Dallas Divorce Law Blog by The May Firm

Christina Garcia, senior paralegal to Michelle May O'Neil, and her son unpack boxes on moving day.

On June 27, 2009, The May Firm experienced a huge milestone by adding a new partner Nathan T. Anderson and changing the name of the firm to O’Neil Anderson.  With this growth, the firm has relocated to Two Lincoln Centre, 5420 LBJ Freeway, Suite 500, Dallas, Texas 75240.  The firm’s phone number 972-852-8000 and fax number 972-852-8001 will remain the same.

The new firm’s website is www.oneilanderson.com and the new firm’s blog is www.dallastxdivorce.com.

“Change is inevitable.  Growth is intentional.”

Dallas divorce lawyer  Michelle May O’Neil presented at the University of Texas Continuing Legal Education Family Law on the Front Lines seminar in June 18, 2009, held at the Hyatt Regency Hill Country Resort in San Antonio.

Ms. O’Neil spoke on pretrial appellate remedies such as mandamus and interlocutory appeals in the family law context.  Specifically, she reviewed the standards pertaining to mandamus from the Walker case to Prudential and McAllen and discussed whether the standards for seeking mandamus have been loosened by these recent cases.  Further, she analyzed the standards for both statutory and permissive interlocutory appeals in the family law context.

The Texas Legislature has adjourned and made some changes to the Texas Family Code.  One of those changes involves the Texas Standard Possession Order.  As a Dallas Divorce Lawyer, I think it is important to know these changes. Keep in mind that the Governor has not signed the bill yet; so, there remains the possibility that he may veto the bill, although I do not find that likely.

HB 1012 clarifies the default time for the beginning and ending of a possession period to be 6:00 p.m.  Prior to this clarification, there were placed in the Texas Standard Possession Order that did not specify an exchange time or were unclear.  This makes it clear that the default time is 6:00 p.m. unless there is a specific statement otherwise.  To overcome this default time, a conservator may request the court to impose an alternate beginning and ending time, such as beginning at the time school is dismissed for the period of possession.  The court must accept the request for the altered time, unless the parent opposed to the time change shows a reason it is not in the child’s best interest.

Note, the parent making the election must do so when the order providing for the possession schedule is rendered. That means that the possession schedule will be set in stone (subject only to the agreement of the parties to deviate) when the order is entered.  Neither parent can make an election to change the time of exchange later.

Dallas Divorce Lawyer Michelle May O’Neil received national recognition from the National Law Journal where they profiled Ms. O’Neil as an Appellate Leader.  To see a copy of the profile that appeared in the magazine, click on:  National Law Journal Profiles Appellate Leader Michelle May O’Neil.  The National Law Journal regularly features Leadership Profiles to assist its readers in choosing outside counsel and referrals. Profiles focus on various specialties and other areas featuring attorneys who represent companies as well as individuals.

Today, John Council of Texas Lawyer Magazine interviewed me for his Reversed and Remanded video blog.  To see the video, click here:  Michelle May O’Neil Interview.  The topic was In re J.O.A., a case decided by the Texas Supreme Court this month.  There, the Court decided that the Texas Family Code statute requiring a party intending to appeal a termination decision to file a Statement of Points within 15 days of the entry fo a termiantion order.  The Statement of Points must outline each issue that the party plans to appeal.

In J.O.A. the trial court lawyer failed to file the Statement of Points and the trial judge failed to appoint an appellate lawyer in a timely manner to meet the deadline.  The court of appeals held that the party had ineffective assistance of counsel.  This claim means that the lawyer not only failed to perform his duty, but that the client was harmed by the failure.  The court of appeals found that the trial lawyer’s failure to file the Statement of Points was harmful because the father appealing had an appellate point of error that would have been meritorious based on insufficient evidence. 

The government argued that the father could not present his claim for ineffective assistance of counsel because it was not listed in a Statement of Points.  The Texas Supreme Court held that the statute requiring the filing of a Statement of Points is unconstitutional to the extent it denies a party from presenting a claim for ineffective assistance of counsel.

This ruling does not mean that the requirement of filing a Statement of Points has vanished, but only serves to preserve a party’s right to complain in a limited sense about ineffective assistance of counsel where no Statement of Points was not filed.  This case should serve as a huge reminder to lawyers who represent parents in termination cases that the lawyer on file has the duty to file the Statement of Points even if that lawyer isn’t going to represent the parent on appeal.

I am involved in several family law cases in the Dallas area with LGBT parents suing for conservatorship or visitation/possession rights to their children or their former partner’s children.  One of my clients referred me to this website as a resource and I thought it was important to share it with you:  www.colage.org  Here’s the purpose of the site, as it lists:  “COLAGE is a national movement of children, youth, and adults with one or more lesbian, gay, bisexual, transgender and/or queer (LGBTQ) parents. We build community and work toward social justice through youth empowerment, leadership development, education, and advocacy.”  The website also provides a book list for LGBT parents, which I thought was interesting.

Well, we survived another tax year.  Hopefully everyone got their returns in on time and the process was relatively painless.   For our readers who were recently divorced, its important to ensure the name on your tax return matches the name registered with the Social Security Administration (”SSA”).

After a divorce, it is important for the taxpayer to contact the SSA to change their last name.  Although standing in line at the SSA is never a pleasant experience, you can reduce your time in line by downloading and completing the appropriate form to change your last name here.  Once the taxpayer turns in the form, the SSA it takes about two weeks for the the change to be completed.  If a taxpayer submits a return with a name that does not match the SSA records, the return will be rejected.

For a good overview of divorce tax tips, check out Sharon Drew and Gregg Herman’s Ten Divorce Tax Tips.

Finally, check out Cary & Lipponcott’s blog post on tax issues presented on spousal maintenance ordered by a Texas court.

A growing number of Tarrant County residents are choosing to see their divorces through without the aid of an attorney, the Fort Worth Star Telegram reports. According to the newspaper, the number of pro se filers in divorce cases is up eight percent from 2004 to 2008. Attorneys say that while do-it-yourself litigants may cost them some business initially, they often make up the difference in correcting faulty pro se forms.  Steve Campbell, Ft. Worth Star Telegram  04/20/2009

During tax time, clients inevitably ask about collection of child support from an obligor’s tax refund. There are two methods available to enforce child support payments from delinquent child support obligors through federal tax collection. The first procedure allows collection of past-due child support by offsetting the support arrearages amount against a federal tax refund due to the delinquent payor. See I.R.C. §6402(c). The second method is an assessment and collection procedure where the U. S. Treasury Department is authorized to collect the certified amount of unpaid child support by levying against essentially any property of the delinquent child support obligor that would be subject to levy when collecting federal taxes. See I.R.C. §6334(c). The regulations for these two procedures may be found in the Treasury Regulations. See Treas. Reg. §301.6402-5(a)(1).

It seems that the economy is having an effect on the child support system.  I have observed an increase in cases involving nonpayment of child support, as well suits to modify and lower child support obligations in the Dallas County Family Courts as well as the Collin County Family Courts.  I’ve talked to other Dallas area divorce lawyers and they report similar observations. 

When a person who owes child support (aka, the obligor) loses his job is having trouble paying his obigation for whatever reason, it is essential to file a suit requesting modification of the obligation as soon as possible.  Failing to pay child support according to the court order can subject a person to the possibility of going  jail for contempt of court for up to 6 months for each occurrence of a violation.  In other words, failing to pay child support per the court order for one month carries a maximum possible contempt sentence of 6 months in jail.  Each subsequent month where the obligator fails to pay child support can also carry a 6 month sentence. 

Once a suit for modification is filed to lower the child support obligation, the court has the ability to grant a temporary reprieve of the child support obligation and even, in some cases, make the child support decrease retroactive to when the suit for modification was filed.