Saturday, August 26, 2006
One of the and most contentious issues in many divorces is how the parties will separate the assets they have accumulated during the marriage. With this entry, we'll begin a long section on the topic of property division in divorce.
It is natural for a person going through the dramatic (and sometimes tragic) experience of divorce to feel embattled. When a person is in "battle mode" they tend to put on their emotional armor. The helmet they put on may feel protective, but it actually leaves them more vulnerable because it blocks the field of vision. Mainly, they can see only what is immediately in front of them- that is, the hard fought battle of a temporary hearing or mediation. They tend not to have a clear view of what lies ahead. Without this clear view, they cannot see that the real victory lies well down the road, not in the minor skirmishes. Meanwhile, they spend all their energy fighting only what is in front of their faces.
It is vitally important that when a person is embattled in a divorce to keep in mind that although they have every right to fight for a fair division of the property, that in the end, it is just stuff. One should not sacrifice one's peace of mind and sanity over material things. In addition, there are so many tales of married couples who exhaust all their resources fighting a legal battle over worthless trinkets that the story has almost become a cliche. Remember that movie, the War of the Roses? In it, a divorcing couple fought so much over who would get the marital home, that they invested their whole lives and fortunes in a pitched battle that had an ironic and tragic end. It may seem like that movie was a farcical exaggeration, but the dirty truth is, is that this Hollywood made fiction is not always that far from many people's actual experience. You have to be smart when it comes to your finances, and you have to know when to cut your losses and move on.
One of the most important things to know about property in Texas divorces is the definition of the terms community property and separate property. If you are married and are seeking a divorce in Texas, then everything you have is considered community property no matter whose "name it is in". This is what we lawyers call a "rebuttable presumption", meaning that the court assumes everything is community property, unless you can convince the court that it is your own separate property.
TFC 3.001, carves out the legal definition of separate property. A spouse's separate property is- (1) Property owned or claimed by the spouse before marriage; (2) Property acquired by the spouse during marriage by gift, devise or descent; and (3) The recovery for personal injuries sustained by the spouse during the marriage, except recovery for loss of earning capacity during marriage.
In addition, the following are also considered separate property: (1) Gifts between spouses (but you must meet very specific requirements to constitute a "gift"); (2) Written property agreements between spouses (by virtual of a 1999 constitutional amendment- but there must be an agreement in writing); and (3) Property obtained with the funds from separate property (a complex process called "tracing" must be used to prove this).
Again, these are the exceptions to the rule that everything obtained during the marriage is community. To call a piece of property one party's separate requires strict proof which must be properly presented to the court.
As we begin to explore property division, we will get into more detail about what constitutes sufficient proof and the certain rules such as "the community out first" rule, and the "inception of title" rule that govern the determination of property division. For now, it is enough to learn and remember that property battles should not be fought with our heads down, blindly hacking away at small issues. Our visors should be up and our eyes on the the whole field, and you need to be wise enough to know when it is time to boldly charge forward, and when it is time to cut your losses and retreat. You need to determine early on how much financial resource and emotional energy you want to spend on a fight over property, and have the courage and discipline to expend no more than what makes sense. Remember, stuff can be replaced. Your sanity and peace of mind are much more valuable.
Tuesday, August 15, 2006
As we have discussed in our past post, all family law cases filed after September 1, 2005 which involve children are subject to the new Subchapter J of Chapter 153 of the Texas Family Code. This subchapter discusses Texas parenting plans and Texas parenting coordinators.
Parenting coordinators are a very controversial part of this new Texas statute, and there has been much confusion about this aspect of the new law. So I've decided to make a post to help clarify this confused part of the law.
So what is this parenting coordinator position?
A parenting coordinator is an "impartial 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]." (TFC 153.601(3)). In essence, a parenting coordinator is used to the get parents to commmunicate regarding their children and reduce the harm of parental conflict on children.
Under TFC 153.610, to be a parenting coordinator, either as a professional or a volunteer, a person must meet the following qualifications:
1. A parenting coordinator must have a bachelor's decree in counseling, education, family studies, psychology, or social work, and unless waived by the court, complete a parenting coordinator course of at least 16 hours; or
2. hold a graduate decree in a mental health profession, with an emphasis in family and children's issues.
A would be parenting coordinator must complete at least eights hours of family violence dynamics training provided by a family violence service provider.
Under 153.606, the authority of a parenting coordinator is limited to the following:
- identifying disputed issues;
- reducing misunderstandings;
- clarifying priorities;
- exploring possibilites for problem solving;
- developing methods of collaborative parenting and a parenting plan;
- complying with the court order.
The parenting coordinator can't modify the court order for the child, but he or she may suggest temporary departures.
A court cannot appoint a parenting coordinator unless the Court finds that the parties have a way to pay the fees. Public funds CANNOT be used except that the court may appoint certain public employees as a parenting coordinator. If no such public employee is available, then the court may appoint a volunteer (as in, non-paid) if the parties are unable to pay because of financial hardship. However, even volunteers must meet the qualifications of TFC 153.610.I have heard from MANY graduates of undergraduate programs in psychology or social work who have heard a little about this new statute and are seeking more info on how to become a parent coordinator. I must say that although I encourage any person who is very committed to this work to look further into this, that it is my experience that this is not a new "field" in which qualified individuals can work within their degree. The use of parenting coordinators is very rare and their use is justified in only to a very small percentage of "high conflict" divorce cases. By and large, the current market for parenting coordinators is more than filled with highly exerienced individuals who have already been doing this work for many years-ableit without any official statute to support their work. Many are PhDs and have made significant contributions to the field.
If that is not discouragement enough for new or soon to be graduates, then everyone should be aware of Texas House Bill 105 which is being considered by the Texas Legislature and would significantly limit the new parenting coordinator provisions. The bill is expect to pass in some form.
The bill limits what is considered to be a "high conflict" case, and therefore limits when a court can appoint a parenting coordinator. The bill would also make it much easier for parties to object to a parenting coordinator being appointed, and a hearing would now be required before the court could appoint a parenting coordinator. The new legislation would limit the types of public employees who could be appointed. In addition, if either party does not want to have the parenting coordinator, House Bill 105 would make the removal of a parenting coordinator mandatory instead of discretionary to the court.
Parenting coordinators may be a useful resource in high conflict family law cases. However, their use is rarified and the new statute, especially as it will probably be amended, is not a mandated new field of social work.
For another perspective, check out this post.