I would like to post a bit on terminations and adoptions. I get tons of questions and emails regarding terminating a parents parental rights or a step parent wanting to adopt a step-child. I am going to give a very brief procedural layout for how this works in an attempt to answer some of these questions. In part 2 of my post I will discuss some of the hoops that must be jumped through to accomplish a termination and adoption.
Before anybody can adopt a child, either one or both biological parents must have their parental rights terminated. That means that if a step-father wants to adopt his step-child, the biological father's rights must be terminated. The point is, there can only be one father and one mother for each child whether that is biological or legally (through adoption).
A termination in Texas can only be completed by having "grounds" for the termination. Put simply "grounds" are reasons for the termination. You do not get to determine the reasons, the Texas legislature has set up the reasons for you. If you will look to the right, there is a link to my website. Please click on that link and go the the "resource links". There you can find the Texas Family Code. Specifically you need to look at Chapter 161, Section 161.001. There you will find your reasons. THERE ARE NO OTHERS! I can see the posts now...."can i terminate the father's rights cause he never visits". Is it in the list is just referenced? Then no. "Can I terminate the mother's rights cause she is crazy and talks to the walls." Is it on the list? Then no you cannot terminate for talking to walls.
The two most common reasons to accomplish a termination that I see are failure to support the child for one year or the signing of an affidavit of relinquishment. These are not the only ones, as you can see from the list, just the most common. Any of the others will work as well if they are applicable.
Failure to support a child is pretty obvious. That means that the parent has not financially supported their child. This can be failure through a court order or not. Bottom line, if you don't support your child, your rights can be terminated. The failure to support has to be recent (within 6 months of filing the petition to terminate). This means that you cannot use a parent's failure to support a child that occurred 5 years ago if the parent supports the child now.
The second is the affidavit of relinquishment. This is basically an agreed termination as the biological parent has agreed to terminate rights. The form for this is very specific and probably needs to be obtained from an attorney. This alone, as seen from the list, is grounds for termination.
In the first reason, or in any other reason other than the affidavit, you are going to have to go through a court hearing to get the rights terminated. That means filing a lawsuit, serving the party you are trying to terminate and setting a hearing where a judge will decide the issue.
With the affidavit, there is typically not the need for a full blown termination hearing as the parent has agreed to terminate. In some cases, this moves you straight to the adoption. I say in some cases because there are certain times when a person agrees to terminate their rights, but the court will not do it. I will discuss this below.
In any case, you have to complete the termination before you can complete the adoption. If you have to have a trial, then that needs to proceed and conclude before the adoption can proceed. If the affidavit is used and you do not run into the problem discussed below, then you are ready to proceed with the adoption.
Just because a biological parent agrees to sign an affidavit of relinquishment does not mean the court will terminate. The court is primarily concerned about the best interests of the child. One of the major interests the court protects is the support of the child. They will not allow a parent to terminate to avoid paying child support. They also will not allow a parent to terminate another parent's rights unless it is shown that there is someone to step in and take the place of the support provided or owed by the terminated parent or unless the parent seeking the termination of the other parent's rights can establish to the court that they can adequately meet the needs of the child financially. Even upon this showing, they still may not terminate. A parent is obligated to support their children and the court does not take this lightly. If there is someone out there who can support the child, the Court wants them supporting the child.
One more note regarding child support. While a termination of a parent's parental rights will terminate all future child support payments, it will not terminate amounts owed in the past. Those amounts have already accrued and cannot be undone.
This concludes Part 1. See you in Part 2!
The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!
Showing posts with label Texas. Show all posts
Showing posts with label Texas. Show all posts
Monday, February 09, 2009
Friday, May 12, 2006
grounds for divorce
divorce
The big day has arrived…the discussion about divorces. This is a huge topic, so I will have to divide it into sections. Today we will discuss the grounds for getting a divorce. This is a serious subject and can be a devastating stage in someone’s life. I have tried to add a little humor to the subject to make it an easier read. If you are in the middle of a divorce, or contemplating divorce and you do not think humor is appropriate, you can rest assured that I take each and every case that walks through my door deadly serious, and I play to win. Then again…a little humor never hurt anyone….
grounds for getting a divorce in Texas
There are basically 7 “grounds” for getting a divorce in Texas. Grounds are basically reasons to get a divorce. Back in the ancient days these used to matter more than they do now because now they have the no fault (insupportability) divorce. In the old days they did not have this and you had to have “grounds”.
insupportability
This is the most common reason for divorce. In my practice, I plead this in every divorce. You can plead other grounds (below) in addition to this one, but this one is most common. With this one you simply allege that the marriage has become insupportable because of discord and conflict, which destroys the legitimate ends of the marriage relationship and there is no reasonable expectation of reconciliation.
How is that for legal mumbo jumbo? This is the no contest divorce clause and translated means you and your spouse are not getting along and won’t be getting along ever again…SO GIVE ME A DIVORCE!
cruelty
You can get a divorce if your spouse is guilty of cruel treatment to the extent that further living together is not possible. LOL. Just about anybody reading this who is considering divorce probably feels like this applies to them. In my practice I sometimes allege this, but cannot say that I have ever used it as the grounds.
adultery
BAM! This is a big one. The definition is having sexual intercourse with one person while married to another. Two interesting little tidbits on this one…first, you will notice that it says “sexual intercourse”, so I guess all you bad little boys and girls out there (and I know you are out there considering some of the rumors I have been hearing about my readers) who are just doing the kissing thing or any other mouth activities are safe (wink wink). You are still guilty of being naughty.
The second interesting thing about the wording (or maybe it isn’t interesting) is that it says having intercourse with one “person” while married to another. So….any of my readers out there who may still be in the closet, this could apply to you.
As far as going to court over this ground, I have one thing to say…PROVE IT! I cannot tell you how many times this is raised in a divorce and about nine times out of ten there is no way to prove it. Even if you can prove your spouse is running around with another “person” that in and of itself is not proof of “sexual intercourse”. Get it? Good!
Many times people (lawyers) use this ground to attempt to get their client a bigger share of the divorce property pot.
conviction of a felony
You can get a divorce in Texas if your spouse has been convicted of a felony AND has been imprisoned for at least a year AND has not been pardoned. Pretty self explanatory. The funny part about this one is one last little item of the statute that says a divorce may not be granted under this section if the convicted spouse was convicted on the testimony of the other spouse!
Translated that says if your mean a#$ put me in here, guess what, you can’t divorce me! BOO YA! Kidding of course.
abandonment
You can get a divorce in Texas if your spouse hauled butt on you with the intention of abandoning you and has not returned for a year. Simple.
I get a lot of calls from people stating that there spouse just moved out and abandoned them…”I want to claim abandonment”. Well, we now know the requirements.
living apart
You can get a divorce on this ground if you and your spouse have lived apart without cohabitation (living together) for at least three years. Why not just use abandonment? What constitutes “abandonment” versus just separating and “living apart”? Enquiring minds want to know!
I don’t know the answer to these questions. I could find it, but quite honestly, why? Just get an “insupportable” divorce. Actually, there may be strategic reasons for using grounds other than “insupportability”, but not in your typical case.
confinement in mental hospital
If, at the time you file for divorce, your spouse is confined in a mental hospital, and has been for three years, and it looks like they are not getting any better, you can seek a divorce.
So there you go…7 grounds for getting divorced in Texas. Like I said earlier, almost all divorces that I have been involved with are granted on the grounds of insupportability. However, there are situations when alleging other grounds can be advantageous to your case.
To learn more about me, visit my new blog at www.theDallasDivorceBlog.com or www.PlanoDivorceBlog.com
Until next time….
The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!
The big day has arrived…the discussion about divorces. This is a huge topic, so I will have to divide it into sections. Today we will discuss the grounds for getting a divorce. This is a serious subject and can be a devastating stage in someone’s life. I have tried to add a little humor to the subject to make it an easier read. If you are in the middle of a divorce, or contemplating divorce and you do not think humor is appropriate, you can rest assured that I take each and every case that walks through my door deadly serious, and I play to win. Then again…a little humor never hurt anyone….
grounds for getting a divorce in Texas
There are basically 7 “grounds” for getting a divorce in Texas. Grounds are basically reasons to get a divorce. Back in the ancient days these used to matter more than they do now because now they have the no fault (insupportability) divorce. In the old days they did not have this and you had to have “grounds”.
insupportability
This is the most common reason for divorce. In my practice, I plead this in every divorce. You can plead other grounds (below) in addition to this one, but this one is most common. With this one you simply allege that the marriage has become insupportable because of discord and conflict, which destroys the legitimate ends of the marriage relationship and there is no reasonable expectation of reconciliation.
How is that for legal mumbo jumbo? This is the no contest divorce clause and translated means you and your spouse are not getting along and won’t be getting along ever again…SO GIVE ME A DIVORCE!
cruelty
You can get a divorce if your spouse is guilty of cruel treatment to the extent that further living together is not possible. LOL. Just about anybody reading this who is considering divorce probably feels like this applies to them. In my practice I sometimes allege this, but cannot say that I have ever used it as the grounds.
adultery
BAM! This is a big one. The definition is having sexual intercourse with one person while married to another. Two interesting little tidbits on this one…first, you will notice that it says “sexual intercourse”, so I guess all you bad little boys and girls out there (and I know you are out there considering some of the rumors I have been hearing about my readers) who are just doing the kissing thing or any other mouth activities are safe (wink wink). You are still guilty of being naughty.
The second interesting thing about the wording (or maybe it isn’t interesting) is that it says having intercourse with one “person” while married to another. So….any of my readers out there who may still be in the closet, this could apply to you.
As far as going to court over this ground, I have one thing to say…PROVE IT! I cannot tell you how many times this is raised in a divorce and about nine times out of ten there is no way to prove it. Even if you can prove your spouse is running around with another “person” that in and of itself is not proof of “sexual intercourse”. Get it? Good!
Many times people (lawyers) use this ground to attempt to get their client a bigger share of the divorce property pot.
conviction of a felony
You can get a divorce in Texas if your spouse has been convicted of a felony AND has been imprisoned for at least a year AND has not been pardoned. Pretty self explanatory. The funny part about this one is one last little item of the statute that says a divorce may not be granted under this section if the convicted spouse was convicted on the testimony of the other spouse!
Translated that says if your mean a#$ put me in here, guess what, you can’t divorce me! BOO YA! Kidding of course.
abandonment
You can get a divorce in Texas if your spouse hauled butt on you with the intention of abandoning you and has not returned for a year. Simple.
I get a lot of calls from people stating that there spouse just moved out and abandoned them…”I want to claim abandonment”. Well, we now know the requirements.
living apart
You can get a divorce on this ground if you and your spouse have lived apart without cohabitation (living together) for at least three years. Why not just use abandonment? What constitutes “abandonment” versus just separating and “living apart”? Enquiring minds want to know!
I don’t know the answer to these questions. I could find it, but quite honestly, why? Just get an “insupportable” divorce. Actually, there may be strategic reasons for using grounds other than “insupportability”, but not in your typical case.
confinement in mental hospital
If, at the time you file for divorce, your spouse is confined in a mental hospital, and has been for three years, and it looks like they are not getting any better, you can seek a divorce.
So there you go…7 grounds for getting divorced in Texas. Like I said earlier, almost all divorces that I have been involved with are granted on the grounds of insupportability. However, there are situations when alleging other grounds can be advantageous to your case.
To learn more about me, visit my new blog at www.theDallasDivorceBlog.com or www.PlanoDivorceBlog.com
Until next time….
The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!
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