Many spouses that are facing a divorce want to keep things as amicable as possible, and they often try to do this through using the same attorney. But having the same attorney is not an option. The Texas Disciplinary Rules of Professional Conduct prevent one attorney from representing opposing parties to the same lawsuit. At the most basic level, a divorce is a lawsuit between the two spouses.

But, there are other options. It is possible to get a divorce without any lawyers--both spouses represent themselves, commonly called a "pro se divorce". Another option is to use what is called Collaborative Family Law. In Collaborative Family Law, the divorce process is accomplished through voluntary settlement procedure rather than Court action. Although this option sounds attractive, it has many conditions and rules that make impractical for most divorces (and worthy of an entirely separate blog post on this issue here).

It is also possible for one spouse to have an attorney but the other spouse not to have an attorney; thus, the divorce is accomplished with only one attorney involved. If you are in this situation, you have to understand the nature of the attorney-client relationship. The attorney has a duty of confidentiality to only one of the spouses. Likewise, the attorney only has a duty to advocate for, and provide legal advice to, only one of the spouses. That puts the unrepresented spouse into a precarious position of possibly being taken advantage of by the spouse who has a legal advocate on their side.

A divorce is one of the largest, and often most painful, events of a persons life. Because of that, it is almost never advisable to go through a divorce without an attorney on your side who can help you understand your legal rights and the implications of all of the decisions that have to be made to finalize the divorce.

Collaborative Family Law is a process by which the decision making process in a divorce is taken away from the Court and put into the hands of a neutral third-party, the collaborative lawyer. This is a relatively new process--The Texas Legislature enacted laws that authorize this practice in 2011.

Collaborative Family Law requires many things. To start, both spouses must sign a collaborative family law participation agreement, and the agreement must have certain provisions in it. Once the agreement is filed on record with the clerk of the Court, the legal proceedings are essentially on "pause" so that the parties can divorce can be settled amicably.

Collaborative Family Law is completely voluntary and either spouse can end it when they want. This leads to one of the primary reasons why Collaborative Family Law often does not work for spouses: the spouses do not get along and cannot agree. The very same personality conflicts, faults, and other issues between the spouses during marriage are still present during the divorce process.

Another large issue with Collaborative Family Law is that any attorney involved in the process will be disqualified from further representation if the Collaborative Family Law process does not work. Then, the parties are left to pursue a typical divorce through Court process and they will have to obtain new attorneys who were not involved in the Collaborative Family Law attempt.

Ultimately, the judge has greater authority to control a CPS lawsuit involving an allegation of abuse or neglect to a child. However, the judge's authority is limited to only address requests and evidence that are present to the Court, so many decisions get made by CPS without the judge even knowing about it.

In the context of a CPS lawsuit, the judge must ultimately determine what is in the "best interest" of the child. Those two words--best interest--are packed with a ton of meaning, which is further explained here. All of the parties to a lawsuit will try to convince the judge about what is in the "best interest" of the child. When the parties agree, the judge's decision is simple. When the parties disagree, the judge gets to ultimately decide, and the judge is not bound by what CPS wants.

But CPS must routinely make decisions without having to resort to obtaining a judge's order. This interplay between CPS and the judge's decision making authority can be complicated, and may be best understand with an example:

Lets say that a child has been removed from the parent's home due to allegations of abuse and neglect. The child was placed in foster care, but the maternal grandparents later come forward and tell CPS that they want to care for the child. CPS has some work to do. CPS has to ask some questions, run some background checks, take a look at the grandparent's home, and follow the other procedures that CPS has for making a placement change. Then, a decision has to be made. At this point in the lawsuit, the children's parents will typically have attorneys and the child will have an attorney ad litem and may also have a guardian ad litem. There may also be parties that have intervened in the CPS suit and now have a "seat at the table" (e.g., the maternal grandparents or the foster parents). If all of the parties agree that the placement change is in the best interest of the child, then CPS will often make the placement change without the judge knowing about it or having to order it. If the parties disagree, or CPS has unmitigated concerns about the child or the grandparents, then the issue of a placement change will likely go in front of the judge and the judge will have to determine whether or not the placement change is in the child's best interest.

The right to a jury trial is not without limitations. The Texas Family Code provides limited circumstances in which a child custody battle can be decided by a jury. In suits involving children, a jury can determine the issues of: (1) appointing someone as sole managing conservator, joint managing conservator, possessory conservator; (2) determining which conservator has the right to determine the primary residence of the child; and (3) establishing a geographic restriction on a child.

In suits involving children, a jury MAY NOT: (1) determine whether or not to grant an adoption, (2) determine whether or not to adjudicate parentage; (3) determine whether or not to establish a child support obligation (or the amount of the obligation; (4) specify the term or conditions of possession of or access to a child; and (5) determine any other rights or duties of a conservatory.

Although you have a right to a jury trial, it isn't automatic: a jury trial must be requested by one of the parties. There are several strategic reasons why a jury trial may be better than having the judge determine all of the issues. Often times, a child custody dispute involves some issues that may be determined by a jury and some issues that may not be determined by a jury. In those situation, the final resolution of the lawsuit will be determined partially by the judge and partially by the jury.

Under certain circumstances, a foster parent may intervene in a CPS case before twelve months. The statutory and case law provisions that govern a foster parent’s ability to intervene in ongoing CPS litigation are complicated. There are many misconceptions about this based upon lawyers and non-lawyers alike oversimplifying the statutory provisions. 

In some circumstances, the foster parents know the child better than anyone else, and the foster parent’s intervention in the CPS case is necessary in order for the court to hear all of the facts and be able to determine what is in the best interest of the child. If you are a foster parent and you have questions about whether or not an intervention is best for you and your foster child, contact us. We can review the facts with you and help you get a better understanding of your option.

A CPS case has a twelve-month deadline with several important hearings and conferences along the way. There are adversarial hearings, status review hearings, permanency review hearings, family group conferences, and permanency conferences. Each hearing or conference has specific statutory requirements that must be met by CPS or the court.

Ordinarily, the child must be returned to the parents, or the CPS case must end by some other manner, by the twelve-month deadline. The court may sometimes grant a six-month extension to a CPS case under extraordinary circumstances, at which point the twelve-month deadline then becomes an eighteen-month deadline. The decision to grant an extension is highly fact-dependent and the judge has significant discretion to grant or deny a request for a six-month extension in a CPS case.

A CPS court hearing has many unique people involved, including: the Department of Family and Protective Services (“CPS” or “The Department”), their attorney (“District Attorney” or “County Attorney”), the Guardian Ad Litem (“GAL”), the Attorney Ad Litem (“AAL”), the parents and their attorneys, and the foster parents.

The Department of Family and Protective Services (“CPS” or “The Department”) is the State Agency that is responsible for protecting abused and neglected children. In CPS Court, they are the “Petitioner” because they are the ones who initiate the lawsuit. The Department is represented by an attorney, typically referred to as the District Attorney “DA”, or County Attorney “CA”. Sometimes, the Department is represented by regional attorney that work directly for the State Agency.

The Guardian Ad Litem (GAL) is the court-appointed guardian of the child. The GAL is appointed by the court to advocate for the child’s best interest. In many counties in Texas, the GAL is also known as the CASA Volunteer (Court Appointed Special Advocate). A CASA is a trained volunteer who signs up specifically to advocate for children in the child welfare system.

The Attorney Ad Litem (AAL) is the attorney for the child or children. The AAL is court-appointed to advocate for the child’s desires. Typically, the AAL and the GAL are aligned because what the child wants is the same as what is in the child’s best interest. In those situations, one person may sometimes serve the role of both GAL and AAL (this typically happens with young children). In older children, or some unique situations, the GAL and AAL may not be aligned because the child wants something that may not be in the child’s best interest.

Insupportability is another name for what is commonly called a “no-fault divorce”. In Texas, you can get a divorce based simply upon not getting along with your spouse anymore. The typical language found in a divorce petition or divorce decree will state that the grounds for divorce are based on a “discord or conflict in personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.”

Even if one of the spouses is at fault for the break-up of the marriage, many spouses choose to pursue a divorce based on the grounds of insupportability because of a number of strategic considerations. Divorces can be very complicated, and it is important to have a team of attorneys that you can trust to guide you through one of the most difficult experiences of your life.

If you and your spouse live in different counties, the county in which the divorce is filed is an important consideration. Some counties in Texas have Standing Orders that immediately become effective upon a party when they file for divorce or are served with divorce papers. Standing Orders govern the conduct of the parties while the divorce is ongoing, and typically address issues such as children, property, and communications between the parties.

Additionally, some counties have local rules that will govern some of the details of the divorce proceedings. There may also be some tactical benefits to filing for divorce in one county verses another. Often, it is best to file for a divorce on your “home turf”, where you will have the advantage of having easier access to records and witnesses, if you need them.

An ICPC Home Study gets its name from the Interstate Compact on the Placement of Children (ICPC), which has been adopted by the State of Texas. The ICPC governs how, when, and why a child may be placed across state lines. An ICPC Home Study is an assessment of the home of a prospective placement for the purposes of placing a child across state lines.

In the context of a CPS suit, an ICPC Home Study typically occurs when Texas identifies a family member that lives in another state and would like to have the child placed with them. The ICPC Home Study process is designed to be quick (less than 60 days), but there are many circumstances in which it takes much longer than that. Documents must be compiled and sent from one state to another, and sometimes the prospective placement is required to conduct training or get certified to become foster parents.