For many people, Christmas and other winter holidays do not carry with them the same pleasant memories that they do for many of us. Unfortunately, the holidays can be a very difficult time for some families. This is especially true for families that are going through marital problems. It doesn't matter if everything else in your life is going well if your marriage is failing that is the only thing that you will be able to notice.
This past holiday season may have been the straw that broke the camel’s back for you and your spouse. You both did your best to put on a brave face and make it through the winter holidays, but you are now coming out of a tough three-month period where you filed for divorce and are now about to start living life as single adults. Even if you had an attorney to represent you in the divorce you likely have some questions about how visitation and possession are to be sorted out in this new season of your life.
Today’s blog post from the Law Office of Bryan Fagan will seek to answer many of those questions that you may have. With Easter right around the corner and the summer holiday season not too far after that, I wanted to share with you all some information that should hopefully put you in a clearer state of mind as we ease ourselves into the middle of the calendar year.
Holiday visitation schedules can be confusing but need to be learned
There is no doubt that you will need to take some time to adjust to your new life after divorce. Not only are you not able to spend as much time with your child as you once were, but you are also now figuring out how to live again as a single person. If you got married in your early 20s you may have little to no experience living on your own. While this will be a transitionary period for you there is no need to have it impact your life in an overly negative way.
The first thing that you should do after your divorce has finalized is to take a deep breath and assess where you stand. Do you have bills that need to be paid off or at least made current? If so, you should do so as quickly as possible. You may want to find an apartment to lease, a home to buy or a car to purchase. It will be difficult for you to do any of these things if you have an old bill that has not been paid for months. Falling behind on your bills after a divorce is understandable but your credit report doesn’t know that. Don’t suffer consequences that are avoidable with a little planning.
Next, you need to learn what your Final Decree of Divorce has to say about subjects like child support, visitation, possession and the division of community property. Today’s blog post is about visitation with your child, but it is nonetheless important that you know what your responsibilities are as far as making sure that your spouse is provided with any personal property you may have of theirs. Is there a specific date and time that you have to exchange items like jewelry, paper files or personal items? Do not lose track of your responsibilities so early in your post-divorce life.
Finally, let’s get into what we are here to discuss -namely, how to manage a somewhat complicated visitation schedule as laid out in your final decree of divorce. Every person who goes through a divorce has different variations on their visitation order. Some folks have orders that closely mirror what is known as a Standard Possession Order (SPO). An SPO allows for the parent who has visitation rights to possess the child on the first, third and fifth weekends of each month from 6 pm on Friday until 6 pm on Sunday.
There are slight variations that can be made to this plan that allows for more or less time to be provided, but for the most part, this is what visitation looks like during the school year. Holidays can complicate this plan a little bit, but not so much that you should be worried. The important thing is that you take the time to learn your plan. Keep a copy of your divorce decree in a desk drawer in your home where you can refer to it if you have any questions.
Easter is the holiday that we have coming up next. Easter always falls on a Sunday. In this way, it is one of the easier holidays to plan for since it falls on a weekend. However, your divorce decree likely only specifies holiday visitation for Christmas, Thanksgiving, Mother’s Day, Father’s Day and the summer holiday. You and your ex-spouse may have inserted language into your orders to reflect your agreement on a visitation schedule for Easter, but if not then Easter will fluctuate as to whether you or your ex-spouse have possession of your child on the holiday from year to year. Easter can occur as early as mid-March and as late as April depending on the year.
What about other holidays besides Easter?
You need to know that holiday visitation schedules usually trump the sort of “every other weekend” possession schedule that I generally laid out for you earlier in this blog post. If you are the parent who has weekend visitation with your child, you may lose out on a weekend because of Mother’s Day/Father’s Day falling on your particular weekend. For example, if you are a mother who has weekend visitation with your child and your weekend so happens to fall on the same weekend as Father’s Day, you will lose that weekend to your ex-spouse so he can spend that weekend with your child.
Questions that arise as circumstances change after a divorce
Now that we have covered some basics of visitation schedules in Texas, let’s spend the rest of today’s blog post covering questions that frequently arise regarding this subject.
For starter’s what happens if your Christmas holiday visitation interferes with your ex-spouse’s weekend for visitation. What happens then?
If you are able to spend Christmas Day with your child this year according to your divorce decree, but Christmas falls on your ex-spouse’s weekend of the month you do not need to worry. Holiday visitation, as I explained a moment ago, always trumps the regular parenting days that are in effect for non-holiday portions of the calendar year. If you were awarded Christmas Day for this year then whatever your order states in reference to Christmas will go into effect, not the "normal" first, third and fifth-weekend schedule that is in effect for when school is in session.
Do birthday visitation days take precedence over holiday visitation?
This may seem like a "small potatoes" type question but it has been asked of me before, so I wanted to share my thoughts on it in this space. Suppose that your visitation time period for any given holiday falls on your child's birthday. In your divorce decree, you and your spouse hammered out an agreement that your son's birthday is to be split between the two of you. If you also have that holiday in any given year (say his birthday falls the day after Thanksgiving this year) what will end up happening?
In my opinion, the court would likely rule that the birthday is more important than the holiday visitation. There is no precedent that I am aware of that a court would follow. Like many issues in Texas family law, the facts of your case are incredibly important to how a judge would rule. If it is obvious to both sides that your son values his birthday a great deal and would want to see both parents then that is the way that a judge is likely to come down. Overall, it is better for you and your spouse to figure this out before your divorce is over with.
What happens if your regularly scheduled weekend falls within a holiday for your ex-spouse?
Suppose that it is the fifth weekend in November and you are scheduled to have your final weekend visitation period of the month. However, Thanksgiving was the day before your visitation period is set to begin so that holiday time frame is wrapping up. Given that it is an even year, it is your spouse's turn to see your child. Who gets the weekend- you or your spouse?
As you might have imagined based on my responses to other questions, your spouse gets your child for the weekend even if it is a regularly scheduled weekend break that you would ordinarily be able to have. The holiday always takes precedence over “regularly” scheduled weekend visits as laid out in a Standard Possession Order.
What if your ex-spouse is afforded time under the possession order that he doesn’t want to take advantage of? As in, what if it is your ex-spouse’s turn to have the kids for the first half of Christmas break. This usually begins at 6:00 p.m. on the Friday school lets out for Christmas and will end on December 27thor thereabouts. However, your spouse sends you a text message that he isn’t able to see the kids until the following Monday before Christmas. Are you in the wrong to keep the kids or do you have to give them to your ex-spouse?
If your ex-spouse tells you (especially in writing) that he is forfeiting his time with the kids then you are under no obligation to provide them to him. Obviously, if he comes back and says that a change in his schedule has occurred and he now wants the kids, that would change things. Another factor I would point you towards is whether or not your final decree of divorce has a right of first refusal included within it. A right of first refusal mandates that your ex-spouse allow you “first dibs” on taking your children for any period of time that he is ordinarily entitled to, as far as visitation time is concerned. He would have to let you know that he couldn’t have the kids and allow you a specific period of time to make a decision as to whether or not you want to take them.
How much weight to verbal agreements carry?
The final subject I wanted to discuss today involves the verbal agreement to modify a possession schedule. Suppose that you and your ex-spouse agreed to flip-flop periods of holiday possession this year. Instead of you having Thanksgiving, you would offer that to your ex-spouse in exchange for you getting all of Christmas break. You didn’t get anything in writing but there was a clear, verbal agreement in place.
Flash forward to the day before Thanksgiving break. You’ve made plans to travel to see family since you won’t be able to stay home with your kids. However, your ex-spouse is now telling you that he no longer wants to abide by that agreement. Unfortunately, he is able to do this, especially if you didn’t get anything in writing. The default orders are what is included in your final decree of divorce. Absent an agreement to the contrary, those are what will rule the day. Yes, this puts you in an unenviable situation but that is one of the downsides to having to live with a possession/visitation order.
Questions about holiday visitation? Contact the Law Office of Bryan Fagan
The attorneys with the Law Office of Bryan Fagan appreciate your having spent some time with us today. If you have any questions about the material that we just covered or are seeking clarification on anything else having to do with Texas family law please do not hesitate to contact our office. We offer free of charge consultations six days a week with one of our licensed family law attorneys. These consultations are a great opportunity to meet with an attorney and get direct feedback about your case and your family.