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What is a Right of First Refusal?

If you are a parent 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. They likely understand more about what you are going through than you may believe. What lengths should you go to to work with your ex-spouse regarding 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 specific issues to your spouse, and they will probably admit certain matters to you. That's typically how negotiations work: neither you nor your spouse gets everything either of you wants 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 negotiate strongly for is a Right of First Refusal when it comes to possession of your child. This is not a self-explanatory term and is not one that you may even be aware of unless your divorce has already been filed.

The Right of First Refusal means that if you as a parent have your child or are scheduled to have 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 allow them to take custody of the child in your absence.

Your ex-spouse does not have to take possession if they cannot, but you will need to provide them the ability to refuse. If they cannot take control, alternative methods of childcare may be sought.

The glass half whole 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 you are not able for some reason.

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 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 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 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 work out in practice is something that you cannot accurately predict, but it looks nice and feels good on paper.

No matter how it looks, you and your spouse will be held to the words included on the piece of paper your Final Decree of Divorce is written out. 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 have your new spouse or parent watch your child while away. However, depending upon the specific language that you included in your decree, you may have to contact your ex-spouse to provide them 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 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 excellent, it can have less than favorable results for ex-spouses when carried out in the real world. It may work well for your family, but my advice would be to think about what you agree to and enter into a settlement intentionally rather than lackadaisically.

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

The attorneys with the Law Office of Bryan Fagan, PLLC, are licensed and practice exclusively in family law. To learn more about the divorce process in Texas and have your questions answered, don't hesitate to get in touch with our office today. A free-of-charge consultation is only a phone call away.


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Law Office of Bryan Fagan, PLLC | Houston, Texas Divorce Lawyers

The Law Office of Bryan Fagan, PLLC, routinely handles matters that affect children and families. If you have questions regarding divorce, it's essential 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 the Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC, 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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