Whoa There Cowboy!: Temporary Restraining Orders

The big thing about dealing with the Courts is timing. They do their best, but there are times when it seems like the Courts took their scheduling notes from the same book as the DMV.

A suit for divorce in Texas can take a MINIMUM of 60 days from start to finish. (TFC 6.702). More likely it can take upwards of nine months depending on the facts. During that time, most cases need the Court to intervene and set up some temporary orders so that everyone can "play nice" while the case is going on. I'll discuss temporary orders in more detail later.

Sometimes, the parties to a suit are in need of some IMMEDIATE intervention by the court to either keep the peace between the parties, make sure a parent does not disappear with a child, or ensure that one party does not destroy or use up the community property just to be a jerk. Unfortunately, once a suit has been filed it may take two, three, or at some times of the year, even four weeks before the case can be brought before the Judge. A lot of bad things can happen in that time.

The law's solution to this problem is called a Temporary Restraining Order (not to be confused with Temporary Orders-which will be discussed in a later post). A "TRO" is what we call an "ex parte" order- that is, it is signed by the judge without the need for a formal hearing of both parties. Often the TRO is presented to the judge on the same day that you file your original petition with the Court. The reason the courts can get away with signing an order without offering a hearing for both parties is that the nature of the TRO is very temporary relief. Your TRO will have a hearing date set on it by the clerk in which you will have to appear before the judge. (That is why the form is formally called a "Temporary Restraining Order and Notice of Temporary Order Hearing"). The law limits a TRO order to being effective for only 14 days. The idea is that the clerk of the court will give you a hearing in front of the judge within this time. Ha! Fat chance. In most of the larger counties, you will have to wait much longer. That is why the law allows the TRO to be renewed for an additional 14 days. (TRCP 680). Beyond that you are going to have to seek out a judge and explain why you need additional time under a TRO. Generally accepted reasons are that you have tried, but have not yet served the other party, or if the other party was served, they had too little time to find an attorney and prepare for the hearing.

Texas Family Code 6.501 sets out ten standard items that may be included in the TRO. If there are children, you can also include injunctions (what I call "thou shall nots")against disturbing the peace of the kids or removing them from a certain geographical area. There are limitations to what a court can order in a TRO because it is done without a fair hearing and a party has a right to have a hearing if an order would otherwise be unfair or impinge on constitutional rights. You can't exclued a spouse from living in their residence without a hearing (unless a protective order is also sought due to domestic violence). You can't prevent a party from making reasonable expense for basic living needs. You can't require a party to do something like pay bills or pay child support. If there is a pre-existing order on the children, a TRO cannot change the party appointed as the primary conservator.

Many lawyers file the TRO restricting only the other party. Some courts have a policy to only grant TROs if they are made mutual to both parties- and they will stamp the TRO with a big "MUTUAL" stamp so that the injunctions are binding on both the husband and the wife. This makes sense because neither party should be making harrasing phone calls, or making threats to the other party, and all the other "play nice" injunctions of 6.501. In fact more attorneys are simply making it mutual from the drafting stage.

Divorce Part I: Pleadings and Other Preliminaries

So you decide that you are legally married and want to get a divorce. Where do you start? In most cases, you will file an "Original Petition for Divorce" with your local district court. The Origianl Petition contains all your pleadings and may be amended without seeking permission from the court up to seven days prior to final trial (as long such amendment doesn't unfairly "suprise" the other side with a whole new set of legal issues) (TRCP 63).

State law controls the requirments for a divorce in Texas. There are seven statutory grounds for divorce. The first, and by far the most common, is "insupportability" (TFC 6.001). This is the catch all grounds which brings Texas in line with the modern trend among most all states to allow people a "no fault" divorce. Basically, if you don't want to be married anymore, then you don't have to come up with an excuse. For strategic purposes, such as trying to get a disproprtionate share of the community estate, or obtain primary custody of a child, or to further a tort claim, then pleading a divorce "for cause" may be done. These grounds include Cruelty (6.002); Adultry (6.003); Conviction of a Felony (6.004); Abandonment (6.005); Living Apart (6.006); or Confinement in a Mental Hospital (6.007).

Although we'll discuss some of them in more detail in later postings, in general some of the things you may plead for in your initial petition is for spousal alimony(maintenance); temporary orders (court orders while the case is pending); temporary restraining orders (restricting the actions of one or both parties).
It is also usually necessary to plead that the court divide the community property. It is not necessary to get into any detail about the property- only that property exists and should be divided. Although it is possible to make a statement that there is no community property, it is my opinion that there is always some kind of community property even if you are getting divorced from your quicky marriage in Vegas and all you ever got together was a few poker chips from Harrah's. Better to plead for it now then cry about it later.

Related to this is the necessity to plead for any reimbursement or economic contribution claim (when community funds where unfairly spent on seperate property).
Also, you must generally make a pleading involving the children of the marriage (if any). Although a suit involving children is technically a seperate law suit (called a "Suit Involving the Parent Child Relationship" or "SAPCR"); in Texas, you must include the children issues in your divorce case and they are tried together as one case. The only exceptions to that is if you already have a SAPCR order in place (usually if there is a long seperation and one of the parties was seeking child support) or if the children are adults.

Name changes for an adult or a child are also plead for. Under TFC 6.706, the court shall change the name of a party specifically seeking the change, unless the court specificall gives a reason why it won't in the final decree. The name change requires that the person previously used the name being changed to and that the change is not to avoid creditors or avoid criminal prosecution. Now usually this is a woman changing her name back to her maiden name, but in theory a guy could do this too. I recommend to my clients that they plead for the change even if they are unsure about it. You can make sure in the end that you keep your name if you want to. (And by the way, no one can force you to change your name if you don't want to). Otherwise, if you change you name after the divorce, you have to file a seperate suit and pay the fees. If you do it now, it is free with your other fees.
And on the topic of fees, this varies for county to county. In Harris County Texas, fees to file a divorce are around $200.

Another thing that is commonly plead in the original petition is a request that the other side pay your attorney fees. You may not get them awarded to you by the judge at the end of the case, but you definately won't get them awarded to you if you don't plead for them at the beginning of the case.

Legislative Update: Parenting Plans In Texas Divorces

Effective September 1, 2005, a new law takes effect that will have a major impact on the way divorces
are conducted in Texas. House bill 252, enacted a change to the Family Code which requires every parent
or guardian going through a divorce in Texas to create a detailed document called a “parenting plan”. Under
the new law, parents seeking a divorce must submit an agreed parenting plan before the judge will issue a
temporary or final order. If the parents cannot agree to the parenting plan on their own, then in most cases,
they will be ordered to attend a dispute resolution process before they will be able to go before the judge
who will make a final decision.
A parenting plan is defined as a “temporary or final court order that sets out the rights and duties of
parents in a suit affecting the parent-child relationship and includes provisions relating to conservatorship,
possession of and access to a child, and child support and a dispute resolution process to minimize future
disputes.” (Texas Family Code §153.601).
Parenting plans have already been enacted in about half the states. The concept is to shift parents
thinking away from “winning or losing” the children issues in a divorce, towards a more cooperative attitude.
With parenting plans, both parents concentrate on the future well being of their children by creating a
detailed, written contract about how the children will be raised after the divorce.

Difficult, but worth the effort
For individuals going through the divorce process, there may be nothing more difficult than sitting down with
your soon to be ex-spouse to discuss the future. But for the sake of your children, there is nothing more
important.
The coming divorce may be the end of your marriage, but not the end of your family. The family must
change now, but it will continue. A new framework must be created that is in the best interest of the children,
but should also, as much as possible, be designed to be in your best interest as well.
Parents know their children’s schedules and routines, they know their own schedules, and their own
strengths and weaknesses in raising their children. Parents are clearly the best people to make the
decisions for their children. If left to others, to judges, to psychologist, to social workers, then you will get an
“off the rack” plan. This may not necessarily be the best solution for your family. Parents therefore should
take an active role in planning for their children’s future early in the divorce, even though this may be a
difficult and painful process. Although judges in Texas have the right to review any parenting plan to make
sure that it is in the best interest of children, most judges will agree to plans made by parents that are well
thought out and put the children’s well being first.

Creating Effective Parenting Plans
Experts agree that a parenting plan should be both specific and flexible. Parents are not divorcing the
children- they will merely be parenting from separate households. However, each household will have a
different physical home, and process of decision making. In a parenting plan, these two households must
plan out how to cooperate to provide the physical, emotional, spiritual and financial needs of the child.
A well crafted plan will solve many problems. By creating a workable plan that divides parenting
responsibilities based on the parent’s strengths and weaknesses, it is much more likely that the parents will
follow the plan, whether or not they get along. Inclusion of agreements to treat each other with respect in
front of the children will also help with this. Statistics also show that parents who crate a parenting plan are
80% more likely to comply with the plan than if it was created by the courts.

Under the new statute, a parenting plan must include the following basic things:
1) a division of the rights and duties regarding the children to each parent;
2) a plan to minimize the child’s exposure to harmful conflict by the parents;
3) provide for the child’s changing needs as the child grows and matures, in a way that minimizes the
need for changing of the parenting plan;
4) provide a way for the parents to resolve their future disputes without going back to the court, such as
talking things out together, or going through a non judicial process like mediation. (Texas Family Code §153.
603)

These elements should be written with as much detail as possible. A few of the many considerations are:

Residence of the children
Definite periods of time with each parent will need to be decided based on the schedules of the children and
the parents. The children’s ages and school situations and the parents employment and availability should
all be considered. Many families find a traditional arrangement where the children spend the week with one
parent and specific weekends and vacations with the other parent. However, other families may find that a
different schedule fits their needs better.

Responsibilities of parents
When the children are with them each parent will naturally have the responsibility to make sure the children
are well cared for. But a parenting plan must include whether one parent or both will be responsible for
education, medical and other decisions.

Financial support
Financial arrangements will need to be made to support the children. Under Texas law, there are guidelines
for support, but some parents may find that it is better to share financial responsibility based on a pro rata
share of the amount of time the children live with them and in proportion to their income.

Future Relocation
If either parent moves in the future, then this may impact the residence of the children or visitation for the
parents. Solutions to this possibility without resorting to going to court should be considered.

Periodic Reviews
Because peoples lives are in constant change, parents may want to consider including a provision for
periodic reviews of the parenting plan so that changes can be made by agreement before disagreements
arise.

Additional help
Although the idea of encouraging divorcing parents to put their children first through parenting plans is
a noble one, it may not be as easy as our legislators think. People who have reached the point of divorce
are often unable to communicate about even the simplest of matters, let alone major decisions involving their
children. The assistance of additional help is most likely necessary to develop an effective parenting plan.
In most cases, an experienced family law attorney can help you create a parenting plan that is right for you
and your family. In selecting an attorney, you should consider only those who have high ethical standards
and are knowledgeable about issues in family law cases involving children. You should also select someone
who keeps up with the current law.
In some cases the additional help of a professional “parenting coordinator” may also be beneficial. A
parenting coordinator is defined under the new law as a “third party appointed by the court to assist parties
in resolving issues relating to parenting and other family issues arising from an order in a suit affecting the
parent-child relationship.” (Texas Family Code §153.601). The role of the parent coordinator is to help
disputing parents: (1) identify disputed issues; (2) reduce misunderstandings; (3) clarify priorities; (4) explore
possibilities for problem solving; (5) develop methods of collaboration in parenting; (6) develop the parenting
plan; and (7) comply with the rulings of the court.
Involvement of a parent coordinator may either be by mutual agreement of the parents, or in cases
where the parties are in high conflict with each other, the judge may order that a parent coordinator be used.

By adopting the parenting plan in children cases, Texas has come in line with the current trend among
states to try to come up with laws that reduce the impact of divorce on children. Parenting plans can become
another tool parents can use with their attorney to ease the transition of divorce. However, it is commonly
agreed that there is no real way to legislate good parenting. This comes only from the hearts of parents and
their willingness to put their children’s best interest above their own.

Void Marriages

Normally in Texas, marriages are made to stick. If someone has a claims of being married, then the burden is on the other party to prove they weren't. In contrast, void marriages are legally invalid from day one. Do not pass go. Do not collect $500. In void marriages, neither party has a choice in reaffirming such a marriage because there exists a defect so grave, that the State of Texas will not permit the marriage under any circumstances.

There are two ways that a marriage is absolutely void in Texas. One is the Putative Marriage where one party is already married to a different person. (See previous posting). The other is that the parties are too closely related to each other. (TFC 6.201) The fancy word is "Consanquinity". (See also previous posting).

Remember that there are two types of invalid marriages: marriages that are void (discussed here) and those that are voidable (discussed in the next post). The practitioner should not be sloppy and plead the wrong type of case. The term "annulment" is often casually tossed around by the client and the attorney, but that is only for VOIDABLE marriages. A void marriage never was. It does not get annulled. It gets a declaration that it is void. Such void marriages are properly filed as "A Suit to Declae Void the Marriage of ___ and ___". Also remember that unlike a divorce, there is no 60 day waiting period after filing suit. It is a small favor from the legislature that you can get these muddled messes over quick.

Remember that any type of marriage dissolution case has the same considerations if there are children involved; i.e. kids from these relationships are not "bastardized" by these proceedings. You have to do a full Suit Affecting the Parent Child Relationship and assign all rights, duties, access, visitation, etc. (See future post).

The Un-Marriage: The Meretricious Relationship

The Meretricious Relationship is when parties never intended to get married, but have co-habitated together. Sometimes there are children born of this relationship and when the relationship breaks down, then issues of establishing parentage and setting parental rights and duties must be dealt with in a Suit Affecting Parent-Child Relationship or in a Suit to Establish Paternity. (To be discussed in a later posting). If there are no children involved then there may be issues of property division.

Some meretricious relationships last for many years and considerable comingling of financial resources can have occured. This describes many gay relationships.

Alimony (aka "maintenance") in the meretrious relationship is not avaliable to unmarried couples of any sex (TFC 8.001) Although there is no remedy for a partition of these comingled assets and debts under the Texas Family Code, the parties may find some relief under civil remedies of trusts, unjust enrichment, joint venture, or partnership.

Contractual Palimony is one option for unmarried couples to protect their economic interests. However, such contracts must be in writting and signed by the person obliged to the agreement. (TFC 1.108) Individuals interested in non-marriage cohabitation should consider entering into a Domestic Partnership Agreement.

For Houston area gay couples considering a cohabitation agreement or other related issues, I would highly recommend my friend Jerry Simoneaux and his firm of Nechman, Simoneaux and Frye, PLLC. www.nsflaw.com.

"Have You Met My Other Wife?: Putative Marriages

The Family Code doesn't talk about it, but there are two kinds of relationships that often happen. One is the "Putative Marriage" where the parties believe they are married, but they are not. The other is the "Meretricous Relationship" also know simply as "living together".

The Putative Marriage is where the couple believes they are married, but because of a defect in the process, they are not. I experience this in my practice more often than I would have thought possible. The typical case is that one spouse is already married, THOUGHT they divorced and then "married" another person. The couple may have been living together as husband and wife for years, but weren't ever "legally married" because the one spouse is still married to another.

Under the Family Code, the most recent marriage is presumed to be valid until challenged. Therefore marriage #2 takes precedent over marriage #1. The burden of proof of validity of the earlier marriage is on the spouse seeking to maintain the validity of marriage #1 as against marriage #2. This usually comes up in probate proceedings when two "widows" are contesting who should inherit from the same dead spouse.

If a couple finds they are in a Putative Marriage, the have two choices. If they want to break up, then can file a Suit to Delcare Marriage Void (TFC 6.307). If they want to stay together, the first marriage must be dissolved by filing a divorce suit on spouse #1. After the first marriage is dissolved, the second marriage is automatically validated as long as the couple continues to live together as husband and wife and represents to others that they are married. (TFC 6.202(b)).

If they want to break up, a spouse can receive alimony (maintenance)even in a void putative marriage as long as she or he did not have knowledge that the spouse was already hitched when they got "married". (TFC 8.060)

Also, the innocent putative spouse may also have the same rights to property division as a legal spouse. (Davis v. Davis, 521 S.W. 2d 603 (Tex.1975).

Common Law Marriage

. Texas is one of the dwindling number of states that continue to recognize the informal or "common law" marriage. Basically it works this way: if you act like you are married, the state could consider you married even if you never got a liscense to marry or had a marriage ceremony.

The issue of common law marriage usually comes up when the practitioner is faced with a petition for divorce and there are property issues to be decided. If there are no property issues to divide, there has been no formal marriage, and neither party want to be married, it is usually just best to follow the KISS principal and "fagetaboutit".

In those cases where one side is trying to assert a community property interest in a putative "martial estate", the first issue you must deal with is: "was there a marriage?"

Under TFC 2.401(a)(1), you can have a court declare that a marriage exists if you have a written declaration of marriage. I can't imagine a real life scenario where this would happen, but if you can think of one, then I'd love to hear about it. I mean, afterall, wouldn't you just get a marriage liscense?

The much more "common way" for a "common law" marriage is covered under TFC 2.401(a)(2). In it the following elements must be met for an informal marriage to exist:

1. The parties agreed to be married;
2. they lived together as husband and wife;
3. they represented to others that they were married.

Remember that once established, the "common law" marriage is just a binding and valid as the formal, ceremonial kind.

Goin to the Chapel..maybe.

Goin to the Chapel, eh? Well hold on there partner. You 've got some hurtles to go through first.

First, you must obtain a marriage lisence from a county clerk in Texas. However, you are under no obligation to obtain that liscense from a county where either party lives. You also don't have to have the wedding where the lisense was obtained. (2.004).

You do, however, have to be old enough to get married. Eighteen is the age when you can do this without anyone's permission. You can get married as young as fourteen (God forbid anyone giving you that permission). A youngster can get married if they provide within 30 days of an application for marriage a written sworn consent form from either their legal guardian or parent. The youngster can also petition the court- apparently even when the legal guardian or parent refuses to give permission. (2.009(a)(4)(C). I think this that such a situation would be open for a constitutional challenge.

And as unsettling as it is, in Texas, you can marry your first cousin. Yuck. Thankfully siblings (full or half-blood or by adoption), your uncle or aunt, your children, or your neice or nephew are still off limits. (2.001(b)(6); 2.009(a)(5)).

If you ever get a client who is fourteen years old asking you to petition the court for permission to marry her first cousin remember- even if it is Jerry Lee Lewis, you just say NO!

Getting Hitched- Shot Gun and Other Formal Marriages

The issue of what are the requirements to obtain a marriage are rarely, if ever a matter for a lawyer to address. But for the sake of completeness, I will include this first chapter in the road to marital relations law in Texas.

The topic is covered in some detail in the Texas Family Code under section 2.

The marriage application requires an applicant to declare whether or not he or she is delinquent on ordered child support. The clerk may not however refuse to grant a liscense on this ground (2.009(d)).

In case you were wondering, same sex marriages are not permitted in Texas. Will this change in the near future- dream on. However, this does not mean that the topic of same sex civil unions is a moot issue in Texas. People do what they are wont to do and a bunch of legislators in Austin aren't about to stop that. I will deal with same sex unions in a later posting.

NEXT: "Goin' to the Chapel.."

Howdy!

Thanks for checking out my new blog site. It has been designed as (perhaps) Texas' First COMPREHENSIVE Family Law Blog.

In the coming weeks and months I hope to address all the major topics in family law. I will be exploring Titles 1, 2, 4 & 5 of the Texas Family Code including some probable detours along the way. I'll also most likely be adding a little of my own color commentary just to keep the reading interesting. With a comprehensive approach, I hope to produce a valuable resource for the non-family law attorney looking for quick answers to Texas family law questions.

Please offer any comments you have to the topics discussed. With more input, we will have a much more valuable on-line resource.

Once again, thanks for your time, and I hope to hear from you real soon.