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Divorce

Texas Family Law & COVID-19: Fact or Fiction

As Texas faces the coronavirus pandemic and its effect on our lives, there are many questions and misconceptions surrounding family law matters (particularly child custody) and COVID-19. Hunt Law Firm attorneys Alex Hunt and R. Melissa Masoom sought out to provide some answers in this uncertain time. As always, below is not legal advice, but is meant to provide some general guidance during challenging times – consult with a family law attorney on the circumstances of your particular case before proceeding.

  1. FACT OR FICTION: I can’t get divorced or open a child custody or child support case right now.

Fiction. There’s nothing stopping anyone from e-filing a new case. Courts are still accepting and routing new filings. In fact, we’re filing several new cases here every week and getting court settings if needed.

It is important to note however that each court and county is handling these court settings differently. Some courts are setting cases for Zoom hearings as soon as they can, while others are allowing in person hearings on a staggered basis. We are keeping track of the almost daily changes in the courts right now to make sure we are following the different rules and protocols to prevent delays.

Thankfully, not all cases need a court hearing to progress. In fact, most Harris County and Fort Bend courts prefer you try mediation before a court hearing. There are a number of excellent mediators in the Houston and Katy area right now doing mediations via Zoom who can help you find solutions. If you and your opposing party are mostly amicable, informal negotiations are also an option.

  1. FACT OR FICTION: Courts are still open despite the stay-at-home order.

Yes, actually. At this point, the Texas Supreme Court has enacted 17 emergency orders affecting all courts in the state of Texas, unless otherwise extended by the court. Additionally, individual courts around Texas including Fort Bend and Harris County have made their own standing orders that modify or suspend deadlines, allow remote appearances in proceedings (such as by video or phone), consider testimony/evidence offered electronically, conduct proceedings away from their usual location in the county, and take any other reasonable action to avoid exposure to COVID-19.

However, it’s important to note that most courts in Fort Bend and Harris County are prioritizing emergency cases or what they call “essential cases.”

  1. What are essential cases?

Harris County and Fort Bend County both put some guidance out as to what are essential cases and those include:

  • Protective Order cases involving family violence
  • CPS hearings
  • Enforcements, Habeas corpus and writ of attachment proceedings (cases where one parent is refusing to turn a child over)
  • Temporary Orders with extraordinary relief

The courts can also determine what is essential on a case-by-case basis.

  1. Are all courts doing telephone or Zoom hearings?

As of right now, a good number of Fort Bend and Harris County courts have implemented procedures for either telephone or hearings via Zoom or video.

  1. FACT OR FICTION: We’re in a pandemic. I can withhold my child from the other parent if I feel like it.

No. If you don’t let your kids go to the other parent per a court order, you’re violating the court order. Remember, the order is in effect until you go back to court and have the judge modify it. You should review your order and see what your possession order actually says and speak to an attorney before you decide to do anything.

  1. What if there’s a fear of how safe the other household is, and I am afraid my child will be exposed?

Same answer. You still should go to court. If you withhold the child, you can be held in contempt of court. You do have a duty to protect the child and their welfare, however, if you do feel the child is in danger, you may need to talk to an attorney about your options and the specific details of your case. Either way, you should document and keep a record of everything in case you do end up in court.

  1. FACT OR FICTION: If the other parent withholds my child from me, there is nothing I can do.

This is fiction. If the other parent is withholding the child and violating a court order, that is most likely an essential case or an emergency situation that a court would hear as soon as they can.

I always recommend trying to talk with the other parent about your concerns and try to work out a solution that allows the child to stay safe and healthy. If talking to the parent doesn’t work and the danger to the child is immediate, call the authorities and keep a record of everything.

  1. FACT OR FICTION: Even if we do a divorce, I can’t sell my home or buy a new home during this pandemic.

Fiction. Real estate was deemed an essential business by the Supreme Court of Texas.

There are still mortgages being approved and people are able to buy and sell their homes right now. People have options with virtual home tours, mobile notaries to close on a house, and ways to do everything while still social distancing.

  1. What can folks do if they want to finalize their divorce, but they don’t want folks coming in their home for showings – can they wait until after the divorce is finalized to sell it?

Absolutely. Something a lot of people don’t realize is that you can get a divorce and agree to sell your property at a later time in your final decree. This is an ideal option for people right now who want to wait until things settle down to sell their home or buy a new one. As divorce attorneys, we do this option often and draft divorce decrees which allow people to sell their home later, agree to how those proceeds will be split, and have options in case circumstances change.

  1. FACT OR FICTION: I’m already divorced and I just got the stimulus check for both me and my ex-spouse. I get to keep it.

No, you likely will not get to keep it.

The CARES Act states in relevant part:

“In the case of an eligible individual, there shall be allowed as a credit against the tax imposed by subtitle A for the first taxable year beginning in 2020 an amount equal to the lesser of—[…}

(2) $1,200 ($2,400 in the case of a joint return).

The law refers to an amount given to an “individual.” Therefore, a portion of the payment you received belongs to your ex-spouse.

  1. What if your ex-spouse or soon to be ex-spouse keeps your portion of the CARES check?

If your ex-spouse has kept your check, you should contact an attorney to see what your options are. This also includes any portion of the check that is for the children. If you’re the custodial parent and the other parent received the $500.00 for each qualifying child, you will need to speak to an attorney.

  1. FACT OR FICTION: I’ve lost my job due to COVID-19. I don’t have to pay child support.

This is fiction. However, you can modify your child support amount based on a material and substantial change and this includes unemployment or a significant loss in income.

It’s difficult to get your entire child support obligation suspended but you can at least get a reduction.

Remember though, it is important to file a suit to modify child support as soon as possible after facing a job loss or change in income. The date that a modification suit is filed is the date that a court may consider to retroactively change the amount of support—but you can ask for a different date.

  1. If someone does file to modify their child support or they have a child support conference or hearing already set, are those going forward at all?

Many of the local child support offices are closed at this time. But the good news is the Office of the Attorney General (OAG) have begun virtual negotiations. You have to log on to your child support page and request one. If you have an actual hearing scheduled or need a hearing scheduled, you’ll have to speak to the OAG or the court to see how they’re handling your case since every court is different. Some courts will allow prompt temporary child support hearings to occur virtually without having to appear in person.

  1. If you’re not receiving child support, you have options too.

If the noncustodial parent is not paying their child support, you can typically request assistance with an enforcement action by contacting an attorney or the Office of the Attorney General (OAG) online.

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