Frequently Asked Questions about Family Law

Brian Williams is especially sensitive about child custody cases, placing the youngster's mental and physical welfare above all else. Sometimes this means ensuring that the father gets custody, even though such a decision may not be the popular point of view.

Brian believes that children need a loving, stable environment in which they feel cherished and safe, He always considers what is the best for the child. Obviously, one would not give custody to a mother who is on drugs or has an otherwise unstable life style. However, in one recent instance, he represented a father, whom he felt would pay more attention to the child, helping him with his homework, attending his son's extracurricular activities, and in general, putting the child's needs above his own.

"The mother in this case had an impressive career and certainly was not on drugs," explains Brian. "Still, she was a workaholic, who often left the child with her mom and baby-sitters. I knew that the father would provide a more nurturing environment." The couple agreed to mediation, and the father eventually gained custody, due to Brian's efforts.

Texas Law 153.131 states that a parent shall be appointed a managing conservator or legal custodian unless the court finds that appointment of the parent or parents would not be in the best interest of the child. This could occur because the appointment would significantly impair the child's physical health or emotional development.

Grandparents' Visitations - - Helpful or Harmful? Brian Williams often cites a Supreme Court decision in Washington State - called the Troxell case - which holds that parents, as primary decision makers, may ban grandparents from visiting children if such visits are harmful to the children's mental, emotional or physical health.

"I've had both situations," Brian explains. "Cases where the grandparents were controlling and demanding, and generally a bad influence on their grandchildren. In other cases, it is just the opposite. The grandparents prove to be great role models and provide better examples for the children than their parents do."

Tips from Brian Williams on Obtaining an Amicable Divorce

As a happily married family man, Brian advocates reconciliation whenever possible. However, if a couple cannot peacefully resolve their differences and have exhausted all means to do so, obtaining a divorce may be the only solution.

Once that decision has been made, cooperation from both husband and wife is paramount, Brian emphasizes. A history buff, Brian likens some divorce proceedings to historical conflicts. One of his favorite references is Pyrrhus, king of Epirus, who reigned from 302-306 B.C. in northwest Greece near the Ionian Sea. Although Pyrrhus kept winning battles, the loss of human lives was clearly taking its toll on his psyche. "I can't afford another victory like this," he bemoaned after 30,000 men had died in a battle.

"Divorcing spouses should choose their battles carefully," Brian advises. "If they are out to destroy each other with revenge and words they can never take back, their 'victory' may be too high of a price to pay. On the practical side, why should they pay $5,000 in attorney's fees just to gain possession of a $500 coffee table?"

If divorce is inevitable, here is how you Brian recommends you should prepare for it:

What kind of documents will I need to bring for the court appearance?

List of Documents

Address book names, addresses and telephone numbers will help your lawyer prepare subpoenas for documents, depositions and court appearances.

Look for the following professionals and businesses: accountants-personal and business; bankers--personal and business, including trust officers; bookkeepers; computer consultants, who know how and where data may be hidden. Check computer on-line services; obtain passwords to access information; computer message center and voice mail codes. Talk to financial planners and friends--those close enough to be trusted with money. Also contact insurance agents--including life, annuity, casualty, insurance. Include mini-storage and office record storage; physicians; stock brokers; telephone answering services; telephone long distance companies; therapists; travel agents--personal and business. Review federal and state Tax Returns for past years of the marriage with supporting documentation including all filed schedules for both individual and businesses involved.

Relative to the tax returns, look for refunds and/or deficiencies. If you believe that the document produced is a forgery, have your lawyer insist that Form 4506 is signed by your spouse. The IRS will photocopy the actual return filed. Partnership tax returns (Form 1065) Look for net operating loss adjustments. Gift and estate tax returns. Has your spouse made or received any gifts? Has s/he inherited any property?

Business Records, Financial Statements and Credit Card Invoices are important.

Personal Property

Personal property includes: annuities, antiques, art work, automobiles, planes, boats, china and crystal, coins collectibles, frequent flyer miles, furniture/furnishings, furs, guns, jewelry, rugs, bills of sale (all property over $200). Also locate certificates of title for automobiles, boats, planes, trailers and heavy equipment. Homeowners insurance scheduled property often states a value for insurance purposes, and appraisals contain detailed descriptions of marital property.

Note that appraised values may depend on the reason for the appraisal. For example, replacement value appraisals are often inflated while tax appraisals minimize value. Be sure you know the purpose for which the appraisal was prepared. Personal property also includes life insurance policies with information on beneficiaries, cash surrender value, loans against policies other encumbrances against policies, e.g., using the policy as collateral for a loan.

Banking information is also important including savings, checking, and credit union accounts. Note: If your spouse`s name is second on a joint account with a third party, interest income will be reported by that third party. Your spouse will not receive a 1099, and the account will not show on your income tax return.

Look at monthly statements (look for payment or debit memo for safe-deposit box rental), passbooks, canceled checks and drafts (front and back) Note: make sure you photocopy the backs of checks, especially those made out to cash, to your spouse or to any unknown third party. Account numbers of secret accounts may appear along with the name of the depository bank.

Also, check cashing card, check register, check stubs, cashier checks (carbon or photocopy), cash transactions, certificates of deposit, Children`s Uniform Gift to Minors Act bank records, Christmas club accounts, deposit slips, linked mutual fund and stock brokerage account, loan and credit applications, numbered accounts (often Swiss), passbooks (check to see if there is a loan against it), wire transfers and withdrawals. Look for any suspicious activities, such as repeated withdrawals of sums such as $505, suggesting conversion to travelers checks for $500 plus a 1 percent fee of $5.00.

In addition there may be information on securities accounts; securities certificates; stocks and bonds; stock brokerage account statements; lists of securities; mutual fund statements; agreements relating to the account, such as, option trading, etc.; and applications to trade certain securities.

Note that if your spouse is a sophisticated investor, he/she may have options or commodity trading ability. Stock brokerages require customers to fill out lengthy questionnaires before opening accounts for certain risky activities, such as options. These questionnaires are a good source of information regarding investment experience and objectives. IRA`s, Keogh`s and SEP-IRA`s Pension, Retirement and Survivor Benefits.

Small Business Ownership Records are also important and any information you obtain is helpful in appraising the value of the business, including; buy-sell agreements, key-man, life, and property insurance, casualty insurance, leases, non-compete agreements, financial statements, balance sheet, shareholder equity investments, asset list and depreciation schedules , corporate redemption agreement to purchase stock rights of first refusal, major contracts, pension and profit sharing budgets, projections, marketing literature, loan applications.

Employment Benefits: Look for any sign that your spouse has deferred income, commissions, bonuses, royalties or has had salary converted into a non-cash benefit which would include the following: clothing allowance, company car, credit union statements, contracts of employment, employee benefits brochures, pension benefit statement, plan booklet, and amendments actuarial report on the pension plan, expense accounts, expense reimbursements, housing/relocation programs, in-kind compensation, meals, medical insurance, life insurance, loan programs, pay stubs (show certain benefits not part of taxable income), pension, profit sharing, stock purchase plan, travel and entertainment allowance.

Litigation: If your spouse is suing, what is the value of his or her lawsuit? If your spouse is being sued, do you have any exposure? Are there any prior divorce proceedings--will a first spouse's right supersede yours? Court papers relating to pending matter(s) including statement of damages (to ascertain the value of the case.

Look for Court records of final adjudication and Liens placed on assets. Loan Documents and Applications, Financial statements tend to show inflated asset values, income and net worth. Collection agency letters, home equity loans/lines of credit, mortgages/ home and business notes, passbook loans, and payment schedules.

Look for recent payment of loans to family members, business associates, and friends. Also, look for accelerated payments; your spouse wants to show he has no money for you. Also, promissory notes/ payable and receivable.

Miscellaneous Income and Assets: Royalties, severance pay, workers` compensation, annuities, rental income, prizes and awards, trust and estate income, capital gains, gift certificates, unemployment compensation, pension, veteran`s benefits, social security, lottery or gaming winnings, life insurance income or proceeds, notes payable to your spouse, partnership agreements etc. Basically, any document or information that can track money or property and its character should be obtained, preserved and turned over to your attorney.

What is a divorce?

A divorce is the legal termination of marriage. All states require a spouse to identify a legal reason for requesting a divorce when filing the divorce papers with the court. These reasons given are referred to as the grounds for divorce.

What is a legal separation?

Legal separation is a legal status conferred by a court, where the parties remain married, but the court sets the rights and liabilities of the parties with respect to child custody, support, visitation, alimony, property and debts. The process of legal separation is sometimes called separate maintenance. A decree of separate maintenance cannot later be converted to a divorce decree. If parties in a legal separation later desire a divorce, they must file a new divorce action.

What about the divorce kits and preprinted forms that are available?

Family law is a complex area of the law which is not well served by simplistic forms that do not address all of the issues and areas concerned if the individual is not well versed or has not consulted with appropriate legal counsel to review the facts and problems of each individual case.The lasting effects of decisions made in haste without proper advice would militate against the use of such forms.

What is an annulment?

An annulment is a method of voiding the contract of marriage. If an annulment is granted, the result is that the parties are treated as if the marriage never occurred. An annulment can only be granted if the initial marriage contract suffers from a defect in the contract formation. Such defects include an underage party without parental consent, a party lacking the mental capacity to understand the marriage contract or fraud in the inducement of the marriage contract. An annulment can only be granted to the innocent party, or the party that suffers from the defect.

What Is child support?

Child support is a payment by one parent (often the non-custodial parent) to the other parent for the support of their common child. (See Child Support and Visitation.) It is in the best interest of a child for both parents to be obligated to pay for the support of their child. An order for child support transfers the income/wealth from one parent to the other so that the combined incomes/wealth of both parents is available to use for the support of the child.

What is child support used for?

Child support covers everything a child needs, and even more, during the growth and formative years. Keep the following in mind:

• A parent`s first and principal obligation is to support his or her minor children according to the parent`s circumstances and station in life; and
• Children should share in the standard of living of both parents. Thus, the amount of a child support award is more than a question of bare necessities.

If the child has a wealthy parent, that child is entitled to, and therefore may need more than the bare necessities of life. Where the supporting parent enjoys a lifestyle that far exceeds the custodial parent`s living standard, child support must to some degree reflect that more opulent lifestyle. This is so even though, as a practical matter, the child support payments will incidentally benefit others in the custodial household whom the payor parent has no obligation to support (e.g., custodial parent owed no spousal support, adult children, or children from custodial parent`s other relationships).

Children should share in the standard of living of both parents. Child support may therefore appropriately improve the standard of living of the custodial household to improve the lives of the children. Children are entitled to share in non-custodial parent`s elevated standard of living despite custodial parent`s substantially lower income. Awarding supported children a percentage of a non-custodial parent`s future bonuses ensures they will share in his standard of living.

Who Can Be Ordered To Pay It?

A court can order either parent of a child to pay support to other parent. The court order for support is usually payable on a monthly basis. Many states now require that child support be paid by wage assignment (automatic deductions from the paycheck) whenever available, thus reducing the need for subsequent enforcement actions.

When Can A Child Support Order Be Changed Or Modified?

An order for child support can be changed or modified any time there is a material change in circumstances from the time that the existing child support was issued. A material change in circumstances can take many forms. The change can be the result of changes in the parent`s financial situation - such as appreciable difference in the amount of income earned, loss of a job, a large inheritance, or a change in the amount of time spent with the child.

The material change in circumstance can be the result of a new situation for the child - such as large medical expenses, need for special education, or other unexpected requirements. A child support payment could be modified by stipulation between the parents (as long as guideline support factors have been accounted for) or by a noticed court hearing.

How Is The Amount Of Child Support Determined?

Federal law now requires that the amount of a child support payment be set in accordance with a guideline. Having a guideline is believed to prevent widely different amounts of child support being ordered from courtroom to courtroom. Guidelines provide an objective basis for the determination of the amount of support to be paid.

Obligor And Obligee - Which One Is Which?

The obligor is the parent that is required to pay the child support to the other parent. The obligee (obliged) is the parent who receives the payment from the other parent.

What Other Items Do Formulas Consider?

Time Spent With Child. Besides the respective net incomes of the parents, the amount of time each parent spends with the child is factored into the formula. Since a parent who spends more time with the child is most likely incurring greater expense in raising the child, the custodial parent (a term that is often used in association with the parent who has the physical custody and responsibility the majority of the time) is considered to spend more money on the child than the non-custodial parent (the parent without primary physical custody).

Since the custodial parent spends more of his/her income on the child, the child support formula includes this factor in determining the amount of child support to be paid by one parent to the other.

Number of Children: Along with the amount of time that a parent spends with a child, the number of children in common between the parents is often considered. The theory is that certain fixed expenses do not rise with the number of children for whom support must be provided, so the actual amount of support per child is lower given the greater number of children in common.

Special Circumstances: In addition, special circumstances may require a greater amount of child support to be paid. Special circumstances, such as extraordinary medical expenses, special educational needs, travel expenses incurred for child visitation, uninsured catastrophic losses and the cost of basic living expenses for children from another relationship, can affect the amount of guideline child support that is to be paid.

Since there are a number of factors that go into the formula to determine guideline child support, some states have approved computer programs designed specifically for determining the amount of child support. Use of a computer program to determine the amount of child support is a very objective method for determining child support.

Proper analysis of all the factors can have dramatic effect upon the determination of the guideline child support amount.

Does my divorce decree protect me if my ex-spouse has filed for bankruptcy and she has listed me as a co-signer on a Schedule D?

If you are contractually bound with your ex-spouse on a debt, the creditor can require the entire payment of that debt from your share of the community property even though the divorce decree assigns the debt to your ex-spouse. Depending on the terms of your divorce decree, you may be able to have certain support obligations under it determined to be non-dischargeable by the bankruptcy court or in state court. If you find out that your ex-spouse has filed for bankruptcy, you should seek legal advice to find out your possible obligations.

My Ex Has Threatened To File Bankruptcy. What Effect Does Bankruptcy Have On Child Support?

Filing for bankruptcy protection does not allow your ex to discharge past due child support obligations. Any back payments owed for child support cannot be included as a debt and cannot be discharged in a bankruptcy proceeding.

However, the filing of a bankruptcy petition automatically stops collection activities on a support order. Since there are legal procedures that must be followed in order to lift the stay regarding the payments, it is crucial to retain an attorney who has expertise in bankruptcy law.

My ex is behind in the child support payments. Can I deny visitation until the payments are caught up?

No. The right of visitation and the duty of support are totally separate. By denying visitation, you are violating your decree and can be found in contempt.

My husband and I fight all the time. He has gotten drunk and hit me several times and was arrested for family violence once. I have never worked outside the home, but I worked hard keeping the house and taking care of our three children. My husband says that if I leave, I leave with my clothes and that is all. He said that because I don't have a job, he will get the kids, too. Is he right?

Your husband sounds like a bully. At the very least, it is presumed that you are entitled to half of whatever you or your husband have acquired during your marriage, including retirement benefits, land, furniture and motor vehicles. There are some exceptions such as gifts and inheritances. The Court is going to look at the best interest of the children when it comes to deciding who they will live with. Your husband's behavior definitely does not make him look good. You will be entitled to child support and, in some circumstances, temporary alimony.

My ex is current on his child support and never has been late. When we divorced five years ago, he was working as a bartender. He has now finished college and is making a lot more money. He has a new car, a new house and a new wife. Can I get the child support raised?

Yes. What is important here is that he is making substantially more money. All the other things you describe don't warrant increased child support.

My wife moved out about three years ago and left Texas. I have not heard from her or about her for more than a year. I want a divorce but I haven't a clue on how to find her. Can I still get a divorce?

Yes. There are procedures for situations such as yours.

My son and his wife have informed me that they will not let me or my wife see our grandchildren because we refused to give them the money for a down payment for a house. Until three months ago, they all lived in our house and my wife and I provided most of the care for our grandchildren. We want to get visitation rights with our grandchildren. Can we?

No. Under current law, the most grandparents can get is access to grandchildren. This means telephone or other contacts. The Court will decide if an order from the Court is warranted and permissible by using the best interest of the child test.