What is a Right of First Refusal?

If you are a parent who is going through a divorce then it’s likely that you’ve thought that you would like to do as much as you can to co-parent with your soon to be ex spouse once your divorce is finalized.

Whatever can be done to work together on parenting your child will be a blessing, you may think, since the divorce has taken so much out of you and your spouse financially and emotionally. The tough times associated with divorce are borne by your child as well. He or she likely understands more about what you are going through than you may believe. What lengths should you go to in order to work with your ex spouse when it comes to parenting?

The basics of the Right of First Refusal

When you are negotiating the terms of your Final Decree of Divorce you need to understand that what you agree to in this document will be held up as the standard by which you and your spouse must live your lives moving forward. If the order contained in the Final Decree has to do with your children then you will need to abide by the order until at least the time of your child’s eighteenth birthday.

You will likely concede certain issues to your spouse and he or she will likely concede certain issues to you. That’s typically how negotiations work: neither you nor your spouse get everything either of you want but ultimately both of you end up with more in the “win” column that you may be able to achieve in a courtroom.

One item that from my experience parents often times negotiate strongly for is a Right of First Refusal when it comes to possession of your child. This is not a term that is self explanatory and is not one that you may even be aware of unless your divorce has already been filed.

The Right of First Refusal basically means that if you as a parent are in possession of your child, or are scheduled to be in possession of your child, and for some reason will not be able to take possession of the child you will be obligated to contact your ex-spouse and give him or her the opportunity to take possession of the child in your absence.

Your ex spouse does not have to take possession if he or she is not able to but you will need to provide them the ability to refuse. In the event that he or she is not able to take possession alternative methods of childcare may be sought.

The glass half full way of approaching this scenario is that both you and your ex spouse are the best prepared caretakers for your child. No surprise there. Why not give the other a chance to spend time with your child if for some reason you are not able.

Working together to raise your child was what you and your spouse did while you were married and there is no reason to stop doing so now just because you are divorced. This teamwork will create a sense of togetherness and a common cause that can benefit other areas of your divorced lives.

Consider the consequences of agreeing to a Right of First Refusal

The glass half full/rainbows and puppy dogs view of the Right of First Refusal can be the furthest thing from the truth as it is actually applied in the real world. Your spouse may have proposed this arrangement during mediation for final orders and you agreed to it without much consideration for its long term impact. You want to be reasonable, most likely.

You may be really upset with something your spouse did or did not do that has led to your divorce but it’s not enough to completely ignore a seemingly reasonable attempt to co-parent. How this Right of First Refusal will actually work out in practice is something that you cannot accurately predict but on paper it looks nice and feels good.

No matter how it looks, you and your spouse will be held to the words that are included on the piece of paper your Final Decree of Divorce is written out on. For instance, you can unknowingly walk into a situation where you are forced to tell your ex spouse about every two hour or four hour interval where you will not be able to take possession of your child.

If you are called into work an afternoon shift during one of your weekends you may simply have your new spouse or your parent watch your child while you are away. However, depending upon the specific language that you included in your decree you may have to contact your ex spouse to provide him or her with the opportunity to watch your child. This can become tiresome, annoying and a disruption to your life and your child’s.

If you agree to a Right of First Refusal and in practice it is not working out well for you or your family then you can modify the prior order formally through a court. However, this means hiring an attorney, notifying your ex spouse of your intentions and going through another court case and legal battle. When the wounds of a divorce are still relatively fresh this can be a decision that is not arrived at without heartache and stress.

Your best bet is to think through the issues with your attorney and include the language that you feel is necessary the first time around. While the Right of First Refusal sounds great, it can have less than positive results for ex spouses when actually carried out in the real world. It may work well for your family, but my advice would be to think about what you are agreeing to and to enter into a settlement intentionally rather than lackadaisically.

Considering a divorce in Texas? Contact the Law Office of Bryan Fagan

The attorneys with the Law Office of Bryan Fagan are licensed and practice exclusively in family law. To learn more about the divorce process in Texas and to have your questions answered please contact our office today. A free of charge consultation is only a phone call away.


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Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.

Our divorce lawyers in Houston TX are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.


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