What is right for you: Pre-Trial Diversion, Deferred Adjudication or “Straight” Probation?

      

            When a person is charged with a criminal offense, only a handful of options are available for resolving that charge.  The vast majority of cases will be resolved by the accused announcing to the court a formal agreement containing the terms of punishment or sentencing that has been agreed upon by the prosecution and the accused.  This agreement is commonly called a plea bargain agreement.

            The most common sentence a criminal defender receives includes some form of probation.  A sentence providing for one of the following probation options would be appropriate for most misdemeanor offenses, minor felony offenses or for those defendants charged with a criminal offense for the first time.

            Perhaps the best probation offer available for a person accused of a criminal offense is the pre-trial diversion program.  This program is reserved exclusively for those defendants who have never before been charged with a criminal offense and is generally not available to those defendants charged with a felony offense.  Pre-trial diversion requires the accused to report to a probation officer once per month for the term of probation and to pay a supervision fee of fifty dollars per month of supervision.  This program rarely requires the accused to pay a fine or court costs, to attend offense related educational classes, or to complete community service.  If the accused successfully completes the program, his or her criminal history report will not reflect a conviction for the offense.  The true benefit of this program is the accused’s right to expunge or remove the arrest and indictment from his or her criminal history report.

            Sentences providing for a period of probation may also include deferred adjudication and straight probation.  Both of these sentencing options are available to those charged with either misdemeanor or felony offenses, though deferred adjudication is exclusively available to defendants with no prior convictions.  Both sentences require the accused to pay a fine, court costs and a fifty dollar supervision fee for each month of supervision required.  The accused will also be required to meet with a probation officer once per month for the term of supervision, to complete community service hours, and to attend offense related educational classes.  There is one important difference between deferred adjudication and “straight” probation:  if sentenced to straight probation, the criminal history report of the accused will reflect a conviction even if he or she successfully completes the required probation.  With deferred adjudication probation, the criminal history report of the accused will not reflect a conviction for the offense if the accused successfully completes the probation.  However, neither of these options allows the accused to expunge or remove the arrest and indictment from that report.

                For more information, please visit our website at http://www.meganrachel.com or call our office at 972-424-6069. 

Custody: Mom or Dad?

Many individuals who call my office often ask whether there is a presumption that mothers rather than fathers should be awarded custody of a child.  While this may have been true in the far distant past, there is no longer any such presumption.    

When making an award of custody to either a mother or a father, the court will make its determination based upon what it believes to be in the best interest of the child. In the leading case of Holley vs. Adams, 544 S.W.2d  371(Tex. 1976), the Supreme Court of Texas set out a list of factors that the court should consider when making a determination as to whom the court should award custody.  Some of the factors include the following:

a.       To what extent each parent has been involved in the child’s life

b.      The emotional needs and condition of the child

c.       Whether a parent poses a threat to the child or has a criminal record

d.      Which parent has a history of acting as the child’s primary caregiver

e.       What plans a parent has for a child’s future

f.       Whether one parent has attempted to turn a child against the other parent

g.      The involvement of a parent in the child’s education

h.      The overall quality of a household and a parent’s fitness to raise a child

As can be seen, all of the factors above are gender neutral.  In addition, the above factors have now been codified in Section 153.003 of the Texas Family Code which specifically states that the court cannot consider the gender of either parent when making decisions regarding custody.

For more information, please visit our website at http://www.meganrachel.com or call our office at 972-424-6069. 

Spousal Support in Texas: Does Length of Marriage Matter?

One of the grounds for receiving post-divorce spousal maintenance, or alimony as it is known to many, relates to the length of the marriage.  If you have been married for ten years, you may be entitled to receive post-divorce spousal maintenance.  Post-divorce spousal maintenance has been available in Texas since 1995.  However, there have been recent changes to the Texas Family Code which may make it easier to obtain.

If you have been married for at least 10 years and you lack the ability to earn sufficient income to provide for your minimum reasonable needs, you may be entitled to receive spousal maintenance.  The question then becomes "what is meant by minimum reasonable needs?”

Unfortunately, there is no set definition.  The courts must look at the facts presented in each specific case to determine whether spousal maintenance is appropriate. 

Some factors the court can consider in determining whether to award spousal maintenance are the seeking spouse’s educational background and employment skills, the work/business opportunities available to that spouse, the age of the spouse, and the contributions of the spouse as a homemaker. 

The length of time that a spouse can receive spousal support depends upon the total length of the marriage.  For example, if a spouse has been married for more than 10 years but less than 20, that spouse may be eligible to receive support for up to five years.  If a spouse was married more than 20 years, but less than 30 years, that spouse may be eligible to receive support for up to seven years.  Finally, if a spouse was married more than 30 years, that spouse may be entitled to receive support for up to 10 years. 

In all of the above situations, however, it is important to note that the court is generally required (with a few exceptions) to limit the duration of a maintenance order to the shortest reasonable period that allows a spouse seeking maintenance to earn sufficient income to provide for the spouse’s minimum reasonable needs.

For more information, please visit our website at http://www.meganrachel.com or call our office at 972-424-6069.

Spousal Support in Texas: What it could mean for you

Texas first adopted spousal maintenance, also commonly known as spousal support or alimony, in 1995.  The purpose of spousal maintenance is to provide temporary and rehabilitative support for a spouse after divorce.  Originally spousal maintenance was intended to provide for the support of long-term homemakers.  The laws of spousal maintenance have since been expanded to protect disabled spouses, spouses who care for disabled children and spouses who have been the victims of family violence.

Beginning on September 1, 2011, some important changes took effect with respect to laws regarding spousal maintenance.  One of the more significant changes relates to the monthly amount of spousal maintenance one spouse can be required to pay to the other spouse.

As of September 1, 2011, in situations where post-divorce maintenance has been found to apply, a spouse who is ordered by the court to make monthly spousal maintenance payments to his or her ex spouse may now be required to pay up to $5,000.00 or 20 percent (whichever amount is less) of his or her average monthly gross income.  This is a significant increase from the earlier statutory language which provided for a maximum award of $2,500.00 or 20 percent (whichever amount is less) of a spouse’s monthly gross income.  The increase applies to divorce cases that have been filed after September 1, 2011.

Spousal maintenance is not available in every divorce case.  Whether you or your spouse may be entitled to receive or will be required to pay spousal maintenance will be determined based upon your individual fact scenario.

For more information, please visit our website at http://www.meganrachel.com or call our office at 972-424-6069.