With the end of March upon us, I thought I'd write a reminder of the summer visitation schedule in the Texas Standard Possession Schedule. 

For the non-custodial parent (the parent who doesn't designate the child's residence), April 1 is the deadline to designate your thirty days of extended summer possession. If you designate your possession by April 1, you can pick almost any time during the summer to exercise your extended summer visitation in a continuous 30 days or in two, two week possession periods. If you do not designate by April 1, then the non-custodial parent defaults to July 1 through July 31. 

The custodial parent has between April 2 and April 15 to designate one weekend within the non-custodial parent's 30 days of possession when the custodial parent can have possession of the child. If the parent does not give any notice, then the non-custodial parent will have 30 days of uninterrupted possession. 

By giving notice by April 15 (or with 14 days notice), the custodial parent can also exercise an additional weekend of possession that would normally belong to the non-custodial parent. This allows the non-custodial parent to exercise an extended period of possession by combining it with the custodial parent's other normal periods of possession. 

So parents thinking about summer vacation plans should keep in mind the April notice deadlines to avoid any issues. 

​A divorce in Texas can be an expensive process, but there are ways to limit the costs involved.  By following the tips below you can help keep costs down.

1. Educate yourself about Texas divorce law.  Your attorney will guide you through the process and give you advice when making decisions, but the more familiar you are with the process the less time the attorney will need to go over everything with you.  I always advise my clients to read up on Texas divorce law as much as possible.  Clients can review legal websites like this one and there are numerous books available discussing the laws in Texas. I don’t expect my clients to know the law and I always explain everything to them, but the more knowledgeable my clients are, the more efficient meetings tend to go.
2. Educate yourself regarding you and your spouses’ assets and debts.  A Texas divorce revolves around the division and allocation of community assets and debts so it is important that I know about all property that the parties own.  There are mechanisms for me to discover all financials accounts and assets but this can sometimes be costly.  If a client has a firm grasp of the parties’ assets and debts it can give me solid direction and save me from having to start from scratch.
3. Organize Documents.  If financial or other documents are needed by your attorney, bringing in a shoe box of miscellaneous receipts and bank statements that your attorney has to comb through is definitely going to cost more than bringing in organized documents arranged by dates or other system.   
4. Control Your Emotions. There’s no doubt that a divorce is an emotionally difficult process, but parties that limit the emotional decision making generally finalize divorces quicker and for less money.   
5. Narrow the areas of conflict.  Determine if you and your spouse can agree on certain items and limit the items that need to be resolved by the attorneys.  
6. Fully participate in mediation.  Trials are an expensive and time consuming method to reaching a divorce resolution.  Mediations allow the parties to save significant money.   
7. Focus on What’s Important.  Often times people end up fighting over property that simply isn’t worth it.  Paying an attorney $300 an hour to argue over a $250 television just isn’t the best use of your resources.   
8. Discuss and be clear with your attorney regarding finances.  Be sure there is clear communication between you and your attorney regarding work being down.  Your attorney should send you routine account statements so you know where you stand.  You don’t want to just be handed a bill at the end of the divorce that is tens of thousands of dollars.  

Under Texas Family Code Section 6.702, in most cases, a court can’t grant a divorce before 60 days have passed since the divorce petition was filed.  So if you had an agreed divorce it is possible to divorced on the 61st day after filing the divorce petition.

However, in actuality, a divorce typically takes anywhere between 6 months and 1 year.  Since all assets and liabilities have to be divided, it takes time to inventory the community estate.  You want to make sure you have a complete listing and accurate valuation of the estate.  This is typically done through what’s called discovery which can involve gathering financial documents and taking depositions.

Once a complete inventory is done, the estate then has to be divided between the parties.  The parties can informally negotiate a division, go to a mediator to facilitate an agreed division, or, if no agreement can be reached, have the court decide how the estate will be divided. 

Going to trial will result in the longest divorce cases.  Trials require more preparation and you will have to rely on when the court will have time to hear your case.  In some courts, if you request a court date the first available date can be 4-6 months in the future.  

So in most cases, the length of the divorce will depend on the parties.  Are the parties able to reach agreements between themselves or will the case have to be tried?  Will multiple court hearings be needed or will the parties be able to reach a complete inventory of property relatively easily? Most people want their divorce completed as soon as possible, but the parties have to keep in mind how important the divorce and property division will be and plan accordingly.  

I spoke last about community property in Texas. I wanted to follow that up with a more detailed discussion of what is considered separate property in Texas and what separate property means for a Texas divorce. 

Separate property is property that does not owe its existence to the marriage and is owned individually by a respective spouse. It generally consists of property owned or acquired by a spouse before the date of marriage.  or property that is given to an individual spouse as a gift or property that a spouse inherits. It can also include property recovered for personal injury whether recovered before or during the marriage. 

During a divorce, if property is determined to be the separate property of a spouse the court must confirm that property to the spouse. The court is prohibited from taking the separate property of a spouse and awarding it to the other spouse. However, the court may order the property be sold to pay or settle support for minor children. 

Any property that is found not to be separate property will be classified as community property. If you own property that's separate property then you don't have to worry about losing title to that property. Therefore, it is important to have an attorney who can accurately advise you on what property may be subject to court division and what isn't subject to division. 

​The Texas Family Code § 3.002 defines community property as that “property, other than separate property, acquired by either spouse during the marriage.”  This leads to the obvious questions- what is separate property?

Separate property is generally one of three things:
1.      Property owned prior to marriage;
2.      Property acquired by a spouse by gift or inheritance; or
3.      Any recovery for personal injuries sustained during the marriage, except for loss of earnings.

So, generally, property that doesn’t fall within one of those three categories is considered community property.  Texas law also presumes that property possessed by either spouse during the marriage is community property.  The spouse claiming that a piece of property is separate has the burden of proving that the property is, in fact, separate and not community property. 

How a property is titled does not determine if it is separate or community property.  For instance, if a married couple purchased a house but only put one name on the mortgage and title to the property, then the house would still be community property despite having only one name on the title.  The house was purchased during the marriage and, absent other facts, it would be community property.

 If you were married later in life you may have already acquired substantial separate property before the marriage.  On the other hand, all property owned by you and your spouse may be community property that needs to be divided in the divorce.  An attorney can sit down with you and review all property that might be involved in the divorce and whether Texas divorce law would consider it community or separate property.  

if you have questions and would like to schedule a consultation, you can contact our office at at michael@michaeldiazlaw.com or 972-542-6820.  

The Supreme Court of Texas has issued  a new order on court re-openings. The Order restates that whenever possible court participants should be allowed to participate via video or telephone conference. The Order also states that justice or municipal courts (i.e. small claims or traffic tickets) should not hold in-person jury trials until at least December 1. 

The order does allow district court (family and felony cases) along with county courts (misdemeanor cases) to hold jury trials if they meet certain conditions such as (1) submitting a plan to the the Office of Court Administration, (2) gained approval from the local administrative district judge and Regional Presiding Judge, (3) consulted with the local public health authority regarding appropriate precautions, (4) has established protocols to prevent anyone with COVID or who's been exposed to COVID from participating and (5) the court have considered any appropriate objections or motions from the parties participating. 

Social distancing requirements will prevent the courts from conducting normal docket schedules but this at least allows for the possibility of holding in person proceedings. It also allows defendants in jail waiting for jury trial to finally have their cases resolved. 
 A full copy of the order can be found here. 

Court proceedings are intended to be open to the public as a way of ensuring accountability. In most cases, any one can walk into any court room and observe proceedings. The constitution guarantees the right to a "public trial" in the Sixth Amendment partly as a way ensuring that all proper laws and rules are followed during trial. 

Courts in Collin County and throughout north Texas have continued to hold hearings through the use Zoom and other video conferencing and have worked to ensure the public nature of court proceedings through the use of YouTube. Collin County courts each have their own YouTube channels where any one from the public can go on and watch court proceedings. 
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Courts throughout Texas are taking part in this practice and although it does present some challenges it does help to meet the goal of having public access to court proceedings. Slate.com has an interesting article regarding the various concerns and how those concerns are being addressed https://slate.com/technology/2020/08/zoom-courts-livestream-youtube.html. 

So anyone wanting to watch real court proceedings can now just tune into YouTube. 

     ​Although many courthouses throughout the country are shut down. Judges in Collin County are still doing their best to move cases forward.  Judges have encouraged parties attend mediation to settle disputes out of court and Zoom video hearings have been taking place in most courts.  Judge Miskel in the 470th Judicial District Court has even conducted a jury trial via Zoom https://www.reuters.com/article/us-health-coronavirus-courts-texas/texas-prepares-for-a-pandemic-first-a-jury-trial-by-zoom-idUSKBN22U1FE?feedType=RSS&feedName=technologyNews.
   The parties in that case picked a jury by video conference and then presented evidence to the jury. The amount of people needed for jury trials presents a special challenge for cases set for trial, but apparently even Zoom conferences can help to meet that requirement.
   It will be interesting to see how this develops in the future. Many courts are eyeing a return to in-person hearings, but this may be one way to limit the number of people required at court even when things do start to open up. The judges recognize the need for justice to continue during the pandemic and are doing their best to meet that need. 
   If you have a question or would like to schedule a consultation, you can contact Michael Diaz at 972-542-6820 or michael@michaeldiazlaw.com.

It's been a while since Texas courts have conducted very many in-person proceedings, but new guidance from the Texas Office of Court Administration is making that a reality again. The Office of Court Administration has set June 1 or after as when counties may once again start conducting non-essential hearings in person. Courts are advised to discuss guidelines for reopening with the county and local health authorities. Additionally, courts must submit an operating plan to the Regional Presiding Judge. Upon receipt by the Regional Presiding Judge and acknowledgement that the operating plans meets certain requirements, courts may commence in-person proceedings. 

This update doesn't include jury trials and there's still no guidance on when jury trials when be held again. The Office of Court Administration does anticipate that jury trials will resume this summer. 

Many courts have been able to conduct much of its regular docket via video conferencing, but it will definitely be easier once in-person hearings are available again. The full guidance from the Office of Court Administration is available at here. 

     Although the courthouses for Collin County and surrounding counties are closed for non-essential hearings and, even essential hearing are being conducted by video conference, it is possible to still move forward on cases.  The Collin County courts have issued a Joint Statement Encouraging Mediation.
     Mediation is common in most family law cases before trial. The Collin County judges have clarified that they still expect mediations to take place if they can be done by video/remote  conference.  The courts do not want parties canceling mediation simply because the mediation can’t be done in person.
    Additionally, the Collin County courts are encouraging all issues that might usually require a hearing be heard by a mediator.  For instance, typically at the beginning of a family law case there will be a Temporary Order hearing to put orders in place during the pendency of the case. Rather than have people in limbo because they can’t have a hearing in front of the judge, the judges want people to mediate those issues so a hearing isn’t necessary. This can’t prevent a back log of cases and give people guidance without having to wait for the courts to open back up.
     If you have questions or need assistance, you can still schedule a phone consultation to answer your questions at 972-542-6820 or michael@michaeldiazlaw.com.