In the event that you and your spouse are getting a divorce and you are not represented by an attorney then today’s blog post should be helpful to you. In most divorce decrees a parenting plan will be included which contains the vast majority of the marching orders for you and your family in relation to your children. Issues such as conservatorship (rights and duties in relation to your kids), visitation and child support are all covered in a typical parenting plan. If you are able you should study examples of parenting plans prior to your divorce case so that you know what you will need to negotiate towards.
However, before we can begin to consider any of these topics in a divorce we need to walk through how to establish paternity in Texas.
How to handle paternity issues in Texas
A paternity lawsuit is one that seeks to establish legally who a child’s father is. When two people are married there is a legal presumption that when the wife gives birth to a baby that the husband is the father of that baby. However, if you are a man who is not married to the mother of your baby you must prove that you are that child’s father. If you do not otherwise acknowledge or prove paternity then you will not be the legal father to that child.
This can be done through your child’s mother filing a lawsuit to establish paternity and then request that you pay child support once established as the child’s legal father. You would be a party to the lawsuit as would the mother who files the suit. At the time of the lawsuit you must be a resident of Texas or be served with the lawsuit paperwork while in Texas. Otherwise the state of Texas does not have jurisdiction over you personally and cannot name you as the legal father to the child.
Signing an Acknowledgment of Paternity to establish legal paternity
I think the easiest way for you and your child’s mother to establish that you are the legal father to a child would be to sign a document known as an acknowledgment of paternity. You would both need to sign this form and then mail it into the Bureau of Vital Statistics in Austin. In many cases you can obtain this document from the hospital when your child is born.
Going to court to establish legal paternity of your child
Either parent, you or the mother, may file lawsuits in order to establish that you are the father of your child. You need to make sure that if you are filing the lawsuit yourself without the assistance of an attorney that you are doing so in the correct venue. Venue is a legal term for the physical place that your lawsuit will be heard and where the orders will come at the end of your case. In a paternity case, venue is proper either where your child resides or where your child’s mother resides if the child does not reside in Texas.
You may need to submit a DNA test as a result of the paternity lawsuit being filed. This will go towards establishing that you are the biological father of the child. Or, you may be able to just sign an acknowledgment of paternity as part of the paternity lawsuit rather than having to submit to genetic testing.
If either of these steps are completed, you will be found to be the child’s legal father and will be his or her parent under the law. You may then be able to ask a court for possession, visitation and conservator rights. Your child may inherit from you and have the right to be paid benefits from Social Security and elsewhere should you pass away before the child turns 18 years of age.
Handling issues of family violence in the context of a Texas family law case
If you are filing for divorce and need to request a protective order from the court due to issues related to family violence you need to ask for that relief in your petition for divorce. In the event that a protective order has been issued that affects either you or your spouse then that protective order needs to be included as an exhibit to your petition for divorce. Prior to becoming involved with the family court you should contact the office of the district attorney for your home county in order to learn how to seek a protective order for yourself or a member of your household.
Keeping up with deadlines is crucially important in a divorce case when you have no attorney
Just like in your own job, deadlines and rules are very important in the world of the law. You will be expected to meet every deadline and follow all the rules that the state of Texas, your home county and the judge in your court have set forth for you to follow. There are not separate rules for you just because you don’t have an attorney.
One of the nice things (among many) of having an attorney is that your lawyer will have a sophisticated way of keeping up with deadlines due to their office staff having a calendaring system. You can mimic a system like this in your own calendar but I’m here to tell you that an attorney’s office does this for a living and will have a better system that you will. That’s not to say that you are not capable of keeping up with deadlines on a calendar. It’s not rocket science. But I am telling you that attorneys and their staffs have this down to a science so their clients (and themselves) are protected.
The first rule or deadline that I would bring to your attention is that it will take at least sixty days for you to get divorced from the date on which your original petition for divorce has been filed. This is because the state has instituted a waiting period lasting sixty days in order to determine if you and your spouse really want to get this divorce. Otherwise, you will have a cooling off period to potentially talk and attempt to attend counseling or otherwise call off the divorce. Do not rush through your negotiations only to find out you have to wait to get divorced. You may as well fully negotiate these issues to make sure that the negotiations are fair and take into account all of the important factors in your case.
If you do not act on your case it will be dismissed
You cannot file a divorce, do nothing inside of the case and then expect that the judge will keep your case active for an undetermined length of time. The judge has the power to toss cases like yours off of its docket if you take no action to pursue the divorce. You may receive something in the mail known as a Notice of Dismissal for Want of Persecution if you file your divorce and do nothing after that.
The notice of dismissal will alert you to the fact that your case is in danger of being dismissed. You will be supplied with a hearing date on which you can attend court and address the judge to say why nothing has been done in the case and to try and get more time to complete the divorce. If you show the judge that you have utilized sufficient due diligence to keep the lawsuit on the docket then the judge will allow you to do so. If the court does not believe that due diligence has been shown your case will be dismissed but you will be able to re-file the case after dismissal.
You need to keep the other party alerted to any action you take within the case
Whether your spouse has an attorney or not, you still need to send your spouse a copy of every document you send in to the clerk of your court. You can fax him or her a copy, send a copy by certified mail or a copy should be sent automatically if you are filing your documents online. Keep track of anything that you have filed and make sure that you are sending in those copies. Remember- it is no excuse that you are not an attorney if you do not follow the rules of the court.
What can happen if you do not follow the rules regarding your case?
Actions have consequences as my mother was fond of telling me as a kid. In the same way, the failure to follow the court’s rules have consequences. In the legal world, these consequences are known as sanctions. Sanctions can range from pretty light slaps on the wrist like having to pay a portion of your spouse’s attorney’s fees to not being able to use particular pieces of evidence in a potential trial when you do not disclose the evidence to your spouse in enough time.
The judge and his staff are not there to provide you with legal advice
It can be tempting to seek out advice wherever you think it may be found. The judge is an authority figure and may even seem sympathetic to you and your case. However, he or she is not able to give you advice. Do not ask him or her to do so. The clerk, court coordinator (person who sets hearings) and anyone else who works at the courthouse cannot do so, either. If you find yourself with many questions to answer then you should take that as a sign that you need to hire an attorney.
What does the judge do in a family law case?
Let’s walk through what the different people involved in your case actually do. The judge in your court is elected to preside over his or her court. He or she is an unbiased individual who makes judgments of the evidence that is presented in court. That means that he or she is supposed to take the evidence as it comes with no preconceived notions of favoring your side or your spouse’s.
To maintain that sense of fairness the judge will not speak to you or your spouse outside of court. It is inappropriate to contact the judge other than by filing documents to your case. Phone calls to the court, letters, etc. are inappropriate. It is best to do your talking in the courtroom when the other party is with you in a pre-set hearing.
What do the court coordinator and court clerk do in a family law case?
The day to day business of the court and the scheduling of hearings is done by the court coordinator. This person is usually in the courtroom with the judge during hearings and is available to consult with if you need to reschedule a hearing or schedule a future hearing.
The clerk of the court works for the district clerk and not for the judge of your court. However, he or she does collect the payment for filing documents and handles the filing for all of the cases in that court. Since they review the filings it would be tempting to ask them for advice on legal matters but remember that they cannot give advice to you.
Questions about family law in Texas? Contact the Law Office of Bryan Fagan
If you have any questions about this blog post please feel free to contact the Law Office of Bryan Fagan. Our licensed family law attorneys offer free of charge consultations six days a week here in our office. These consultations are a great opportunity to answer questions and have your issues addressed directly. We take pride in representing our clients in the family courtrooms of southeast Texas. We invite you to learn more about us and how we can assist you and your family in whatever circumstances you are facing.