Texas Divorce News

Sometimes my clients and I experience frustration over non-standard possession orders in divorce decrees. For those of you who don’t live and breathe divorce law, a possession order is what governs who has the kid(s) when. If mom has the right to determine the legal residence of the child, then the possession order says when dad has the right to have the kids with him.

The problem is that people tend to think of this as a rather simple proposition, but simple possession provisions tend to be unenforceable. Then, people try to take something simple (but doesn’t work) and add stuff on to it to make it work. This can result in lots more attorney time trying to work through the drafting, and the client doesn’t understand why there are additional charges for attorney time.

Also, all I handle is agreed divorces, and the parties are rather amicable toward one another, and have confidence that they’ll be able to work things out, but it’s my duty to make sure my client’s rights are protected even if the parties are no longer interested in working things out.

If you agree, please stop reading
First, it’s important to remember that every standard possession order starts off with a sentence that says something like, “as long as y’all agree on who has the kids when, don’t pay any attention to the divorce decree; but if y’all stop agreeing, then the following provisions control…” So, the entire purpose of the possession order is to cover what happens when the parties STOP agreeing.

The Standard Possession Order is battle-proven
Texans have been fighting over post-divorce possession of children for decades. The Family Section of the State Bar of Texas eventually prepared a suggested standard possession order and the legislature passed it into law. The Standard Possession Order doesn’t push any particular agenda except clarity, consistency, and predictability. Over the years fighting parents have found new and innovative ways to find loopholes in the standard possession order, and over the years the Family Section of the State Bar of Texas has found ways to rephrase and rework the Standard Possession Order to eliminate loopholes and increase predictability. So, it’s fair to say that most of what’s in the Standard Possession Order is the way it is to eliminate confusion and promote tranquility.

The biggest problem my clients have with the Standard Possession Order isn’t the summer provisions, Christmas, other holidays, or anything like that. It’s the week in, week out provisions for exchanging the children in “normal” times. Most people would prefer one of the three provisions below over what the Standard Possession Order provides:

• The non-possessory parent has the children every other weekend. All the stuff in the standard possession order about “weekends beginning on the first, third, and fifth Friday of each month…” seems unduly complicated
• Alternating week possession: Mom has the kids one week and Dad has them the following week
• Split week possession: Mom gets the kids for about 3 1/2 days, then Dad gets them for about 3 1/2 days. Or, this week Mom gets the kids 4 days and Dad gets them 3 days, and next week Mom gets them 3 days and Dad gets them 4 days.

Clients assume that the standard possession order doesn’t do what they want to do because lawyers and the legislature just don’t understand what the clients want. Unfortunately, lawyers thoroughly understand what the client wants, but they’ve found that doing what the client wants is highly likely to result in post-divorce litigation and very unhappy clients (who want to know why the lawyer didn’t prepare the decree to eliminate the possibility of post-divorce wrangling).

There are two basic types of problems with doing a possession order the way the client wants to do them: (1) counting weekends; and (2) resetting the clock after holidays.

Counting Weekends

If you’re doing something that involves “every other week”, eventually you or your spouse are going to disagree on whether a given day is in the “A” week or the “B” week. The only way to solve the problem is to dig out the divorce decree, see when it was signed, pull out a calendar, and count weeks (or weekends, or Fridays, or whatever) up to the date in question. Cumbersome, but not rocket science.

Resetting the Clock After Holidays, etc.

This isn’t really a separate issue from counting weekends (above), but it’s a complicating factor. Suppose that Mom has Spring Break (a week off from school with the weekend on each end) with the kids in even-numbered years, and Dad has Spring Break in odd-numbered years. And, suppose we’re in 2007, an odd-numbered year. After Dad has possession of the kids for 9 or 10 days, is it automatically Mom’s turn, or do we count weekends and consider that it’s possibly still Dad’s turn? Similar issues occur after any holiday, but the situation is most pronounced after the longer holiday possession periods, such as Christmas, Spring Break, and extended summer possession.

The Family Section of the State Bar of Texas has found only one way of eliminating problems with the inherent conflicts of “every other week/weekend” and resetting the clock after holidays. That solution is to replace “every other week/weekend” with “weekends beginning on the first, third, and fifth Friday of each month.” It eliminates counting weekends since the date of divorce, and eliminates the inherent problem of whose weekend it is after an extended holiday possession. It may not be great, but it’s clear enough to eliminate a great deal of confusion, and post-divorce attorney’s fees.

Implications for Drafting (and Attorney’s Fees)

“Legal boilerplate” is standard language. It gets to be standard because it has been proven to work. If I prepare a divorce decree with the standard possession order (boilerplate), I know that language is going to cover 99% of all possible post-divorce disputes, and will provide a roadmap without the need to go back to court and pay additional attorney’s fees. And, if you do have to go back to court, the possession order will be pretty easy to enforce. There won’t be anguished cries wondering why your attorney didn’t tighten up the langugage to eliminate this sort of confusion.

If you choose to go with non-standard language, you’re going to open up a bunch of loopholes, and a bunch of opportunities for post-divorce problems. All I ask is a recognition that we’re “out of warranty” if you use non-standard possession language. If we start tweaking your language during the divorce, I’ll charge for my time above and beyond the flat fee agreement. And, if there are problems enforcing and following the non-standard possession order after the divorce is final, I won’t be guilted into trying to fix the language that I messed up.

Remember, the first paragraph in the possession order says that as long as you agree, you should ignore the Decree. So, the rest of the possession language in the Decree needs to be based on the assumption that you have stopped agreeing, and one of you needs to impose your will on the other (preferably without resorting to court action and attorney’s fees).