Thursday, March 15, 2018

Can a Court Use A Parent's Immigration Status to Deny Joint Custody?

Probably not.

Parents are generally always named Joint Managing Conservators (JMC) unless one parent can provide evidence that proves that a parent's immigration status has a material, adverse effect on their ability to parent.

In the recent case of Turrubiartes v. Olvera, 2018 Tex. App. LEXIS 1017 (Tex. App.--Houston [1st Dist.] Februrary 6, 2018)(opinion on rhr'g)(Cause No. 01-16-00322-CV). A father argued that the main reason he should be name sole managing conservator of his three children was that he was a U.S. Citizen and the mother was not. Father said he feared that the mother would be stopped while driving the kids in Texas and be deported.

The lower court granted Sole Managing Conservatorship to the father. In it's findings of fact on the ruling, nine out of the thirteen factors the court said it considered had to with the mother's immigration status.

The Court of Appeal for the 1st District overturned the ruling. They pointed out that "immigration status" is not expressly listed in TFC 153.134(a) as one of the factors that a court may use in overcoming the presumption that parents should be named Joint Managing Conservators. The COA said the father's fear of the mother being deported while driving the children was resolve by her being ordered by the lower court to find a licensed driver for the children. The Court of Appeals concluded that father's other points for him being named sole managing conservator were not sufficient to overcome the joint managing presumption.

This is not the last we will hear of immigration status being used as a weapon in a custody case. With the recent Federal Court ruling upholding punitive measures used against so called "sanctuary cities", the political winds still seem to be blowing hard against illegal immigrants in Texas. It should be noted that in this case the COA seemed to ignore the catch all statutory factor under 153.134(a) of "any relevant factor"- which may be used in the future. Future cases, with the right fact pattern in may find success in using immigration status as a reason factor in custody cases. I would not be surprised if a conservative legislator will jump on this and seek to add immigration status to 153.134(a).

Friday, March 09, 2018

Is there a Statute of Limitations Concerning Money Judgment for Child Support?

The court of continuing, exclusive jurisdiction retains jurisdiction to confirm the total amount of child support arrearages and enter judgment for past-due child support. The statute of limitations concerning a money judgment is ten years. The suit must be filed within ten years from the date the child becomes an adult, or the child support obligation terminates. (157.005(b)).

Saturday, January 13, 2018

40 Documents You Should Bring To Your Divorce Lawyer

Attorneys charge by the hour so it literally pays for you to be prepared. Here is a list of items you should be gather prior to meeting with your divorce attorney so that your initial interview will go quickly and efficiently.

1. Individual income tax returns for past three to five years (federal, state, and local)
2. Business income tax returns for past three to five years (federal, state, and local)
3. Proof of your current income
4. Proof or spouse’s current income
5. Prenuptial agreement, if already drafted
6. Divorce decrees from previous marriages
7. Bank statements
8. Certificates of deposit
9. statements
10. Retirement account statements
11. Trusts
12. Stock portfolios
14. Stock options
15. Mortgages
16. Property tax statements
17. Credit card statements
19. Loan documents
20. Utility bills
21. Other bills (e.g., school tuition, unreimbursed medical bills, etc.)
22. Monthly budget worksheet
23. Completed financial statements
24. Employment contracts
25. Benefits statements
26. Life insurance policies
27. Health insurance policies
28. Homeowner’s insurance policies
29. Automobile insurance policies
30. Personal property appraisals
31. Real property appraisals
32. List of personal property, including home furnishings, jewelry, artwork, computers, home office equipment, clothing and furs, etc.
33. List of property owned by each spouse prior to marriage
34. List of contents of safety deposit boxes
35. Wills
36. Living Wills
37. Powers of Attorney
38. Durable Powers of Attorney
39. Advance Health Care Directives
40. Your checkbook.

Your lawyer may not ask for all these items, but there is a good chance each of them will be needed at some course in your divorce.  Gathering them now will help you and your lawyer.

Sean Y. Palmer has worked as a Divorce and Family Law Attorney in the Houston Metro Area for the last 18 years.

Thursday, January 04, 2018

Twelve Rules for Better Writing Better Legal Emails

Better e-mail writing can result in proposals that win contracts, get you promoted, and just get your message across to the receiver and ultimately win your case. Here are 12 tips on style and word choice that can make your legal e-mails clear and persuasive.

Its human nature for your moods to vary. The beauty of emails is that real time conversations , e-mails are written alone and on your own schedule. Take advantage of this and take the time to let your best personality shine through. Although it is tempting to immediately reply to an email to get it out of your inbox, a better strategy for important e-mails is to compose our answer when your time is not pressured- and especially wait if your are angry.

Most lawyer lean too much in the direct of formality and the emails tend to be long winded and stiff. The better way is go is to keep it simple. Write to express- not to impress. A relaxed conversational style can add vigor and clarity to your emails.

Lawyers are busy people and they charge by the hour. Make your writing less time-consuming for them to read by telling the whole story in the fewest possible words. Avoid redundancies - needless wordiness and phrases that repeat the same conference.

Good writers strive for consistency in the use of numbers, hyphens, units of measurement, punctuation, etc. Keep in mind that if you are inconsistent in any of these matters of usage, you are automatically wrong at least part of the time.

Use legitimate legal or technical terms when they communicate your ideas precisely, but avoid using legal jargon just because the words sound impressive.

Using big, important-sounding words instead of short, simple works is a mistake. Fancy language just frustrates the reader.

Readers of emails want facts. Don't just say good, bad, or fast. Say how good, how bad, how fast.

Long, unbroken blocks of text are stumbling blocks that intimidate and bore readers. Break up your writing into short sections and short paragraphs which makes the text easier to read.

Drawings, graphs and other visuals can reinforce your e-mail. Especially with legal communications, visuals can make your emails more effective.

Voice refers to the person speaking works or doing an action. Whenever possible, use the active voice. Your writing will be more direct and vigourous; your sentences will be more concise.

Poor organization stems from poor planning. Before you write an email, plan. For very important emails, you should create a rough outline that spells out the contents and organization. The outline is a tool to aid your organization, not a commandment etched in stone. If you want to change it as you go along- fine.

Keep your email as short as possible. The art of being concise in your e-mail writing can require considerable effort in the rewriting and editing stage. Philosopher Blaise Pascal once wrote to a friend and apologized for sending a long letter. He said, "I would have written a shorter letter, but I didn't have the time."

Top 15 Texas Family Code Sections Dealing with Contempt of Court

A motion for contempt is not limited to the Texas Family Code.  A violation of other types of court orders may also be the subject of an family law enforcement action- for example, a temporary order concerning the emergency protection of children.

A court clearly has the power of contempt to enforce such orders, assuming the order meets certain tests.

Listed here are the Top 15 Family Code sections that mention contempt or enforcement or define when something becomes an order of the court and is therefore enforceable, such as Associate Judge's recommendation or registration procedure.

1. § 6.506- Violation of temporary court orders concerning divorce and property, including spousal support.

2.  §105.001(f)-  Violation of temporary orders concerning children.

3.  §157.007-  Affirmative Defense to Motion for Enforcement of Possession or Access

4.  §157.008- Affirmative Defense to Motion for Enforcement of Child Support

5.  §9.008 and 157.421-  Clarification of orders not specific to permit contempt

6.  §160.622- Violation of Orders Concerning Paternity Testing

7.  §9.012- Enforcing the Division of Property

8.  §152.303- Enforcing a Custody Decree from Another State

9.  §154.188- Enforcing Orders Requiring Health Insurance for a Child

10.  §81.004, 85.024, 85.026- Provisions of Title IV Protective Orders

11.  §159.603- Uniform Interstate Family Support Act (same effect as Texas order)

12.  §264.306-  Child and Family Services, Refusal to Participate in Counseling Regarding Abused or Neglected Child- Community Service as Sanction for Contempt

13.  §201.013- Associate Judge's Recommendation Becomes Order When Signed by the Court

14.  Civil Practice and Remedies Code §31.002-  Although Not Not Contained In the Family Code, The Turnover Statue is included Because it Has Application to Enforcement of Judgments.  The Court May Enforce By Contempt Its Order Concerning Turnover of Assets.

15.  §8.059- Maintenance (Alimony) When AN Order of the Court Or When An Agreement For the Payment of Maintenance Has Been Voluntarily Entered Into Between The Parties And Approved By the Court.

The proper handling of a contempt matter requires technical skill and care and a vast knowledge of the Family Code and other applicable Texas Codes.  If your case involves contempt, you should seek out the help of an attorney who is experienced in this complex area of the law.

Saturday, December 30, 2017

I've Been Sued for Not Paying Child Support, But My Child Has Been Living With Me. Can I Argue This In My Defense?

Yes you can. If the order is for your child to live with the other party, but your child has lived with you partially, you may be entitled to an offset of the child support obligation. If the child has lived with you full time, you may be entitled to a complete discharge.

If the managing conservator has voluntarily relinquished to the obligor the actual care, control and possession of the child for a time period in excess of court-ordered possession or access, the obligor may affirmatively plead and prove that actual support, if any which was supplied to the child. The court may treat this proof as a defense and offset, in whole or in part, to a motion for contempt for failure of the obligor to make periodic support payments according to the terms of the order (157.008).

Sean Y. Palmer is a Texas Family Law and Divorce Attorney who practices in Galveston and Houston Texas.  

I Have and Family Law Order I Want to Enforce. How Do I Start?

You are angry and you want justice. You went through all the effort of getting an order from the court and now the other side is not following it. What do you do?

The process you want is called Enforcement and it is one of the most tricky areas of family law. The reason is, is that the process is often “quasi-criminal” in nature, and therefore the other side gets many, many protections. And because double jeopardy often applies (the legal principle that a person cannot be tried twice on the same crime), then if you screw the enforcement up, you will lose any right to try to enforce again.

A person found to be in contempt of court is subject to a find of up to $500.00 and jail time of not more than six months for each violation. Contempt is considered to be criminal in nature and the rules require specific and careful pleading, evidence, and orders. If you are seeking the enforcement of your order, you should only hire an attorney experienced in this area of law, and certainly should not try to do this on your own (pro se).

The pleadings , which should be filed in the court of continuing, exclusive jurisdiction, (Family Code 157.001(d)), must give notice of the provisions of the order sought to be enforced and must state the amount owed under the terms of the order, the amount paid and the amount of the arrearage (157.002). Attaching the pay record to the motion is evidence of the facts asserted in the payment record and is admissible to show whether payments were made (157.162).

It is important to remember that a finding of contempt by the court will require a detailed commitment order which includes the requirements in 157.166. The language in this statute is mandatory.

If I’ve said it once, I’ve said it a million times- don’t go it alone. You need to get the help of an experienced family lawyer. If you can’t afford an attorney and are willing to go through more red tape you can request assistance from a government agency. Agency attorneys are often maligned because they are government. And while it is true that you will have to wait a much longer time and must sign forms in triplicate and jump through many hoops, the lawyers themselves are often very experienced and experts in this area of law.

If you are seeking enforcement of child support, you can contact your local Attorney General Office. If you are in Texas: (

Many counties with large populations have a county agency called a Domestic Relations Office. Like the OAG, this county agency will also help enforce child support, but it they also help enforce orders on child visitation (called possession/access). These agencies are often more user friendly because they are smaller. If you are in Harris County, Texas: ( .

Sean Y. Palmer has been practicing law exclusively in the area of Family Law and Divorce for eighteen years. He lives in Kemah Texas with his Daughter and a Fish named Harvey.

Sunday, December 17, 2017

Top Six Warning Signs Your Spouse May Be Cheating On You... Through Taxes!

When one spouse decides to divorce in their heart and mind, they often keep their plans secret so they can prepare to end the marriage to their best financial advantage. Unfortunately, this preparation is often at the expense of the other spouse who is unprepared for the coming storm of divorce.

A marriage joins two people together as one. This is true not only emotionally, but financially and legally as well. In a marriage union each spouse has a "fiduciary duty" to the other- a promise and obligation to look out for the other person's financial situation and not cheat them through the special trust relationship of marriage.

But what happens when one spouse has begun to view themselves as a separate person. When marriages begin to fall apart, obviously emotions run high. Sometimes one spouse is in denial and refuses to acknowledge the signs that should be obvious. This is particularly unfortunate because it is precisely at this time- when your spouse no longer feels they have to keep their fiduciary duty to you- that you need to put emotions aside and keep your wits about you and prepare for your own, separate financial future.

One of the last things thought about- even among many divorce lawyers is the tax implications of your divorce. Most married persons file joint income tax returns automatically, even when only one may generate all of the income. But when marital disruption gets underway the returns are often late or not filed at all. Bad feelings and suspicion may arise as one spouse tries to box the other into a tax corner.

There also could be underwithholdings, omissions of income, exaggerations of deductions, interception of refunds and destruction of tax notices.

If you are facing the prospect of a divorce, you need to be aware of the early warning signs that Here are the top warning signs


Not signing the joint return can be your first signal that your spouse is preparing for a divorce. If your spouse delays or gives reasons for not signing your joint return, you should pay attention. Your spouse may be thinking about a financial future that does not include you.


Your spouse may be aware of the co-liability that attached to a joint tax return. The devious spouse will want to take as much cash as they can and make you jointly liable for the increased tax bill - while he/she squirrelled away the cash. There is no easy way to discover this however. Your spouse may change their W-4 Employee's Withholding Allowance Certificate to take less tax deduction without your consent and the employer is not required to notify the employee's spouse. The innocent should review their spouse's pay stubs. If your spouse refuses to show you or delays or makes excuses- then you should be very suspicious.


Many couples have sources of income that are not immediately taxable such as self employment income, rental property income, and the like. The innocent spouse needs to be aware that prepayment of estimated taxes is the law. This is generally done quarterly with IRS FORM 1040-ES Estimate Tax for Individuals. If your spouse has started to file forms that are grossly inadequate to the normal, filed later or not at all then your spouse may be preparing for a divorce.


By signing the joint return, the innocent spouse is confirming all that it contains and making him/her equally liable for any tax fraud it entails. If the income reported is less than 25% of what was actually earned, then the IRS considers this a "substantial omission" and triggers a special rule (IRS code 6501(e)) that allows the IRS to examine all returns for the prior six years. If a substantial omission is discovered, then a 75% civil fraud penalty applies.


Because most returns direct the IRS to direct deposit funds into an account electronically, it is ridiculously easy for a devious spouse to put in the account number for a separately held account that the innocent spouse does not know about. If the devious spouse is especially cunning, they will deposit into the joint account a small portion of the tax refund because the innocent spouse often will not pay attention to, or will have forgotten the amount of the refund from the return they signed. The best way to check against this for the innocent spouse to keep a copy of the return and cross reference the joint account when the refund is deposited.


If your spouse insists or makes excuses why her or she should be the one to collect the mail every day, you should be suspicious. The IRS will send notice errors or delinquency and if ignored, the IRS may begin to levy money from the innocent spouse's paycheck or financial accounts. If your spouse destroyed all the letters and communications including the Notice of Levy, then the first time they find out about it is when their paycheck or separate account is "suddenly" short.

In each of these warning signs, there may be reasonable explanations and separate and alone, they do not necessarily justify taking any kind of legal action. But taken together, and along with any other factors you may see in your marriage they may indicate you need to begin to take steps to protect yourself from getting in trouble with the IRS and/or being denied a fair division of the marital estate during a divorce.

If have strong suspicions you should check with a skilled divorce attorney who understands the tax implications of divorce and understand your legal and financial rights.


Sean Y. Palmer is an Texas Attorney who has practiced exclusively in the area of Family Law for the the better part of 17 years. He lives in Kemah, Texas with his daughter, and a fish named Harvey.

Friday, December 08, 2017

Are there any Statute of Limitations on Child Support Enforcement?

Although there aren't "statute of limitations" in the traditional sense, there are however, time limits that must be adhered to when enforcing child support.

In 2009, the legislature extended the time to file an enforcement action. Now, a motion for contempt concerning child support must be filed within two years after (1) the child becomes an adult or (2) the date on which the child support obligation terminates pursuant to the decree of order by operation of law. (157.005(a)) (increased from 6 months).

Note the distinction concerning a statute of limitations concerning contempt and other remedies. If you are seeking a money judgment only (not contempt) you have ten years to file from the earlier of (1) the date the child turned 18, or (2) the date the child support obligation ends. (157.005(b))

Also, while not technically a statute of limitations, you should be aware that the statutes have certain limitations on the length of confinement. Texas Government Code 21.002(h) provides that: 1) in criminal contempt, the maximum penalty is $500 and 18 months confinement, and 2) in civil contempt (coercive), the maximum confinement is the lesser of 18 months or the date of compliance.

To find out more about Child Support Enforcement or other family law matters, please visit