Holiday Season and Divorce? Be the Happy Force for your children with the Sharing Attitude!
Yes, it is the Holiday Season and no, you are not happy! Yes, there is A Grinch who is trying to steal Christmas, but it does not have to be you. From personal experience, sometimes when you personally are at a very low point in your life, think about others (children, other family members, and friends) who love you and need someone to make their lives happy!
From practicing family law for a long time now, I believe there are elements in divorce that will never change:
- You can not make someone love you and stay with you if they choose not to.
- The only person that you can be completely responsible for in behavior is YOURSELF!
- If you choose to have a bad attitude and try to hurt your EX by alienating your children, then not only are you not winning the divorce game, but you are causing serious damage to your Children. Even if you win, you are a loser. The Kids didn’t ask for this Divorce, they are often stuck because Mom and Dad couldn’t be happy together!
After considering these ideas and deciding no, you are not happy, try giving some effort to help make your family happier this Holiday Season., Like the Grinch, maybe your family’s joy will help you feel just a little bit better!
Here are my “New Divorce No No Rules” that will make the Holiday Season happier for the entire family including your EX:
- No talking bad about the other spouse! This is your battle, not the kids! The kids are still related to their other parent and love that parent.
- Work on new traditions that involve all family members with their likes and desires. Mommy and Daddy are not together anymore, a great time for some fun changes in the Holidays. Look to a wonderful new future and adventure for the family and don’t look back!
- Get with your ex-spouse and determine the holiday schedule. Share this schedule with the kids so they will know what is going on and what time will be shared with both parents. Meanness will not be tolerated, be nice!
- Talk with your ex-spouse about coordinating presents. Many divorcing couples try to one up the other parent and this really puts the child into a very uncomfortable situation. Also, a smart money saving idea.
- Talk with the children on their ideas for the Holidays. If they would like to have the entire family together for possibly Christmas Eve, or Christmas Morning, this may be a great idea! Remember: this is not totally about your feelings, it is about the love and needs of your family.
“The more you give in to the love of your family, the better you will feel in your heart.”
You, my friend will eventually get over this hurt and go on with your life, but it is always the decisions you make to help your children cope with this family split that will determine your true character as a parent and a person.
Hoping you and your family will have a wonderful Holiday Season and this blog has help to put a smile on your face! —-Mark A. Nacol
Texas Holiday Visitation Schedule with your Children: Plan Now
Now is the time to review your Holiday Schedule for visitation with your children during this wonderful time of year! We suggest you review the specific circumstances provisions of your order concerning visitation. Because many families have specific situations that occur during this special time, this visitation time is the most modified area in the Standard Possession Order. The Holiday schedule will always override the Thursday or Weekend schedules.
Here is a reminder of the current Texas Family Law Code’s Standard Possession Order for the Holidays.
Texas Family Law Code’s Standard Visitation Guidelines for Thanksgiving:
The possessory conservator or non-primary conservator shall have possession of the child in odd-numbered years, beginning at 6 p.m. on the day the child is dismissed from school before Thanksgiving and ending at 6 p.m. on the following Sunday, and the managing conservator shall have possession for the same period in even-numbered years;
Texas Family Law Code’s Standard Visitation Guidelines for Christmas Break:
The possessory conservator or non-primary conservator shall have possession of the child in even-numbered years beginning at 6 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and the managing conservator shall have possession for the same period in odd-numbered years;
The possessory conservator or non-primary conservator shall have possession of the child in odd-numbered years beginning at noon on December 28 and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in even-numbered years;
The Holiday Season should be a happy time for but for families split by divorce, the emotional issues from the result of the break-up on the affected family can cause the joy of the season to be overshadowed by unhappiness and despair!
Unfortunately, many parents, wait too long to confirm visitation plans for the upcoming holiday season, resulting in an unfortunate and a very unhappy family situation. If you cannot reach an agreement regarding visitation or you believe you may be deprived of holiday visitation by the other parent, now is the time to contact an attorney.
Children need to have structure in their Holiday Visitation schedule to ensure that they will be able to see both parents and share the joy of the season with their entire family. The children are often the ones who suffer when the Holiday Visitation arrangement goes awry.
The best gift of the holiday a child can experience is an early proactive arrangement of all holiday plans so everyone knows dates and times for visitation with both Mom and Dad. This Holiday Season vow to keep your child out of the middle of any family conflict and start to develop new holiday traditions with your child and family. Many parents have new relationships/marriages and other children in the family group. The new holiday traditions should include everyone and be a bonding experience for years to come.
Tips on Dealing with Holiday Visitation Issues
- Make sure your children have positive holiday memories. Shield them from conflicts between warring ex-spouses.
- Plan ahead now on scheduling the upcoming holiday visitations. The longer the wait, the more stress involved!
- If there is a deviation in the holiday schedule this year, make sure it is, in advance, in writing. Make sure the document shows what times are being exchanged and both parents sign it for future confirmation.
- Stay flexible and compromise: If you have to work, consider having the kids spend more time with the other parent so they have time with friends. This is a time for new family traditions and changes from old habits. Put aside your differences with the other parent and make the children’s time happy with good memories.
- If age appropriate, ask your children what is important to them during the holidays. There may be a special place or event that is very important to them; try to accommodate this.
- Enjoy the Holidays with your children. This is a special time for wonderful bonding and beautiful memories. Do not undermine their holiday by hateful confrontations and fighting.
- If you anticipate a problem could arise regarding holiday visitation schedules, don’t delay! Consult a legal expert in time to get the conflict resolved before the holidays commence!
The Texas Legislature 87th Session: New Texas Family Code Bills and Revisions
The Texas 87th session was very uneventful this year, with two additional sessions. Listed below are some new bills and bill revisions that passed this year for the Texas Family Code:
- HB 3774: Effective September 1, 2021, The date of the marriage must now be included in all final decrees of divorce in an official court document. Proof of the length of marriage is required to apply for Social Security retirement benefits.
- HB 2926: September 1, 2021, Reinstatement of Parental Rights after Involuntary Termination. This is a new and significant procedure that allows certain people, including the Department of Family and Protective Services and a previously terminated parent, to move for reinstatement of their parental rights. Subchapter D added to Ch. 161 of the Texas Family Code, sets out the basic requirements for filing and hearing procedures.
- SB1936: September 1, 2021, expressly states the standard Possession Order that the alternative ending time for Monday school holiday and teacher in-service days is 8a.m. on the following Tuesday and if a conservator live less than 50 miles from the other conservator, the court shall also award that conservator the alternative beginning and ending time for standard possession order. This award does not apply if the possessory conservator declines one or of the alternative times or possession is limited by the court in the best interest of the child.
*If the Possessory Conservator lives more than 50 but not more than 100 miles from the child’s primary residence, the law will not change: that parent may still opt into the Expanded Standard Possession Order (ESPO) – but it will not be automatic. - HB 1012: September 1, 2021, Access to residence or former residence to retrieve personal property. If entry is denied by a current occupant, the denied person could seek a writ, authorizing them to go to the residence to get their possessions with a peace officer. If the property was listed in a Decree, relief can be sought in court granting such Decree.
- HB 3009: September 1, 2021, Child Custody evaluators must be able to communicate with a parent in their primacy language or have someone who can assist the parent in their primary language for Child custody evaluations.
This legislature Session caused a lot of “smoke” but “little fire” for Texas Family Law.
Nacol Law Firm P.C.
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Texas Divorce Financial Checklist
Preparing for a Texas Divorce: Assets
Going through a Divorce is painful no matter what the circumstances. Before you get into the Texas Divorce Process, reduce expense, stress and conflict by making sure you are financially prepared. Planning ahead helps you in making sound decisions, start preparing for post-divorce life, and avoid many post-divorce pitfalls. Below is a list of items you need to gather before counseling with an attorney. Financial Documents are a must to show what your true assets and liabilities are in the marriage.
Documents:
- Tax Returns (at least three years) or Tax Liens and all IRS related documents
- Wills and Trusts with all attachments reflecting corpus and trust holdings
- Listing of all liabilities (including mortgages, credit card debt, personal loans, automobile loans, etc.):
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- Name of entity, address and telephone number
- Account number
- Amount owed
- Monthly payment
- Property securing payment (if any)
- Most current statements and account status of lenders
- A Listing of all Real Property, address and location, including (includes time-shares and vacation properties):
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- Deeds of Trust
- Notes including equity loans and second liens
- Legal Descriptions
- Mortgage Companies and Loan Servicers (Name, Address, Telephone Number, Account Number, Balance of Note, Monthly Payments)
- Current fair market value
- Appraisals
- Motor Vehicles (including mobile homes, boats, trailers, motorcycles, recreational vehicles; exclude company owned):
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- Year
- Make
- Model
- Value
- Name on title
- VIN Number
- Fair Market Value
- Name of creditor (if any), address and telephone
- Persons listed on debt
- Account number
- Balance of any loan and monthly payment
- Net Equity in vehicle
- Cash and accounts with financial institutions (checking, savings, commercial bank accounts, credit union funds, IRA’s, CD’s, 401K’s, pension plans and any other form of retirement accounts):
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- Name of institution, address and telephone number
- Amount in institution on date of marriage
- Amount in institution currently
- Account Number
- Names on Account
- Company loans and documents related to benefits
- A listing of separate property (property owned prior to marriage, family heir looms, property gifted, inherited property):
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- Records that trace your separate property. These assets will remain yours if properly documented
- Retirement Benefits:
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- Exact name of plan
- Address of plan administrator
- Employer
- Employee
- Starting date of contributions
- Amount currently in account
- Balance of any loan against plan
- Documents
- Publicly traded stock, bonds and other securities (include securities not in a brokerage, mutual fund, or retirement account):
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- Number of shares
- Type of securities
- Certificate numbers
- In possession of
- Name of exchange which listed
- Pledged as collateral?
- Date acquired
- Tax basis
- Current market value
- If stock (date option granted, number of shares and value per share)
- Stock options plans and related documents
- Insurance and Annuities Policies and Inventory:
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- Name of insurance company
- Policy Number
- Insured
- Type of insurance (whole/term/universal)
- Amount of monthly premiums
- Date of Issue
- Face amount
- Cash surrender value
- Current surrender value
- Designated beneficiary
- Other policies and amendments
- Closely held business interests:
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- Name of business
- Address
- Type of business
- % of ownership
- Number of shares owned if applicable
- Value of shares
- Balance of accounts receivables
- Cash flow reports
- Balance of liabilities
- List of company assets
- Possible hobbies or side businesses that generate income
- Mineral Interests (include any property in which you own the mineral estate, separate and apart from the surface estate, such as oil and gas leases; also include royalty interests, work interests, and producing and non-producing oil and gas wells:
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- Name of mineral interest
- Type of interest
- County of location
- Legal description
- Name of producer/operator
- Current market value
- needs leases or production documents related to the asset
- Money owed by spouse (including any expected federal or state income tax refund but not including receivables connected with any business)
- Household furniture, furnishings and Fixtures
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- photos
- purchase documents
- Electronics and computers including software and hard drive
- Antiques, artwork and collectibles (including works of art, paintings, tapestry, rugs, crystal, coin or stamp collections) Other large collections need to be appraised! (Guns, quilts, action figures, books)
- Miscellaneous sporting goods and firearms
- Jewelry including appraisals
- Animals and livestock
- Farming equipment
- Club Memberships
- Safe deposit box items
- Burial plots including documents of ownership
- Items in any storage facility
- Travel Awards Benefits (including frequent flyer miles)
Cohabitation and Domestic Partnership Agreements in Texas
Premarital and post-marital agreements in Texas have a complex history immersed in the community property presumption, the sate constitution, statutes and case law. Originally, such agreements were found to be unenforceable. But with amendments to the Texas Constitution, evolving statutes, recent case law, and improved draftsmanship, such agreements are now enforceable under contract law.
For some couples living together is a precursor to marriage; for others, there is no intent to ever marry, or the law prohibits the marriage, as in Texas with same sex marriages. The simple fact is, domestic partnership agreements involve a wide variety of circumstances, which may or may not involve the gay or lesbian couple.
Many couples choose to live together so they do not lose certain benefits under current rules of social security, military and insurance disability programs, or to stop those benefits from being taken away from their children. In other cases, couples who are divorced, and who may have children, may want to protect certain assets. In situations such as trust funds or inherited funds, beneficiaries simply do not want to place family money at risk. Other couples choose to shelter their own resources from the real or perceived obligations of their partner.
The marital agreement is considered to be a contract under Texas law. The premarital agreement must be in writing and signed by both parties. No actual consideration is required; however, to conform with contractual law, it may be wise to provide benefits for the non-monied party to avoid a later finding of unconscionability, particularly if the financial condition of the non-monied party under the agreement will be poor.
Matters that may be dealt with in a premarital agreement include, but are not limited to, the following:
1. the right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
2. the rights and obligations of each of the parties in any of the property of either or both of them whenever or wherever acquired or located;
3. the disposition of property on separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
4. the modification or elimination of spousal support;
5. the making of a will, trust, or other arrangement to carry out the provisions of the agreement;
6. the ownership rights in and disposition of the death benefit from a life insurance policy;
7. the choice of law governing the construction of the agreement; and
8. any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.
Child support may not be adversely affected by a premarital agreement. Therefore, provisions providing for the elimination of child support upon separation or divorce are unenforceable. However, provisions for private education, college expenses, and choice of residence may be included, but may still be reviewed by a court to determine if they are in keeping with public policy.
In post-marital agreements, it has been noted that a fiduciary duty exists that is not present in pre-marital agreements between spouses or prospective spouses. Case law states that a confidential relationship between husband and wife imposes the same duties of good faith and fair dealing on spouses as required of partners and other fiduciaries. However, adverse parties who have retained independent counsel may not owe fiduciary duties to one another. Texas Legislature enacted Section 4.105 with the understanding that married spouses owing fiduciary duties to one another would negotiate and execute post-marital agreements. Not withstanding these duties, the legislature manifested the strong policy preference that voluntarily made post-marital agreements are enforceable.
Cohabitation, domestic partnership, premarital and post-marital agreements may be as creative as a party determines necessary. However, care must be given to see that such agreements protect the party, keep with public policy, and adhere to current Texas family law and applicable contractual law.
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Attorney Mark A. Nacol is board certified in Civil Trial Law by the Texas Board of Legal Specialization
