Webb is a trained and certified collaborative law specialist who is available to serve as independent mediator between the two divorcing parties or serve as legal counsel for parties involved in mediation or arbitration to resolve their differences. Webb has been involved in more than 50 mediations and arbitrations, and has earned statewide recognition for his capacity to handle complex cases involving significant marital assets and emotional child custody and parenting issues.
He is also trained in arbitration and offers services to serve as independent arbitrator between parties. While serving in the position of independent mediator or arbitrator, Mr. Webb cannot represent either party in the negotiations. In short, arbitration and mediation leave the individual parties in control of the final settlement.
Most divorcing couples also find that the collaborative law process reduces legal fees significantly. Texas family law judges place both parties in a divorce under pressure to seek a collaborative settlement that will avoid costly litigation. When parties hire an independent mediator, they are encouraged to hire their own attorney as legal counsel, but the parties remain in control of the final outcome. The mediator guides the negotiation sessions and informs the parties on issues that will affect the final outcome.
A mediated settlement is not binding between the parties until the judge reviews the settlement and the parties accept the agreement in writing.
When signed, a mediated settlement becomes a court judgment. Arbitration is a different form of alternative dispute resolution. The person who files for divorce is called the Petitioner; his or her spouse is called the Respondent.
Once a Petitioner has filed for divorce, notice must be given to the Respondent. This can be accomplished several ways, but is most often accomplished by having the Respondent served with a copy of the Original Petition for Divorce or having the Respondent sign a Waiver of Service. In Texas, a divorce cannot be granted until the Original Petition for Divorce has been on file with the court for at least sixty 60 days. If the Petitioner and Respondent agree to all issues in the divorce child support, custody and visitation, division of property and debts, etc. The process can be much longer if the parties cannot reach an agreement with respect to all the issues.
In this case, the divorce may take several months to be finalized. In certain situations, the day waiting period can be waived. To file a suit for divorce in Texas, either the Petitioner or Respondent must have been a resident of the State of Texas for six months before he or she files for divorce. Further, the suit must be filed in the Texas county in which either the Petitioner or Respondent has lived for the day period preceding the filing of the Petition. Texas is a no-fault state; Thus, it is not necessary to prove fault to get divorced in Texas.
Divorces in Texas can simply be granted on the grounds of insupportability, meaning that there is marital discord or conflict of personalities for which no reasonable expectation of reconciliation exists. However, fault grounds may also be pled. Adultery and cruel treatment are some examples of a fault ground for a Texas divorce. In Texas, all it takes is for one spouse to feel that there is no reasonable expectation of reconciliation.
If one spouse provides testimony that a reconciliation is not reasonably expected, a court has the power to grant the divorce. The more agreements you can reach with your spouse, the faster your divorce will be. If you and your spouse reach an agreement on all the issues in the case, you both will sign an Agreed Final Decree of Divorce. This document is an order from the court detailing the rights and duties of the Petitioner and Respondent, divides any property and debts, and may provide for child support and visitation if children are involved.
At least one party will then be required to appear in Court to answer a series of questions under oath. The judge will review the decree. If children are involved, make a determination that the provisions of the Decree are in the best interest of the children.
If property is involved, the judge will review the terms of the decree to ensure that the property is divided in a just and equitable manner. Once the judge approves the final decree, the divorce is granted and finalized. When an agreement cannot be reached between the parties, the divorce process may be significantly longer. In this case, the parties will appear before a judge, give testimony and often have witnesses give testimony. The judge will then decide all remaining issues based on the testimony given and evidence presented, and issue a final order.
Texas is a community property state.
Mediated Settlement Agreements: Enforceable, Notwithstanding Another Rule of Law?
Texas classifies property as either community property or separate property. Community property is defined as all property that was acquired during the marriage, including income from employment earned during the marriage. Separate property is all property that was owned prior to marriage or that was acquired during the marriage by gift or inheritance. In a Texas divorce, only the community property is subject to division. Many clients mistakenly believe that community property must be divided In most cases, child support is calculated using a formula contained in the Texas Family Code.
The divorce is finalized when the judge approves and signs a document called the Final Decree of Divorce. Texas requires a person wait at least thirty 30 days after the divorce is granted before he or she can marry. If my divorce is not yet finalized, can I move my children to another state? While judges typically will order a geographic restriction during a divorce, it may be allowable if a separation agreement, or temporary order, is in place. If my spouse files for divorce, can I keep my home, car and personal property?
Paternity testing is a medical procedure that is used to identify the parents of a child, usually the father. This is more than sufficient for the court to make a finding of paternity. The procedure is simple and inexpensive. This material is then sent off to a laboratory and results are usually available within a few days.
Can the Court deny a motion for genetic testing to determine the parentage of a child? The Texas Family Code grants the trial judge the authority to do so under certain circumstances. You should consult with a competent family law attorney on this complicated issue. If there is no presumed, acknowledged or adjudicated father, is there a time limit to bring an action to adjudicate parentage? The action may be brought after the child becomes an adult or even after a prior proceeding has been dismissed based on the application of a statue of limitation.
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However, an action may be brought at any time if the presumed father and mother of the child did not live together or engage in sexual intercourse during the probable time of conception and the presumed father never represented to others that the child was his own. Also, if the presumed father files a denial of paternity in conjunction with the filing by another person of an acknowledgment of paternity, that will destroy the presumption. If the alleged father is not available for testing, how can paternity be established?
The court may order the parents, the brothers or sisters of the man, any other children of the man and their mother and any other relatives of the man necessary to complete testing. The court may even order genetic testing on a deceased individual.
Mediated Settlement Agreements in Texas Divorces — Texas Divorce Attorney Blog — November 15,
A man is reputably identified as the father of a child if the results of the testing disclose that he has at least a 99 per cent probability of paternity. A man so identified may request further testing if he pays for it in advance. Ninety-nine per cent is well above the usual civil evidentiary standard of a preponderance of the evidence. If the court orders mediation but one party refuses to go, can the court order them in spite of their objections?
If a party objects to mediation, they must file a written objection within ten days of receiving notice from the court. Upon hearing, if the court determines that there is a reasonable basis for the objection, it may not order the party to mediation. The court may not force a party to mediation without giving them the ten day period in which to file written objections. Where a party does not file written objections but refuses to mediate in good faith, the court may assess costs against the party acting in bad faith. If one party decides to renege on the mediated settlement agreement, what action can the court take?
If the mediated settlement agreement is properly drafted, it will provide that it is irrevocable. In other words, once a party signs the agreement, they cannot unilaterally withdraw their consent. If the parties agree to modify the terms of the agreement, there is no reason that it cannot be done unless it concerns the children and the court finds that the proposed changes are not in the best interest of the child.
Depending on the type of settlement, there are many ways to enforce a mediated settlement agreement. If the issue is child support, it can be enforced by a petition for enforcement which could mean jail time for the respondent if the court finds him in contempt. If the issue is property, a similar enforcement action may be appropriate although without the remedy of incarceration. Each case should be evaluated on its merits to determine the proper procedure.
The mediator cannot be subpoenaed nor compelled by court order to appear and testify at any trial or hearing. While evidence is not put on at mediation, it may be helpful for a party to disclose to the other side certain information that it deems advantageous for them to know. This is particularly true if that information is embarrassing to that party. Nothing that is said at mediation can be admitted in trial without the consent of the parties.
If the mediator is asked not to disclose certain information to the other party, he will not do so. The court has the authority and failure to comply may result in a finding of contempt. Typically, the court will conduct a hearing and order the testing at that time. If a party fails to appear at the hearing, the court will probably order it anyway. Is a child born during the marriage automatically assumed to be the child of the parents? There is a rebuttable presumption that children born during the marriage are the biological children of the parents.
Property Division Agreements Incident to Divorce
This presumption may be rebutted by DNA testing. It depends on the type of case. In divorce cases, normally at least one party has to attend a hearing and have the court render and sign the Final Decree of Divorce. The mediator will prepare a mediated settlement agreement that outlines the terms of the settlement. This depends on the issues involved, the length of the mediation and the hourly rate charged by the mediator.
Mediators who are retired or former judges tend to charge more and their insights from years on the bench may validate the additional cost.
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