your spouse.

59:14 So, if you’re going to go after anyone because of the emotional stress and all of that stuff then perhaps what we do is we fight for a disproportionate share of the marital estate saying, look judge we understand that typically courts are going to go 50 50 when dividing up all assets. We want a little bit more money because they had this affair and here’s everything that I went through. My depression, my anxiety, my therapy, all of this stuff that I went through because she did this.

59:45 I think that that is a more viable cause of action. It’s more probable that you would recover on that claim and it’s something that you have to go through anyway if you’re going to dissolve the marriage.

59:59 So, I, again with the whole therapy thing, I tell people all the time that when you’re going through a divorce it is the equivalent of death. And, especially if you’re in this gentleman’s situation where it’s the ultimate betrayal, the one person that was never supposed to do that to you has now done that, and your life as you saw it for the next 20 to 50 years is dead. It’s gone. And the mental impact it has on you is immense. Like Bryan said, instead of focusing on going after the mister, we’re going to focus on our mental health and making ourselves better, recovering through this trauma and then accomplishing great things.

60:46 See, with that being said, it is about that time gentlemen. So, thank you so much, Bryan for joining us today.

61:04 Floyd, as always, thank you. We always have to give our lovely disclaimer here at the end of this basically as we always say don’t take this as legal advice. Go seek out a local council. Visit with them about your

61:21 particular situation and make sure that you’re hiring somebody who is strategic who has your best interest in mind and who’s going to go above and beyond for both you and your kiddos so y’all have a wonderful week and I will be talking to you all soon. Toddles.