An Introduction to Estate Planning

September 19, 2018 by treyyateslaw-admin

Many individuals believe that estate planning, or “leaving a legacy” is only for the rich. Without a doubt, estate planning is important for those who are wealthy. Yet, it has been our experience that the more modest your estate, the greater your need to arrange it for careful handling and disposition according to your wishes. It just makes sense to want to make your estate stretch further, to help those closest to you, and to better accomplish your charitable goals.

Why you need an estate plan

Deciding in advance on how to dispose of your estate at the end of your life is known simply as estate planning. If you have possessions or assets, you have an estate worthy of a plan, and the foundation for leaving a legacy. Possessions and assets you own also offer you an opportunity to give beyond your lifetime.

There are many benefits of developing an estate plan. Many of which could be personal. Other benefits you may not learn about until you explore this topic with an estate planning attorney. Creating an estate plan:

Helps simplify or avoid probate
Probate is the legal process that validates a person’s will, settles debts and distributes remaining assets to those left behind. If there is no will, or the wrong kind of will, this process can get expensive and lengthy.

Protects assets from “creditors or predators”
Appropriately chosen and written estate planning strategies can shield assets from lenders, unscrupulous family members, plaintiffs in personal injury suits, and others.

Ensures your care if you become ill
Pulling together medical powers of attorney, HIPPA authorizations and advance directives can empower your family (and doctors) to provide the care you want if you become incapacitated due to illness.

Can reduce tax liability
Depending on the size of your estate, a significant chunk of your assets could be at risk of going to the federal government without careful planning. The good news is, Texas does not have a state inheritance tax.

Provides for children
If your children are minors and depend financially on you, a strong estate plan can take care of their needs when you are gone. Options include choosing a guardian for your minor children, appointing a trustee to oversee their finances until they are adults and determining when and how any money or property you left them is distributed.

Provides for others
Your estate plan can also provide for adult children, low-income relatives and your favorite charities, while also ensuring these individuals or entities do not misuse or squander the assets, or lose them to creditors.

Helps minimize family conflict
Sound estate planning can go a long way toward reducing friction among family and friends.

Here is a list of items that should be included in your estate plan.

A revocable or living trust
This is a trust you can change at any time during your life. It details assets that will pass to your heirs after your death and instructions for the distribution of these assets. A trust allows your assets to be passed on without going through probate, which can be an expensive and lengthy process.

A will
If you have a revocable trust, your will typically provides instructions for the distribution of any property not referenced in the trust. Without a revocable trust, your will may provide additional instructions.

Medical power of attorney
If you become incapacitated and unable to make medical decisions for yourself, this document assigns someone else to make medical decisions for you

Financial power of attorney
If you become incapacitated and unable to make financial decisions for yourself, this document assigns someone else to make financial decisions for you.

Irrevocable trusts
These trusts for life insurance policies or other assets can help you avoid certain taxes and protect those assets from creditors, if done correctly. Once completed, however, they can be difficult to revise.

HIPPA authorization
If you become ill, a Health Insurance Portability and Accountability Act (HIPPA) authorization allows people you designate to more easily access your medical information — such as critical details about your care and prescriptions.

When and how to revise and amend your estate plans or wills

Once you have an estate plan in place, think of it as dynamic, requiring you to review and evaluate its content and directives on a regular basis. Generally, you should expect to update your estate plan anytime you experience a major life change. Life happens and is full of unpredictable events. Relationships also evolve, end and begin. Unexpected financial gains or losses may prompt you reevaluate your original goals or plan. You may experience shifts in your own internal value system, and decide to take a different direction with your charitable donations, or other directives.

Here is a list of events that could trigger you to reappraise your original estate planning goals and its details along the way.

A death in the family
A birth in the family
Divorce
A significant change in your assets or debt
Changes to state or federal laws that might allow you to take advantage of new options to achieve your goals, or restrict your options

Other changes such as these may also prompt you to rethink or amend your estate plan.

Market shifts, new unanticipated debts and changes to your portfolio
Changes in your health or the health of loved ones of key businesses associates
A trustee, guardian or executor gets sick, or is unable to fulfill duties
New planning tools, technologies or strategies to manage your assets

Now what?

This article is a good place to start if you are considering estate planning, or even simply writing a will. But it is only a first step. Consider this an introduction on how to maximize your assets, ensure good healthcare for yourself in your later years, and provide for the next generation in your family. Since each estate is as unique as the individual creating an estate plan, you owe it to yourself to discuss your situation with an estate planning attorney with the skills and experience to handle your process effectively and efficiently.

Estate planning is important. If done well, it will ensure your wishes, protect your family and provide a legacy that expresses your values. In addition, the process and the plan also offer you peace of mind and a feeling that you can now be free to live out the rest of your years exploring, traveling, and following your passions, knowing you are free to live out your dreams.

You likely still have lots of questions and concerns about estate planning, call our office today and schedule a consultation on developing a plan that fits your and your family’s needs today and in the future.

Disclaimer — This article provides a general introduction and overview of the topic of estate planning and is not intended as a substitute for consultation with an attorney. For more information or specific legal advice on developing an estate plan or will, please contact the office of Trey Yates Law at 713-932-7177.

Shifts we are seeing in post-separation parenting plans

September 10, 2018 by treyyateslaw-admin

Family law attorneys, family court judges and therapists, along with academia, scholars and researchers are all currently grappling with a shift taking place in the area of creating shared parenting plans for divorcing spouses. Since about 2000, for a number of reasons and/or justifications, there has been an increase in child possession plans that emphasize continuous and frequent contact with both parents — or joint physical custody (JPC).

Current data generally supports that shared parenting families are on the rise and that children are benefitting from this new family form. However, some JPC plans or schedules seek to satisfy a true 50/50 possession time for each parent; and this is often proving to be unrealistic and problematic for parents and children alike. In the past, any child possession schedule which gave the non-primary parent 35 percent of the time or more was considered shared possession. Now, a growing, popular consensus of opinion in the field is that children, including infants and adolescents, are best served when they maintain strong and secure attachments with both parents. At the same time, however, academics, scholars and researchers continue to argue about the risk and benefits of a strict 50/50 JPC. This debate, which has shown up in the media and on the Internet, has gained credibility to the point where it is influencing state legislatures and policymakers.

Here are examples of how a true 50/50 JPC possession order might be expressed in an actual schedule:

A child/children spend on week with one parent in his or her residence and the following week with the other in his or her residence;
A 2-2-3 (or 2-2-5) plan designates every Monday and Tuesday to one parent and every Wednesday and Thursday to the other, with alternate weekends rotating from one parent to the other;
A “nesting” plan is where a child/children remain in the same home, while the parents take turns staying one week on and one week off in the home, yet maintain separate, alternate residences.

Multiple forces are fueling the push toward JPC 50/50 schedules. Most researchers agree that a child can be attached to more than one caretaker, moving away from the conviction that very young children should spend more time with their mothers. Groups advocating father’s rights are also proponents of this shift as society progresses toward a more egalitarian and scientifically supported view that both parents should be involved in parenting as much as is reasonably possible.

In Texas, the Standard Possession Order (SPO) is the prevailing rule, thus the “norm.” So, if a client pushes for JPC, or a 50/50 schedule, attorneys must present enough evidence to show a judge why he or she should approve a departure from this standard. This requires a whole new level of exploration into numerous factors such as the age of the child, if there are special needs or developmental reasons at play, if communication between parents is good, the distance between parents, the child’s preference, and possibly many other factors. And, then there is the mere practicality of working out schedules for the real world. We also face the reality that there is no true definitive scientific evidence that will support arguments for or against a true 50/50 possession schedules.

In high conflict divorces, most family law attorneys such as ourselves, will strive for the possession schedule that supports the Best Interest of the Child, which we try to balance against the desires of our clients. Truthfully, there are merits to everyone’s arguments to increasing possession and access time for both parents, but not at the expense of the children. Yet, this can be another difficult hurdle to jump since one parent’s definition of “best interest of the children” may not be the same as the other parent’s definition, for many reasons.

Based on our years in family law and our experience with these cases, the current SPO or expanded SPO in Texas continues to fit and work well for a large number of divorcing families. It does not fit them all. In our view, for many families, a 50/50 possession schedule is simply not practically attainable once such a schedule is outlined. We also believe a 50/50 possession schedule necessitates a healthy co-parenting relationship, which few couples can demonstrate. So, until we have definitive scientific evidence to the contrary, we believe the SPO will work for more families than JPC or a 50/50 schedule.

We do have scientific evidence that joint physical possession is linked to better outcomes than arrangements in which children have less than 35 percent time with the non-primary parent. Further evidence exists to support that any arrangement which reduces conflict, including limited exchanges, should be considered. We expect that as more jurisdictions promote shared parenting arrangements, there will be more opportunities to conduct research and gather data on what conditions best facilitate optimal shared parenting schedules and plans. Clearly, the increase in joint physical custody arrangements is an important change to watch now and in the years ahead.

For further discussion on this topic, or to answer your questions about 50/50 possession arrangements, call our office to schedule a consultation 713-932-7177.

What to do if you are threatened, harassed or stalked before, during or after divorce

August 22, 2018 by treyyateslaw-admin

Going through a relationship break-up is emotionally difficult for most people. However, this experience can trigger unusual behavior in a few who act out in bazaar and sometimes frightening ways. It is often easy to lose perspective on what is or is not appropriate behavior in these situations.

Though the specific legal definitions of harassment, stalking or threatening conduct varies from state to state, any repeated, unwanted contact that frightens you or makes you feel threatened most likely constitutes stalking. At first, stalking may seem harmless, involving actions that are perfectly legal under ordinary circumstances, like calling you or sending emails, text messages, or even gifts. However, what may seem innocent in the beginning can cross the line into stalking when the behavior escalates and makes you feel threatened or uncomfortable. Usually, the stalker is attempting to force an unwanted relationship, or an action from you, even after you have said “no.”

If your spouse or ex is engaging in any of the following behaviors, inform your attorney immediately, because you may be a victim of stalking:

calling when you ask him not to
sending you unwanted letters, emails, or text messages
giving you gifts that you don’t want
following you or showing up where you are without good reason
gathering information about you
spreading rumors or posting personal information about you
refusing to leave you alone, even after you ask.

If you don’t respond the way the stalker wants you to, the situation may get worse. Your spouse or ex may try to force you to stop the divorce proceeding, or reconcile by intimidating or threatening you. When thwarted, some stalkers become violent. For this reason, it’s very important that you don’t downplay your fears. Take action to protect yourself and your children.

Here are some steps to take to protect yourself:

If you and your spouse or ex have children, make it clear that your only contact with each other should be to communicate about them and their welfare. Use email or text messaging to discuss child matters. Meet in a public place in order to facilitate visitations.
Keep written records of all correspondence with this person, along with the purpose and outcomes of your conversations. It is also wise to keep a journal of key events, pertinent dates, and names and phone numbers of witnesses to any unusual incidents. Consider making copies of these records and giving them to family and friends for safe keeping.
Once you’ve made your wishes clear, do not reply to any follow-up efforts to contact you. The harasser is not entitled to an explanation. You are not obligated to respond to any inquiry. Don’t be baited into arguments, and do not try to appease this person.
It may feel embarrassing, but tell family and friends not to give your spouse or ex your contact information or whereabouts, no matter how innocent it may seem.
Try to avoid encountering this person, especially when alone. Carry your cell phone with you and program emergency numbers into your contact list.
It is generally a good idea to stay off social media while going through divorce and for some time after, depending on your situation. You may want to just delete these accounts for awhile. It is also good practice to open a new email account on Gmail or other similar platform, and to also open a post office box, if you believe your mail could be stolen or read. Change passwords on key accounts often. If possible, purchase a new computer or tablet in order to communicate with your attorney, family and friends during this process.
Contact a domestic violence agency or a therapist to help you and your family during this time.
Always keep your attorney updated on this aspect of your divorce. If encounters start escalating, you may want to file a petition for a restraining order against this individual. This measure can also be included in a Temporary Orders document created by your attorney and filed with the court.

For more information on protecting yourself and your children, download this manual from the American Bar Association, entitled Prepare for Key Events in Your Case. If you would like to schedule a consultation to discuss your divorce, call 713-932-7177.

Honesty is the best policy when working with your attorney

July 27, 2018 by treyyateslaw-admin

Most of us agree with the simple, yet powerful life principle, “honesty is the best policy.” Yet, when it comes to working with your attorney, whether it be with regard to your divorce, your estate plan, your will, or any other legal case, it is especially vital that you are honest and candid with him or her from the beginning.

Your attorney will be an advocate in your case. Consequently, in order to perform his duties well, he and his staff will require accurate, detailed information from you. You will be an active member of your team in this regard — not a silent partner, or a nonparticipating bystander. So, pulling together the necessary documents and facts of your case will be largely your job, unless some kind of legal action is required in order to obtain necessary documents.

The information and documents pertaining to your case will be used to protect your interests and help you and your attorney develop a strategy. They will also be foundational to helping you effectively navigate the process toward a desired set of goals.

Know that you will be delving into often very personal, intimate areas of your life that may expose marital problems, income, debt, spending habits, bank accounts, tax forms and more.

For example, if your spouse or other relative has tried to control you through intimidation, threats, violence or restricting access to your personal information, you should immediately let your attorney know about these concerns. This type of behavior may mean you cannot engage in fair and open negotiations. In cases where abuse exists, attorneys are likely to approach the process very differently than cases where no abuse exists.

(For more information about how actual or threatened abuse can affect a legal proceeding such as divorce, contact your local domestic violence shelter, or the National Center on Domestic and Sexual Violence at http://www.ncdsv.org.)

In your search for the best attorney for you, you will want to choose one who is seasoned and skillful in the area where you need help. A secondary qualification involves whether the attorney has a personality you feel comfortable with. Remember, you will likely be sharing very personal and intimate details with him or her, so this is important.

It is common for those seeking legal counsel to schedule several consultation meetings with attorneys before they choose one. So, it is best if you prepare for these meetings in advance, and are somewhat organized when you meet. Think about the details of your case ahead of time. Gather as many financial and other pertinent documents as possible, and review them before the consultation meeting.

There may be individuals in your life who have valuable information relevant to your case. Be sure to explain this to the attorney. Get a feel for where you stand financially and otherwise, and reflect on what your goals are for the future.

Share with your attorney the settlement terms that are the most important to you. If you aren’t sure, ask him or her to help you make this determination in alignment with your legal rights. Sharing this with the attorney helps him or her get a better point of reference for your case.

If you think there is something in your past that may be potentially damaging to your case — such as conduct that could affect your child custody arrangement — disclose it to your attorney as early as possible. And the same is true of your social media activity. Discuss your social media accounts and what you know about your spouse’s activity, and then get his or her advice on how to use the accounts during your legal process. If a situation changes or you remember something that could be of interest to your attorney, let him or her know as soon as possible.

If depositions are conducted, you will be asked questions under oath. Be sure to work with your attorney in preparing for this stage. Your answers can be used later, so be sure you completely understand the question and you answer it honestly. If you know of questions that might be asked of you, inform your attorney who can help you prepare.

If you are uncommunicative or dishonest with your attorney, you may not get an accurate assessment of your case. Your attorney also may withdraw from your case. Changing attorneys midstream can be expensive and time consuming for all.

By simply committing to being candid and honest, you will gain peace of mind, while also maintaining your dignity, as you move forward in your life.

A workshop for Leaving a Legacy – Giving Beyond a Lifetime

July 10, 2018 by treyyateslaw-admin

Trey Yates will be presenting a complimentary Legacy Planning Workshop on Sunday, July 15, 2018, 12:30 – 1:30 p.m., at Unity of Houston. This informative workshop is designed to assist individuals, couples or families in understanding the benefits of basic estate and gift planning, and how “Your Legacy” can shape the future of your favorite charity for the next generation and beyond.

At the workshop, Yates will provide professional and practical information designed to help you develop a Legacy plan that not only meets your goals, but is aligned with your spiritual values.

He will also discuss common misconceptions regarding Legacy planning, along with the basic fundamentals of creating wills, trusts, and other gift planning opportunities.

Highlights of this workshop:

What is Legacy planning and why do I need it?
Setting your Legacy planning goals
Tools essential to Legacy planning
Getting organized
Setting your Legacy plan in motion
Dispelling urban myths around Legacy planning
How to handle Federal Tax laws
How to reduce taxes today by leaving a Legacy
The value of expert Legacy advice and working with Legacy professionals

The workshop will be in Wallet Hall, across the courtyard from the Unity of Houston Bookstore, 2929 Unity Drive, Houston, TX 77057. Reservations are not required. For more information, visit Unity of Houston.

Trey Yates Law Attorney, Mike Day, Honored for Legal Pro Bono Work On Behalf of Area Immigrants

July 9, 2018 by treyyateslaw-admin

July 9, 2018, Houston — Mike Day, with Trey Yates Law, was honored recently for outstanding pro bono work in 2017 at the 2018 Harris County Bench and Bar Pro Bono Awards Luncheon.

Mike was recognized by judges and attorneys across Harris County as the group’s Individual Award Winner, which included a profile in The Houston Lawyer Magazine (page 34-35), published by the Houston Bar Association (HBA).

Mike volunteers about 120 hours of legal assistance annually to individuals and families facing complex and difficult legal issues in the community. In 2017, he worked on cases through Houston Volunteer Lawyers.

“One case involved a low-income immigrant women who had limited English proficiency,” Mike said. “Another case involved the divorce of a Vietnamese immigrant. It involved a prenuptial, property issues and some cutting edge issues in immigration law.

“I believe it is important to help people who would otherwise have a difficult time finding and retaining an attorney. I have a passion for real estate issues, and both of these cases involved some complicated property issues. Yet, there would have been just too many barriers to the courtroom for these women without pro bono representation. I was also fortunate in that I partnered with attorneys who could speak the clients’ native language. It was a team effort.”

Mike also mentors other volunteers and serves as the pro bono subcommittee chair for the HBA Family Law Section.

A committee headed by HBA president, Alistair Dawson (Beck Redden, LLP) and the Hon. Robert K. Schaffer (152nd District Court) selected winners based on the quality and quantity of pro bono representation. Winners in other categories included professionals with Exxon Mobil Corporation’s Legal Group; Baker Botts, LLP; Akin, Gump, Strauss, Hauer & Feld, LLP; and Berg & Androphy.

About Trey Yates Law

Trey Yates Law has been serving the citizens of the Greater Houston area since 1986, primarily in the area of complex family law matters, divorce and probate/guardianship litigation. Trey Yates is certified by the Texas Board of Legal Specialization in Family Law. For more information, visit www.treyyateslaw.com or call 713-932-7177.

Media Contact: Pamela Schied, 713-416-4410, [email protected].

Will a tax law change in 2019 impact your divorce agreement this year?

July 9, 2018 by treyyateslaw-admin

By Trey Yates

Have you or your spouse been dragging your feet in finalizing your divorce? Well, you both may have a good reason to sign on the dotted line by year’s end.

A significant change to federal income tax law surrounding alimony or spousal maintenance will go into effect next year. This new rule will wipe out a 75-year-old tax deduction dealing with alimony payments, starting Jan. 1, 2019.

You would be wise to discuss this new rule immediately with your divorce attorney, because it may require that you and your spouse be officially divorced by the end of 2018, before the tax law goes into effect.

It all depends on the specifics of your case and how changes in that law might affect you.

Starting in 2019, the change in the tax law shifts the tax burden to the higher earner. Under the “new tax rule,” the spouse paying alimony will no longer be able to deduct the support from his or her gross income. For the alimony recipient, the payments will be tax-free.

Many experts such as myself forecast this change will likely have far-reaching and unexpected ramifications. I anticipate this will make settlement negotiations harder because the spouse with the alimony obligation or option will be motivated to pay less to offset the new, increased tax burden.

The bottom line here is a divorce with an alimony component in 2018 will be easier to resolve now than with the new tax law in 2019, because the outgoing tax law leaves more money to go around.

This change is another reminder that when it comes to divorce, what you don’t know can hurt you! And if you aren’t familiar with divorce law, and other areas of law relevant to your case, your family could be impacted financially and otherwise for the rest of your lives!

I recommend securing the assistance of an experienced divorce lawyer who is Board Certified by the Texas Board of Legal Specialization in Family Law. Attorneys with this certification offer relevant, proven experience, and have been thoroughly tested for special competence in a specific field of law.

Premarital Agreements

June 27, 2018 by treyyateslaw-admin

Prenups are no longer taboo for many couples

Based on several recent studies and what we have seen in our law practice, prenups or premarital agreements, seem to be losing their stigma, and are actually gaining in popularity. Prenups are contracts between spouses designed to protect assets, earnings and increasingly intellectual property, in the event of divorce. Numerous couples are now turning to prenups to protect themselves from any debt their partner may bring into the marriage, especially from skyrocketing student loans.

According to a survey of its members conducted by the American Association of Matrimonial Lawyers (AAML), 62 percent are seeing a general rise in the number of prenups they are being retained to develop. Fifty-one percent are seeing a specific increase in millennials preparing for marriage with prenups in hand. The top three areas most covered in today’s prenuptial contracts include “protection of property” by 78 percent of respondents surveyed, “alimony or spousal maintenance” at 74 percent, and “division of property” by 68 percent. The next three most common categories covered by prenups are “protection of the increase in value in separate property” at 64 percent, followed by “inheritance rights” at 42 percent, and 24 percent choosing “community property division.”

It is widely known that millennials are generally getting married at a later age, which may explain their desire to protect what they’ve saved or purchased before marriage. But they are not alone. Couples of all ages who are entering into second or even third marriages often want to make sure children from prior marriages and other assets are protected financially. Prenups are also being used to protect a spouse who sets aside a career to stay home with the kids. In these cases, a prenup would ensure the stay-at-home parent is adequately compensated or supported in case of a divorce.

Exploring your own prenup

Each individual should spend some time reflecting on what assets and debts he or she will be bringing into the marriage. Determine what you want to designate as “separate” property and what you may want to designate as “community property.” Also, develop a plan to pay back debt. Then, each should visit with a board certified family law attorney experienced in developing prenups to determine how a plan might or might not be legally accomplished. When you have some information, discuss what you’ve learned with your partner and develop your plan together and then, have your attorney draft the contract.

For the most part, prenups cannot include child custody or child support matters, since this runs counter to Texas divorce law. Legally speaking, a court will have the final say about what’s best for the child.

The overall concept of a prenup has its practical side, but getting down to the nitty-gritty of creating one with your finance can prove awkward. Each couple will have to approach this idea with finesse and tact, depending on who they are, what each of their pasts hold and what is important to each one moving forward.

Divorce in Midlife

August 1, 2017 by treyyateslaw-admin

Women at Midlife More Likely to Initiate Divorce, Yet Have the Most to Lose

According to a survey conducted by AARP, women facing divorce in midlife are especially vulnerable financially, and more likely than men to be troubled about becoming financially destitute.

In her book, He’s History, You’re Not: Surviving Divorce after 40, Erica Manfred writes, “Older women’s losses are greater. They have been married the longest and take the hardest hit both financially and emotionally. They lose happy memories of times past, and the expectation of a secure, comfortable future.

“Many women facing divorce in this age group feel as if they have lost control over every aspect of their lives –financial, emotional and spiritual. They are thrust into an unfamiliar legal maze and called upon to make important, irreversible life changing decisions.

Despite these challenges, however, I have witnessed women who eventually come to see divorce as

a catalyst to propel them into their next best life, and emerge from divorce stronger, wiser and in more control of their destinies than ever before.

That is why I created the Guide to Good Divorce, a seminar series designed to help women get the information and support they need to transition successfully through the divorce process to a healthier, happier life.

Our seminars provide women with vital information they need to make informed decisions about divorce and the divorce process. Yet, it goes one step further and addresses the transformative potential of this opportunity as a time of self-discovery and personal growth–offering advice and tips on life skills, as well as psychological and spiritual wellness.

Our half-day seminars include sessionson the law of divorce in Texas, divorce financial planning, life skills, and spiritual wellness. In addition to providing information and access to experts, these workshops offer women the opportunity to meet and share with others facing the challenges of divorce, and start to build new communities of support.

Sam M. “Trey” Yates, III is a Houston-based Board Certified Family Law Attorney and creator of The Guide to Good Divorce seminars for women. If you have questions about your Texas divorce, please contact The Law Office of Sam M. “Trey” Yates, III, P.C. for a consultation. If you’d like more information about Houston divorce lawyer Trey Yates’ 2016 Guide to Good Divorce seminars, please visit www.GuideToGoodDivorce.com or call 713-932-7177.

Children’s Issues in a Divorce

September 27, 2016 by treyyateslaw-admin

It is the policy of the State of Texas to assure children will have frequent and continuing contact with both parents who have shown the ability to act in the best interest of the child. With this in mind, the courts in Texas favor joint managing conservatorships in which both parents share decisions about their child’s upbringing.

The State of Texas also encourages every parent going through a divorce to submit a detailed parenting plan to the court before the judge issues a temporary or final custody order. The court will intervene only if the parents cannot reach an agreement.

Any divorce or child custody lawsuit has the potential of resulting in lasting harm to both the children and their parents. Most Texas family law judges are willing to accept a parenting plan that has been crafted by the parents with the guidance of their respective legal counsel, to fit that family’s unique traditions and cultural influences once the court has been shown that the parenting plan is in the best interest of the children.

Mediation is almost always mandatory when children’s issues are in dispute and before a no-holds-barred custody fight is played out in the courtroom.

Most divorces involving children name one parent as the primary Joint Managing Conservator and grant the other parent (also a Joint Managing Conservator) “Standard Possession Order” visitation. The visitation is spelled out in great detail in the statute (Texas Family Code Section 153.312) and should also be spelled out in detail in the Final Decree of Divorce.

The court may consider the following factors in determining conservatorship:

Whether a parent can provide a safe, stable and nonviolent environment for the child;
Whether a parent has participated in child rearing before the filing of the suit;
The geographical proximity of the parents’ residences once separated;
The physical and mental health, stability and moral character of both parents;
If the child is 12 years of age or older, the child’s preference, if any, regarding the person to have the exclusive right to designate the primary residence of the child;
Evidence of abuse or domestic violence; and
Other relevant factors.

Either or both parents may be ordered to make periodic, lump sum, or both types of child support payments. There are official child support guidelines set out in the statute and these are presumed to be reasonable and in the best interests of the child. The factors for consideration are: (1) the age and needs of the child; (2) the ability of the parents to contribute to the support of the child; (3) any financial resources available for the support of the child; (4) the amount of possession and access to the child; (5) the net resources of the parent to pay support, including the earning potential of the parent to pay support if the actual income of that parent is significantly less than what that parent could earn, if intentionally unemployed or underemployed;(6) any childcare expenses necessary for the employment of either parent; (7) whether a parent has custody of another child and any child support expenses being paid or received for the care of another child; (8) the amount of alimony being currently paid or received; (9) provisions for healthcare; (10) any educational or healthcare needs of the child, including college expenses; (11) any benefits a parent receives from an employer; (12) any debts or obligations of a parent; (13) any wage or salary deductions of the parents; (14) the cost of traveling to visit a child; (15) any positive or negative cash flow from any assets, including a business or investments; (16) any provisions for healthcare or insurance; (17) any special or extraordinary educational, healthcare, or other expenses of the parents or the child; (18) whether either parent has a car or housing furnished by an employer or other person or business; and (19) any other relevant factor.

The court may order health insurance coverage to be provided for the child. In addition, the court may order income withholding to secure the payment of child support. [Texas Codes Annotated; Family Code, Chapters 154.001 to 154.309].

The goal of any child custody or visitation dispute should be to obtain a fair resolution of that dispute so that the children in question can resume a stable and positive routine as quickly as possible either on a temporary basis or upon final settlement or trial of the matter. Choosing a Board Certified Family Law attorney who is comfortable in mediation, negotiation or in the courtroom is essential to obtaining that goal.

*Based on Texas Statutes; Family Code, Chapter 153

Sam M. “Trey” Yates, III is a Houston-based Board Certified Family Law Attorney and creator of The Guide to Good Divorce seminars for women. If you have questions about your Texas divorce or child custody issue, please contact The Law Office of Sam M. “Trey” Yates, III, P.C. for a consultation. If you’d like more information about Trey Yates’ upcoming Guide to Good Divorce seminars, please visit www.GuideToGoodDivorce.com or call 713-932-7177.