Primary Practice Areas
Roland Darby has represented many individuals who have been confronted with the diverse and difficult problems inherent in family law. The most difficult problems which individuals may face involve the dissolution of a marriage, the issues involving minor children, the division of complex and extensive personal finances, guardianship of adults and minors, and all other related matters. What follows is a more in-depth discussion of these issues.
The dissolution of a marriage is a traumatic and emotional experience to all parties. Texas has adopted a "no fault" concept of divorce. The usual language and grounds are that "the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marriage relationship and prevents any reasonable expectation of reconciliation." Though other grounds exist, it is often not necessary to plead issues such as abandonment, cruelty, etc. Many divorce matters may be resolved by agreement of the parties, which, while reducing the emotional and traumatic issues, does not remove the legal complexities.
For a divorce to be filed in Texas a party must have been a resident of Texas for at least 6 months and a resident of the county in which the divorce is to be filed for a minimum of 90 days. Once the divorce is filed, there is a statutory waiting period of 60 days before the divorce can be granted. Upon the granting of divorce after the 60-day period, there begins a period of 30 days from the date of the decree until a party may remarry.
A “waiver of service” may be executed by the opposing party if the following conditions are met: the parties agree to the terms of the divorce, the divorce is essentially a mutual understanding, and the opposing party is not going to require that they be served by a process server. The content and extent of the waiver is individual to each case and to the agreements of the parties.
Often many issues of the divorce can be agreed upon either mutually or by the facilitation of a mediator such that if any matters remain, the issues to be put before the court for trial will be narrow and specific: reducing the legal expenses of the parties.
The issue of property is a sensitive area in a divorce and is either one of agreement or one of hotly contested disparity. Property in Texas is classified as "community" or as "separate.”
Community Property includes all of the property acquired by either spouse during the marriage other than "separate property.” That community property includes, for instance, the equity value of a home acquired during the marriage, and usually retirement accounts, pension plans etc. that were set up or contributed to during the marriage as well.
Separate Property can be generally described as (a) the property owned or acquired before marriage (b) property acquired by descent, i.e. inheritance, (c) and some elements relating to the recovery made for "personal injury."
Texas courts will generally resolve the issue of custody of the children of a marriage wherein the parties are appointed "Joint Managing Conservators" with each party essentially sharing in the rights to the child equally. The "Joint Managing Conservatorship" can be expanded or limited to provide one parent as a "Joint Managing Conservator" with more or less rights to the child.
In a divorce proceeding in Texas where minor children of the parties are involved, the parent with whom the child does not primarily reside will be required to pay reasonable child support. The guideline for child support is for one child, 20% of the obligor's net resources: a percent that increases if more than one child is involved. Generally, the child support is paid by means of a "wage withholding order." This means that the support is withheld by the obligor’s employer from the pay of the obligor and sent directly to the child support office for disbursement to the obligee. The standard decree provides generally that the parents will share the expenses of "uninsured medical costs," medical cost not covered by insurance, on a 50/50 basis.
Visitation, Possession, and Access after Divorce
Texas provides that possession and access to the children by the parents shall be by mutual agreement and that in the lack of agreement a "standard possession order" should apply. The standard possession order provides that the non-primary conservator, the parent that the child "does not" live with, has a "superior right of access and possession" at the following times:
On the first, third, and fifth weekends, beginning at 6:00 PM on Friday until 6:00 PM on the following Sunday. Optionally the order can be written such that possession begins at school out on Friday and ends at school beginning on Monday.
On each Wednesday night from 6:00 PM until 8:00 PM and optionally as overnight on each Wednesday from school out until school begins on Thursday night.
The major holidays are alternated, such that there is a sharing of the holiday periods between the parents.
There is generally provided an "extended" summer possession period over and above the weekend provisions.
If the parent resides greater than 100 miles apart the periods change slightly with the most significant being the extension of time in the summer.
Choice of Managing Conservator By a Child
A child that is 12 or older may make an election of which parent they choose to be the primary managing conservator: the parent with whom they choose to reside. Generally, in the lack of a showing of risk or harm for a child to reside with the parent of their choice, the court will permit such election. The overriding interest of the court in considering with which parent the child shall primarily reside, is "what is in the best interest of the child.”
Can Residence be Restricted?
A court may include in an order a restriction that, without permission of the court, the child's permanent residence may not be changed from the jurisdictional limits of the court. This is sometimes waived by mutual agreement of the parties and with approval of the court. The intent of this provision is that one parent will not attempt to relocate to such a far distance as to make visitation impossible or highly restrictive on the other parent.
Post Divorce Spousal Support in Texas
Texas law does provide under limited circumstances that "post divorce spousal support" may be ordered only for a limited time, and only if several underlying conditions are satisfied, and then only for a limited amount of time.
Modification of Final Decree of Divorce or Other Orders
The rendition of the final decree or other orders of the court generally provide for the payment of child support, as well as certain visitation or possession issues. As time passes after the rendition of the original decree, the financial situation of either party may change as well. Those financial changes may precipitate the need to modify the child support orders. Situations of possession and access may change as well after the rendition of the final decree. The best interests of the children must by considered, and in some cases where restrictions were placed upon possession and access it may be appropriate to narrow the possession and access. The court will consider foremost the best interest of the child.
Enforcement of Final Decree or Other Orders
Proceedings in Texas family law matters may be taught to enforce the terms of a final decree or other orders of the court. Those provisions enforced may relate to possession and access, i.e. one parent is denying the other their rightful possession and access to the children. Enforcement may be brought for other reasons as well, such as child support, medical support and conceivably enforcing the property division of the divorce decree. The actions required to enforce a decree or other order are unique to each situation and professional legal advice should be sought to understand your rights, duties and responsibilities.
The necessity of filing a paternity action, which is a legal means of determining and declaring the father of a child, has risen dramatically in recent years. The establishment of paternity provides the mother of the child a mechanism to secure support for the child, as well as establishing definitive orders for possession of and access to the child for the father. If the issue of paternity is contested, a "DNA" test may be ordered. Essentially the test will use medical methods to calculate the probability of a person being the father. To establish paternity the court will generally consider a test that excludes 99 percent of the remaining population as being the father.
Other Practice Areas
Cases involving a variety of contested matters have been litigated by Roland Darby. These include such diverse subject matters as employment law, real estate, collection, police brutality, social security benefits, will contests, consumer law, insurance law, commission disputes, and business interests of all kinds.
Personal Injury Law
Roland Darby primarily represents Plaintiffs in cases
involving serious injuries sustained in a work environment,
automobile collisions, product liability cases, premise
liability incidents, train collisions, large truck
collisions, and civil rights violations. Over the years he
has represented both patients and physicians in medical
Office of Roland B. Darby, P.C.