When a final judgment is entered, a party may agree with the outcome or no; regardless of this reaction, the party must be prepared to respond to the judgment within thirty days if additional action needs to be taken. The substance of a response to judgment is straightforward—hopefully, with the aid of an attorney, the party can decide to accept the order, to appeal it, or to request to amend some portion. But what happens if, for whatever reason, neither the party nor the party’s attorney receives notice of the judgment having been entered, and a response to the ruling is not filed by the party within the allotted thirty-day period?
The provisions of Texas Rule of Civil Procedure 306a may provide an avenue of relief for clients and their attorneys that find themselves in this position. It comes as little surprise that many family law practitioners are not aware of the relief afforded by Rule 306a, as the circumstances this rule was crafted to address rarely arise. However, in the case of a client who does not receive a judgment—someone moved, someone threw it away, it got lost in a shuffle—rule 306a provides the client an opportunity to extend the normal deadlines if that client and their attorney does not receive notice of a judgment at least twenty days (but no longer than ninety) after it was entered by the court. If a client finds him or herself in this situation, you as the attorney may file a motion to extend post-judgment deadlines under Rule 306a. This provides a chance for the client to present evidence to the court and explain why they were precluded from meeting the normal deadlines and why the new timeline under Rule 306a should apply.
CAVEAT: Texas courts require strict compliance with the specific provisions of Rule 306a—the party must clarify why he or she did not receive the document, the specific set of circumstances that led to this occurrence, and why the original judgment was not responded to within the normal thirty-day deadline. There is no room for vague explanations. Specificity is paramount if a party seeks to successfully trigger the alternate post-judgment deadlines afforded by Rule 306a.
Within the law, it is well-settled that the finality of judgments which are entered by the courts must be strictly upheld, otherwise, the entire system of justice loses footing and can break down quickly. At the same time, outside incidents beyond one’s control can at times exist in which an individual is not made aware of a judgment from the court and thus does not respond; therefore, a way must exist for such a person to have recourse to right the situation. Rule 306a seeks to strike a balance between these two principles by bolstering confidence in the finality of judgments while simultaneously providing an equitable recourse when variables outside a litigant’s control would lead to an unjust result.
The right of first refusal can create a police state mentality. Clocking the comings and goings of an ex is anathema to healing. It is a great way to remain angry, stuck, and convinced of moral “right-ness,” which might feel good in the moment but brings eventual misery. Heard the expression would you rather be right or happy? When children are involved—and in right of first refusal, children are necessarily players—one question rises above all others: is this the least damaging best possible environment for children to move forward from the dissolution of their parent’s marriage? An unhealthy focus on the whereabouts of an ex runs counter to the challenging, ultimately beneficial work of growing past divorce into a new life, particularly one with children, as healthy as possible.
When kids are young, they are malleable. They want approval. Particularly from their parents. Most likely they will do mom or dad’s bidding; they might even take one “side,” which can feel gratifying to the “chosen” parent. But parents should not allow themselves to go there, regardless the egregious behavior of an ex, no matter how torn up they are, mo matter how unjust the circumstance. When kids are caught in the middle of a war zone not of their choosing, grilled on where mom or dad went with whom and what and why for how long, how does this help them cope with the grief of their parent’s divorce? Ideally, part of being a kid is being afforded an amount of safety. Maybe a child doesn’t balk on reporting the actions of parent’s initially, perhaps even some measure of solace found in directing confusing feelings onto one parent or the other, but this will not last forever. Divorce is a marathon, not a sprint. Because of such parental misconduct, kids often hit thirteen or fourteen years old and inform their mom or dad in no uncertain terms that they want to go live with the other parent. This kind of behavior on the part of a parent can have long-lasting implications for their children and their future relationships (not to mention the relationship between adult child and parent).
Does that mean that there is never a situation in which the right of first refusal is appropriate and helpful for children? Of course not. Some parties prefer to work out the details and want their children to be with both parents whenever possible because that is what is best for their children. Working through the details of their individual situation can help a family find footing in a new living situation. In the state of Texas, parents can basically agree to whatever schedule they want regarding custody, they just have to agree and then follow through. Even if one would rather go by agreement, some spouses dig in when it comes to the right of first refusal and will not budge. This is not necessarily a bad thing: one party can keep the right of first refusal as a chess piece to trade for something that to them is a bigger priority.
My point: in the case of a right of first refusal and parent/child relationships, be careful. Remember kids will not be kids forever. Stipulate clearly and think forward to possible changes that may arise and how that might affect dynamics. As kids age and change, hopefully, the relative situations of both parents do so as well. Initially, children who want nothing more than a movie and popcorn with mom or dad on the weekend will become teenagers who would rather hang out with friends; that’s the way it should be.
Bottom line: in my experience—whether a right of first refusal is present or not—the best co-parents are the ones who never look at the decree again once it’s signed and instead work out the details together based on what is best for their kids, not their own feelings in the moment.
The concept sounds perfectly rational—good, in fact—in theory. If both parties in a divorce settlement understand the agreement and potential results therein, a “Right of First Refusal” within a decree can be a positive. First, what exactly is the “Right of First Refusal”? Simply put, if a parent in possession of the child(ren) will be absent for an agreed upon length of time—eight hours to overnight are common demarcations—the parent in possession will in good faith before seeking alternate child care offer that time to the parent not currently in possession. Thus, the parent not in possession has the “right of first refusal”—the first right to say ‘no’ (or yes) to possession before anyone else enters the equation. If the answer is ‘no,’ the parent in possession is free to pursue other means of supervision. The idea is this, “If I am unable to be with my child, who better than his or her other parent?”
Sounds straightforward, right? Not necessarily. Many divorcing couples while drafting agreements say ‘yes’ to a right of first refusal if one party requests it without thinking too much about it precisely because it sounds reasonable. And it can be. Until it isn’t. Things can become murky quickly. What is clear as day, though, is what is written in black and white in the decree. Divorce is difficult. Spouses find themselves angry, hurt, sometimes irrational, demanding, or unforgiving as the process unfolds. It can be precarious to agree to customization outside of the standard provisions because it can lead, even unconsciously, to a wounded spouse taking out resentment in ways that seem nonsensical. When a party feels unheard, mistreated, and/or marginalized, creating unnecessarily difficult or ugly interactions can be an off-kilter struggle to punish the ex or to right what is perceived as an imbalance of power.
Over the years, I have personally seen the right of first refusal cause glitches in ways unforeseen. Some spouses insist the time period be two to four hours instead of eight or overnight, for instance, and the other agrees without thinking it through. What if someone is running late, a meeting goes long, or a child is invited to a sleepover? Does that mean, because the time period will be longer than what was agreed to or anticipated in the right of first refusal, that the parent not in possession picks up the child in the morning from a friend’s house on what was supposed to be the other parent’s “time”? Or what if exes decide to agree on the alternate caregivers, Grandma and/or Aunt Sue are listed, which works perfectly, until one party gets remarried and the new spouse is not written in (hopefully because no one knew of this person’s existence back when the decree was set forth)? If a parent must go out of town unexpectedly, must his or her new spouse cede possession to the ex because the allotted time has elapsed by the time tomorrow morning rolls around?
Or consider the client convinced that the ex is going out too late or too much, exposing the children to their new single life too early? It is not unheard of for a PI to be hired and stationed in a car on the street outside the house for a cozy stakeout—the stopwatch starts the moment the party pulls his or her car out of the driveway and clicks off upon his or her return. And if the spouse is indeed “proven” to have gone over the agreed upon number of hours? Is this worth the cost of a hearing, attorney fees and emotional upheaval, a worthy issue to bring before the judge, or even enforceable in court for defying the decree? Only when a party flagrantly disregards the right of first refusal recklessly or repeatedly and said behavior can be proven (which is extremely difficult to do) will it yield any practical remedy in court. Even then, it is no slam dunk. What it can be is a dangerous precedent. A stick-it-to-ya gotcha litigious existence can be launched, wherein ex-spouses feel compelled to spy and tell on each other. The cost of a loss of good faith can be steep and endless. Nor is it a good model for children.
Yes, if exes are reasonable, amendments or additions to a decree are relatively simple—add a clause that states when the custodial parent travels, the child can stay overnight with the new spouse. Done. Clarify that sleepovers are exempt to right of first refusal and alternate caregivers are up to the discretion of the parent in possession. Simple. But better yet, do it the first time around. Because there is always the chance that an ex will be steaming about another part of the settlement and might allow negative feelings to enter a right of first refusal situation. ‘Reasonable’ isn’t a word that leaps to mind when enduring the dissolution of a marriage. There is, after all, a reason the divorce is happening.
Don’t get me wrong. The right of first refusal has its place. At times situations exist wherein the concept is incredibly useful. Just be aware that it can also become complicated, like everything else with divorce, and it does both attorneys and their clients well to think it through together carefully and judiciously.
This article was written by Hance Law Group principal Larry Hance.
The idea of a prenuptial agreement is not particularly romantic. There’s a reason no mood-lit prenup signing appears before the finale in “The Bachelor.” Yet in the real world, prenuptial agreements, at times, are necessary—or at least, very advisable. When is a prenup wise to consider?
In Texas, whatever money made during the marriage, regardless of “breadwinner” status, is considered community property. Should a divorce occur, in the absence of a prenuptial agreement, assets accrued during the marriage are split fifty-fifty, or sometimes a different percentage. The prenup, then, is designed to protect what a person brings to the marriage: any inheritance, property, savings, etc. In assessing whether a prenuptial agreement is needed, the person marrying should ask him or herself several financial questions and be honest with themselves about the answers:
Do I bring significant assets to the marriage by way of inheritance or previous earnings that I feel need to be protected? (Making a list of assets and debts can help in this process.)
Do I, or my future spouse, have children from a previous marriage or relationship who may become concerned in the future about their parent’s assets?
A prenup may seem on its face to protect only the “monied” spouse, but this is untrue: done correctly, both parties retain an attorney to generate and draft the document, and both are legally required to list all assets and debts they have accrued before entering the marriage. When both parties have an advocate looking out for their individual interests, a prenuptial agreement can be beneficial for everyone, providing a safety net should divorce at some point become the reality.
Some worry bringing up the possibility of divorce before they have married might cause undue strain to their relationship. And that is a possibility. On the other hand, once the honeymoon is over, couples that survive and thrive are those who can be and are upfront with one another. Getting comfortable discussing finances might safeguard couples from future expectations and misunderstandings. It is not news that married couples fight over money. Yet marriages often start without one or both parties having any idea where the other stands financially. Many couples do not discuss before they are married their specific assets and/or debts, how they will handle money, who will be responsible for paying bills or filing taxes, thoughts on savings, plans for retirement, or if they are saving, what it is they are saving for. Being on the same page financially—which sometimes includes a request for a prenuptial agreement—might save both parties unnecessary headaches down the line. And if a future spouse is unwilling to engage in the prenup conversation, that’s probably good information to know before entering a marriage.
A smart way to work through terms of a pre-marital agreement is to use the Collaborative Process. In too many situations, the first thing one spouse knows about a prenup is receiving a fully prepared draft from their future spouse or the spouse’s attorney. This can be a tremendous jolt, even if it’s been discussed before at some level. Agreeing to start in the Collaborative Process, before anything is drafted, gives both parties an opportunity to express their goals at the outset, and tends to decrease hard feelings.
Prenuptial agreements should not be entered lightly. The topic can be sensitive and requires time, energy, and money. But if one party has substantial assets entering into a marriage, earns significantly more than the other party, or has children, it’s probably a conversation worth having. Regardless of whether a prenuptial agreement ends up being a necessity, I am a strong advocate for couples talking candidly about money—goals, fears, family history—before walking down the aisle. Couples learning early on to be forthright about daily practicalities, however unromantic, might act as an ironic protection to keep their marriage strong.
This article was written by Hance Law Group principal Larry Hance.
After thirty some odd years as primarily a divorce attorney, enough clients have come through my door on the way to divorce for the emergence of a collective story. “I knew as I was walking down the aisle,” or some version of this lamentation is all too common. According to Jennifer Gauvain, LPC and author of, HOW NOT TO MARRY THE WRONG GUY, a staggering thirty percent of divorced women knew they were marrying the “wrong guy” on their wedding day. From angst at being alone to worry over wounding a fiancé, these women felt weighty concern—not just wedding day jitters—yet went through with it despite serious misgivings. Yes, men do this too, though their reasons are somewhat different: often a sense of duty or obligation. Either way, men and women essentially “talk themselves into” walking the walk, hoping they will land on their feet, or that marriage will “right” itself after the wedding day. That strategy proves, at best, unreliable.
So what about the other seventy percent, the ones who believed they married well and expected if not quite bliss, at least not abject misery? Not chiefly money or affairs, as many people guess, though clearly, both problems occur. It turns out marriage—true commitment to one person for the long haul—is just plain difficult, made more so with the addition of children. Researchers have found, in fact, when comparing couples with children and those without, the rate of decline in happiness for those with kids is nearly twice as steep. (The rewards of parenthood, it would seem, outweigh the inherent stress.) But kids are not the main snags, either. Not money, sex, or the added chaos of children? What then?
Research suggests that communication, or lack thereof—garden variety remember to talk to each other occasionally and meaningfully—is the culprit. Which makes sense when given thought: for human beings to thrive, they have to continue to grow. But growth comes at a cost, often ironically found on the other side of pain, sacrifice, and hard work. When couples do not grow together, take interest in each other’s evolution, or communicate, relationships wither. At least half of our communication is non-verbal. Hurt feelings or feeling misunderstood can lead to irrational behavior which leads to mistrust which puts the negative cycle on spin headed for trouble.
Sadly, many people have no idea that communication is a skill, and skills can be taught. Often, though, when one person feels ready to dig down and work on marriage communication (in or even out of therapy), the other spouse is already done. Good communication and a “good” marriage do not come naturally. The movie is a movie for a reason. Here in real life, we have to work for our marriage for our marriages to work. Learning our communication style, how that style effects our spouse and vice versa, and putting in reasonable effort pays dividends. The trick is that the reward is like a savings account of good will—accrued little by little over time, used when necessary. Of course leaving the marriage can work in the short term, but odds are if miscommunication isn’t dealt with directly, it’s likely to appear again disguised as another spouse the next time around.
This article was written by Hance Law Group principal Larry Hance.
Around one-third of American marriages now begin online. According to a study published in the Journal of the National Academy of Sciences, marriages that start up through social media sites, dating sites, or dating mobile apps are less likely to break up and are associated with slightly higher marital satisfaction. Surprising?
Maybe not. There is little doubt that marriages originating from online encounters are rising. The Internet and technology have rooted into our lives indisputably. Like an old fashioned ad in the newspaper that preceded it—no smoking, absolutely no pets! —the exhaustive online surveys for eHarmony serves to instantly weed out contenders who once upon a time would have had to suffer through at least one dinner together. In the past decade, young and old alike have come to accept online dating as a viable option. Seventy percent of online daters agree that Internet dating helps to find a better romantic match because of the wide array of access to potential partners.
These days, people (young people in particular) find themselves living the ups and downs of their daily lives through the posts and pictures that populate their social media feed. When someone elects to display pictures featuring themselves and their partner, they grant tacit agreement to living publically the fallout of that relationship, married or not, should a breakup occur. This reality, however, does little to stop most from posting, tweeting, and pinning like crazy. It has become part of the new reality, a piece of the cultural backdrop, like roads supplanted by highways. So if more relationships are beginning online, why does it follow that those unions would be more divorce-proof and/or happier unions?
Another component to the Internet age is our ability to quickly gather information. No need for the card catalog when we have Google. Vast amounts of information exhumed privately from the Internet—comments, pictures, arrests, even—with nothing more than a first and last name. Whole websites like TruthFinder dedicated to the search. Data previously kept secret might be easier found, and this transparency can end relationships before they start. With a bigger pool to begin with and part of the online process matching similarly interested people, it stands to reason that once a couple commits to marriage, their initial compatibility would come to play in keeping the relationship relatively healthy. Additionally, those drawn to online dating may be more focused on finding a long-term mate. The perception also stands that finding a partner online is a time-saver. And time, in our current culture, is a commodity, one version of freedom.
Some critics of the aforementioned study say it is way too early in the life of the Internet to make predictions about the power of online dating, particularly regarding its effect on subsequent marriage. It has been pointed out that only half of divorces occur within the first eight years and the span of this study only covered seven, so the results may be skewed one way or another. Still, the research, controlled for various factors, found that within those seven years (2005-2012), a slightly higher number of marriages initiated offline ended in breakups, while couples that met online reported lower rates of separation and divorce, as well as higher marital satisfaction. Anecdotal evidence might corroborate. But only time will tell.
We are proud to welcome Bryce Hopson as associate attorney to Hance Law Group. To get a feel for our newest team member, we went directly to the source for some Q & A, which Bryce humored. We love him already!
Bryce, you worked previously in family law. What drew you to the Hance Law Group specifically?
When your practice is 100% devoted to family law (divorce, custody, premarital agreements, etc.), you get to know counterparts in the community of D/FW family lawyers. Having worked in this area for a number of years, I would hear others we work with on a daily basis—family law attorneys, mediators, counselors, financial professionals, and other professionals—speak highly of Larry and his firm as one of the brightest and most competent in the business. When an opportunity presented itself for me to join Larry and his team, I jumped. It probably also helped that a good friend of mine for the last twenty-five years had joined Larry as an associate attorney eighteen months ago.
Give us a day in the life of Bryce at Hance Law? What is the company environment/culture like?
The culture at Hance Law is one that promotes open communication between staff and challenges all of us to excel every day, no matter how important or menial the task. We have a team approach in handling our cases that allows for input on each case, not just from the attorney managing the case, but also from the other attorneys and staff. Larry goes out of his way to make himself available, which is an invaluable resource as it allows associates to benefit from his decades of experience.
What is your favorite kind of case to work on, or what part of the process do you feel you best excel in with family law?
Whether it is a divorce without kids, or a modification of a prior custody order, or drafting a premarital agreement to protect and delineate property and finances before marriage, I enjoy the unique challenges that each type of case brings. If I had to narrow it down, I would say that one of the most enjoyable parts of my job—and one that I feel my personality and ability is especially suited for—is helping parties identify what goals they share with the other party and then using that common ground to help navigate towards a resolution on issues that are still disputed or in conflict.
What’s the biggest misconception people have about divorce and family law or divorce and family law attorneys?
I would say that most people view divorce as a vehicle through which a wake of destruction is left and that family law attorneys are the captains that press the pedal of these destructive vehicles without any regard for the negative impact that is left behind. In reality, most family lawyers will tell you that their job is to protect and promote their client’s best interest, and the best family lawyers recognize that this means advising our clients of both the short and long term effects of the decisions made during the divorce process.
What would you tell a first year law student interested in family law? Any classes to wake up for and listen closely to in particular?
Family law is heavily tested on the bar exam, so take advantage of the classes your law school offers that address family law issues. The Texas Family Code is one of the longest statutory codes out there (and it seems to grow exponentially every year), so if you intend to practice family law, get to know the Family Code sooner rather than later.
If I came to your house for dinner, what would you prepare for us to eat?
Sushi appetizer. Steak main course. And pizza for dessert.
Who is your hero?
My wife. Not sure how she puts up with me, but by the grace of God she has so far.
What famous person do people tell you that you look like? Do you agree?
I’ve heard a few people say Tony Romo. If I wear a Cowboys hat backward and someone were to look at me squinting with the sun in their eyes, then maybe I could agree.
What is the last vacation you were on?
I took a trip to the beach with my wife, kids, and my wife’s family.
Do you have a favorite season? Why?
Fall. Cool temperature. Changing tree colors. It’s the best week of the year in Texas.
If you were trapped in a TV show for a week, which show would it be? Why?
Bachelor – but as one of the crew, not as a contestant. The exotic trips and luxury accommodations.
From litigation to collaborative divorce, Hance Law Group offers you every option for settling your divorce or other family law matter in such a way that brings you peace of mind, while also protecting your priorities. Divorce decisions are matters of both law and heart. Choose the law firm that can help you prioritize them to achieve the best possible outcome.
This article was written by Hance Law Group associate attorney Jonathan James.
In the vast majority of my cases involving custody, both parents are involved and are the only ones involved with the dispute. Occasionally, though, I’ll encounter a situation in which a grandparent or another relative is seeking custody, looking to keep both parents from their parental obligations.
The first word of caution I give clients in these cases is that it’s difficult for a grandparent (or any other relative, for that matter) to win custody from a parent, and harder to win it when there are two parents involved, regardless of their marital status.
For the court to grant custody to a non-parent, the person seeking custody must show that it is necessary for the child’s physical or emotional well-being, due to the impairment of the parents, to remove the child from their care. For example, if both parents suffer from drug addiction, and a child is at risk of physical or emotional harm in being with either parent, the court may grant custody to a relative.
While custody in and of itself might be difficult to secure, there is some recourse possible for a relative to step in and parent that doesn’t require custody. The parents of a child can authorize a blood relative to make decisions for the child that are typically reserved for parents – the ability to make decisions about medical treatment, schooling, and extracurricular activities.
These agreements can be signed out of court, and can be drawn up when a parent feels that he or she can’t fulfill parental duties. For example, if a parent is battling a drug addiction and has decided to go to rehab, he or she can designate a blood relative to function as the parent while he or she is unable to fulfill parental duties.
While the document can be revoked by the parent as any time, it does allow a relative seeking custody the chance to serve as a parent to the child in the short-term. It also could help in a custody case down the road, should it be necessary to demonstrate that the parent was willing to at least temporarily cede the rights and duties of a parent to a trusted relative concerned about a child’s welfare.
It’s important to note, when we’re discussing custody, that there are really two halves to what we term custody, and a lawsuit could result in one half of the equation but not the other. One half of the custody equation is possession and access, or how much time the child spends with a particular parent or guardian. The other half refers to the rights and duties of a parent – in other words, the decision-making connected to a child’s health, education, and general welfare.
Even if a relative secures the rights and duties portion of custody, it’s still possible for one or both parents to be granted access to the child in a non-custodial parent role. While a judge in this case will typically act in what he or she determines to be the best interest of the child, that view might not necessarily coincide with what the custody-seeking relative deems to be the best interest of the child.
With such matters, it’s important to consult with a family lawyer at the outset, and the more information you can provide about the situation, the better. That will give your lawyer a sense of the options available and the best strategy to pursue.
This article was written by Hance Law Group principal Larry Hance.
Many high net worth divorces involve assets contained within a trust, or trusts. One that I’m working with right now involves an issue that can certainly come up in this type of divorce — when a significant percentage of a couple’s assets are tied up in trusts.
There are some very sound legal reasons to create trusts, and a great number of high net worth families use them. The three primary reasons are:
1. Protection from lawsuits and creditors (especially for people in occupations more susceptible to lawsuits, like doctors, lawyers, and CEOs)
2. To create a legacy
3. Potential tax benefits
When a trust is created, as long as it’s done legally, that money is no longer part of the marital estate. In a great number of situations, that can certainly benefit a married couple. But in a divorce, it can create some very complex issues–especially if the trust was created or funded in anticipation of filing for divorce.
If a trust was created or funded near the time of the divorce, that’s an obvious red flag, but even trusts created early in the marriage, with both spouses agreeing to the terms of the trust, might require more scrutiny than they might initially appear to need.
To fully understand the parameters of a trust, it’s necessary to know who the trustee is, who the beneficiaries are, and how the distribution rules operate.
For example, if the trustee is a close personal friend of the husband rather than a bank, that could make a difference in how the trust operates.A trust might be set up to provide the wife in this situation with a certain amount of income. After the divorce, the husband and trustee couldn’t change how much income is distributed to the now-ex-wife via the trust, but they could conceivably change how much income the trust produces, by investing the assets differently.
Both spouses, even though they’re signing off on a trust, might not be aware of the pitfalls embedded in trusts, that reveal themselves once a divorce happens and parties who were allies become adversaries. There’s actually a debate in the estate planning community right now around these issues. Most trusts are set up by one lawyer acting in the interest of both parties. The lawyer would normally have no idea that one party might be seeking the trust in order to control assets after an impending divorce. In my opinion, any time marital assets are transferred to a trust, or family limited partnership (or similar entity), each party should have a lawyer. And these lawyers should advise both spouses on the effect of this transfer of assets on them if they were to divorce.
Since it’s difficult to change the terms of a trust after, a divorce, it’s best to address any the assets in a trust while divorcing negotiations are in process. In some cases, the rules and circumstances around a trust are so complex that it’s better to just dissolve a trust and disperse the assets to the spouse directly, or as part of the total community property division. And while it is possible to convince a judge to ignore a trust under some circumstances when dividing marital assets, it’s very difficult to do, and should be a last resort.
Sound legal advice from a family lawyer knowledgeable in trusts is essential in these cases, whether you’re a high net worth earner trying to protect his or her wealth through trusts, or the spouse of a high net worth earner trying to ensure a fair divorce settlement.