Category Archives: Divorce

Understanding the Standard Possession Order for Child Custody in Texas

In any divorce involving minor children, the parties and ultimately the court must approve a custody plan for those children.  In Texas, that custody plan starts with the Standard Possession Order.  Below you can read about the Standard Possession Order as well as the circumstances and factors a court will consider in determining whether and to what extent it might deviate from that SPO.

Key points to remember:

  1. There is a presumption that the SPO is in the best interests of the children, but that may be rebutted by evidence showing that the SPO is not in the child’s best interests.
  2. The terms of the SPO will vary based on the distance between the child’s residence and the noncustodial parent.
  3. The SPO is designed to apply to children 3 years of age or older.  Texas law recognizes that children under the age of 3 years benefit from a stable environment.
  4. The bests interests of the children will always be the primary concern in deciding issues of child custody.
  5. Possession or access to a child may not be conditioned or based upon the payment of child support.
  6. Courts very much favor parents creating their own parenting plan for the terms of their custody issues, subject to court approval that the plan is in the best interests of the children.

Understand Texas’s Public Policy Regarding Child Custody is:

  1. To assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
  2. Provide a safe, stable, and nonviolent environment for the child;
  3. Encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage;
  4. To encourage frequent contact between a child and each parent for periods of possession that optimize the development of a close and continuing relationship between each parent and child; and
  5. For all children in a family to be together during periods of possession.

For parents residing within 100 or less of each other, the noncustodial parent is entitled to possession under the Standard Possession Order as follows:

  1. On the 1st, 3rd and 5th weekends of each month.
  2. On Thursday evenings from 6pm-8pm during the school term; or, upon election, from the end of school Thursday until school resumes on Friday.
  3. During Spring Break in even numbered years.
  4. For 30 days during summer, but the custodial parent may have one weekend of visitation during that period.

For parents residing more than 100 miles from each other, the noncustodial parent is entitled to possession under the Standard Possession Order as follows:

  1. For one weekend each month, or on the 1st, 3rd, and 5th weekend of each month.
  2. During every Spring Break.
  3. For 42 days during the summer, but the custodial parent is entitled to two weekends of visitation during that period.

Regardless of distance, the noncustodial parent is entitled to possession under the Standard Possession Order:

  1. During the first part of the child’s Christmas school holidays in even numbered years (up to December 28th).
  2. During the last part of the child’s Christmas school holidays in odd numbered years (from December 28th)
  3. During the 4 day Thanksgiving weekend in odd numbered years.
  4. For two-hours (usually 6pm-8pm) on the child’s birthday.
  5. On Father’s Day or Mother’s Day, as appropriate.

Factors that will cause a court to deviate from or modify the Standard Possession Order:

  1. If there is a  history of domestic violence or sexual abuse in the family.
  2. If there is a history of neglect or abandonment.
  3. If the work schedule or other special circumstances of the custodial parent, noncustodial parent, or the child make the standard possession order unworkable or inappropriate.

Preparing For Your Consultation With A Divorce Attorney

Preparing For Your Consultation With A Divorce Attorney

After you make the decision to retain an attorney and file for divorce, or after you are served with a petition for divorce, you will soon find yourself preparing to meet with divorce lawyer.  There is a lot going on at this point.  You may be mentally or emotionally fatigued just making the decision to file for divorce.  You may be angry or hurt because you weren’t expecting to be served with divorce papers.  You may be worried about your children.  You may be worried about your house, your money, your savings.

Unfortunately, once you make the decision to file for divorce or have been served with a divorce petition things will move quickly.  This article is intended to provide some general information on preparing for a consultation with your prospective divorce attorney.

What You Should Bring With You

Many lawyers will send out questionnaires for the client to complete prior to coming in even for a consultation.  This allows the meeting to proceed more quickly and efficiently as you have provided most of the information the attorney will want to see in your answers on the form.  You should complete the form as thoroughly and accurately as possible.

You should bring your financial information.  Initially, this will consist of documents sufficient to establish your wages and expenses as well as anticipated wage and expense information for your spouse.

You should bring with you a sufficient description of the marital estate.  This includes information on any real property owned, such as a house, bank accounts, retirement accounts, personal effects, household items, etc. with balances and estimated values for all of the property.  This would also include information on marital liabilities such as credit card balances, mortgage balances, auto loans, student loans, etc.

The attorney may or may not review this information at your consultation.  However, the attorney will certainly need the information should he or she agree to represent you so you should have it available if requested.

Understand the Purpose of the Consultation

The consultation is an opportunity for you to learn about the attorney by asking general questions about the attorney and the services he or she offers.  The consultation is also an opportunity for the attorney to learn about the facts specific to your case and your situation so that he or she may determine whether he or she can represent you in the matter.  It is also an opportunity for you to learn about the fees involved.

You should expect general information about the divorce process and how your matter would likely proceed.    However, the consultation is NOT an opportunity to receive free legal advice so you should not expect detailed answers on each specific intricacy of your divorce.  Remember – the attorney is not doing any independent research or factual investigation into your situation and providing definitive answers without doing that research would be dangerous.

The consultation is about you deciding whether you trust the attorney to listen to you, to advise you, and ultimately, whether you want to retain the attorney to represent you.

What You Should Expect to Happen At the Consultation

You should expect that the attorney will ask general questions about your relationship with your spouse, your property, your children, and follow up with more specific questions on each topic.  You should expect to answer questions about how your spouse would feel on those same issues.  Depending on where you are emotionally, this can be a difficult and emotional conversation for many people.

You should expect that the attorney will discuss the divorce process, costs, time, and expenses.  You should expect the attorney to explain how the divorce court works.  You should expect the divorce lawyer to discuss the significant choices you will have to make prior to and during the divorce proceedings as well as the impact of those choices on matters such as the time, complexity, and the cost of the divorce.

What You Should Take Away From the Consultation

By the end of the consultation, you should understand all of the following:

  1. The divorce process.
  2. Your options with regard to divorce.
  3. The significant issues anticipated to come up during your divorce.
  4. How your decisions on those issues could impact the case.
  5. The attorney’s fee structure, how the attorney and his or her firm will charge you for all work on the matter.
  6. How the attorney and his or her firm handle expenses.
  7. The role of the divorce attorney.

Understand the Role of the Divorce Attorney

It is important that you understand the role of the divorce attorney and your relationship with your divorce attorney.  Your attorney should explain this at your consultation.

The attorney is not your psychiatrist.

The attorney is not your tax adviser.

The attorney is not your financial adviser.

The attorney is not your friend or family member.

Your attorney is there to represent you in the divorce proceedings and provide you with objective, unemotional, legal advice.  This will often mean telling you, the client, what you need to hear and not necessarily what you want to hear.

Your attorney is there to educate you on the law and provide you with legal advice so that you can make informed decisions.

After the Consultation

If you and the attorney decide you aren’t a good match, then that’s it.  Nothing else will happen.

However, if you decide you would like to retain the attorney and the attorney would like to represent you, then you will be required to execute a Representation Agreement (sometimes called an Engagement Letter or Engagement Agreement). This will set forth the scope of the attorney’s representation, the fees the attorney will charge, and additional terms governing the representation.

At that point the attorney will give you further instructions on what information he or she requires from you, the immediate next steps in the process as well as a timeline for accomplishing them, and likely schedule a follow up call or meeting to discuss how you will proceed with the matter in more detail.