New Year's Resolutions

In 2010, I resolve to be..thinner, healthier, more budget conscious?

Instead, what about to be a better co-parent?

Challenge yourself in 2010 to work with your ex to support your children financially, emotionally, spiritually and to respect the other parent's value system while maintaining your own set of rules and expectations.

You know when your mother always said, "if you can't say anything nice, don't say anything at all?" Well the same is true with co-parenting.

Through gritted teeth and sighs, simply refrain from saying the nasty (but sometimes true) things that you would like to share with your children. This will preserve your children's childhood and let them love without your judgment.

As a wise associate judge in Dallas County once said, "you can love your children and hate your spouse, but you can't do both."

I know. Much easier said than done.

The Do's and Don'ts of Testifying in a Family Case

While the "Law and Order" or Denny Krane cross-examination is the stuff television audiences crave, judges do not revel in drama. As the one in the hot seat, certain courtroom decorum is appropriate and can make or break your case. The following is a list of what you should do when you find yourself in the middle of a family case, either as a party or simply a witness (not an expert witness):

1. Tell the truth. You are under oath and there is threat of perjury should you "bend" the truth. Hopefully the truth shall set you free. The converse is true. Don't box yourself in by lies.

2. If you don't know the answer to the question, don't commit. It is perfectly acceptable to say, "I don't know. This applies to dates, number of occurrences and names. This is not a memory contest.

3. Look at your lawyer during the questions. Keep good eye contact to gauge whether you are saying too much or not enough.

4. LISTEN. Please only answer the question asked. If you go off on a narrative about what you were wearing when your husband was threatening you, or how your neighbor always told your boyfriend was a scoundrel, that will not help the fact finder. In fact, it might irritate the judge that you are being nonresponsive. LISTEN.

5. Wear clothes that you would wear to church. If you don't go to church, pretend that you are a librarian at a conservative college. Cover up the essentials and look formal enough to show respect for yourself and the Court.

6. During your testimony, if the lawyers object, stop talking. Wait for the judge to make a ruling. If you are uncertain whether you can answer or not, ask the judge simply,"may I answer?"

7. Don't audibly sigh, chew bubble gum, laugh or talk out of turn. Comments under your breath or eye rolling is not appropriate for the Court room.

8. Do understand that this is an emotional time and that lawyers know that it is difficult to be on the stand. If you need breaks, tell your lawyer before hand a signal to show that you are tired or need to use the restroom. Your comfort is key. Make sure you eat a good meal prior to testifying, bring a bottle of water or a snack.

9. Remember that ridiculous or badgering questions are for the lawyer to object to- not the witness.

10. Keep your emotions appropriate. It is acceptable to cry, but yelling at the opposing counsel, being snarky with the judge, or acting irrationally, will not lead to a successful result in Court.

Things to Do Before you File a Family Case

1. Take down any offensive information from social networking sites. MySpace, Facebook and personal blogs are your public face. Your status of "married/single" or "looking for love" could be the lynchpin in a divorce action with allegations of infidelity. Likewise, mention of drug/alcohol use, photos of you partying, and inappropriate content may be judicial admissions against you in a custody case.

2. Do not threaten the oppposing party, harass them with texts or phonecalls or tell them that you are about to file suit. Text messages, e-mails and phone records are discoverable material in a case, so be careful what you say. There could be a permanent reminder out there.

3. Read the standing orders of your court's juridiction, which are usually available through the district clerk of the Court. For example, Dallas, Collin, Rockwall and Denton all have orders that you must obey that include not transferring money from joint accounts, prohibit making purchases that are not for reasoanble living expenses, hiding the children or threatening the other party.

4. Don't coach your children about what to say or involve them in litigation. Children should be children and don't need to be hauled into Court and the dysfunction that comes with litigation.

5. If CPS has contacted you, cooperate with the safety plan. However, consult an attorney prior to agreeing to the terms.

6. If you use/abuse drugs, alcohol or prescription drugs, remember that drug tests can go back as far as 3 months for certain drugs. Stop using if you are still doing so.

7. Change all your passwords to e-mail or personal accounts. However, in a divorce, you cannot change passwords to joint accounts.

8. Form a safety plan if you are in threat of domestic violence. Pack a bag, call a friend and know a safe place where you (and your children if you have them) can go until things settle down.

9. Do not obtain illegal evidence. Don't go on your spouse/partner/girlfriend's computer and download information. If evidence is obtained illegally, then you can be liable up to $10,000 per violation under the Civil Practice and Remedies Code.

10. Understand that this is a life change. It won't be easy. However, it is a necessary step. Seek a licensed therapist or counselor to help you transition through this major life event.

New resource: Timeline for Procedures in Family Law

I just posted a new resource, "Timeline for Procedures in Family Law," under the "What to Expect (and what not to) in Family Law" section of my Web site.

You can read the article here:
http://www.nataliegregg.com/timeline-for-procedures-in-family-law/index.html

Reprinting and distribution of these resources is allowed with proper accreditation to author, so please feel free to send this to others.

Family Law Myth #1: "Full Custody"

Here is the final one of the "Top Ten Common Myths in Family Law." The entire list is available here:
http://www.nataliegregg.com/top-ten-myths-in-family-law/

Myth #1:
I want “full custody” of the children.

In Texas, the magic legal words are “conservatorship” and “access.” Conservatorship is the bundle of rights and duties that accompany being a parent; for example, the right to make educational decisions or the duty to pay child support. In the world of family law, access refers to a period of time when the non-custodian parent has exclusive visitation time with the child(ren) separate from the other parent.

When my clients ask for “full custody,” that is code for conservatorship. If you want to have the kids the majority of the time AND make the most important life decisions for them, you want to be primary managing conservator. There is no legal definition for “full custody.”

To read about the other commonly held myths related to family law, click here.

Family Law Myth #2: "I bought it in 'my name' so it’s mine."

Here is another one of the "Top Ten Common Myths in Family Law." The entire list is available here:
http://www.nataliegregg.com/top-ten-myths-in-family-law/

Myth #2:
I bought it in “my name” so it’s mine.

Simply purchasing a car, house, boat or other real property under your name does not mean that you have 100% ownership.

Names are important in matters of financing a home or a vehicle, as they are usually the source of credit for such purchases. However, just because the property title reads: “Jane Smith,” it does not necessarily mean that Jane Smith owns it outright. If Jane was married to Joe when she purchased the item, Joe is potentially entitled to 50% of the ownership of that item. So don’t assume that names = ownership.

To read about the other commonly held myths related to family law, click here.

Family Law Myth #3: Delinquent Child Support is Cause for Loss of Access

Here is another one of the "Top Ten Common Myths in Family Law." The entire list is available here:
http://www.nataliegregg.com/top-ten-myths-in-family-law/

Myth #3
Because he’s not paying child support, I don’t have to let him see the kids.

Life is not fair. In a “fair” world, when Daddy is not paying child support, he should not get to see the children that he is not supporting. However, we do not live in a vigilante justice world. Only the judge gets to decide what ultimately should happen at visits.

Two wrongs do not a right make: you cannot disregard the Court’s orders for visitation simply because the child support account is two months or even two years delinquent. It does not make sense why a parent who says that they love and care for their children would not want to provide resources for the children, but you must follow the law and provide access even when the other parent is delinquent in child support payments.

To read about the other commonly held myths related to family law, click here.

Family Law Myth #4: Comparing Divorces

Here is another one of the "Top Ten Common Myths in Family Law." The entire list is available here:
http://www.nataliegregg.com/top-ten-myths-in-family-law/

Myth #4:
My friend got (fill in the blank)__________ in her divorce, so I want that too.

Every case is unique, with many facets and variations from the other so that you cannot compare apples and oranges. Results are different based on the judges, the parties, the experts, the children, the money (or lack thereof) and the attorneys. Just because your friend got spousal maintenance and had a factually similar situation does not necessarily mean that you will also be awarded spousal maintenance.

Even if you have the same attorney, you need to understand that theories of recovery and positive/negative facts about the parties play equal roles as legal advocacy in the Courtroom. Given the same factors but two different cases, a result may differ based on even the slightest change. Just be open. Don’t pre-judge and be realistic about your results.

To read about the other commonly held myths related to family law, click here.

Family Law Myth #5: "Legal separation in Texas"

Here is another one of the "Top Ten Common Myths in Family Law." The entire list is available here:
http://www.nataliegregg.com/top-ten-myths-in-family-law/

Myth #5:
We have been “legally separated” in Texas for years.

The concept of “legal separation” is a fabrication in Texas. In some countries just by muttering the words “I divorce you” three times, you are divorced. But in Texas, if you don’t have a divorce decree, then you don’t have the golden ticket. Legal separation does not exist in this state.

To read about the other commonly held myths related to family law, click here.

Family Law Myth #6:"If I don’t like the orders, I’ll just move"

Here is another one of the "Top Ten Common Myths in Family Law." The entire list is available here:
http://www.nataliegregg.com/top-ten-myths-in-family-law/

Myth #6:
If I don’t like the orders, I’ll just move with the kids back to my hometown in Alaska.

You can’t outrun the orders of a Court. Often in Dallas County orders, we include language that restricts parties to “Dallas and contiguous counties,” (meaning Dallas and the touching counties). The reasoning behind keeping parties from a divorce or Suit Affecting Parent-Child Relationship in the Dallas area is to promote co-parenting. The court acknowledges that it would be unnecessarily difficult to co-parent children in Dallas from Alaska.

Once again, you must respect the Court’s decision. If your order has a residency restriction, you MUST adhere to it. The only way to relocate against this residency restriction is to file a modification with a compelling reason to move with the children such as once-in-a-lifetime education, family or work opportunity.

To read about the other commonly held myths related to family law, click here.

Family Law Myth #7: "If she cheated on me, I should get everything"

Here is another one of the "Top Ten Common Myths in Family Law." The entire list is available here:
http://www.nataliegregg.com/top-ten-myths-in-family-law/

Myth #7:
If she cheated on me, I should get everything.

Infidelity is grounds for divorce in Texas. Some may even argue that it will get you a disproportionate share of the marital estate. Nonetheless, cheating does not usually result in a full-on wipeout of the cheater’s portion of the division of the estate.

While the Code of Hammurabi may dictate an “eye for an eye,” we do not live in an era when the Court’s decisions are based purely on moral issues. Unless you are exposing the children to the alleged cheating in highly inappropriate situations – such as sexual activity in front of the children, calling lovers “mommy” or “daddy” or jeopardizing the health, safety or welfare of the children while cheating – infidelity has little bearing on property division.

To read about the other commonly held myths related to family law, click here.

Family Law Myth #8: Children are Good Witnesses in Divorce Trials

As in my previous article, here is another one of the "Top Ten Common Myths in Family Law." The entire list is available here:
http://www.nataliegregg.com/top-ten-myths-in-family-law/

Myth #8:
We’ll just call the kids at trial as witnesses and ask them what they think!

Putting children in the middle of litigation is only going to accomplish two things, and one will not be winning. First, you are going to really anger the judge by inserting your child in this mud-slinging contest over custody. Second, you are going to damage your children by asking them to be witnesses against their own parents. While it seems reasonable to ask the children to choose where they want to live, most kids will answer under coercion in exchange for an iPod, a new Mustang or even twenty dollars cash.

There are Affidavits of Choice that children 12 and older can sign to designate the parent with whom they wish to reside primarily, but they are no guarantee. Likewise, there is a Motion to Confer with Children that may be used to accomplish the goal of judges interviewing children and discovering their opinions prior to making orders. Under the Texas Family Code, the judge shall meet with the children if such a motion is made. In reality, some judges may outright refuse to interview the children, or order them to be interviewed by Family Court Services or a psychologist who can then report back to the judge.

To read about the other commonly held myths related to family law, click here.

Family Law Myth #9: Children Can Choose Not to Go to Visitation

As in my previous article, here is another one of the "Top Ten Common Myths in Family Law." The entire list is available here:
http://www.nataliegregg.com/top-ten-myths-in-family-law/index.html

Myth #9:
If the kids don’t want to go to visitation with the other parent, then a) it is proof that he is a bad parent and b) I shouldn’t “make” them go.

Some kids would eat chocolate cake for every meal if given the choice. Does that mean that you should serve your five year-old chocolate cake for breakfast, lunch and dinner? Obviously not. So, take kids’ reactions to visitation with the other parent with a grain of salt. They may simply be echoing your negative comments about the other parent or they may be trying to please you by “siding” with you.

You must make sure that your children attend all court-ordered visits. Some judges can and will throw you in jail as a parent for preventing the other party from exercising access to the children. So, unless you like orange jumpsuits and glowering, disapproving looks from the judge, take charge, be the parent, and make your kids go to visitation. Even if that is not their preference, that is a better outcome than them having to see you go to jail.

To read about the other commonly held myths related to family law, click here.

Family Law Myth #10: Leaving without the children constitutes “abandonment.

There are many widely held misconceptions in the general public about family law matters. To dismantle these commonly held myths, I have created the "Top Ten Common Myths in Family Law."

I will be sending these out individually, but the entire list is available here:
http://www.nataliegregg.com/top-ten-myths-in-family-law/index.html

Myth #10:
If you left the house due to domestic violence or other intolerable behavior without the children, that constitutes “abandonment.”

Victims of domestic violence who flee in the night with only the clothes on their back and “leave” their three kids at home have not abandoned their family. Abandonment is a cause of action and a basis for termination that requires: a) failure to support children for six months or more; or, b) living apart for two years or more.

Temporarily fleeing with the intent and follow-through of getting the children to safety is not abandonment.

However, please be careful and note the risks of leaving without your children. If you choose to leave your children with an abusive spouse, this act undermines any argument later that the abuser should have supervised access or be denied access altogether. Also, leaving in such a manner means that your children are left in a dangerous living environment and no longer have you to defend them. If you and your children are at risk from an abuser, you should consider calling 9-1-1 to secure immediate physical protection and then seek legal representation to secure a protective order.

To read about the other commonly held myths related to family law, click here.

Intentionally underemployed, or just a bad economy?

The Texas Family Code offers insight on cases of intentional unemployment and underemployment

With an unemployment rate nationally at its highest in years, it’s getting harder and harder to discern whether underemployment is a viable theory of recovery amidst this recession. Intentional underemployment almost sounds like a criminal act- it harkens back to the mind state required for certain crimes to prove intent prior to committing them.

Did Dad intend to lower his child support obligation? Was that alleged pink slip the result of a nod and nudge from his boss to help him reduce his expenses (i.e., supporting his children)?

The requisite intent, or lack thereof, to be underemployed or unemployed for the purpose of determining child support award may be inferred from such circumstances as the parent’s education, economic adversities, business reversals, business background and earning potential. See Garner v. Garner, 200 S.W.3d 303, 306-7 (Tex.App.—Dallas 2006, no pet.).

Likewise, In re Marriage of Hamer found underemployment when the obligor voluntarily ended prior employment, took lesser paying jobs and opted to remain in lesser paying jobs despite the needs of his offspring. 906 S.W.3d 263, 267 (Tex.App.—Amarillo 1995, no writ).

Conversely, in an older 1991 case, Belcher v. Belcher, mom was not found to be intentionally underemployed because she was improving herself educationally so that she could hold a better, permanent job. Because her unemployment was for a finite period of short duration while she completed her education, the evidence showed that she intended to maintain a job as soon as she received her teaching certificate. Belcher v. Belcher, 808 S.W.3d 2020, 208 (Tex. App.—El Paso, 1991, no writ, overruled on other grounds, Rodriguez v. Rodiguez, 860 S.W. 3d 414 (Tex. 1993).

Under Texas Family Code Section 154.066, if the earning potential of the obligor is greater than the actual income, because the obligor is intentionally underemployed to avoid child support payments, a trial court can apply child support guidelines to that of his or her earning potential. Two recent cases, McLane v. McLane, 263 S.W.3d 358 (Tex.App.-Houston [1st Dist.] 2008 (pet. denied), and In re A.B.A.T.W., 266 S.W.3d 580 (Tex.App.—Dallas, 2008, no pet), found that the award of increased child support was appropriate due to father’s intentional underemployment. In the latter case, the Court looked to dad’s advanced degrees, his credibility about his job search, and his outward lifestyle before and after the divorce proceedings. There are no current cases mandating that a petitioner affirmatively plead for underemployment as relief requested. However, the cases cited herein illustrate the types of evidence proffered to make such a finding.

Ultimately while the Texas Family Code Section 154.123 provides seventeen (17) additional factors for the Court to consider when awarding child support outside of strict percentage guidelines, Section (5) is on point to intentional underemployment. The Court may consider: “the amount of the obligee’s net resources, including the earning potential of the oblige if the actual income of the oblige is significantly less than what the oblige could earn because the oblige is intentionally unemployed or underemployed and including an increase or decrease in the income of the oblige or income that may be attributed to the property and assets of the obligee.”

So, in the end, while we don’t want to kick a man while he’s down, we want our fair share of what there is or what should have been there (in a better economy?).

More info about this and other family law matters at:

http://www.NatalieGregg.com/

Cheating: forgive and forget or just leave?

Source: O Magazine, "I Thought I Could Trust Him… By Judith Newman" Illustration: Julien Pacaud

Some betrayals are easier to forgive than others. Cheating on a significant other is more of a roadblock than a speedbump. But with the numbers hovering at lifetime infidelity rates at 25 percent for men and 15 percent for women, potentially one in four of us are scheduled to meet that roadblock head-on. According to a study cited by O Magazine's "I Thought I Could Trust Him..."Judith Newman, General Social Survey found that unfaithful wives under 30 increased by 20 percent and husbands by 45 percent respectively from 1991 to 2006.

How do you define "cheating"?

There is emotional cheating; good old fashioned physical, sexual cheating; and somewhere in the middle--a sweet, seemingly innocent office crush. In the age of texting, Skype, social networking websites and message boards, cheating is easier than ever: anonymity, privacy and accessibility are abundant.

However, when most couples say "I do," one would hope they never contemplated themselves one day in the future, salivating at the receiving end of a racy photo or texting unmentionable sex talk throughout the workday to a complete stranger. It is a slippery slope. But at some point, a boundary is crossed and suddenly relationships, marriages, families are destroyed. Nonetheless, before you pack your bags, load up the U-Haul and look up "divorce lawyers" in the phonebook, ask yourself a few questions:

Questions to ask when (you suspect that) your partner has cheated:

1. Has it happened before?
Chances are it will happen again. The old aphorism "once a cheat always a cheat" unfortunately is a saying for a reason-it rings true. Cheating is a symptom of a much larger problem. The spouse didn't feel special or appreciated. Sometimes, the cheating was a convenient and attractive distraction from the mundane rigmarole that is parenting, paying the bills and snoring in cotton pajamas next to your mate. While feeling ignored and bored is a sympathetic cause, serial cheating will not solve the problem. If this is the second or third time, you may want to leave. Otherwise, you may find yourself in a strange episode of "Groundhog Day."

2. How did you find out?
If you discovered the indiscretions by scrolling down the recent calls of your partner's cellphone, or you read e-mails from a mysterious co-worker that didn't exactly involve anything work-related, your spouse is caught mid-affair red-handed. Ask yourself...were they ever planning on telling you? You know the sad and unfortunate answer. It is a little harder to forgive and forget when your partner was forced into confession. Or worse yet, can you really move past this marital discord when your husband or wife tries to rationalize or deny the offending evidence of an affair and proceeds with business as usual?

3. Are children involved?
Children should never be the only reason that you stay in a marriage or a relationship. However, when mommy and daddy have 10 years of fidelity and the bonds of a family with children, the answer to dealing with a cheating partner is much more complex. You are not only ending a relationship with your spouse when you leave, you are ending the happy image of mommy and daddy together. Still, if the image is truly just that, a fake Hollywood front for the children to go through their golden early childhood years, then maybe you should leave. Before leaving, seek a family therapist, counselor or pastor to discuss if there is anything worth salvaging. For some, cheating is a non-negotiable and no explanation or psycho-babble interpretation will suffice- their boots were made for walking.

4. Are you staying for the right reasons?
Money is not the right reason. Easier said than done, but if you are in this relationship to be on the payroll of the other partner, you probably should consult an attorney as soon as you are done reading this. I know that in an era when financial portfolios are mere shadows of their former selves and inflation has made grocery shopping nauseating, it is hard to imagine life on your own. Be brave, cut the tie and start brainstorming what your marketable skills are. And remember there is always spousal maintenance and alimony to give you that post-divorce financial lift.

In the end, remember that cheating affects divorce and child custody peripherally. While the family courts are not courts of moral authority, and the scarlet letter will not be emblazoned on the chests of cheaters, judges may consider infidelity as a grounds for divorce. Judges don't take too kindly to situations when lovers have been introduced to the children during the marriage or have engaged in inappropriate behavior such as forcing the children to call the lover "mom" or "dad." A judge in Texas may award a disproportionate share of the marital estate, considering the grounds of infidelity. Further, when deciding access and custody issues, the judge may consider whether the unfaithful spouse has moved in with a girlfriend or boyfriend during the pendancy of divorce. And then, if that girlfriend or boyfriend has children of their own, you have just complicated your case exponentially.

To learn more about your options for dealing with a cheating spouse, please visit www.NatalieGregg.com and contact me for an appointment.

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Welcome to the Texas Family Law Blog

Thank you for visiting the Texas Family Law Blog, written by Dallas family law attorney Natalie Gregg.

I am experienced family lawyer who is focused on empowering families to overcome the complex emotional, legal and financial issues of divorce, child custody and post-divorce modifications.

I received my J.D. from the Dedman School of Law at the Southern Methodist University (SMU) in Dallas, Texas in 2003. I previously completed a B.A. in English and graduated magna cum laude and Phi Beta Kappa from the same university in 2000.

As an active member of the Texas State Bar Family Section and the Dallas Bar Association’s Family Section, I have previously served as chairman of the Family Law Section’s pro bono family law committee in 2007-2008. I have delivered lectures on family violence in family law cases as well as collaborative law in the pro bono family law setting, and have actively participated in organizing continuing legal education for family lawyers in the Dallas community.

I understand the dynamics of family because I have firsthand experience as a mother. Together with my husband Jeremy, I am raising two daughters in the Lakewood area of East Dallas.

Likewise, in my career I have represented hundreds of mothers and fathers alike in cases involving child support, custody modification, divorce, termination and adoption. I know that the process of litigating these issues is sensitive, but it requires an aggressive approach in order to achieve her client’s goals.

My current practice is informed by years of advocacy for families in crisis, and I am a passionate champion for clients who are dedicated to protecting their most precious asset: their families.

Please visit my Web site for more information at:

http://www.NatalieGregg.com/

Thank you for dropping by the Texas Family Law Blog.