Episode 42 - New Year, New You: Divorce and Custody in 2023

Good afternoon and welcome to the Top Texas Lawyers podcast. I’m your host, Bryan Abercrombie, and with me, as always, is Sam Sanchez and Nida Wood. How are you guys doing today?

Doing great. It’s been a minute.

Yeah, we’ve fallen down on the podcast train a little bit last couple of months, so we’ll have to get back on it. And it’s not because we didn’t want to do these podcasts. It’s just been incredibly busy. But we wanted to do is get on here, talk a little bit about what’s going on in the news, latest celebrity divorce stuff, which I think we got a lot. We got enough for a whole episode on just Kim and Kanye. But we also wanted to talk a little about divorce issues going into the new year, modification issues because a lot of people wait till after the holidays to file for a divorce or file for a modification. And we want to talk a little bit about how that looks. So did I miss anything?

You got it.


So let’s let’s talk a little bit about Kim and Kanye. So Kanye, or Ye as he’s calling himself these days, is making the rounds. He’s not been playing well with others. I think he’s made a lot of comments. I think he’s been dropped by basically, I think everybody that either represented him or he did business with or he sold products for or he designed products for, including Adidas. Balenciaga, I think might have been one, his manager, his company. I can’t even think who else. So I guess the question is, is is the ex acting completely off the rails? Obviously, the comments are are pretty bad, anti-Semitic, things like that. I mean, to put it mildly. So is a parent acting out like that grounds for a modification, at least in Texas?

I don’t know. I don’t know that it is. I’m not taking Kanye side or anything like that. But you know. He’s making comments before the divorce. He’s making comments after the divorce. Does it make him an unfit parent?

Well, you know, I would tell you, I think one of the things you have to remember in Texas is that when you finalize a divorce, it locks in a lot of things for a set period of time. Typically, you know, and modification, you’re talking…

About the one year, one year to modify anything it would be. And then the absence of an emergency, I guess.

Absolutely. And so same thing in Florida. So you’re talking about, you know, any time you finalize something, the courts very rarely want to see repeat litigation. You know, they want you to go away for a while. They want you to have made the right decisions or gotten the right decisions from a court in relation to order and how it relates to you as a parent and your children and not come back. So typically that threshold to get back into court is high. You know, it’s not something that’s just bad behavior. Like he’s a jerk is going to be enough. But there’s no set rule. There’s no set like order that the judge is like, hey, if you do any of these things, you know, you’re automatically going to get in and it’s going to justify a modification in under a year.

And so let me ask you this, though. Like the hypothetical would be like, take your worst possible clan member, like the Red Dragon or Black Dragon or Green, whatever the whatever the leader of the klan is the most worst racist you can think of. You know, take him.

Grand Wizard.

Grand Wizard. Okay, take the Grand Wizard. Is he going to be subject to being the Grand Wizard over here, but a good dad over here in this hypothetical. I mean, I don’t know how that wouldn’t bleed over, but that’s neither here nor there. So suppose he’s got this violent, racist thing going on over here, but over here on the other side, there’s really nothing that’s ever happened with the kids. That grounds for a modification?

Possibly. Possibly. Depends on your court. You know, we’ve talked a lot about in the past. We’ve all said, hey, you’ve got to know your audience. I think it’s really important to know a judge and the predispositions. Unfortunately, in Texas, we elect our judges. So they change pretty regularly sometimes. And it’s tough to know. I would tell you that I think you have a good argument to make. You know, as a parent, the things that concern you as a good parent, concerned judges, because judges, in my opinion, are always going to take the path of least resistance, and they’re extremely cautious. The last thing they want to do is be on the news explaining why they did something stupid in relation to a child’s safety, welfare or well-being. So it really needs to revolve around those types of things. So if he’s the grand wizard and in the grand wizard, they’re doing some pretty terrible things like, let’s say, dragging people from behind their truck with tow chains. That’s criminal enough, right? Yeah. But if they’re just getting together and smoking cigars and having beers and talking about how they don’t like a particular race, that may not be enough, you know? So it’s really going to be what they’ve done.

So you can be an asshole. So you can be an asshole. You just can’t you just can’t do anything illegal or.

Well, you know, I mean, it’s how it affects the child. If they’re taking the kid to the meetings, you probably have a pretty good argument. You have a pretty good argument. If you go in there and say, hey, this is detrimental to their emotional or their development as a child, they don’t need to be exposed to that, whether you believe it or not, whether you’re entitled to that belief or not, has no relevance in a courtroom. The courtroom will.

Take a public figure like take a public figure like Kanye, who’s he says something. You know, it’s going to be reported by two dozen newspapers, Internet outlets, you name it. He says, you know, they’re there. They’re writing stories about what time he ties his shoes. I mean, everything he says. And I’m sure some of it is probably for shock value. I’m sure some of it I mean, obviously, from what I’ve read, obviously there’s some mental health conditions in there and he may be off his medication and spiraling downward. You know, I don’t I don’t I can’t make sense of it because some at some point at one point, way, way, way back, he said you sounded somewhat reasonable and you’re like, okay. And then it gets worse and worse and worse and worse and worse and worse. And now you’re like, Who the hell is this guy? He’s wearing a black mask and appearing on the Alex Jones show of any, like, Crazy Loon website that he can get on to. I mean, I don’t get it. I like a lot of it. Crazy. Yeah.

Well, what are you. What are you exposing your kids to? How old are your kids? What are they able to read? What are they? Do they have exposure to social media? Do they have access to his account to be able to see some of the stuff that he’s posting? That’s all part of it. And then you’re also talking about is this all his behaviors that tied into his mental health? Is he getting help for it or not? And if he’s not, then that’s, I think, a bigger issue. And then, of course, I know in Texas you’re talking about modifying many different types of things. So it’s not necessarily custody. It might be decision making abilities for the kids. So is his demeanor in the way he’s acting and the way he’s portraying itself, Is that affecting his ability to make decisions for the kids? And if so, then that might be grounds to modify some of those decision making abilities for sure.

I mean, it’s a tough it’s a tough call for a judge because you’ve got to balance the constitutional right of being able to raise your child the way that you see fit. If you want to raise your child with unconventional beliefs, then by all means, you have the right to do that, you know? That is that is what it is. But, you know, is that enough? Like you said, if he’s just getting around with his buddies and smoking cigars and, you know, talking a bunch of crap. I mean, that could be one thing. But is he is he having the the Ku Klux Klan meeting at his house? You know, that’s another.

Well, the bigger piece of that, too, is not.

That Kanye is in the Klan. I’m just saying that.

You get the example. It could be based.

On his trying to think of that. I’m trying to think of the most egregious examples. But I mean, let’s take it let’s take it back a little bit. Let’s say somebody who has just a little bit of outlandish beliefs, but not, you know, not not maybe they’re one of those, like, I don’t know, flat Earth types or some kind of weird thing. Maybe they’re in a cult, but they’re not really not really hurting anybody.

Yeah, I mean, all those things are really important, but, you know, I mean, like to your point, what is it? There’s no there’s no clear cut, bright line rule as to any caught, you know, what they’re going to look at. And that’s the complexity of coming back in and modify. You know, you always want to give people good advice and tell them like, hey, this is absolutely going to get you there, but you really don’t know. And even sometimes when you get in there, judges kind of look at stuff and they’re like, Hey, I’m dealing with people who are like burning their kids with, you know, curling irons and stuff. I don’t this is not going to rise to the level that it doesn’t mean that you can modify use this in the multitude of things this person does over the course of time and come back in and modify. Sure. But it doesn’t mean that exigent circumstance of having to come in before that year to get that done.

I mean, Sam, you’ve had you’ve had cases where the person on the other side was just a little bit crazy, like the one who didn’t believe in any medication. And you know, that that was a change in decision making type of case because even doctors didn’t believe in medication, you know, that kind of thing.

I’ll give you a simple one. I’ll give you a simple one. We had a case where client is like, hey, you know, I don’t think schools are important. You know, I’m a self made man. I went out and I didn’t graduate from high school. And so I don’t care if my kid goes to school or not. If they want to go, great. If they don’t, what’s a big deal? And Mom’s on the other side saying, like, that’s a bunch of BS. They have to go to school. Now, obviously, there’s a law in Texas says they have to attend. Right. But when when dad’s sitting out there saying, well, I’m going to check, I’m going to let him drop out and he can do his GED online. And mom’s like, hell, no, You know, is that enough? Is that enough to get back in front of a court and say, yeah, this is exigent, you know? And that was you know, it was kind of a toss up. It ended up going where the judge thought, yeah, absolutely. Anything that’s going to affect the long term future goals of this child is relevant and absolutely exigent. We’re going to deal with it. But the thing about that, too, and what I would with Kanye, it’s kind of an interesting mix with him and Kim, because I think the reason Kim hasn’t gone back to court and I’m not in California, right. We’re not licensed in California, but I really feel that it has to do with the financial piece of Kanye because he took a huge financial hit, a huge financially. And that’s another thing that you can come in and modify. Right? Hey, you know what? Something dramatic, drastic happened and I need to come back in and I need some relief from this.

I mean, you’re talking hundreds of millions of dollars this guy’s got.

Yeah. And so when you look at that, obviously, I mean, that’s the thing. When you open Pandora’s box on one side, it’s not closed. On the other side, you open Pandora’s box and everything is open for re-examination typically, especially if you’re on the other side saying there’s a real reason for us to really kind of look at the whole picture. And so I really feel like with Kim and Kanye, it’s kind of one of those things where she’s like, I really don’t want to have to mess with them. And it’s crazy because it’s just going to get crazier if I antagonize them. But on top of that, the financial picture that we had locked in when he was at the top of this apex predator list of making money, now that he’s not, what does that look like and do I want to even touch that? I don’t think she’s really wanting to open that box.

Plus, I mean, it’s the whole thing where you I don’t mean to cut you off there, but if you go to court with a crazy person, I mean, you don’t know what you’re going to get. You don’t know when it’s going to end or what you’re going to get, you know?

Well, Kim’s a lawyer now, so she can stop represent, right, or something like that. And she.

You know, they say about self representing, you’ve got a fool for a client.

That’s true. Yeah. No, it’s an interesting, you know, and I would just, you know, like it’s it’s the end of the year. We’re coming through the holidays and, you know, one of those things, it’s this is kind of like the tip of the iceberg moments that we have along the lines for a lot of clients. You know, typically you go through this gauntlet of holidays and you come out the other end and you’re like, you know, is terrible or, you know, this happened or that happened and I really want to go back to court and I want to change things. And so we’ll see a flood of litigation or litigants come in, prospective clients who say, hey, you know, we really want to get into court as quickly as you can. And those dockets are still backed up from COVID. They’re still backed up. And so you bring in new clients, we’re like, we really want to get in as quickly as we can. We’ll just understand it’s going to take some time to do that. And you really have to make sure that you have facts that warrant those you know, and if you don’t, that you build your case before you run to the courthouse and file prematurely.

And that would be one of the things that I think people really have to know as we listen to this is that sometimes it’s really important that you take the time to gather the amount of ammunition you’re going to need to really sustain yourself through a battle. Because if you come in on a single instance, it may not be enough. And then guess what? If you just waited a little bit more, that person was going to continue to spiral down that road. But if you come in immediately and then you’re like, Hey, I want to address it. It’s not enough when that person is going to course correct. And you’ve kind of missed your opportunity. So, you know, it’s a little bit of strategy. And when you talk to your lawyers, they’re going to tell you, hey, yeah, I’ll get you in right away, or they’ll tell you like, let’s wait and kind of put it all together. But you’re coming to that season, the conclusion of the holiday season and the entry of, hey, let’s let’s go to court and and tee it up.

You just have to have the holiday, kind of like a mini mini post-COVID when people were cooped up in the same house together. And we had people wanting to get divorced, kids wanting to modify based on parental preference and all that. But yes, I mean, that’s another reason why you shouldn’t jump to the court, maybe right after the year long waiting period, per se, for a modification. It’s usually better, not all the time, but maybe waiting a bit longer, like you said, to make a journal, you know, documenting, doing whatever you need to do to make sure you have all your facts together.

And everybody no one ever remembers this, that when you open, you open the modification box. It’s it’s Pandora’s box. So let’s say you like eight, eight things out of your out of your decree and you hate two of them. What if the other party doesn’t like six things and wants to change four that you like, you know, then you’ve got four or five things that are on the that are on the docket all of a sudden to be changed that you didn’t want change, do you? One of the two that you really hated and it’s not just a zero sum game, it’s a it’s a that order after one years can be reevaluated in all aspects. Support custody, all of it. So like you said, with the financial piece, if Kanye has taken a complete bath on all of his all of his his I guess his money making enterprises and he’s broke now, you know, that’s grounds to modify a lot of different things. I mean, granted, it’s self-inflicted wounds, but at the same time, the incomes, the income. Right. So yeah, if you let’s say you hated the visitation order, but you liked the child support and but and he wasn’t going to go back to court on you because he didn’t want to bear the expense. But hey, you filed a modification on him, so hey, I might as well try to get my child support reduced because I’m not making as much money as I was or whatever. And there you go. And then you’ve got unintended. I guess it’s the law of unintended consequences, right?

Yeah. Yeah, without a doubt. And you know, those are the things that a lot of times people just don’t really think through or their lawyer doesn’t really help them kind of anticipate that possibility to make an educated decision before you jump into the courtroom. Sometimes it’s not always best. You know, a lot of times you can make the changes that you want. If you have a party on the other side that’s potentially agreeable without ever having to go to court. So maybe it’s something that, like you attend mediation. Mediation is a great tool for clients to be able to get in reach some different changes, maybe instead of six that the person wants to change in three and the two that you wanted your change in one. But everybody’s nice and happy when you get out of there because it didn’t go in front of a judge who could change it all, you know? So these are the you know, you just got to kind of really talk to your lawyer, spend some energy and time, really formulating a plan, have a litigation strategy If they haven’t told you what their litigation strategy is, by God, ask them what it is and then help them develop one, because that’s what’s really going to help you be successful outside of the courtroom, but especially inside the courtroom when you get there.

Well, let’s talk one thing about the person who we see this person every year. I just got to get through the holidays and I’m filing a divorce. New Year, new me, right? I’m getting out of this thing. That’s another one that I would encourage someone to take a long, hard look at. Yeah. You know, being cooped up, like you said, nidra with a mini COVID, you know, for the holidays in your house with this person and the kids is probably taxing and stressful on everybody, including you, including them. But yeah, before you jump off the ledge and go filing for divorce, you know, make sure it’s absolutely something that you want to do and it’s absolutely something that you’re prepared to go all the way with because a whole bunch of things start happening when you file for a divorce. That could be unintended, could be intended. It could be unintended. That’s worth talking to a lawyer about to say, hey, 30 days after we filed for this divorce or they file an answer, we’re going to have to cough up two years worth of tax returns and, you know, pay stubs and financial statements and all kinds of stuff. I mean, all this stuff. You better be ready to be under the microscope for at least six months.

And so and that litigation strategy that we just mentioned, I mean, it’s applicable all across the board. You’re a good lawyer. That’s one of the first things we do is sit down with our clients and really kind of formulate that strategy. And what are your really goals and objectives? How are how are you wanting to get from point A to point B? And then here’s all the pitfalls that we see, because I would love to tell you that everybody who comes in and we represent is unblemished. You know, they’re like, white is white, pure wedding dress is not that way. And so you really have to take a hard look at the mirror and a good lawyer will help you with that. You know, they’ll tell you, hey, here’s all the warts that I see on our side and we really need to be careful of this. Here’s how we try to eliminate or minimize the potential damage that can come from what exists. Because, you know, all lawyers will at least smart lawyers, will tell you we didn’t create the facts. We’re just going to help you deal with them. And, you know, a good plan will help you with that, especially as we’re kind of rounding this corner and getting getting ourselves in gear, whether it’s, you know, I want to file a modification, I want to file for divorce. I need to address particular issues, specific issues with my kid or whatever it may be, an enforcement. There’s just a litany of things. But that’s for sure. One of them.

All right. Well, I don’t I think that. Anita, do you have anything else?

No, I don’t think so. I think we covered it all.

All right, well, I’ll wrap it up for today. I don’t want to I’ll tease the future episodes, but I think the next episode we’re going to talk about the. I read and I read some articles and saw a documentary recently on the $50 Billion a year divorce industry. So we’ll talk about the, I guess, for lack of a better word, divorce industrial complex and next episode, and we can talk through that kind of a. It kind of how that documentary frames divorce, how divorce is framed and, you know, the pitfalls of that and the negatives and positives and things like that that come along with this $50 Billion a year divorce industry, which I you know, off the top of my head, that may be a little bit low compared to what some of these people are spending and how many people get divorced on a given year. So we’ll talk about that next time. But I thank you guys for your time today and I wish you all the best. Thank you for getting on during the holidays and I wish you all the best for a happy New Year.

Yeah, Happy New Year, guys.

Happy New Year.

Take care.

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