Dating During Divorce

January 23, 2014

A friend of mine asks, “Is it OK to start dating before my divorce is final?”  Well…

A significant percentage of my clients and friends going through a divorce start dating before it is final.  Everything you read on the subject says, “Don’t.”  There are, generally, three reasons for it being a bad idea:

1) Legal risk.  Most of the time, the judges don’t care whether someone is dating before the divorce is final.  Heck, they don’t even care if someone had an affair before the separation.  In short, they don’t want to hear about your broken heart;  they just want the kids taken care of and the property divided.  However, that doesn’t mean I tell my clients that it’s OK to date, because sometimes, seemingly randomly, judges do care.  Or your judge may not care, but the day of your hearing your judge is at a conference so you have a retired judge hearing your case, and he was born in 1933 and he does care, very much.  So an affair, even if it starts after you and your spouse have separated, could have a detrimental effect on your divorce, in terms of time with your children, child support, spousal support, and the property division.

And I can pretty much guarantee the judge will care if you are carrying on any sort of new relationship in front of your kids.  DO NOT introduce any new partners to your children during the divorce, don’t talk about new partners, and in general, keep your dating life completely away from your children.

“But we don’t have any kids under 18,” you say, “So that doesn’t matter to us.”  Do you have any community property?  Can your spouse argue that you’re spending it on dating?  There is a case pending here where the husband reportedly took his girlfriends on his private company jet to the Caymans on a regular basis.  He now has to account for the tens of thousands of dollars he spent on said girlfriends while the divorce was pending.  So there’s that – talk to your lawyer, and make sure there’s no chance of this coming back to bite you in the final divorce decree.

2) Emotional considerations.  Most experts agree that people are not ready to date or get involved with someone else until at least a year after the divorce is final.  Some say three years.  Of course this varies widely based on the length of the marriage, the reason for the breakup, and the mental health and self-awareness of the individual.  And this is definitely a case of “Do what I say, not what I do,” because I started dating too soon after my first marriage ended, and ended up getting divorced again.

I taught “Divorce Care” at my church last year, and I was amazed at the emotions that came up for me about my first divorce, 13 years later.  So any of us who think, “Oh, well, I’m fine, I can just shove that emotional garbage under the bed and not deal with it” are kidding ourselves.  There really is a rush of emotion that comes with the finality of the decree, and most people are not ready for it.  They think, “Oh, we’ve been separated a long time;  I’ve grieved; I’m over it.”  And maybe you are.  But it’s more likely that the day you walk out of the courthouse and you’re “free,” you will feel something – elation, pain, or something else.

3)  Religious and moral considerations.  Some people feel that it’s a sin to date or have sexual relations with anyone outside of marriage.  Some believe that in addition to the civil divorce, they have to get an annulment or a get before they get involved with someone else.  And that’s a valid and admirable position, if for no other reason than it helps them wait longer, and avoid the potential legal and emotional consequences of a too-early, “rebound” relationship.

So, if you ask your attorney or your counselor or religious advisor, “Should I start dating before my divorce is final?” chances are the answer you’re going to get is “no.”  Then if you conduct a poll of your friends on the subject, chances are most of them will admit, “Yes, I did.”  And some of them will say it was fine, and some of them will tell you a horror story about a bad rebound relationship, and some people will say they found The Most Wonderful Person in the World and are now deliriously happy.  In short, everyone says “Don’t do it,” and then everyone does it.

We are human, and have a basic human desire to be with other people.  And when you’ve just gone through a breakup, it can feel like you have a hole next to you, one exactly the size and shape of your former spouse.  So you try to fill it.  Chances are, if you’re successful, it will work out just about as well as your prior relationship did.  A much wiser choice is to wait.  Fill the hole with something else – friends, church, your kids, yourself.  Or leave it empty for a while, and see if it shrinks or goes away on its own.

I’ve been wanting to write this post for a while.  As a divorce attorney, I see this behavior over and over.  It breaks my heart, frankly.  There are hundreds of articles about parenting during divorce, and so this advice is hardly new.  But on the off chance that one parent will read this, and stop the destructive behavior that harms their children, here are my top ten mistakes divorcing parents make:

10.  Giving up on seeing the child because the other parent is making it difficult.  I see this most often with dads.  Mom moves with the kids to a new location, or re-marries, or is just a screeching banshee at every drop-off and pick-up.  So, eventually, Dad gives up, deciding it’s not worth the trouble.  WRONG.  It is worth the trouble.  NEVER give up on seeing your child.  Even if she makes it hard, even if she calls CPS on you for no reason, even if she creates drama every time.  Do it anyway.  Never give up.

9.    Fighting with the other parent at drop-offs and pick-ups. News flash:  the kids can hear you.  Have those difficult conversations at other times – preferably, via e-mail, because then you can choose not to respond to any attacks.

8.    Not paying child support.  Hey, just pay it.  I don’t care if she’s getting her nails done with it, or if he’s using it to buy a new bass boat.  If you’re not current on your child support, you won’t have a leg to stand on in front of the judge on ANY issue.  If you lose your job or otherwise can’t pay, then go back to court and have the order changed.  Otherwise, pay it.

7.    Not allowing the other parent to see the child when scheduled.  This is just as infuriating to judges as not paying child support.  Unless you can prove that your children will be in danger with the other parent, then let them go.  They may not brush their teeth for three days, or eat five servings of fruits and vegetables every day, but they’ll probably live.  And you’ll get a break from them, and be a better parent when they return.

6.    Introducing the child to a new romantic partner. It stuns me how often people do this.  Mom and Dad aren’t even divorced yet, and here’s Dad with “your new Mommy,” or Mom announcing that they’re moving in with Bubba, the new boyfriend.  NO.  Just no.  First of all, it’s not good for you to start dating again so soon;  second of all, it’s even worse for your kids.  Don’t start dating until you and the other parent have been separated at least six months to a year.  Then, keep romantic partners out of your children’s lives for at least six months after you start dating – until you’re certain that this person is going to be around a while.  Don’t tell me your kids love the new guy, or that they’re mature enough to handle it.  Put their needs ahead of yours, and keep them separate.

5.    Confiding in the child.  Divorce is a lonely and traumatic time, and it can be tempting to imagine that you and your child are in it together, supporting each other through it.  But that’s way too much pressure to put on a child, even a teenager.  It’s your job to support your child, and it’s your job to find other sources of support for yourself.  I tell my clients that they need a whole team to support them through their divorce – a lawyer, an accountant, a counselor, a spiritual advisor, friends and family.  But your child is not a member of your support team.  Let the child be a child, and feel safe and assured that the adults are taking care of everything.

4.    Trying to get the child on your side.  Trying to persuade a child to live with you so you don’t have to pay child support, or so you do get child support, is just destructive and harmful to the child.  The best way to avoid making this mistake is to let go of the idea that there are “sides” in a divorce. There are no “winners” or “losers” in family law cases, because it’s not a contest to be won or lost.  It’s a transition;  a process of changing the structure of a family.  You and your ex are not on opposing sides.  You should be on the same side, and have the same goal of raising your children in the best possible way.  So instead of trying to pit your child against the other parent, try to work with the other parent in the best interest of the child.

3.    Making an older child care for younger siblings.  This can be very tempting, especially to a frazzled single parent with multiple children.  But it’s very unhealthy for the child.  Let the kids be kids;  make sure that what you’re asking of each child is appropriate for the child’s age and maturity.  It’s fine to leave a 10-year-old with a 13-year-old while you run to the store for half an hour;  it’s not OK to expect an 11-year-old to raise a 6-year-old while you fall apart.

2.    Not allowing the child to communicate with the other parent.  Repeat after me:  it’s best for your child to have a positive relationship with the other parent.  That means regular contact.  I don’t care how mad you are at him, or whether you’re trying to store ammunition for your next round in court.  Let the kid talk to Mom or Dad on the phone.  Every day, three times a day, whenever she wants to.  In fact, help the child remember to call the absent parent and share news, like a lost tooth or a home run.  Because it’s good for your child.

1.    Telling the child negative things about the other parent.  Children view themselves as a combination of both parents.  So every time you say something negative about the other parent, the child hears it as being about herself.  So if you say, “Your momma is a cheating, lying whore,” your little girl is going to hear you saying that about her.  Chilling, isn’t it?  Imagine saying to a little boy, “You are just a worthless, no-good jerk.”  You’d never do that, would you?  Then don’t say ANYTHING negative about the other parent in front of them.  And instruct all your family and friends to follow this rule as well.  If he really is a worthless no-good jerk, by the time the kids are adults, they’ll figure it out.  And they’ll realize you were a saint for not telling them so.

Look, I know you’re upset.  I know your soon-to-be-ex is a jerk.  I know you’re at the end of your rope. But please, don’t completely lose your mind and do things that will have a negative effect on your children.

Dear friends:

I am writing to deliver what I believe is an important message about judicial elections in Collin County. Before I began appearing in the District courts on a regular basis, I did not pay attention our local judicial elections. However, now that I see the effect they have on my family law clients, I think it is important that all voters be informed and participate in the process. Statistically, it is very likely that you or a relative will be involved in a family law matter in Collin County. Therefore, it is probable that these elections will affect you personally.

As you may have heard, early voting is underway in the Collin County primary elections. Election day is May 29th. In Collin County, 100% of our elected officials are Republican. I’m not going to comment on whether that’s a good thing or a bad thing; it just is. Because of this, if a candidate wins the Republican primary, he or she will most likely win in the general election in November. So, for all practical purposes, the Republican primary is the only contested election. In Texas, you may vote in a party’s primary, even if you are not a member of that party. You may also vote in the Republican primary and then vote for a Democratic candidate in the general election in the Fall. So, my message to you is, Go vote in the Republican primary.

To find out where to vote, check here.  I just voted at the Elections office on Redbud this morning, there was no line, and it took me less than 5 minutes.

There are a number of contested races, and I won’t comment on all of them. But I would appreciate your vote for the following candidates:

199th District Court: ANGELA TUCKER. Angela has the most experience, and actively practices in the areas of family and criminal law – which are the majority of cases before the District courts. Her opponent is the former judge’s son, has been out of law school less than 10 years, and has never handled a criminal or family case. She is in a very close race, so she really needs your vote and support. Also, Angela happens to be African-American. Her election would be an historic event for Collin County.

380th District Court: JODY JOHNSON. Jody is board-certified in family law, and an extremely well-respected member of the bar. She also has prior criminal and civil litigation experience. She gained the support of more than 60% of the Collin County Bar Association in their recent poll, against three other candidates.

401st District Court: MARK RUSCH. Judge Rusch is the incumbent on this bench, and much more qualified than his opponent. I don’t always agree with his decisions, but he is extremely conscientious. When you need a protective order signed at 4:30 on a Friday, Judge Rusch is always still in his office.

416th District Court: Judge Chris Older is unopposed.

County Court at Law#2: SHARON RAMAGE. She has the longest legal experience, and is the only candidate with judicial experience.

If you’d like to see the complete bar poll results, they are here.

Thank you all. If you have questions, then please contact me.

-Melanie

Happy Anniversary….

February 13, 2012

… to me! February marks the third anniversary of my solo practice! I’m proud to be going strong, and hopefully learning and getting better every year. I added Attorney ad Litem certification to my list of credentials this year, and once again qualified for the State Bar College. I’m currently serving as chair of the Family Law Section of the Collin County Bar Association. And I’ve continued to serve the community by taking pro bono cases through Legal Aid of Northwest Texas, and doing volunteer mediations at the SMU Center for Dispute Resolution in Plano. Thank you to everyone who has helped me, by referring a client, answering a question, or just being my friend. I’m looking forward to an even better 2012.

This is the most basic question I hear from prospective clients.  It’s daunting;  it’s emotional.  None of us expected to be here.  But here we are:  it seems we can’t, or don’t want to, stay married to this person any more.  What are the first steps?  Here are my suggestions, both as a lawyer and as a person who has been through the divorce process:

1)      Take an inventory.  Make sure you understand what you have, and where it is.  If you’re the spouse who normally handles the finances, this part will be relatively easy;  if you’re not, this may be tricky – especially if you’re not ready to let the other spouse know that you’re considering divorce.  (But if your spouse handles the finances and won’t share that information with you, that’s a pretty big red flag right there, don’t you think?)  Major items you will need to identify are:

  1. Cash on hand – bank account statements
  2. Real estate – mortgage statements, including home equity loans
  3. Retirement accounts, such as 401Ks, pensions, and IRAs
  4. Other investments, such as mutual funds and brokerage accounts
  5. Personal property, such as cars, boats, furniture, jewelry
  6. Debts, such as car loans, credit cards, etc.

As you identify your property, try to determine if it’s “separate” or “community” property.  Put very simply, separate property is anything you owned before the marriage, or anything you obtained by gift or inheritance during the marriage.  Community property is anything earned or purchased during the marriage.  Some accounts may be a mixture of separate and community property, like a 401K you had before marriage and have added to during the marriage.

Don’t try to hide or transfer assets, alter documents or information, change beneficiaries on accounts or insurance policies, or spend large amounts of money.  All these actions may be illegal, probably won’t work, and could get you in big trouble later.

2)       Educate yourself.  There are many good books about divorce, and its effect on your children and your finances.  My recommendations are here.  For me, having more knowledge about the process helped me be calmer and make better decisions.  I knew how to answer my children’s questions, and how to prepare myself financially for what was coming.

Don’t rely on books to give you specific legal advice.  Books are wonderful for general parenting and financial advice; however, unless a book is specific to Texas and updated annually, any statements about the law might be either inaccurate or out-of-date.

3)       Assemble your “Divorce Team.”  For most of us, losing a spouse means losing our main source of support, and it takes more than one person to fill that void.   Your attorney can give you legal advice, but you may also need financial, tax, or real estate advice.  So you may also need an accountant, a tax expert, or a real estate agent.  You’ll also need emotional support, so you will want to line up friends, family, and possibly a counselor or religious advisor.  While you are the decision-maker and driver of your divorce, you will need a team of advisors and supports to help you through.

Don’t recruit people to join you in an “I Hate My Ex” club.  In my experience, that is neither helpful nor healthy.  It is more helpful to find people who will support you, not people who will put down your spouse.  This is especially important when you have children.  Besides, what if you change your mind and stay married?  It will be harder to make your marriage work if you’ve turned all your friends and family against your spouse.

4)      Think about what life might look like after divorce.  What do you want to happen?  Do you want to stay in the house, or move out?  Do you want your kids with you most of the time, or will that be impossible because you travel for work?  Will you be able to support yourself financially, or will you need child support or spousal maintenance?  Will you need to go get a job?  Will you need day care?  You may want to write out several different scenarios, in case one turns out not to be possible.

 

Don’t ask the kids what they want, or talk to them at all about your plans.  It’s inappropriate, can be frightening for the children, and may reflect badly on you later.

5)      Decide if you need an attorney.  I am frequently asked, “Do I really need an attorney? Can’t I do it myself?”  And legally, you don’t need a lawyer.  You can do it yourself.  But, as in most things, you get what you pay for.  As the late Hal Davis said, “The cheapest way to get a haircut is to go to Wal-Mart, buy the clippers, and do it yourself.  But most of us choose to pay someone with training and expertise to do it for us.”

No one wants to pay an attorney to help us get divorced.  Divorce causes (and is sometimes caused by) serious financial distress, and the cost of good legal counsel is significant.  But a divorce affects your most significant assets:  your home and your retirement accounts.  Chances are you didn’t handle the closing on your house by yourself;  nor did you set up your 401K.  In my opinion, if you have any financial assets or real property, it’s worth the investment to pay someone to do it right.

And of course, if you have children, you can’t put a price on making sure that part of the divorce is handled correctly.  Having a person with experience in developing parenting plans and arranging child support is very important, and can help you avoid common mistakes divorcing parents make.

Many people seem think that hiring an attorney is equivalent to buying a gun.  I hear clients say, “He said if I hire an attorney, he’s not going to give me anything!”  I don’t see it that way.  I think a good divorce attorney is like a good real estate agent helping you buy a home, or a good accountant helping you with your taxes.  They know what they’re doing; they do it all the time; they can walk you through it.  A good divorce attorney is the same.  Hiring a lawyer need not be the opening salvo of a war between you and your spouse.

If you absolutely can’t afford to hire an attorney, there is help available.  If you qualify, you may be able to find help through Legal Aid.  The Collin County Law Library has a packet of information and forms for obtaining a divorce.  And the Texas Young Lawyers Association has a very helpful website, texaslawhelp.org, with forms and instructions.

Don’t rely on programs or forms you find on the internet.  Such programs are rarely accurate on the law, especially if they are not specific to Texas.  And those sites are never familiar with the local rules and practices in your county, which is crucial to getting through the process smoothly.  A local attorney will know the judges, be familiar with courthouse staff, and know things which an internet form service cannot tell you.

6)      Make an appointment with an attorney.  See my article on choosing a divorce attorney for some tips on finding the right attorney to speak to.  Expect to pay the attorney for his or her time, although some attorneys do offer free consultations.  Bring with you:

  1. the documents you gathered in step one;
  2. social security numbers, driver’s license numbers, and birth dates of you, your spouse, and your children;
  3. any significant documents, such as prior legal proceedings (divorces, adoptions, etc.)

Don’t expect an attorney to give you legal advice over the phone.  For one thing, if we don’t completely understand your situation, our advice might not be correct.  And we earn our living by giving advice; most of us can’t afford to give it away for free.

7)      Explore your options.  The attorney should be able to assess your situation – assets, debts, property, and children – and give you an idea of what to expect from the process.  An attorney can tell you whether the post-divorce scenario you prepared in Step Two is possible.  For example, you may wonder if you can move out of state with the children, or whether it will be possible for you to keep a car when it is in your spouse’s name.  These are case-by-case questions, answerable only after an attorney looks at all the facts.

Don’t set your heart on a certain outcome – sole custody of your children, getting the house, a thousand dollars a month in alimony.  Try to think in terms of interests – having a good relationship with the kids, being financially secure – and not a particular aspect of the divorce settlement.

8)       Decide how you want to proceed – litigation, collaborative divorce, or mediated divorce.  In all these options, you will need the guidance of an attorney; each one is best for some situations, and not appropriate for others.

Don’t assume that your divorce will be just like your neighbor’s, your sister’s, or your friends.  Every case is different, every couple has different goals, and people have different attorneys and judges involved.  So there is no such thing as a “standard” divorce.

9)      Be prepared for a process, not an event.  A divorce in Texas must take a minimum of 60 days from the filing of a petition to the entry of a decree.  However, I have never had a divorce get done in 61 days.   I always tell my clients that their divorce will cost more and take longer than they want it to, because most people want to get divorced yesterday and pay nothing.

And the truth is, the time is takes to get a divorce, from the first visit with the attorney to the signing of the final documents – is valuable.  It takes time to adjust emotionally – and that applies to you, your spouse, and your children.

Most divorces are not decided in court.  They are settled by the parties and their attorneys, in settlement conferences, mediations, and meetings in the courthouse hallways.  So chances are you won’t have a dramatic, TV-worthy moment where the judge bangs his gavel and pronounces his verdict.  Instead, you’ll have e-mails, phone calls, and meetings.  And eventually, everything will get done.

This blog post turned out to be much longer than I intended!  But I hope that those of you who stayed with me to the end found it helpful.  Divorce is like many things in life;  none of us expect it, most of us don’t want it.  But if you approach it positively, it can be a transformative and valuable experience.  One of my dear friends says that an event can either make you better, or bitter – and a divorce is one of those experiences.

I have always been an avid reader, and when life throws a new experience my way, I try to read what I can on it.  These books all helped me through my own divorce eleven years ago.  (I guess they’re considered classics now!)   I would encourage you to pick them up, no matter what stage of the process you are in – as Constance Ahrons says, “It’s never too late to have a good divorce.”

1.  The Good Divorce, by Constance Ahrons. In this 1995 work, Ahrons lays out a startling premise – that it is possible to have a “good” divorce.  I know the idea shocked me when I first saw the title, but I grabbed onto it as a lifeline of hope.  Was it possible for me to end my marriage and not ruin my life, or permanently damage my children?  Here’s a quote from her first chapter:

The good divorce is not an oxymoron. A good divorce is one in which both the adults and children emerge at least as emotionally well as they were before the divorce. Because we have been so inundated with negative stories, divorce immediately carries with it a negative association. Even though we have difficulty conjuring up positive images of divorce, the reality is that most people feel their lives improved after their divorces.

I meet many people who say, “Oh, it’s too late for that.  my spouse is crazy.”  And then they tell me their divorce tale of woe.  But I’m here to tell you, it can get better.  The most important message I took away from this book was that, even if your divorce was 20 years ago, your family will benefit now from you improving your relationship with your ex-spouse.  I kept that goal in mind, and by the time our youngest was in kindergarten, three years after our much-less-than-perfect divorce was final, her teacher commented, “I wish my ex and I could get along as well as you two.” I almost fell out of my chair, but when I recovered from the shock, I realized she was right.  We had finally achieved the good divorce.

Author’s Website:  http://constanceahrons.com/the%20good%20divorce.htm

2.  Mom’s House, Dad’s House:  Making Two Homes for Your Child, by Isolina Ricci.  Originally published in 1980 (and revised in 1997), this book was groundbreaking in rejecting traditional ideas of custody and visitation.  Children don’t have to live with one parent or the other;  they can live with both parents, in two separate households.  Thirty-plus years later, and I still find parents, judges and attorneys who haven’t embraced this idea.  But do a little research on the effect of divorce on children, and you’ll find a consensus that what harms children is not the divorce itself, it’s other factors, including conflict between parents, and the loss of contact with the “non-custodial” parent.  Read this book;  follow the suggestions in this book, and you’ll be doing as much as you can for your children.

Author’s Website:  http://www.momshousedadshouse.com/index.html

3.  Getting Divorced Without Ruining Your Life: A Reasoned, Practical Guide to the Legal, Emotional and Financial Ins and Outs of Negotiating a Divorce Settlement, by Sam Margulies.  If you have made the painful decision to divorce, this book helps you do it in the “best” way possible.  It is my opinion that litigation is a poor solution litigation is to family problems. Margulies, an attorney and mediator, makes the very valid point that the legal process is liable to lead you to take actions that are contrary to your long-term interests: an effective parenting plan, the maximum financial benefit, and emotional health and well-being. Legal battles drive you apart, escalate conflict, and cost a lot of money.  He suggests mediation as an alternative, and provides a blueprint for the process.

One caveat: some of the information in this edition is slightly out of date, since it is from 1992. Also, if you are in a community property state (such as Texas), much of the advice on dividing up the marital estate is going to be inapplicable.

Author’s Website:  http://www.sammargulies.com/

4.  Joint Custody With a Jerk: Raising a Child with an Uncooperative Ex, A hands-on, practical guide to coping with custody issues that arise with an uncooperative ex-spouse, by Julie A. Ross and Judy Corcoran.  I love this book because the title is so great.  Everyone thinks their ex-spouse is a jerk, so it draws them in.  However, the contents are much more balanced than the title.  The point of the book is, you can’t do anything about his or her jerk-like behavior.  You can only change your own responses to it.  I will never forget the first time I used a technique from this book with my ex.  I was driving my car in rush hour traffic, and he was pestering me for an answer on something.  I said, “If you need an answer right now, the answer is no.  If you give me some time to consider it, that answer may change.”  Worked like magic.  Now, I no longer think my ex is a jerk – I think he, like all of us going through a divorce, was acting out of fear.  But learning to look at my own behavior really helped our relationship, and this book helped me start to do that.

Author’s Website:  http://www.parentinghorizons.com/

5.  The Collaborative Way to Divorce:  The Revolutionary Method That Results in Less Stress, Lower Costs, and Happier Kids – Without Going to Court, by Stuart G. Webb and Ronald D. Ousky.  This was the first book on Collaborative Divorce in the U.S., and it’s one I routinely give out to clients.  The authors are based in Minnesota, so some of the points on property division and child custody won’t be the same as in Texas.  But the basic outline of the Collaborative model is here, and it’s a great place for divorcing couples to start. I firmly believe that the traditional, litigated divorce process makes most divorces worse, not better, and that a collaborative divorce can set the foundation for a healthy, financially stable post-divorce life.

Author’s website:  http://www.ousky.com/ousky/book.shtml

These books encapsulate my whole ethos of divorce:  that it’s possible to have a good divorce; that children are better off with regular, healthy contact with both parents; that it’s possible to work cooperatively to reach a divorce settlement that doesn’t ruin your life; that you can parent effectively even when other parent is trying not to; and that the collaborative model is the best, safest way to reach a healthy end point of the process.

Note to readers:  This is a re-post of an entry originally posted September 18, 2009.

“I heard that once my child is twelve, she can choose whether she wants to live with me or her dad.”

“My son just turned twelve, and he says he wants to live with me now, and not his mom.  So how do we do that?”

“You can’t make me!  When I’m twelve, I’ll just go live with Dad!”

This is one of the most persistent myths in Texas family law.  I hear it all the time from potential clients, and that last quote, unfortunately, came from my own child.  It never was accurate, and now the Texas Legislature has eliminated the section of the law that gave birth to the myth.

A previous version of the Family Code provided that a child age twelve or older might file an “affidavit of preference” with the court.  Section 153.008 provided:

“A child 12 years of age or older may file with the court in writing the name of the person who is the child’s preference to have the exclusive right to designate the primary residence of the child, subject to the approval of the court.”

The judge could then take that information into account when deciding disputes over conservatorship and possession.  Note that the child could not determine “custody,” – parents could still be joint managing conservators, with equal time of possession.  The only difference would be, one parent would have the right to designate the child’s primary residence.  This provision had been in effect since 1999, when the age was raised from 10 to 12.

Unfortunately, what the courts and family law practitioners found was happening in practice was that parents were filing “dueling affidavits,” both saying that the child preferred to live with them.  Or, parents were offering children incentives to live with them – “Say you want to live with me, and I’ll buy you a car.”  And of course some unscrupulous parents were trying to change the child’s primary residence to avoid paying child support.

Feeling that this pressure on children was inappropriate, the Legislature repealed Section 153.008 altogether, effective September 1, 2009.  If appropriate, a court may still interview a child in chambers under Section 153.009.

So hopefully this myth, never accurate, may now be laid to rest completely.  Ideally, questions of conservatorship and possession are decided by agreement of the parties; failing that, they are decided by the court, with the child’s best interests being the primary consideration.

And I can tell my teenager that she’s stuck with me, like it or not.