If you're contemplating divorce or are in the thick of it, you know that the process can be complicated and emotional. When you've also recently faced a DWI charge or are still in the midst of resolving one, the stress can be unbearable. Not only are you worrying about the legal and financial consequences of a DWI conviction, but you're probably also worried about custody and visitation for your kids, as well as your family's financial future.
Unfortunately, a recent DWI conviction or an ongoing criminal charge can affect your divorce, as well as property division and child custody and visitation. As a result, it's imperative that you consult an experienced Texas DWI attorney as soon as possible. Your DWI attorney can evaluate your case, discuss your options for defense, and help you obtain the best possible outcome.
It's important to remember that a DWI arrest does not mean that a court will convict you of a DWI. A court can only convict you of a DWI in Texas if the state can prove all of the elements of a crime:
- Driving a vehicle,
- While intoxicated,
- In a public place.
Intoxication means that you don't have the normal use of your mental or physical faculties because of the use of alcohol, a controlled substance, or a combination of the two. Notably, a DWI can also involve illegal or prescription medications that impair your ability to drive. If your DWI involved illegal drugs, you might face additional scrutiny in family court during your divorce.
If your DWI charge also involves aggravating circumstances, it's even more possible that a conviction will affect your divorce. Aggravating circumstances can include:
- A DWI with a child under 14 in the car,
- Intoxication assault, which is a separate charge and can occur if you cause an accident that causes serious bodily injury while driving intoxicated,
- Intoxication manslaughter, a separate charge invoked if you kill someone driving while intoxicated, or
- Driving with a BAC over .15%.
These circumstances can increase the degree of criminal charge you'll face in court, increasing potential fines and jail time.
When a family court considers a DWI arrest or conviction, they will naturally care more about a recent DWI. If your DWI was ten years ago, it might not be relevant to your divorce or custody matters. If you've had multiple DWI convictions in the past, this can also increase the likelihood that a court will consider your criminal history during your divorce.
Divorce in Texas
A DWI can also affect the division of marital assets in your divorce. Texas is a community property state, which means that most of the property acquired during the marriage belongs to both partners, regardless of who earned the most money. Tex. Fam. Ann. Code § 3.002. Each partner will get to keep any separate property. Separate property is the property that each partner brought into the marriage, which includes:
- Property one spouse received as a gift,
- Property inherited by one spouse, and
- Personal injury settlements awarded to one spouse.
Under Texas family law, the judge will divide the marital property according to what is "just and right" with an eye toward equitable distribution. The court will consider several factors, including:
- Fault in the marriage breakup,
- The education, future employability, and earning capacity of each spouse,
- Each spouse's health, and
- Who has primary custody of the children.
Likewise, the debts of a couple are considered community debts that belong to each spouse equally. However, while you're going through a divorce, a DWI can add a layer of complexity to the court's division of marital property and marital debt. A DWI will require an attorney, and you may have to pay significant court costs and fees. The court may decide to subtract these amounts from the portion of marital property allocated to you, considering them personal rather than community debts.
While a DWI conviction or arrest can certainly affect the property settlement during your divorce, the biggest impact will be its effect on child custody and visitation.
DWI and Custody
A DWI conviction or an outstanding charge for DWI can affect a custody dispute. In Texas, you and your spouse may agree to custody and visitation for your children through a joint parenting plan in the overall marital settlement for your divorce. Or you can leave custody and visitation to the judge. Custody in Texas is called conservatorship, and visitation is called "possession." A judge will determine who will be the "managing conservator" for your children and grant visitation, or a "possessory conservatorship," to the noncustodial parent.
Possessory Conservator: Visitation
In Texas, child visitation is called a "possessory conservatorship." State family law and public policy dictate that kids should have regular, ongoing contact with both parents provided they act in their children's best interest and provide "safe, stable, and nonviolent" living arrangements. This policy encourages parents to share parenting duties after a separation or divorce.
To determine the "best interest of the child," a court will consider:
- Any danger to the child now or in the future,
- The emotional and physical needs of the child,
- The child's wishes if they're old enough,
- The parenting abilities of each parent,
- The stability of each parent's home environment,
- Any evidence of domestic violence,
- The plans each parent made for the child, and
- Whether either parent filed a false claim of abuse.
If convicted of a DWI, or if you are currently facing an unresolved DWI, the judge will probably consider it in determining the best interests of the child, including:
- Any jail time you may be serving or will serve in the future and how this will affect the stability of your kids' home life,
- Any possible alcohol or substance abuse problems,
- Whether alcohol and drugs affect the stability of your home or any danger to your children.
If you are facing a DWI with a child under 14 in the car, this is a felony charge. A judge will certainly consider whether you could be a danger to your children in this instance. Because a conviction can have devastating consequences on your children and your custody, you should immediately consult an experienced Texas DWI attorney.
- Managing Conservator: Custodial Parent
The managing conservator can be one parent or both jointly. If you and your co-parent are joint conservators, you will each have a parceled out list of rights and duties that you have jointly, exclusively, or independently. These rights include:
- The right to designate the children's primary residence,
- The right to consent to medical, dental, and surgical treatment,
- The right to consent to psychological and psychiatric treatment,
- The right to receive support payments and use them for the benefit of the child,
- The right to make decisions of legal significance for the child,
- The right to consent to enlistment in the armed forces and marriage,
- The right to the earnings of the child,
- The right to make educational decisions for the child, and
- The right to act as an agent of the child for their estate.
In Texas, the law presumes that the parents will be joint conservators. However, the court will decide who should be the managing conservator based on the child's best interests. While making this decision about the best parent for custody of your children, a judge will consider a current charge or conviction for DWI.
- Criminal History
While there is a presumption that Texas parents will be joint conservators, this presumption is rebuttable. If the judge believes that it would "significantly impair the child's physical health or emotional development" or if there is a history of family violence. If the judge names only one parent as the managing conservator, the judge must also appoint the other parent as a possessory conservator, giving them visitation rights. However, the judge can deny a parent visitation if:
- It's not in the child's best interest, or
- Would put the child's emotional or physical wellbeing in danger.
If you have a criminal history or the state is actively prosecuting you for a criminal charge, the judge will consider whether it makes you an unfit parent. The court will consider:
- Was this a first DWI?
- Was there an accident or injury, or another aggravating factor?
- How old were you at the time of the conviction?
- How long ago did you commit the crime?
- Did you complete your sentence?
- Was this your first criminal conviction, or do you have a criminal record?
- Were there any mitigating factors?
As a result, you should inform your divorce attorney of any active criminal charges against you, as well as any past convictions. Similarly, your DWI attorney should know that you have a pending divorce and custody case. Keeping both of your attorneys informed will ensure that they each understand your priorities. Your attorneys need all of the applicable information to help you make the best decisions in each case.
- Rights of the Noncustodial Parent
Even if the court names only one parent as a managing conservator, the noncustodial parent still has rights concerning the kids. You will have the right to:
- Consult with health professionals treating your children and access to their medical records,
- Attend after school activities,
- Confer with your kids' school about their welfare and wellbeing,
- Manage the estates of the kids if you or your family create them,
- Confer with the other parent about the health, education, and welfare of your kids, and
- Receive information from the custodial parent about the health, education, and welfare of your kids.
- Adjusting Custody or Visitation
In Texas, the original court deciding custody and visitation can change those arrangements at any time upon the motion of either party. Even if your divorce is already final and you have a signed custody and visitation order, your co-parent can ask for a change in that arrangement based upon a new DWI conviction. As a result, t's essential to discuss a DWI charge with both an experienced Texas DWI attorney and a skilled family law attorney.
Ultimately, most convictions won't result in a parent becoming a sole managerial conservator. But a conviction could lead to a joint managing conservatorship with you as the noncustodial parent, also known as the possessory conservator. Meaning, you will have visitation, your partner will have primary physical custody, and you'll both make decisions about your children's health, education, and welfare.
Why Can't my Divorce Attorney Handle my DWI?
Defending a DWI is complicated, complex, and requires specialized training. You don't want a jack-of-all-trades to attempt to defend you. Board Certified DWI attorneys have:
- Extensive experience litigating DWIs in court,
- Advanced educational training in DWI defense and appeals,
- Advanced training in the science and technical aspects of BAC measurement, and
- A deep well of knowledge regarding local police and court DWI procedures.
A family law attorney who thinks they can probably also handle your DWI will not have this training, and they won't know how best to defend you in a criminal court.
Hire an Experienced Texas DWI Board Certified Attorney
Attorney Doug Murphy holds both a DWI Board Certification from the Texas Board of Legal Specialization and a Criminal Law Certification from the National College for DUI Defense, accredited by the American Bar Association and the Texas Board of Legal Specialization. He is one of only two attorneys in Texas Board Certified in both DWI defense and criminal law. This certification lets you know that Doug has the specialized knowledge and training to handle complex DWI cases, particularly those where child custody may be on the line.
Best Lawyers in America also recently named Doug the "Lawyer of the Year" for 2021 for DWI defense. He obtained this prestigious ranking through the reviews of his fellow Houston-area lawyers. But Doug also understands what a difficult time you're facing, trying to juggle the heartbreak of a divorce with the worry of a DWI charge. Find out why the Houston Press named him the "drinking driver's best friend." Doug can guide you through this time of crisis and advocate zealously on your behalf. Give him a call at 713-229-8333 or contact him online.