Family Law

Family law is a broad practice area.  It includes everything from divorce, whether approached traditionally, through the courts, or through the vehicle of collaborative divorce, to parentage cases involving unmarried parents, to the enforcement and modification of prior orders.

Tom’s family law practice includes each of these practice areas and more.  Additional information on each of these areas is provided in separate tabs within this family law page.

Recent years have seen a recognition that the vast majority of family law cases do not belong in the courts; family law cases in the courts are like trying to fit a square peg into a round hole.  This has prompted the rise of collaborative divorce, which is an innovative and interactive private divorce mechanism through which the parties, with trained collaborative professionals, generally lawyers, financial professionals, and mental health professionals work together with the parties, as a team, to resolve divorce matters.  This has proven to be highly effective and satisfactory to parties, and Tom is a practioner and an advocate of the use of the colloborative model in divorce and in other family law matters (such as modifications, enforcements, and parentage cases).  If you want to know more, there is a separate tab for collaborative divorce on this family law page.

Being an effective family lawyer involves working with generally good people who are at their worst.  Tom understands this.  He takes seriously that every bar certificate, including the one hanging in his own office, says that the lawyer is to be both attorney and counselor.  He takes the latter role seriously, and does his best to make sure that his clients get through what can be the most painful thing that they will face in their lives in the healthiest way possible.  

Collaborative Divorce minimizes the use of the court system and maximizes the parties’ control over resolution.

As a family lawyer, Tom regular represents parties in divorces.  In Texas, many divorces are still handled within the traditional litigation framework.  Increasingly though,  more and more parties elect to pursue collaborative divorce as an non-traditional alternative.  Tom represents clients in both traditional and collaborative divorces.  For information on the latter, please select the topic specifically related to collaborative divorce.

Texas recognizes both formal and informal (“common-law”) marriages, each of which can only be terminated by death or divorce.  Texas s what is called a “no fault” state.  Fault is not a requirement to obtain a divorce; if a party wants a divorce it will eventually be granted.

A divorce case must resolve all issues between the parties, including all issues involving any children of the marriage (conservatorship, possession, child support, and medical support) and the division of all community property of the parties.  A divorce is a lawsuit, which resembles any other lawsuit.  There are pleadings, discovery and, if the parties do not resolve all issues by agreement, a trial. The trial can be either to the Judge or, if one party desires, to a jury.

A divorce case begins by one party filing what is called a petition, which is followed by the other party’s answer and/or counterpetition.  Temporary orders typically follow, particularly in cases with children, because in Texas we have no legal separation.  Discovery, most often written discovery but sometimes oral depositions as well, generally follows, with the amount of the discovery generally resembling the complexity and number of the issues in the case.

There are many ways to approach, and ultimately resolve, a divorce case.  As mentioned above, a divorce case can be tried to a judge or even a jury.  Despite this, even in the traditional context, the vast majority of divorce cases are resolved without trial.  Most courts require formal mediation prior to trial; some require mediation even before a hearing can be had.  Mediation is a formal settlement meeting coordinated by a neutral mediator who is often, but not always, also a lawyer.  Many other cases settle through informal meetings between either lawyers of parties and lawyers.  As mentioned previously, an alternative approach to divorce that contains within it a more persistent commitment to achieve settlement if settlement is at all possible is collaborative divorce, which involves a series of meetings, each generally on a single subject, between parties, lawyers, and often third party financial and/or mental health professionals.  For more information on collaborative divorce, please select that topic specifically.

The life cycle of a divorce, and the legal fees associated with divorce, are almost entirely up to the parties or, more appropriately, the most obstructive or recalcitrant of the two parties.  The Texas legislature requires a sixty-day waiting period after filing for parties to divorce, but a divorce with such a short life cycle is not common.  Many divorces take several months, some over a year, and some multiple years.  The duration has more to do with the readiness of one or both party to get divorce than with the number or sophistication of the legal issues.

Tom has been representing parties in divorces of all types for decades.  He has a unique combination of skills sets, as a trial lawyer, mediator, and collaborative lawyer, which make him effective in a wide variety of divorce cases.   

A case involving children of parents who are not married is called a parenting case or a suit affecting the parent-child relationship (“SAPCR”).  A SAPCR resembles the portion of a divorce case involving children, but without a marriage there are no issues property issues or issues of spousal support.

In a SAPCR, because there is no marriage, there is no presumption of paternity by the biological father.  Unless the parents have entered into an Acknowledgment of Paternity previously, generally in conjunction with the birth of the child, paternity will be adjudicated in the SAPCR.

The issues in a SAPCR generally include, in addition to paternity, conservatorship, possession, child support, and medical support.  Conservatorship in Texas deals with what most people to consider to be custody, and is completely separate from possession.  Conservatorship is either sole (with one parent being granted a bundle of rights and duties exclusively) or joint (with both parents sharing in these rights and duties).  The devil is in the details, and some of the rights and duties (for example, the right to designate the primary residence of a child) are heavily negotiated and often litigated, as is the issue of the presence or absence of a geographic restriction with regard to the primary residence of the child.  Possession is the parenting time enjoyed by each parent with the child or children.  The Texas Legislature has provided a Standard Possession Order and created a (rebuttable) presumption that that Order creates a floor with regard to possession by a parent with a child over three years of age.  The Legislature has also provided for guideline child support, based on application of a set percentage (twenty percent for one child) of the payor’s monthly net resources.  Again, the issues of possession and support, particularly to the extent there are departures from the legislative guidelines on these issues, represent the most fertile areas of negotiation and litigation.     

 Trial can be to the Judge or a jury (as to custody issues only).  As with divorces, most SAPCR cases are settled without trial, and the discussion about mediation apply equally to SAPCRs.  There is no formal collaborative law mechanism applicable to SAPCRs and informal (non-mediated)  settlement agreements can occur, but they are not “final and binding” as in a divorce.  In a SAPCR, only a mediated settlement agreement is irrevocable.

Tom has been handling all types of cases involving parentage and parent-child relationships for decades.  He has a unique skill set that makes him effective in a wide variety of parentage cases.

One always hopes that when a final order is entered it is, well final.  And that is certainly the intent.  Tom Carnes advocates for living orders that are flexible enough to embrace changing circumstances and changing needs of children that are foreseeable.

But some changes are so material that they cannot readily be drafted into an order.  A change in conservatorship, with the non-primary conservator becoming primary is one such change.  A necessary relocation may require a reassessment of a geographical restriction. A material change in a child support payor’s income may justify taking a second look at child support.  A disability of a child of the parties may become apparent, creating the necessity for the continued support of the child into adulthood.  In short, despite everyone’s best intentions, the original order may no longer fit.

To obtain a modification, a new suit must be filed.  The modification suit is generally filed in the court that issue the initial final order, although there are exceptions and a relocation of the parties or their children may require a transfer to another county or even another state.    

Depending on the issues, a modification can be relatively simple and efficient or lengthy and expensive.  Obviously, the bigger the issues the more complicated the modification will generally be.  In addition to changes in conservatorship, relocation cases ten to be the most vigorously opposed – and for obvious reasons.  Distance between a parent and a child in most cases is hard on everyone concerned.   Generally, the burden on the party desiring to move is difficult to meet.

Tom has been representing parties in modification actions for decades.  His unique skill, as attorney, mediator, and collaborative lawyer, is an asset that serves his clients well in a wide variety of modification actions.

While one can petition to enforce almost anything in a final order, from the property division to injunctions governing behavior, a significant majority of enforcement actions govern either child support and/or medical support or possession.

The failure to pay support and interference with possession carry with them the potential for serious sanctions, including contempt (which can include jail time). Interference with possession is also a crime in and of itself.  In addition, the complaining party, if he or she prevails, is entitled to a mandatory award of his or her necessary and reasonable attorney’s fees and costs.

Obviously, violations of court orders are to be avoided if at all possible.  Parties should not forestall modification actions designed to bring them back into compliance.  Particularly, a party who can no longer meet his or her child or medical support obligations should be proactive and file modification actions.  This is admittedly difficult at a time when the payor is already financially strapped, but to fail to do so has serious repercussions and these situations tend to get worse before they get better.

Tom has decades of experience both prosecuting and defending modification actions with regard to possession, child support, medical support, and property divisions in divorce decrees.  His unique skill set as a lawyer, mediator, and collaborative attorney serve his clients well in all types of enforcement actions.

Termination of parental rights is a dramatic and often traumatic event, and is generally a remedy of last resort. There are private and governmental termination cases, and termination can be voluntary or involuntary.

Private cases are generally brought by a person with the custody and care of a child or a private adoption agency.     Termination of the parental rights of each living parent is required for there to be an adoption.  Fathers should be particularly diligent in any situation in which the mother is cooperating with an adoption agency.  Texas law is full of potential obstacles to such a father participating in the termination case and preserving his rights.  Voluntary termination cases are rare, and fathers are generally only terminated under such circumstances if there is a substitute father ready, willing, and able to adopt the child.

Child protective Services (“CPS”) intervenes in cases of alleged family violence of other dangers to children. CPS takes temporary conservatorship of a child or children, through a court order, and places the child or children in an alternative arrangement – either placement with a relative or in foster care.  Family reunification is sought, where possible, and parents are generally provided with a program which, if followed, will lead to reconciliation.  That being said, these parents often face serious challenges, including psychological disorders and addiction, which make the struggle to regain custody of their children very real.

CPS cases have special associate judges who only hear CPS cases.  In addition to the parents and their attorneys, an attorney ad litem must be appointed to represent the child or children.  A guardian ad litem is also appointed for the child or children the subject of a CPS case.     

These are the hardest cases in the family law arena in which to represent parents.  Tom is selective about taking such cases, but throughout his career he has continued to do so, despite the emotional and psychic costs, when equity cries out for a just result and a parent is being treated unfairly by the system.     

The Texas Office of the Attorney General, pursuant to federal law, is charged with establishing and enforcing child support in Texas in cases in which federal benefits have been conveyed by the state for the benefit of a mother or one or more children.  The OAG also assists in some child support cases in which no federal benefits have been paid.

OAG cases are similar to CPS in that they too are heard by special assistant judges who hear only these cases.

Almost no family lawyer will tell you that he or she “likes” working with the OAG, in its special courts, or on child support issues specifically.  Tom is no exception, But, when the stakes are high, and the cause is just, Tom has worked and will continue to work on behalf of parents in this arena.