Skip to main content
Thomas James Daley
Avvo
Pro

Thomas Daley’s Answers

3,011 total


  • Unable to agree on visitation for child through the divorce.

    After recently obtaining an Temp Restraining Order against the father's mother. They have gotten an attorney to fight the divorce terms. Have been separated for the past 5 months or so, in which he has been getting to see our 18 month old the ...

    Thomas’s Answer

    There is no standard possession order that applies to children under the age of 3. The Texas Legislature recently gave the courts a list of factors to consider, Tex. Family Code sections 153.193 and 153.254.

    He is going to get overnight visits, unless you can show the court why permitting overnight visits would be very likely to lead to serious harm to your child. Some judges will do a 50:50 split of the child's time between parents until the child is 3. Others will order a lot less than that.

    If you are trying to do this without an attorney, you are in for a rough ride. One thing you could do is agree to a standard possession order right now and live with it for a while. If you do that and it works, then when you go to court, you have the argument that he already has standard and it's working. If you are less generous with time, you create a "wrong" that the court will try to set "right."

    Also, you would be smart to agree to as much time as you can possibley accomodate so long as it's less than 50% of the time. If you will AGREE rather than have it put in a court order, you can always rescind your agreement if it doesn't work out. If you refuse to agree to give him more time and refuse to give him any overnights, he's going to get a court order and, if the court ordered periods of visitation don't work out, you have to follow the order anyway.

    Call Becky Bertner up in Sherman for representation or at least a consultation. I'm afraid you're about to flail around to your own detriment if you don't set down with a good family law attorney pretty soon.

    Good luck!!

    See question 
  • What qualifies as '6 months residency' when filing for divorce in Texas or Florida. Can either my wife or me file in our states?

    My wife and I are leaning towards divorce. She is from Texas and I am from Florida. We currently reside in Qatar and have lived and worked overseas for several years. We both have valid DLs from our respective states, bank accounts there, and perm...

    Thomas’s Answer

    The residency requirement is provided in section 6.301 of the Texas Family Code. The "residency requirement has been defined as a physical presence in a county, accompanied by a good faith intention to remain and permanently and definitely make that county [your] home." Gonzales v. Gonzales, No. 12-03-00225-CV.

    It seems that neither of you meet the domiciliary or residency requirements for filing in Texas.

    I do not know Florida law.

    See question 
  • Is it possible to get an annulment if you do not meet the grounds and if you go get a judge to grant one, is it legal?

    My current husband was married to a woman who petitioned for an annulment. He does not know the grounds and did not attend the hearing. Is it legal? There was no fraud, they were of legal age, no impotence, sound mind, and no duress. In fact, ...

    Thomas’s Answer

    I suppose what you are really concerned about is whether your marriage is valid. In Texas,the most recent marriage is presumed to be valid. That presumption means that your current marriage is valid until someone comes along and proves the continuing existence of a prior marriage. See Section 1.102 of the Texas Family Code.

    You haven't told us how long ago the annulment took place. If it took plac quite a while ago, the law's preference for stability and finality over accuracy would prevent anyone from revisting the validity of the order granting the annulment.

    For those reasons, I believe your current marriage is valid and safe.

    See question 
  • Can a judge say that I must stay in texas?

    My soon to be ex husband is saying he's going to contest our divorce so I stay here in Texas rather than go home to AZ where I would have family to help me. He's in the military that's why we moved here.

    Thomas’s Answer

    The judge cannot order you to live anywhere. The judge CAN order that the children's residence be restricted. If the children are going to live with you, that effectively constrains your residence as well.

    The purpose of the geographic restriction is to make it easy for both parents to spend lots of time with their children. If he lives within the area of geographic restriction AND he exercises frequent visits with his children, then, yes, the judge can order that the children live in a particular area, say Collin County, Texas and counties contiguous thereto. (Or Denton, if this is a Denton County case.)

    If this happens, make sure your decree says that "If, at the time that mother wishes to relocate outside of Collin County, Texas and counties contiguous thereto father does not live within Collin County, Texas and counties contiguous thereto, then the geographic restricion on the primary residence of the children shall be lifted and mother shall have the exclusive right to designate the primary residence of the children without regard to geographic restriction."

    If you are representing yourself, you are probably in for a very bad time. You are probably giving up rights to his military benefits, pension, etc. You need to consult with a good family law attorney in your area and make certain you are not forfeiting important, valuable rights.

    See question 
  • Can I file my final divorce decree early?

    we both signed and he filed his response.

    Thomas’s Answer

    If you do not have an attorney, then on the 61st day (or thereafter) you bring four copies of your final decree and any other documents needed to finalize your divorce (e.g. child support set up form, QDROs) to the courthouse at 8:30 and tell the bailiff you'd like to "prove up" your final divorce. In Collin County, you'll go to the Auxiliary Court #3 on first floor.

    The judge is not permitted to the sign the decree before the 61st day.

    See question 
  • Our 17 1/2 year old grandaughter wants to live with grandparents there is alot of emotional abuse by mom and boyfreind

    our daughter had a baby moved from our house in with her boyfriend along with our granddaughters 2yrs ago ever since its been nothing but emotional instability they both drink fight cps has been called. His 15 yr old daughter now lives with his pa...

    Thomas’s Answer

    I'm so sorry she's having to endure this nightmare.

    From the facts you've given, you would have to allege and prove to the court that allowing her to live with you is necessary because her present circumstancs would significantly impair her phyusical health or emotional development. (Tex. Family Code 102.004(a)(1)).

    Good luck!!

    See question 
  • Is asking for emotional distress possible to win in family court?

    The ex- husband taking be back to court for the 3rd or 4th time- settled out of court at mediation 3 years ago. He's now back asking for more child support without any negative change in finance. As a matter of fact, since last orders has bought: ...

    Thomas’s Answer

    You should file an answer and a counterpetition requesting attorneys fees.

    Note that he does not have to show a negative change in his finances. He has to show that there has been a material and substantial change in YOUR financial circumstances and that the amount of the new child support amount would be at least $100 more than the existing child support order.

    His finances, for the most part, are not relevant in determining whether you should pay more child support.

    Go back to your attorney and have him or her review the pleadings and the evidence. You may have a case for asking the judge to grant you a summary judgment and attorney's fees.

    See question 
  • What does it take to get a change of venue in a divorce case?

    Is it a long process? my spouse is in the county I want to change to. I would want to change so I could qualify for legal aid. Could I just ask his attorney, is it likely his attorney would do the foot work on that for me? (my spouse was originall...

    Thomas’s Answer

    In Texas, venue is proper in a county where one of the parties has been living for the past 90 days. The Texas Family Code does not contain any provisions for transferring venue for the purpose you cite and neither do the Texas Rules of Civil Procedure.

    You could try:

    1. Filing a joint motion to transfer venue along with an agreed order transferring venue and see if the judge will sign it. On the motion, I would be 100% truthful with the court. In other words, let your motion say something like, "Movants jointly request that the Court order that this case be transferred by the District Clerk to [County] County, Texas, and in support would respectfully show that [wife's name] is not able to afford an attorney, does not qualify for Legal Aid in this county, but does qualify for Legal Aid in [County] County. For these reasons, the movants pray that the Court enter an order directing that this case be transferred to [County] County, Texas."

    2. Filing a Notice of Nonsuit in the county where the suit was filed and then refile in the county where you can get Legal Aid representation. If you are represented by Legal Aid, they will file the lawsuit such that no one has to pay a filing fee.

    ALSO NOTE: Qualifying for Legal Aid and getting an attorney to represent you for free are two different things. Just because you meet LegalAid's criteria does NOT mean they have an attorney who is available to represent you.

    See question 
  • Can i sue for emotional distress? My wife of 10 years had an affair with my employer now divorced unemployed.

    My ex employer had and affair with my wife and within that same year she divorced me and he fired me. I became depressed and dependent on alcohol. Have not been able to gain fulfilling employment and been alienated from of my children and lost res...

    Thomas’s Answer

    In Texas you will not win an emotional distress suit, I don't think. You can consult with a personal injury attorney in your area and see what he or she has to say. They usually offer free consultations.

    It sounds like the first thing you need to do is try to get child support lowered.

    Next thing: You have to get a job. I know being told to "get over it" is callous advice, but you don't have much in the way of legal options. Can you find some counseling--even group counseling--to help you deal with the emotional damage from this?

    See question 
  • If a man has a child with a woman and 2nd child with another woman.What percentage is the 2nd child entitled to for childsupport

    ..

    Thomas’s Answer

    Each child is entitled to 17.5% plus the cost of medical insurance for each child.

    See question