What Everyone Wants to Know: Real Family Law Questions, Answered (Ep. 49)

In this rapid-fire Q&A episode, host Justin Sisemore sits down with top courtroom attorney Michael Rousseau to tackle the most common — and often misunderstood — questions in Texas family law. From legal separation myths and postnups gone wrong, to common law marriage confusion and recording your spouse legally, no topic is off-limits. They also dive into what really happens when kids want to testify, how adultery impacts divorce outcomes, and why filing first can actually matter more than you think.

Whether you’re considering divorce, navigating a custody battle, or just want to avoid major legal missteps, this episode is packed with unfiltered advice, courtroom insight, and real-world scenarios you won’t hear anywhere else.

If you’ve ever wondered, “Can I record my spouse?”, “Do I lose everything if I cheat?”, or “What if my kid wants to pick where to live?” — this is the episode for you.

📞 Need legal guidance? Contact the firm at 817-336-4444 or visit lawyerdfw.com.

Connect with Justin Sisemore

Read the Show Transcript

[00:00:00] Intro: You are listening to in Your Best Interest, the podcast where family, law, business, and real life collide, hosted by Texas divorce attorney and entrepreneur, Justin Sizemore. This show brings you honest conversations, expert insights, and real world advice on everything from navigating complex legal matters to building a successful life and business.

[00:00:24] Intro: Whether you’re facing a family crisis or scaling your next venture, this is the podcast that helps you move forward with confidence. Now here’s your host, Justin Sizemore.

[00:00:36] Justin: So we’re back to you within your best interest, uh, here today with Michael Rousseau continuing from our previous podcast where you got to know him.

[00:00:45] Justin: Got to know a little bit, uh, about one of our attorneys who I think is one of the best attorneys in the courtroom that I’ve been around. Um. And, uh, I wanted to kind of do some of the rapid fire q and a sessions that we get, um, [00:01:00] because I think a lot of people have the same questions. And we have q and a places on our blog.

[00:01:06] Justin: Uh, we have q and a portions on our website. We’ve spent time doing the rapid fire, but you know, we still get the same questions over and over. So as much as we can put this out there for people, uh, that are going through some serious issues, um, you know, this is totally on the fly, so not rehearsed. Um, and I want it to be that way because I think it really does answer that.

[00:01:26] Justin: There’s no, there are no dumb questions in family law. And sometimes people think that, well, I don’t wanna ask my attorney this because, you know, this, this is just really isn’t. Unintelligent question. Um, or it’s too simple for them to deal with. Mm-hmm. So I’ll just dive right into it. So one of the questions we get a lot is, well, what about like a legal separation in Texas, we’re not really ready to file for divorce.

[00:01:49] Justin: My wife or my husband and I are not getting along. Um, but what do we do, uh, immediately? And can we, is there some documentation that we can. [00:02:00] Protect ourselves with. So I wanna dive right into that. So what, what are your thoughts on, um, that question about, you know, legal separation in Texas and, and, and how do you deal with that with clients?

[00:02:12] Michael: Uh, well, in, in Texas there is no, in Texas Family code, no such thing as. Separation. Yeah. Or legal separation. And when clients say, oh, I’ve been separated for, you know, we’ve been well, but we’ve been separated for how many years? I mean, according to law, you’re still married. You’re married to your divorce, and until you file for divorce.

[00:02:32] Michael: There is no such thing as separation. Um, and so we, you know, telling clients that, uh, you know, if you, you can move out, you can, if there’s no quarters in place, you can do whatever, you know, I mean, you can do whatever you want. Uh, with your bank accounts. It might come back to haunt you. Uh, it might come back for claims against you, but there’s nothing preventing that.

[00:02:51] Michael: So just telling clients that separation is not a thing in Texas. Um, it’s in Texas family law and. The only way you will be [00:03:00] considered legally separated is once you’re divorced.

[00:03:03] Justin: Yeah. And you know, the other thing I get, uh, questions on a lot are about like postnuptial agreements. Um. Prenuptial agreements, obviously before the marriage, but postnuptial agreements being agreements after the marriage, and then, um, a lot more frequently because of our common law marriage, which basically for those listening who don’t know what common law marriage is, it’s living together, holding yourself out as husband and wife for the two years proceeding the lawsuit.

[00:03:30] Justin: And we get quite a bit of those. I’m, I think I’m married because we either are, because we filed joint tax returns and we agreed to be married and all those things. Uh, or you know, I just think we’re married ’cause we live together. So I wanna break down those two agreements. So what is a, what is significant in your mind about a cohabitation agreement and how have you dealt with that specifically?

[00:03:53] Michael: Uh, they’re, they’re quite rare. The cohabitation agreements in a family law and the cohabitation agree. [00:04:00] Are generally used to where a couple or a couple, uh, are or, uh, are romantically involved with one another and they don’t want to be legally married. But because of common law marriage in Texas, I mean.

[00:04:15] Michael: You could be, we’re one of the few states that have that, most, most states. What are your thoughts on common law? First of all, I, I mean, it’s such a, it’s such a difficult thing to deal with when it happens. And it’s rare when they try to proceed with the divorce under that because it’s so fact intensive.

[00:04:31] Michael: But you have to prove, I mean, the two main things are, um, you’ve, you hold yourself out to the public as husband and wife and y’all reside together. Um, as such, and. All the factors that you just mentioned about, uh, you know, filing joint taxes or changing your last name or having an actual ceremony, but never filing a certificate, those can come into play to prove it.

[00:04:55] Michael: You should make

[00:04:55] Justin: sure they tell us about those things, right? Yes, yes,

[00:04:59] Michael: yes. And it, [00:05:00] I’ve only had a, and like I said, it, it’s more rare now, but Texas is one of the few states that have it. So, and you know, that could come back to bite you if, you know, you get the engagement ring and you all just, you know, act as if you are married.

[00:05:11] Michael: But never legally get the marriage certificate. You could find yourself in that situation.

[00:05:16] Justin: Yeah. And the cohabitation agreement, you know, I, I was, I was always kinda like, is this overkill? Like do you really need this cohabitation agreement? Um, I’ve started looking at, um, other states that have massive common law disputes, um, that ended up all the way to the court of appeals.

[00:05:33] Justin: ’cause again, for our listeners, they don’t understand like. Most cases, even if you’re right, uh, on the law and a judge makes the wrong decision, the parties don’t have the financial ability to take it all the way up to the court of appeals. So you’re really, you’re getting like a lot more financially affluent cases that have the ability to do that.

[00:05:52] Justin: But in the cohabitation agreements, in those specific big asset, high net worth cases, um, they did have massive impact [00:06:00] because, um, it, you know, they had very clear language that we are not married. And to me it was surprising that they even got to the point of past summary judgment or where the court could make a decision without, you know, basically getting all the way to the trial stage with that agreement.

[00:06:16] Justin: And you know, I do, I am starting to see. Um, a lot tighter cohabitation agreements and, and the impact certainly that they could have. But I want to touch more so on the post-nuptial agreement, ’cause I think we get those questions more than, uh, the po than the cohabitation agreement. So describe to our listeners what a post-nuptial agreement is.

[00:06:39] Justin: Uh, a

[00:06:40] Michael: post-up agreement is essentially what most people are, are more familiar with a, a prenuptial agreement, but it’s an agreement. Post-nuptial post-marriage of where you are agreeing that in the event of a divorce AF after you have been married, that if we get divorced, that we [00:07:00] will divide our assets and liabilities.

[00:07:03] Michael: Um. In a certain manner, uh, basically, which could be in contradiction to community property laws of Texas. It could, it could be, you know, we’re married, but if we get divorced, um, you can keep the home and all the money in the, these bank accounts that I make, my income will be my separate property instead of community property and postnup.

[00:07:24] Michael: Uh, I, I, we, our firm’s dealt with, uh, numerous of them. I’ve dealt with a couple of them too. Uh, I, I think they’re more rare than prenups. Because you’re, you’re already married. And I think when people face that situation, um, it maybe it’s because they think they’re leading to divorce. Yeah. And because of that, um, generally one party wants one, the other doesn’t want to do it.

[00:07:46] Michael: And then, I mean, a prenup or a postnup, it’s not just you go to your spouse and say, I want all these, all this gonna be mine. You get nothing. I mean, they’re, it’s a negotiation. You’re gonna have to get something up probably to get something in return. And oftentimes they [00:08:00] won’t sign ’em.

[00:08:01] Justin: Yeah, and you know, one of the things that.

[00:08:03] Justin: I think people forget about postnuptial agreements is they don’t require considerations. So like in a contract in Texas, consideration means if I do this, you pay me this. The payment for the services is the consideration. Um, but in a postnuptial agreement, you know, usually it’s somebody that steps out on the marriage or has done something really bad, um, and they’re trying to reconcile and they’re making a bunch of promises and I really struggle with them because.

[00:08:31] Justin: If we’re drafting the postnup for somebody who’s done something really wrong, usually like somebody’s trying to put the screws to ’em. Yeah.

[00:08:38] Michael: Right. And that’s what I’ve, when I’ve, the last postnup that I did was because, and they got divorced afterwards, uh, was because the wife. Was having an affair with her husband’s best man at his wedding, and she felt horrible about it.

[00:08:54] Michael: And she was saying, look, we get divorced. You can have essentially everything. And [00:09:00] she had her, her parents, her, her lawyer, everyone advising her, do not sign this thing. Adultery is not. It’s a grounds for divorce, but it’s not gonna effectively, uh, do a hundred percent. Yeah, you’re, you’re gonna get a still probably this close to a 50.

[00:09:16] Michael: There’s no children involved. Uh, 50 50, close to a equitable split anyways. But, um, she signed it

[00:09:23] Justin: and there was no wasting that case. Like, meaning that there wasn’t, no, this was, the

[00:09:26] Michael: post-up was essentially a, a apology for ruining this marriage. And I don’t know if it was out of emotion or just their agreements or a way of reconciling, uh, where she felt she.

[00:09:37] Michael: Um, hurt our client, but they signed it. But like I said, a lot, a lot of people don’t feel that way and they feel sometimes that their actions were justified. And when you have your, you know, a lawyer and your family and friends and pressure do not sign this thing, they could fall apart. And it’s also important to note, um, I think on any kind of prenuptial or postnuptial agreement, you can’t, it does not apply to custody.

[00:09:58] Michael: Uh, it’s void. [00:10:00] Uh, legislator is indicated. You cannot do that. And, and I mean, which makes sense. You can’t say, well, if you get divorced, you get primary and I’ll just have weekends. Yeah, you don’t, you don’t know. I mean, by the time you get to divorce that person you agreed to have primary and all of this with the children is a, a drug addict at that time or an alcoholic or has committed family violence, so you can’t prenup kid issues.

[00:10:20] Michael: Um, but sometimes I think it’s helpful, uh, to do it for property issues because at minimum you have a peace of mind throughout your marriage. There’s not that looming anxiety that, well, we’re gonna get divorced and I’m gonna lose this, or she’s gonna take that, or he’s gonna take everything here. It’s already been dis disclosed, it’s already been figured out.

[00:10:39] Michael: So you can focus actually more so on resolving your issues without the uncertainty or. Um, suspicion of that, there’s some financial motive behind it.

[00:10:47] Justin: Yeah. And the other thing too is if there’s a significant amount of property, I mean, you’ve gotta have a very complex inventory. Process to really make sure that you’re gathering or capturing all the things [00:11:00] that need to be in the postnup.

[00:11:01] Justin: Mm-hmm. Um, specifically if you’re partitioning property or you’re giving property to the other person in the event of a divorce. And so I, I just, I kind of headed off and I wanted to hear your thoughts. I kind of headed off with, listen, you know, if you’re gonna go through the postnup process, it’s not dissimilar to the divorce process as far as cost, time, disclosures.

[00:11:23] Justin: Mm-hmm.

[00:11:24] Michael: If

[00:11:24] Justin: we have to give

[00:11:24] Michael: financial disclosures of all of your assets, both sides do. Otherwise, if you withhold, um, you know, a, a bank account or investment account or an inheritance and don’t provide that information, disclose it to the other side, that could void your any well, and it’s an undivided asset either way too, right?

[00:11:42] Michael: So, yeah. Even worse, it could just, if the course says that you didn’t follow the, I mean, prenups and postnup require very. Strict procedures to keep them enforceable. I mean, I, I even recommend, I know it could be more expensive, but to have a court reporter at the prenup or a postnup signing. Yeah. So it’s on a record that someone, they’re not under [00:12:00] duress.

[00:12:00] Michael: They understand, they’ve received full disclosure. Um, they’ve understand exactly what they’re signing and what they’re agreeing to, what they’re giving up potentially. Um, and it could be an expensive process too, but it potentially could make the divorce. Streamlined, streamlined quicker? Maybe not. It depends if there’s children involved.

[00:12:19] Michael: Yeah. And then who knows?

[00:12:20] Justin: No, and that’s, that’s a great point because like the last couple we’ve done, you know, it’s usually like some of the family members that have a very significant estate, um, and their children are getting married and they’re concerned about business interests and whatnot. You know, there’s also kids that are coming in and then the children that are getting married, they’re like, I don’t want to go through all this.

[00:12:42] Justin: And so it’s a, it’s a pretty, like, you need some significant runway in my mind before you do a pre or post-up. Um, and a lot of times if somebody’s a bad actor, they, you know, they kind of flare up again before we even get past the negotiation phase. Mm-hmm. And then they’re like, [00:13:00] okay, well let’s just get it, let’s move forward for divorce.

[00:13:02] Justin: Mm-hmm. Right. Um, not to say that they’re not good documents and they’re not very helpful, it’s just I want clients to be aware of. Of how much time and energy and effort that goes into those, those that, that preparation. Um, so next question. Can you get a divorce in Texas if your spouse, spouse lives in another state?

[00:13:22] Justin: And I wanna touch on this one because you and I have tried cases together where there’s jurisdictional state issues and which state the case should be filed in and which county and and whatnot. So let’s, let’s touch on the first question that our viewers have asked. So can you get a divorce in Texas if your spouse lives in another state?

[00:13:39] Justin: Yes. And, um, you know, Texas operates under that first to file, uh, in the, in the state where the party has resided for six months in the state in, in 90 days in the county. But, you know, we’ve, we represent athletes and, you know, various people that have multiple homes. How, how in the last. Couple of cases that, you know, have dealt with [00:14:00] jurisdictional issues.

[00:14:01] Justin: Have you seen the court deal with where they intend to permanently reside?

[00:14:05] Michael: Well, you ha it’s ba I mean, you have to, if you want to file in Texas, you have to meet the jurisdictional requirements. You said you have to be in the state for six months and with the intent to make it your residence. Uh, it could be, this becomes issues where people travel a lot for work or they have work assignments.

[00:14:20] Michael: Um, it wa it wasn’t a, a permanent place of abode. And it was hell. We’ve had an RV before. Yeah. I mean, if it’s the domicile, yeah. I mean, I guess if you’re living under a bridge in Texas, that’s your domicile. You can file here. Uh, and then which county, what get what becomes difficult is where they haven’t really resided somewhere for six consecutive months and there’s case law and we can navigate that in fact specific.

[00:14:42] Michael: And it’s also, yes, there’s other issues you could face if you’re a resident of Texas, but your spouse. Not, yes, you could file in Texas. The court is, uh, can grant your divorce if they’re not, if they aren’t, um, if they don’t have personal [00:15:00] jurisdiction over which is more of a complex issue over the other party, it might lead to some potential issues with your divorce.

[00:15:06] Michael: Uh, the court will grant a divorce eventually, but it could have issues with enforcing. Um, child support or, um, the sale of property, especially if it’s property overseas. But generally people will work that out in mediation to avoid those issues. And we also have to take consideration if there’s custody involved where the children have been residing the last, um, six months as well.

[00:15:28] Michael: Yeah,

[00:15:28] Justin: so just because, and we just had the case with the, with the child that was very young and before the 90 days could even kick in. Yeah. And that

[00:15:35] Michael: happens too. And they’ve moved from Texas to Oklahoma with the parents. Then the mom comes back to Texas with the kid, and there’s case law to where if there is no continuous six month jurisdiction.

[00:15:45] Michael: Um, generally you could file, you know, if that’s where you’re intending for the child to reside, and multiple states could have jurisdiction over that point. It becomes a who, you know, which state wants to take it.

[00:15:55] Justin: Yeah. I, I wanted to get your thoughts on this to segue into this question. So I, [00:16:00] I get the question a lot.

[00:16:01] Justin: Does it matter who files first? And I, I don’t like when I hear attorneys say, it doesn’t matter because to me, and I wanted to hear what you, what you feel, uh. As far as being able to talk first and present the evidence first, that’s an advantage. If you’ve got dueling jurisdictions and dueling venues where it could be proper in either place, that could be an issue.

[00:16:24] Justin: Mm-hmm. For proximity of where your client lives, where the witnesses are, um, and just cutting down costs of travel and all that other fun stuff that, that clients have to deal with. So, to me, it, it very much is the answer. Uh, that it depends, but it usually does matter. What are your thoughts on that?

[00:16:43] Michael: Well, certainly for jurisdictional or venue issues, it, it matters for sure for c absolutely, because you wanna be able to litigate the case where you’re closer to.

[00:16:54] Michael: It could just be, especially from a venue perspective, I mean. It matters. Uh, I think, well, not

[00:16:59] Justin: only that, like if they [00:17:00] go file in another venue and you’ve gotta go do a motion to transfer a venue and you’ve gotta do introverting affidavits and all the things you have to, yeah, we,

[00:17:06] Michael: it’s just more procedural work.

[00:17:09] Michael: It’s gonna be more expensive, you know, if, if your spouse goes from, you know, Tara and says, we’re breaking up and moves over to Dallas and files right. Then, you know, and they’ve been there 90 days. Y’all been separated, not legally, but not living together for three months and now they just file in Dallas County.

[00:17:24] Michael: And, but you’re like, ev everything’s in Tarrant County. That’s where I am. I mean, Dallas County technically has proper venue on that. Yeah. So now you have to li litigate across town. It might not end up being the biggest deal in the world, but it, it certainly is an initial disadvantage. And then it, even when, when you said, uh, previously about, um, filing who files first, who’s the petitioner?

[00:17:43] Michael: Who’s the respondent? Uh, yeah. Getting your story out first, if you’re the petitioner, you go first in all the hearings, uh, including trial to present your case in chief. Uh, but I don’t. I tell clients that just because the other party filed first doesn’t mean your, your case is over. That’s right. Or that it’s gonna, [00:18:00] you know, uh, you’re, you’re, it’s putting you in a disa a complete disadvantage where you can’t move forward and all.

[00:18:06] Michael: And sometimes I think in certain cases it can be, um, advantageous even if the other side files first because they put on their case in chief first. But then it gives us the opportunity to know. What the, what they’ve said and we, it’s easier for cross examination sometime.

[00:18:23] Justin: Yeah. I, I don’t think, um, some of our listeners understand that when we get into a case, it’s very much trial by fire in the first two or three weeks.

[00:18:29] Justin: Yes. Like, we’re not gonna have all the facts, we’re not gonna have all the evidence. There’s gonna be some he said, she said there’s gonna be some hearsay or objections to evidence getting into courtroom. And I just think it’s important to remember exactly what you just said, like. The timing and order and structure really depends.

[00:18:45] Justin: Mm-hmm. Um, you’re not gonna ne you’re not gonna lose a ton of ground, but if I had a, a perfect scenario where two parties, we don’t represent Jesus as we say, um, two parties have some bad facts, I’d rather get on the front end of that. [00:19:00] Yes. And present first. Yes.

[00:19:01] Michael: And I’m a huge proponent from a litigation strategy and I always ask clients and you know, most are honest, some just don’t bring it up or we’re hoping the other side wouldn’t know.

[00:19:10] Michael: You have to let us know, and it’s not from a judgemental standpoint. I’m, I I really have. I’m not judgemental. I understand People do crazy things. I’m not phased literally by anything. So, um, but we need to know it for two reasons. One, I don’t wanna put on this case where we we’re selling you as a perfect parent and then.

[00:19:28] Michael: There’s all these horrible things that are gonna be said about you. ’cause it makes our case look weak. It makes it look like you weren’t honest. And more importantly, I like, what are the four or five bad things they’re gonna say? You’ve done that. Not just a he said, she said, but here’s they, they have a picture of this or courting of that.

[00:19:43] Michael: I did this. Um, it’s better to get, be able to go first and get out in front of that and say, and almost where you’re telling the judge, I’m not perfect. I’ve done this but I, I can explain it ’cause it defeats. All the ammunition they think they’re gonna have when they cross examine you. [00:20:00] ’cause you already just admitted to it and you got out before it.

[00:20:02] Michael: It’s better just to tell the truth than get caught for. Withholding it.

[00:20:05] Justin: Yeah. We were in tr you and I were in trial not too long ago and, uh, as you’ll recall, what did our client do to the house whenever she left?

[00:20:13] Michael: Oh, I mean, people, I get it. People and these,

[00:20:16] Justin: and this was before representation,

[00:20:17] Michael: but Yeah. And the judges, you know, they’re people too.

[00:20:20] Michael: They, and a lot of them had been through these issue, uh, been through divorce and they understand it could be emotional and people do things where they go, you know. I smashed a, I broke the window or slashed my husband’s tires, or I turned on, turned off the ac, or I cut the electrical cord, or you know, something they just did out of just impulsivity.

[00:20:38] Justin: Yeah.

[00:20:39] Michael: And it’s better to just bring that up and explain why you did that and why you felt that way and say, you know, well, instead of getting caught, caught on a cross where it’s wasn’t true, you slashed his tires. Yes. And then you’re stuck with the Yes, no question. And then,

[00:20:54] Justin: and then it’s gone. Passes, the baton has passed to the other side.

[00:20:58] Justin: You can’t even really re [00:21:00] rehabilitate in a lot of situations.

[00:21:00] Michael: Well, and if you do on rebuttal, but by the time you get there, it could be another hour later. And the judge has already remembered tire slash Yep. And like what, wait, what was your reasoning? It’s better to say. And have you, is there anything that you’ve done that you, you regret at this point?

[00:21:12] Michael: Well, yeah, I slashed tires. Why’d you do that? Well, you know, I came home and his ex-girlfriend was in my bed. You know, you could get out in front of those with the judge and it’s gonna. Defeat the, it what? They can’t just re-ask you that question at that point. You’ve already admitted to what you’ve done wrong.

[00:21:27] Michael: Granted, there are certain legal reasons to keep things out. Um, cri you know, something that’s a, you know, incriminating, we’re not gonna ever have you incriminate yourself. There’s fifth Amendment still implies. Um, or if there’s like a, a legal reasoning to keep out. Like a lot of times people will say, well, they’re gonna bring up my DUI from.

[00:21:45] Michael: 14 years ago, and we won’t bring that up. And if they try to bring it up, there’s evidentiary rules of what we can, uh, exclude that from being, uh, admitted to the court.

[00:21:53] Justin: Yeah. You brought up a great point too, because I was trying to think of some good examples of when you’re the counter petitioner, when it would be advantageous, [00:22:00] and you and I have both had this case multiple times where one party gets up and it’s all about the negatives of the other party, specifically their ability to parent, right.

[00:22:10] Justin: This person’s this and this person’s that. Mm-hmm. And. The first question I ask on Cross is, and usually I don’t ask open-ended questions on cross, but what do you like about them as a father? And they’re like, I, I, they just get stuck.

[00:22:25] Michael: What, what’s crazy is a lot of people, unless I know for a fact they’re gonna answer it the way I want them to answer it, I’ll try to avoid it.

[00:22:32] Michael: But a lot I’ve, you know, in cases I, what judges I think are looking for, especially from a parenting. Is someone not just go up there and say, I’m the best ever, and they suck, or they’re terrible and there’s nothing good about them. Right. It’s not true. You had kids in a family, you’ve been together for so long, there’s some point.

[00:22:46] Michael: You saw something. And I think humility on the stand is so difficult to do. And not just on a stand in life. If you can go up there and say, yeah, I mean, I think he’s a great father or a great mother. Mm-hmm. And I don’t, I think he, he’ll do a great job, [00:23:00] but I just know I’ve been doing these things for the kids every single day.

[00:23:03] Michael: He’s never been involved in that yet. Hopefully he gets there. And that’s so important I think when you go into court or to have that mindset, um, because judges will take, you just have more credibility and you seem like a more honest person. And, um. The other side says nothing, nothing good about them. I mean, the court can say, well, you’re not, nothing you’re saying is objective.

[00:23:24] Michael: It’s just not true. No one’s perfect.

[00:23:26] Justin: Yeah, that’s a good segue too to, you know, one of the things that I talk about in consults, and I know you talk about with our clients is, you know, the courts are looking at what you guys have been doing and how not to disrupt the child’s environment. Mm-hmm. So, um, you know, when you have somebody that’s been the primary caretaker.

[00:23:44] Justin: I get the, I get the question a lot. Well, I was only doing that because I was working and they were staying at home, but now that we’re gonna be separated, you know, they’re gonna have to work too. How does that impact in, in your experience with all the cases you’ve done, um, you know, what the [00:24:00] court does on a temporary basis as far as like what the, the, the court’s looking at the history.

[00:24:05] Michael: Yeah. The court’s looking at the history and they don’t want to hear. They don’t have time to hear about. Well, you know, we first met in college and sometimes he could come home and yell at me, or she would stay out too late with her friends. They want to hear, here’s our kids, here’s their ages. This is where they’re at school.

[00:24:21] Michael: Um, this is their routine. And I like to walk through clients, um, you know, a, a day in the life of. Being the caretaker, what do you do? How do you, who wakes ’em up? Who, um, gets ’em ready for school? If they’re in school, who take puts ’em down for their nap? Who’s making all the meals for them? Um, what are their teachers’ names?

[00:24:41] Michael: Uh, how, what involvement do you have with the school? Their who’s their pediatrician? Um, who’s their dentist and who gets ’em to all these appointments? Who does that? And ’cause of course, like you said, trying to keep a temporary order is of trying to keep a status quo in as much stability as possible and in a completely unstable situation for the children.

[00:24:59] Michael: [00:25:00] And they might change their mind moving forward. Things might happen throughout the case, but generally at temporary orders, it’s gonna be, this is the evidence that we have to present to. That we, the show within a very short period of time, within the last year or two and who’s been doing all these things, and the courts are inclined to look at it that way.

[00:25:16] Justin: Yeah. And also too, you know, that’s a great, that’s, I, I love the timeline in chronological order because when a client comes in and says, well, they’re, they were drunk eight months ago and they’re a total alcoholic, but two weeks ago I left the child. You know, with that person for a week, or they’ve been violent with me and I just got back from an intimate vacation with that person.

[00:25:37] Justin: Like the timing is also critical. It is.

[00:25:39] Michael: And I know that’s, that’s extremely difficult on a personal level because you know, the complexities of marriage or any kind of relationship like that. Yeah. And you don’t, and it’s almost like getting used. I was trying to be a forgiving husband or a forgiving wife.

[00:25:54] Michael: And yes, they get drunk all the time or they would do these mean things or that, but I Do You [00:26:00] still love them? I still love them and I wanna keep the family together and I forgave them and I move forward. And then unfortunately, they could sometimes could be used. You can’t then retroactively say when you file, well, like four years ago, he came home drunk and fell asleep on the couch.

[00:26:13] Michael: Yeah. And or I came home from a work thing, he was drunk on the couch and the kid was crawling around on the floor. I mean, it could’ve. Be helpful in your case, but it opens the door to saying what you, did you call the police? Did you call CPS? Yep. Did anything actually happen? Y’all been in four years since, hasn’t happened.

[00:26:29] Michael: Right? And you’re kind of in a rough in, in a hard rock, in a hard place there because you don’t want to just call your marriage quits right off the bat when something. Doesn’t, you know, if someone screws up, people screw up. Yeah. There’s battered

[00:26:42] Justin: women’s syndrome, there’s battered spouse syndrome. Oh, there’s, yeah.

[00:26:44] Justin: I mean, it’s, it’s a real

[00:26:45] Michael: thing. It’s a real thing. And there’s also, and even in the lighter context, you, you want to forgive people and you realize that maybe it wasn’t a big deal then, but now you wanna make it a big deal. And you have to understand, the court’s gonna say, well, you know. He may maybe got drunk four years ago and you know, let [00:27:00] the kid run around the house or whatever, but you know, I’m not gonna put him on supervised and, you know, submit ’em to random drug testing for the next until

[00:27:07] Justin: I, or the alternative where they have a bunch of really bad stuff happen and they don’t acknowledge how bad, how serious it is.

[00:27:14] Justin: Oh, I don’t want to go and, you know, I want 50 50 when somebody has been abusive and verbally and emotionally and physically and has alcohol and drug issues and then they go, well. I’m gonna get all this out there, but I just want to go for 50 50. Like, I’m like that, that sandwich doesn’t, doesn’t taste good.

[00:27:30] Justin: Yeah. You ha you can co The punishment’s gotta seed. Exactly. Yeah.

[00:27:33] Michael: You, you can concede I think on a, a lot of things that you’ve done wrong or that they’ve done wrong or, and you still have to take a position that you believe is in your children’s best interest. That I don’t think that removing this parent from their life.

[00:27:46] Michael: Is in our children’s best interest. Yeah, I think our kids love both of us and wanna be with both of us, but I gotta look out for the safety of our kids. And that’s why the, there’s so many different injunctions and certain orders course could put in place where, uh, we see your family court such as, you know, [00:28:00] supervision, drug testing, counseling requirements, step up, uh, possession schedules.

[00:28:05] Michael: And I think advising the client that just because you’re seeking these things. Don’t feel bad about it. Uh, if you know if, unless you’re, you’re doing it when it’s unnecessary, at which point we’ll advise you that you’re, this is not vindictive. Yes, you vindictive and it’s not gonna work, but you’re doing this because you, you’re, you’re helping this person succeed and get to where they need to be, to be, to be a parent on their own.

[00:28:27] Justin: Well, I’m gonna kind of combine these questions ’cause we have a ton of ’em and we’re not gonna be able to get to ’em all today. But, uh, can you secretly res record your spouse in Texas to use as evidence in a divorce case? Part A and part B, if you cheat, do you lose everything in a divorce? And a lot of times we have recording devices where, you know, they’re picking up two parties.

[00:28:47] Justin: The, the reason why I combine those is because they’re picking up two parties. They’re putting tracking devices and recording devices. And we were just in trial two weeks ago where there was some recordings that were very critical to the case. And so, first I wanna start there. [00:29:00] What did the court do when the recordings were inappropriate or how they got the information was inappropriate?

[00:29:05] Justin: What happens to the evidence?

[00:29:07] Michael: To answer the question, can you record like a video record or, you know, phone record

[00:29:12] Justin: video? Yeah. Video phone record. Uh,

[00:29:14] Michael: yes. It, well, the short answer is yes. Texas is a one party state, meaning one party has to, um, no, that there’s a recording going on. What you can’t do is, and I see this sometimes, oh, I, I, I, I heard him talking on the phone about cheating on me.

[00:29:30] Michael: Well, honey, I recorded him. Okay. How’d you record? Oh, I, um, bugged their phone. No? Yeah. Or I left a recording. I left the recording device in their, uh, office dresser.

[00:29:39] Justin: So when we say, just to clarify that, so when we say one party, you have this reasonable expectation of privacy issue, correct? Right. And so like if you’re talking to me and you and I were married, then basically I can record anything you say and use that.

[00:29:52] Justin: Yeah. I mean if Yes, without telling you, Hey Michael, I’ve got a recording device. Exactly.

[00:29:56] Michael: If you and your spouse are have, you can have it in your pocket. ’cause you, there’s [00:30:00] one of the parties to the recorded conversation. Has to know that the recording is going on. So you’re a party, your spouse is a party.

[00:30:08] Michael: If you leave a recording device in their car or in their office or somewhere like that, then there’s only one party to the recording and that’s the one party not knowing they’re being recorded. And

[00:30:18] Justin: that’s no reasonable expectation. Exactly. There’s

[00:30:21] Michael: legal, there’s potential criminal issues with that.

[00:30:24] Michael: Granted, I don’t necessarily know if a family law court’s gonna do it, but it certainly would be excluded from evidence. And two, you can’t, if someone has their cell phone. And they go to sleep and you saw them type in their password and you grab the phone, enter the password. It’s so super

[00:30:38] Justin: familiar from trial.

[00:30:40] Justin: I know, I know. A couple weeks ago, and

[00:30:41] Michael: I mean, I could sarcastically say you’re right, this is the first wife or wife or husband, boyfriend, girlfriend is, you know, ever gone through their, you know, the other’s phone ever. You’re right in a sarcastic tone. Yes, it happens all the time, but it can make that evidence inadmissible because, uh, you had no con authority or [00:31:00] consent.

[00:31:00] Michael: To go into someone else’s phone or into someone else’s computer to breach that reasonable expectation. Privacy. And it’s, there’s a criminal component to it potentially. And two, it’s, it will, the court will deem it an inadmissible, uh, for the court to consider as evidence. So no, you, you can’t do that. But long story short, yes.

[00:31:19] Michael: Having a recording in your pocket while you’re having a conversation with your spouse or, um. They’re acting out around the house and you’re recording ’em, you could certainly do that, but there has to be at least one party to the recording knowing it’s being recorded.

[00:31:32] Justin: Yeah, and I mean, I think that’s a, a, a great point to talk about the, the, the costs that are sometimes associated with getting the evidence.

[00:31:40] Justin: Like we’re not gonna have private investigators. Uh, following people around in drones and all this other stuff, that’s not re reality for most people’s budget in a family law case. No. And so to segue into that next question, which do you get? Everything, if you prove adultery, uh, or you prove some fault in the breakup [00:32:00] of the marriage.

[00:32:01] Justin: I want to talk a little bit about why sometimes, even though we want to get that evidence, um, we can’t afford to get that evidence, but the impact down the road of what that evidence could be. So with, with adultery from our experience, you know, I’ve, I’ve had crazy cases where, and I, I call them the outliers, where we’ve, you know, done.

[00:32:20] Justin: 80 20 type splits, but that’s a very, very rare situation with massive wasting.

[00:32:24] Michael: Well, and, and I, yes, I think for a court to find, uh, grant a divorce and fall ground of adultery, if you want to tie that into a disproportionate award of community assets, generally, most people, you would have to prove that. The cheating spouse was spending a significant amount of community funds on the Paramore, uh, you know, buying her or him a car, uh, extravagant dinners and, um, vacations, sending him money.

[00:32:57] Michael: That’s where court, and they’re not necessarily doing [00:33:00] it, the split because. There was adultery. It’s because the adultery led to a different cause of action

[00:33:06] Justin: and that, I mean, it pisses me off from like a moral level. ’cause I, I mean,

[00:33:09] Michael: well it certainly courts, they, they view it that way too. I mean, I think, I don’t wanna throw percentages around, but you know, if there’s adultery and it’s proven and the court’s dividing it, most judges will give you a couple points.

[00:33:19] Michael: One where, you know, throw if instead of I would’ve done a 50 50, but I might, I’m gonna divide this at 53, 47. Yeah. And I

[00:33:24] Justin: think it’s, I think it’s judge specific, county specific. You know, there’s a lot of things that go into that. Yes. And then how egregious is it? I mean, you know what I, I look at all those factors.

[00:33:34] Justin: Um, and I know you do too. We’ve talked about this a, a bunch, but I just think that, you know, the idea that there’s not some set parameter for these percentage ’cause percentages can be very confusing because Yes, there is no Yes. If you get hurt and somebody rips your family apart to me, like you should get a big pound of flesh there.

[00:33:52] Justin: Right. And I,

[00:33:53] Michael: and I agree, and I think a lot of these judges, they agree too, but they have to follow the law. Yeah. And they might say, if I could give you a hundred [00:34:00] percent of the estate because this cheating while you were home with the kids. He was out just, you know, cheating nonstop, sleeping with a ton of women, gave you an s you know, well, that’d be different, but, uh, a lot of certain issues.

[00:34:13] Michael: But the law requires me to divide this estate and adjust and write fair and equitable, uh, division of your state. And I think it’s fair and equitable due to some bad actions to give you a little bit more, but it’s not gonna, but if I could, I would, but I can.

[00:34:27] Justin: And so, moving to the most important. Part of what I think we do for a living, the children issues.

[00:34:34] Justin: Um, this question is, can a child testify in a custody trial and how does it work? I want to front load or give some context with, we get the calls a lot that say, well, my child wants to tell the court this, or the court, my child’s voice needs to be heard. And I’m not being condescending the way I’m saying that, but I hear that a lot from people that really.

[00:34:58] Justin: Are on the brink of [00:35:00] losing custody as much as mm-hmm. Um, they, they might think they’re helping their case. So talk about what your thoughts are on a, a child’s testimony in a courtroom.

[00:35:11] Michael: Well, one thing I tell clients is, you know, don’t quote your kids. ’cause most of the time they’re telling you what you want to hear.

[00:35:19] Michael: Love it. Um, and that’s because they don’t wanna disappoint you. Not necessarily because that’s really how they feel. And you’re putting too much pressure on your kids by trying to build your case based on what you’ve, what they’re telling you, because they, they want you to hear that. Um, but in Texas, once a child is 12 years old, if you request to have the court, um, interview the child.

[00:35:42] Michael: In chambers, um, based on a, a preference as to their possession access or conservatorship. I mean, the, the Texas Family Code is statutory required if you request it and the court will at some point interview the child, uh, about their preference and why they feel that way. It’s not a guarantee that just ’cause a child [00:36:00] says, and it’s a SL scale, a 12-year-old, what they have to tell the judge might have a lot less impact than what a 17-year-old or a 16-year-old says.

[00:36:09] Michael: From a maturity standpoint or their reasons, they might go say, yeah, yeah, I’d rather live with dad because I can stay up late and play video games and have my friends over and I don’t have to do my homework and it’s more fun. But that’s not just ’cause your kid says, the judge might say, well, that’s not your best interest.

[00:36:22] Michael: And it’s just a factor for the court to consider. It’s not a, I must give this child what they said. Um, very rarely will a child actually. Testify in court. Um, and it has happened. It’s not, a lot of courts won’t allow it, but it’s painful to watch. It’s painful to watch, but it has happened. But a lot of judges don’t want to get into that void if they’re under 12.

[00:36:47] Michael: Some counties will have family court services, interview kids through, um, court service type or ordeals or custody evaluations where they are interviewed, and then a report’s made based on their findings of that. But for [00:37:00] the court to, for court the child, to actually just give a preference and to state that to the judge, they have to be at least 12 years old.

[00:37:05] Justin: Yeah, and I mean, I get, I get a lot of questions. I know you do too, about these custody evaluations and. You know, there are some good custody evaluators. There’s some bad ones. There’s some people that are very diligent and there’s people that are not, and they are very opinionated early on and not, and so I definitely understand why people have had their disagreements or issues with custody evaluations, but I, I, I’m like you, I, I just, I just don’t see I’ve had.

[00:37:30] Justin: Probably five cases in thousands where mm-hmm. Um, somebody has tried to put children on the stand and it just does not, I’ve never seen it really go super well for the party offering that child’s testimony, and usually with a teenager. Um, it, it backfires too because it’s the, the buddy system mm-hmm.

[00:37:50] Justin: Where, you know, Disney dad or Disney mom has buddied up with the child and influenced the child to testify in a certain way. And it’s really easy to expose that with a [00:38:00] child when you have a skilled lawyer cross-examining ’em. And we don’t have to be mean about it. No. We’re just like, look, you, you say that your dad, how long, what school?

[00:38:08] Justin: What school would you be going to over at your dad’s house? Yeah. Well, I don’t know. Well, what, who would your doctor be, you knows, six hours away? I don’t know. And so they, it, it’s not a fair position to put children in that position, but, and I would say I’ve never personally put a child on the stage. I have.

[00:38:23] Justin: I, I’ve never done it either.

[00:38:24] Michael: I, I just know it, it has, it does, it has happened.

[00:38:27] Justin: I’ve done it from a, I’ve done it from a corroboration standpoint of, or a rebuttal standpoint of something that somebody said happened that did not, but not from a child custody angle. Mm-hmm. Um. So, uh, what’s the craziest outcome that you’ve seen from a pro se or somebody that represents themselves?

[00:38:49] Justin: Uh, and this is on the fly, so you may not have some crazy interesting outcome, but what’s the craziest thing you’ve seen a pro se do or happen to in a courtroom?

[00:38:58] Michael: Um, [00:39:00] I guess from a crazy stand. I mean, just, uh. You know, I, I, I guess a pro se, uh, try, you know, try to present their case and ask questions to the other party.

[00:39:13] Michael: And I have a legal objection to everything they say. They can’t get a single question in, um, they can’t get a single piece of evidence in. And if they’re going against the lawyer in your pro se, that lawyer, unless you do it correctly or they’re, it’s like an obvious, like, yeah, it’s gonna get in. They can object and make all these legal objections to the way you’re asking que It’s not the questions you want to ask.

[00:39:33] Michael: It’s how you’re asking them. And I’ve had pro se just freeze up on the stand. It’s, it’s not easy. No, it’s not. Even

[00:39:39] Justin: for us, it’s an art. It is a long time. It’s the most, most, it’s hard.

[00:39:42] Michael: Yes. Is the most, to me, interesting part of being in courtroom. I, I’ve, I like evidence. Some people, I mean transactional lawyers, I talk to ’em, they don’t even know a single rule of Texas or a rule of evidence.

[00:39:53] Michael: They don’t know a single one. They don’t need to. But I think it’s extremely important because it’s how you get evidence before court [00:40:00] and not everything is admissible. So I’ve had pro se they go there and they just want to say hearsay the whole time. Well, my aunt told me this, or my, my kid told me that, and they can’t get it in.

[00:40:10] Michael: And they just have a breakdown and in the courtroom because they can’t get anything and, and to evidence. And the judge just said, I can’t consider anything you just said.

[00:40:17] Justin: Yeah, I mean, I’ve, I’ve, I’ve literally. Represented a client in, in a past against a pro se, where the, the pro se litigant that didn’t have a lawyer.

[00:40:26] Justin: This is not tooting lawyers’ horns. This is just the way, it is, the, the pro se litigant. Was really in the right, but had no idea how to get the evidence in. And I’m sitting there like, I, I have to defend our client. Mm-hmm. You know, we’re not, we we’re hired to do our job and we have a legal duty to represent our client and an ethical duty.

[00:40:43] Justin: And, you know, in that case, I, I, I walked outta there feeling like, man, I don’t even know if I like this case. It’s really tough because that, that guy had some really, really tough evidence that should have come in, but just like you said, he had no idea how, how to offer it or get it in an admissible form.

[00:40:58] Justin: Mm-hmm. It ended up [00:41:00] like where I, my client actually needed some direction, needed some changes that needed to be made. Yeah. Uh, but didn’t, but couldn’t do it because, because they decided to do that or save a buck. Um, that, that kind of, we probably should conclude here, but, uh, funny stories, um, anything that you’ve seen happen in or outside a courtroom that completely derailed a case?

[00:41:21] Justin: Uh, I’ll head off with, um, about three years ago. I’m sitting, uh, at Council table and, um. All of a sudden, a pink sex toy comes flying across the courtroom and it hits my client in the shoulder. Uh, and I turn around and the court, the judge isn’t in the courtroom, the bailiff is sitting in there and I’m like, what in the heck is that?

[00:41:45] Justin: And the guy looks at me and he says, well, you said I had to return her personal property by this day. And that was obviously the first, like five or six questions was, Hey Judge, I, I don’t really know how to say this, but this guy basically assaulted by line by. But it’s [00:42:00] not funny, but it, it’s what happened.

[00:42:02] Justin: Uh, and you know, we’ve seen people slap each other and do crazy stuff at the courtroom, but what, what, if anything, I know clients wanna hear some crazy story and usually it’s not as funny as, uh, we may think it is when you’re in the moment, but what, if any, uh, funny or, or wild stories do you have in, in the world of family law?

[00:42:18] Justin: I mean, you,

[00:42:20] Michael: you have, I mean, usually the stories themselves are more wild, but you try to contain it in the courtroom. But I mean, like I said, motions. Run, ran, you know, high during these cases. I mean, that were opposing party, just, they took a break, the judge off the bench and they, they just left, didn’t come back, refused to come back.

[00:42:37] Michael: I’ve had, uh, police have to escort people out of the courtroom, arrests made in the courtroom for acting out and screaming at the judge. Um, I’ve had to separate clients walking out of the courtroom after a ruling. Uh, I mean, fortunately I’ve never dealt with, you know. The, the, the serious, they’re really bad.

[00:42:55] Michael: Like someone kill, you know, a suicide or, uh, attempted murder. And those do [00:43:00] happen. Um, yeah, they’ve happened at our firm. Yeah. And, uh, yeah,

[00:43:03] Justin: there’s, there’s, there’s no, I I, I don’t like that question ’cause there’s nothing funny about, I mean, there’s nothing funny about any of this stuff, but, you know, occasionally there’s like.

[00:43:12] Justin: They’ll draw, uh, phallic symbols with lipstick on the windows, uh, of their car, their house, and Yeah, like some of this stuff you gotta be like, man, this evidence is like really, really stupid. Yeah. I’ve

[00:43:24] Michael: had

[00:43:24] Justin: a case

[00:43:25] Michael: where, you know, the, the husband found out the wife was cheating and he, she got home to her car and he, there was a picture of her, like a, from a PI walking out of this guy’s apartment, them two.

[00:43:35] Michael: And he had a, like a, like a buck knife stabbed through her car with it. Stuff like that. Like which we moved for a protective order ’cause we thought that was Yeah. Like

[00:43:44] Justin: by the time that stuff gets to us, then it’s, it’s not exactly funny anymore. Exactly. And it’s just like why you’re gonna get in our cross areas.

[00:43:50] Justin: I’ve had the,

[00:43:51] Michael: the, like the client where, uh, she was supposed to move out or I originally the guy, she was supposed to move out and, um. Uh, he was going outta town that weekend. His car was parked in the street [00:44:00] and she dumped a box of all of all of his sex toys and all that kind of stuff. Dumped it on the roof of his car in a nice neighborhood, and, and that stuff was just sitting, he got home Sunday night and that for the last two and a half days, they’ve just been sitting on his car.

[00:44:13] Michael: I’ve had people write things on people’s cars,

[00:44:16] Justin: front things. Well, and you know, on a, on a serious note too, we’ve, we’ve had cases together where. Um, you know, a client overstates their case potentially or pleads a certain way, and then, you know, like in a protective order case, uh, they’ll show up. To court with the other side that they’re filing a protective order with, and then we had no idea how they get to court.

[00:44:37] Justin: Mm-hmm. And then the judge is like, wait a minute. You’re not afraid. What? You know, and so I, I don’t like to poke light at family law issues. I mean, obviously we can laugh behind the scenes about some dumb stuff, but, uh, there’s nothing really that funny about this in my opinion.

[00:44:52] Michael: No, it, it, it’s not, it’s not really more funny.

[00:44:54] Michael: I think it’s more of a context to just, uh, tell any listener that. You know, if they’re [00:45:00] feeling overly emotional or they can’t believe the way they’re acting or feeling that it’s, it’s common. It’s,

[00:45:05] Justin: and we’ve seen every, like, I, I can’t think of a scenario when a client tells me like, it’s the first time in my case, it’s so complicated.

[00:45:11] Justin: You’re never gonna know. Understand this. I mean, I, I think you and I have seen. I would say a majority of things people are capable of doing, but I just think it’s really important for the family preservation of the kids and all that to just bury all that crap and, and not make light of this. These what they questioned are the funny moments.

[00:45:30] Justin: ’cause they’re just, hell, we just told you they’re not that funny. Uh, so anyway. Um, we’ve got a bunch more questions, um, in the rapid fire segments, um, that we’ll get to later on. But, um, my, again, Mike Rousseau here. Awesome, awesome attorney that I get to work with, uh, on a daily basis. Uh, travels all around Dallas, Colin, and contiguous counties, um, and very good in the courtroom.

[00:45:53] Justin: Um, not gonna talk to you about. Puppies and cupcakes all the time. Uh, he’s gonna be very blunt and direct and [00:46:00] I love having these different aspects and highlighting our attorneys for what, what their value is to me when I do the consults. And I, I recognize that and those change over time. So, um, if you need to reach us, uh, you can reach us at our office at 8 1 7 3 3 6 4 4 4 4 or you can reach us@lawyerdfw.com.

[00:46:18] Justin: We hope these podcasts are helpful. Uh, we’ve got a bunch of information online on our website@lawyerdfw.com. Uh, if you want to dive into some more of this. Uh, so thank you for listening.

[00:46:30] Intro: That wraps up this episode of In Your Best Interest with Justin Sizemore, Texas divorce attorney, entrepreneur, and advocate for doing life with purpose.

[00:46:39] Intro: If you found today’s discussion valuable, be sure to follow the show. And share it with someone who needs it. Please note the content in the podcast is for informational purposes only and should not be considered legal, financial, or tax advice. Thanks for listening, and remember the best outcomes, always start with doing what’s in your best [00:47:00] interest.

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Parker County
Tarrant County
Wise County