Representing the Substance Abuse Client In A Texas Family Law Case

November 1, 2007

If your client is suffering from a substance abuse problem in a Texas family law case, the best way to address the issues are to hit them head on.  It is likely that all your client’s conduct prior to the hearing will be brought to light by the opposing side.  It is therefore best to cushion the impact linked to the substance abuse by bringing them out yourself through your client.  You want the judge to hear the story first through your own client instead of through the opposing side.

The theme of your case should be that your client is taking responsibility and taking control of his or her life.  By breaking the bad news to the court about your client first, you are supporting this theme.  Hopefully your client has already seeking treatment by attending a substance abuse facility, a recovery group or therapy.  The best strategy is the use of all of these.

Before temporary orders, you should work with the substance abuse client in determining what his or her goals are.  You must keep these goals realistic in light of the fact that your client is already behind the proverbial eight ball because of the substance abuse.  For example, your client should realize that he or she is not likely to get primary conservatorship until he or she has been in sustained remission of his or her addictions and is availing themselves of substance abuse services.  However, you should not persuade your client to roll over and die either.  Careful requests on temporary orders will help your client position themselves for a final order hearing where several months have passed and much work has been put into treating their substance abuse issues.  These requests include:

  • Request the preservation of joint decision-making rights and duties;
  • Ask for extra time, over and above a Standard Possession Order;
  • Obtain orders that require the primary parent to keep the other parent in the loop as to school events, sports schedules, and appointments.  Require the other parent to include your client as to contact on any information sheets regarding the child, not simply the school or daycare emergency contact card;
  • Consider asking the court to appoint an amicus attorney to represent the interest of the child if you believe the child wants to have more contact with your client than the other parent will agree to provide.  Tex. Fam. Code 107.021.  The amicus attorney may be more responsive to the evidence that the parent with the substance abuse problem is seeking treatment and making significant changes in their behavior, lifestyle, and more specifically, in their interactions with the child;
  • Consider filing a motion for the judge to confer with the child pursuant to Tex. Fam. Code 153.009(b).  (Source: “Use It and Lose It- Substance Abuse Issues in Divorce by Lynn Kaiman).

Temporary Orders: Property Issues

June 10, 2006

After children issues, one of the most important issues decided on in temporary orders is which party will have use and possession of property while the divorce is going on and who will pay the debts.

The facts of each case make it hard to make any generalizations about the temporary disposition of property, but the following are some rules of thumb.

First, on the use of the house, the Judge will generally give the party who has the children the use of the family home. The reason, obviously is that the Judge wants the children’s lives to be as stable as possible and he doesn’t want the kids moving around unless absolutely necessary. Howver, if the home is the separate property (usually because it was owned in full prior to the marriage by one of the parties), then the Judge generally cannot order the party without the kids out of the house.

Another generally rule of thumb is that each party will be temporarily awarded the use of the car in their respective possession. This is usually not a contested issue, but sometimes one party may demand temporary use of a specific vehicle (such as the party with primary custody needing the minivan instead of the sports car).

The ongoing payment of debts (such as monthly bills) will also be decided during temporary orders. Often the sticker shock of trying to support two households is too much for the community budget to bear. Even though a party may be ordered to pay certain debts (such as credit cards)while the divorce is pending, they may not be able to afford to. The party may only be able to pay the secured debts (such as the car and the mortgage) to keep them from being forclosed on. Generally, if a party does not pay (with a few exceptions) general debts, this is not actionalble by contempt, because the Texas Constitution does not allow imprisionment for debts.

Temporary Orders: Children Issues

April 15, 2006

Don’t ever let anyone tell you that a temporary order is not a big deal. Temporary orders may have a profound impact on not only your life, but the life of your children. When the lives of your children are being affected, I don’t know what could be a bigger deal.

The filing of a suit affecting the parent child relationship places a lot of power over chilren into the hands of the Court. The Court can make any temporary order it sees fit regarding children so long as the Court feels it is in the safety and welfare of the child. (TFC 105.001). The amounts to the sobering reality that once parents put themselves into the hands of the court, they are putting their children in the hands of the court. Even if neither one of the parents agree to certain provisions, the Judge can override the will of the parents and make nearly any binding order regarding the child so long as it determines it is for the child’s best interst. This means that in the span of a short hearing, the Judge can make significant decisions that for a potentially long period of time will affect all aspects of a child’s life. Kind of scary, hun?

The Court can order temporary restraining orders regarding the children without the need of hearing. TROs of this nature usually relate to enjoining either party from withdrawing the child from their school or daycare, and keeping either party from taking the child out of a geographic area.

After an evidentiary hearing, the Court has even more sweeping powers to determine the temporary situation for any child who is a subject of the divorce or suit affecting the parent child relationship. The court is empowered to determine the temporary conservatorship of the child (custody), temporary child support, orders restraining a party from determining the peace of the child, keeping someone from removing the child from a certain geographic area, and the payment of attorneys’s fees. (TFC 105.001(a)).

As sweeping as these powers are, there are a few restrictions on the court. Unless there is a verified (sworn) pleading or affidavit by a party, the court cannot on its own, take possession of the child away from a person who has lawful custody, nor can the court exclude a parent from possession or having access to their child. (TFC 105.001(c)).

The normal requirement of an evidentiary hearing is done away with if the order is an emergency order sought after by a governement agency such as Child Protective Service. (TFC 105.001(h)).

This post was simply to give you an understanding of the impact of temporary orders on children issues. We’ll discuss children issues in more more detail in latter postings.

Paying the Piper: Interim Attorney Fees

April 11, 2006

So who is going to pay the bill for all this great legal work? What if one party is in control of the community funds and the other party cannot afford to get an attorney?

The solution is to request interim attorney fees during the pendency of the case. Interim fees may be awarded through temporary orders under TFC 6.502.

The Court will want to hear testimony about why there is a need for interim attorney fees. Reasons include great disparity of incomes, or lack of access to credit by one party. Generally, the Court should strive to equalize any inbalances so that each party has a fair chance to put on their case.

Many times, the judges will look for a source of income that they can channel to the disadvantaged party. This for example could be a large tax refund or yearly bonus that the judge orders on temporary orders to be used by a party to pay interim attorney fees. The judge can also order that spouse ordered to pay the interim fees must cash in stock or take a loan out against a retirement account.

The payment of interim attorney fees is considered temporary spousal support and is enforceable by contempt. (TFC 6.502 and 6.506 see also In re Bielefeld, 143 S.W. 3d 924 (Tex. App.-Fort Worth 2004)).

Show Me The Money..Honey: Temporary Maintenance

April 2, 2006

In cases in which one party is the primary wage earner, that party has an ongoing duty to support their spouse. Just because a divorce has been filed doesn’t change that obligation. At a temporary order hearing, the judge has the power to order one spouse to make support payments to the other until a final decree is entered. (TFC 6.502). If they fail to make this payment, they could be found in contempt of court. (TFC 6.506(a)(2)) If they continue to refuse to pay that “*itch” or “b*asterd”, the may find themselves in “j*il” under a contempt order for up to 18 months (Texas Government Code 21.002(f).

A common tactic while one party is paying support to another is to try to delay the end of the trial and “lezzes les bon temps roule” (let the good times roll) in regards to receiving the temporary spousal maintenance. That is why some attorneys will request that the temporary spousal maintenance remains just that..TEMPORARY and ask that a limit of three to six months be put on the obligation to pay. Most judges will allow that. But even if this limit is not requested in the temporary orders, the court may listen to a motion to modify the temporary orders in which the benefiting spouse is receiving payments, but has made no efforts to seek employment or make other financial arrangments to support his or herself after the divorce. Since the State of Texas does not beleive in permanent alimony, the courts will not allow a spouse to suckle at the money teet longer than is necessary to be weened and go out to forage on their own.

Remember we are only talking about spousal support here. CHILD SUPPORT is a whole other matter…