Texas Stalking Law

Occasionally, someone involved in a Texas Divorce or other Texas Family Law process has issues that require criminal law enforcement. A spouse, a former spouse, or father or mother may be stalked by the opposing party in Texas Family Law case.

A stalker is someone who tries to control his or her victim through behavior or threats intended to intimidate and terrify. A stalker can be an unknown person, an acquaintance or a former intimate partner. A stalker's state of mind can range from obsessive love to obsessive hatred. A stalker may follow a victim off an on for a period of days, weeks or even years. A stalking victim feels reasonable fear of damage to property, bodily injury or death to self, family or household member.

Texas Stalking Law: Section 42.072 Penal Code
Penalty: 3rd Degree Felony
Punishment: Two to 10 years in prison and fine up to $10,000; if there is a prior conviction for stalking, the penalty is upgraded to a 2nd degree felony and two to 20 years in prison and a possible fine of up to $10,000.

The stalker has the intent or knowledge that his/her actions will instill fear of death or bodily injury to the victim or a member of the victim's family or household. Threats can be explicit (e.g.- stating that he or she is going to kill the victim) or implied (e.g.- veiled threats, hurting a family pet). Threats have to be aimed at a specific person; they cannot be general threats. Threats may be conveyed by the stalker or by someone acting on behalf of the stalker.

To be convicted, the stalking conduct has to occur on more than one occasion and be directed toward the victim and/or the victim's family or household members. The act may include threatening contact by mail or phone or causing damage to the victim's property.

If you think that you are being stalked:

• Notify the local law enforcement and prosecutor's offices. All stalking incidents should be immediately reported to the police. Request that each incident be documented. Request a copy of the report from your local law enforcement agency. Give police any written correspondence from the stalker.

• If you are involved in a divorce, or case involving a child, and are being stalked, call an experienced Texas Family Law Attorney about obtaining a protective order. If you are related to the stalker by blood or marriage, if you ever lived together, if you have a child in common, or if you have or used to have a relationship of a romantic or intimate nature with the offender, you should get a protective order.

• Keep a diary. Obtain names and addresses of witnesses. Complete records are essential to obtaining a protective order and successful prosecution in stalking cases. Write a description of each incident.

• Record telephone conversations. Tell the stalker to stop calling and hang up. Screen your calls. Write down the time and date the stalker calls. Keep recorded messages and give them to law enforcement and your attorney.

• Keep all correspondence, including e-mails. Make a copy of anything you receive from the stalker. If it is a letter, touch it as little as possible and place it in a plastic bag will preserve fingerprints.

• Tell everyone. Give friends, co-workers and neighbors a description of the stalker. Ask them to document each time they see the stalker.

Remember that stalking is a crime in Texas. Do not dismiss any threat, whether written or verbal. Call the police and consult a lawyer.

Collecting Texas Child Support Years Later

Many parents in arrears for child support wrongly believe that their obligation to repay their debt ends once the child turns 18. However, some custodial parents are turning to private child support collection agencies to recoup back payments that can be decades old. In the case of Lina and Sam Bragg, divorced since 1976, one collection agency is seeking to garnish payments from Mr. Bragg’s Social Security to recover more $49,000 in unpaid child support. Shern-Min Chow, KVUE-TV 11/08/2007
Read Article: KVUE-TV

Harris County To Build New Family Law Center

Harris County voters yesterday approved a $70 million dollar bond to construct a new family law center for Harris County, Texas. The facility will be located in the downtown Houston court complex.

The bond issue passed by a very narrow margin. 50.6% for and 49.4% against.

According to Family District Judge Bonnie Hellums, the building might be open in January 2011.
The new building will be built on the block north of the present one. It will require razing the "Coffee Pot" building which Harris County vacated, and also the teardown of the Lomas & Nettleston parking garage.


The building will be a "one stop shop" for most all family law services. Currently many of the services are spread across downtown. The building will house Family Law Intake, Children's Protective Services, the Domestic Relations Office, the Attorney General, and the Houston Bar Association's Volunteer Lawyer Program.

There will be rooms for children to give videotaped testimony via closed circuited television.

With one floor left as a shell, the building should be adequate for the county's family law needs for 15-20 years, Judge Hellums said. She noted the huge caseload carried by the Harris County Family District Courts and predicted it will only increase.

The volatile nature of many family law cases is reflected in safety plans for the new building. Today, to pursue a complaint, Houston area domestic violence victims must go to several agencies in different offices, often by bus, Judge Hellums said. The new building will have offices for assistant district attorneys, law enforcement officers, doctors and the Houston Area Women's Center.

When protective orders are being argued and negotiated, there will be separate rooms for the litigants, which should reduce tensions. There will be rooms for supervised visitation and monitoring exchanges between custodial and non-custodial parents. Judges will have secure parking in a level below the building reported Judge Hellums.

The New Harris County Family Law Center will also have a drug lab. Litigants suspected of abusing drugs-an issue in many cases- are currently sent to a lab three blocks away. To avoid the drug test, some litigants claim to get lost and arrive shaved (to avoid giving hair follicle samples). This possibility will be eliminated.

Judge Hellums is particularly interested in ensuring there is a designated Family Drug Court, which she currently presides over.

For more information about the new Harris County Family Law Center, go to http://www.hcfamiliesfirst.org/

Sources: Houston Chronicle; Hearsay (Harris County District Clerk Publication).

New Family Law Services Center on Ballot

On November 6, proposition 5 will be a bond issue on the Harris County Ballot.

The $70 million bond would be for ethe construction of a new, comprehensive Family Services Center. Today, Harris County families must have their family law matters taken care of in an overcroweded and outdated (shagadelic seventies) building in downtown Houston where 22 famil law judges, associate judges and masters manage the fastest grwowing and most complex docket in the county.

The proposed Family Services Center would provide Harris County families with a safe environment where family law and similar services would be provided. The new building would include not only vastly improved and updated famil law courts, bu also facilities fo rthe many support services needed by county residents.

For more information on Proposition 5, visit the Harris County Families First Web site, www.hcfamiliesfirst.org. Source: Houston Bar Bulletin.
"A trainwreck" can legitimately be
used to describe the current facilities
for Harris County family courts.

Cheaters Pay The Toll

Here is a new way to catch a cheating spouse: toll booth records.

According to the Associated Press, electronic toll collection systems are emerging as a powerful means of proving infidelity. Agencies in seven of the twelve states surveyed indicated that they would provide electronic toll information in response to court orders in criminal and civil cases, including divorces. Even if the state agency refuses to provide the information, it can frequently be obtained from the other spouse through the normal discovery process.

Texas is not among the states that use “EZ Pass” system, but attorneys can try to subpoena the records of the Texas Department of Transportation to the Electronic toll collection records (Texas E-Pass) kept by the department.

Source: “Toll Records Trip Up Philanderers” by Chris Newmarker, published at Yahoo! News.

Important Texas Custody Cases- Long v. Long

Long v. Long, 144 SW 3d 64 (Tex. App- El Paso, 2004, no pet.)

Holding: Standards of review, best interest factors in conservatorship proceedings

Issue: Whether court abused its discretion by modifying the divorce decree and awarding father the exclusive right to determine the primary residence of the children.

Facts: Mother and Father were appointed joint managing conservators (JMC) of their two daughters in a divorce decree that was signed on June 2, 2000, with mother having the right to determine domicile. One August 31, 2001, father filed a petition seeking modification, asking that he be awarded the exlusive right to establish the primary residence of the children, or in the alternative, sole managing conservatorship (SMC).

The trial court found that modification was in the best interest of the girls and continued the parties' JMC. However, father was awarded the exclusive right to establish the primary residence of the girls without regard to geographic locatin. Mother filed a motion for new trial which was denied by the trial court, and subsequently filed a notice of appeal.

Discussion: Once it has been determined that the abuse-of-discretion standard applies, an appellate court engages in a two-pronged inquiry: (1) whether the trial court had suffricient information on which to exercise its discretion; and (2) whether the trial court erred in its application of discretion..the traditional sufficiency review comes into play with regard to the first question; however the inquiry does not end there. The appellate court then proceeds to determine whether, based on the elicited evidence, the trial court made a reasonable decision..stated inversely, the appellate court must conclude the trial court's decision was neither arbitrary nor unreasonable.

Tax Case: Failure to File Form May Subvert Divorce Agreement Regarding Child Tax Deduction

In many Texas divorces and Texas Suits Affecting the Parent-Child Relationship, an agreement is made between the parties regarding which party will have the right to claim a child as a dependent for tax deduction purposes. To make this agreement enforceable, the parties should execute an IRS form 8332. This form allocates the tax dependency in one or more years regardless of who would normally be able to take the deduction. A recent U.S. Tax Court case shows that failure to file this IRS form with your taxes may mean the IRS will deny the deduction even if you have an agreement with your former spouse.

In Chamberlain v. Commissioner, the U.S. Tax Court ruled that the former husband (taxpayer) was not entitled to the dependent deduction for one of his children because he didn't attach a valid IRS Form 8332 (Release of Claim to Exemption for Child of Divorced or Separated Parents) to his 2003 Federal tax return (the child credit was also denied because it is premised on being entitled to the dependent deduction for the child). The Tax Court concluded that the attachment of a Post-It note referencing the initial (1995) Form 8332 didn't satisfy the statutory requirement of attaching a valid written declaration.

The taxpayer's former wife executed a Form 8332 in which she relinquished the dependency deduction for one of their two children beginning in 1995 and for all future years. The taxpayer claimed that he attached the original Form 8332 to his 1995 return, but that a subsequent fire destroyed all of his copies. The IRS was unable to provide a copy because their 1995 tax return information had been destroyed (pursuant to IRS document destruction policies).

This result may seem harsh, but as the Court indicated, "Although we are sympathetic with [taxpayer's] plight, we are bound by the wording of the statute as enacted and accompanying regulations when consistent therewith. "

Source: Family Law Taxation

Separation and Child Custody in Texas Divorce Cases

In Texas divorce cases where there may be a custody battle, the parties need to be very cautious about moving out of the marital home.

Moving out of the family home without your children, even if temporarily, puts your chances of getting primary conservatorship at risk. This is because few Texas judges want to uproot children and move them to a different location if it can be avoided.

Parties should make formal arrangments with their spouses about what conditions for access and possession will be granted. Normally in Texas divorce cases, this means entering temporary orders with the Court prior to moving from the home.

Texas Child Support Amount Increased By New Law

The Texas Family Code sets a cap on amount of income the courts can base child support amounts on. For many years, the cap was set at $6,000 of the child support payer's net income. Beyond this amount, the person seeking child support had to prove that the child or children had special needs to justify a higher support amount.

Governor Perry recently signed House Bill 448 into law and raised the cap on net resources subject to the child support formula from $6,000 of monthly net resources to $7,500 of monthly net resources.

The act also ensures that increases for inflation will occur automatically. The law provides that the maximum dollar amount will be adjusted for inflation every six years. The Title IV-D agency shall compute the adjusted amount based on the percentage change during the preceding six-year period in the consumer price index, as rounded to the nearest $50 increment, and publish the adjusted amount in the Texas Register before September 1 of the year in which the adjustment takes effect.

The act also includes language with regard to taking expenses for health insurance coverage for the obligor's child into account in determining child support. If the obligor has more than one child covered under the same health insurance coverage, the court is directed to divide the total cost to the obligor for the insurance by the total number of minor dependents, including the child, covered under the plan.

HB 448 can be viewed at 80(R) HB 448 - Enrolled version - Bill Text

Psychological Evaluations in Texas Child Custody Cases

Occasionally, the Texas family law attorney will need to consider the use of psychological testing and assessment in child custody cases.

One of the first things a Texas family law attorney must do in reviewing a psychological test is to consider the credentials of the tester. Although many other persons may involve themselves in assessment type activity (counselors, therapists, gurus), by law the only people who can call what they do "psychological testing" are licensed psychologists and psychiatrists.

There are five primary sources of authority for psychological testing in Texas custody cases. these are:

(1) Ethical Principals of Psychologists and Code of Conduct;

(2) Standards for Educational and Psychological Testing;

(3) Specialty Guidelines for Forensic Psychologists;

(4) Guidelines for Child Custody Evaluations in Divorce Proceedings;

(5) Rights and Responsibilities of Test Takers: Guidelines and Expectations.

A Texas family law attorney should review the extent to which the psychologist followed these sources.

Recently there have been more and more criticisms of the use of psychological testing. Faced with increased use of Daubert challenges, the courts have begun to limit or even bar psychological testimony. Some judges even routinely deny any request for child custody evaluations being done in the first place. However, this Daubert age backlash to the former judicial practice of blindly following the recommendations of mental health professionals pushes the pendulum too far in the other direction. Psychological tests are still completely valid and useful in Texas custody evaluations as long as they are used contextually.

Texas Parenting Plan Law Amended

The 2005 law on Parenting Plans in Texas Family Law has recently changed in response to grumbling among Texas family law attorneys about some of the practical aspects of the law.

No longer any need to file a "temporary parenting plan".

Texas House Bill 555 (HB 555) eliminates the requirement that couples develop temporary parenting plans and prohibits a court from such a requirement by local rule.

The requirement of preparing a temporary parenting plan prior to a temporary order hearing, was widely ignored by attorneys and judges who saw writ ting out a detailed "proposed temporary parenting plan", as a waste of time and money. The bill also eliminates the possibility that the court adopt a parenting plan simply because the other side failed to file one.

Texas Family Code Sec. 153.602 will now read:
"A temporary order in a suit affecting the parent-child relationship rendered in accordance with Section 105.001 is not required to include a temporary parenting plan. The court may not require the submission of a temporary parenting plan in any case or by local rule or practice."

Mediation or other ADR No Longer Mandatory

H.B. 555 also eliminates the requirement that a parent must attend alternative dispute resolution to resolve any future disagreements about the parenting plan prior to being able to seek relief from the court. Many attorneys (including this author) believed that this requirement put an unnecessary hurtle for gaining access to court if a parent needed enforcement or modification. And although this does not reverse the general encouragement of the courts (and this author) for the use of ADR prior to resorting to litigation, it eliminates that the parties MUST attend ADR before getting access to the court.

ATTENTION ALL DRAFTERS OF TEXAS DIVORCE OR SAPCR ORDERS: HB 555 eliminates the requirement of the old 153.603 (a)(4) that a final parenting plan must "provide for a dispute resolution process or other voluntary dispute resolution procedures, before court action, unless precluded or limited by Section 153.0071."

The enrolled version of the law can be viewed by clicking here: "Enrolled Version of HB 555"

Dividing Marital Property In a Texas Divorce- Goodwill

Goodwill is the intangible, but valuable good reputation that a business builds up over the years. In a Texas divorce in which one of the community assets is a business or partnership, the value of the business goodwill should be considered as an asset that deserves consideration in the property division in the Texas divorce.

Goodwill in Texas is only considered an "asset" if it can be separated from a particular person. If the business is a solo practice such as the professional business of a doctor, lawyer or accountant, the goodwill must exist separate from the individual. Nail v. Nail, 486 SW2d 761.

In situations such as a law practice, the court will not recognize the existence of goodwill unless the person asserting the goodwill presents some evidence that it exists apart from the professional. Hirsh v. Hirsh 770 SW2d 924.

Texas courts have held that where one person does not do all the work themselves, a business could have goodwill apart from the person. Finch v. Finch 825 S.W. 2d 218.

Goodwill that exists separate and apart from a professional's personal skills, ability and and reputation is divisible on divorce. Rathmell v. Morrison, 732 SW2d 6.

An attorney trying to prove the existence of business goodwill in a Texas divorce has a difficult task, and will likely have to rely on the expert opinion of a professional business appraiser. And in most instances, there is no practical way to divide goodwill. Seeking an offset from other property is the viable solution. If no such property exists, a money judgement and.or lien against the some tangible asset may be the only other alternative.

Dividing Marital Property In a Texas Divorce- Club Memberships

Courts cannot divest a spouse from membership in an organization such as country clubs and other groups and award it to the other spouse. Cluck v. Cluck, 647 SW2d 338:

“Since the membership stock has a contingent redeemable value of $1,000.00, the trial court could and did take into consideration this as an asset of the community in dividing the community estate of the parties. However, we are of the opinion that the trial court had no authority to divest the appellee of membership in the club. We view the stock certificate as merely an indicia of the right to membership analogous to a membership card in any voluntary association, and personal only to the appellant. Courts have been reluctant to interfere with the internal management of a voluntary association.”

However, the courts can value the memberships and reapportion the division of the estate to take the value of memberships into account.

Staying Married for the Sake of The Children

If staying married for the sake of the children is the only thing keeping your marriage together, you should consider divorce. The children are affected by the bad feelings between you and your spouse. A “cold war” truce that produces a loveless household is no atmosphere to raise your children in.

However, there may be other reasons you want to continue to live together such as social and economic. Some couples live separate lives under the same roof and get a divorce only after all the children are out of the house.

If you have not already done so, you should seek professional help such as a marriage counselor. Sometimes people think they have done everything they can to save a marriage. But a professional may be able to point you to new solutions you have not thought of.

If you have truly tried every avenue to keep your relationship alive, and there really is no hope for a happy marriage, then you should confront this situation squarely and deal with it. Life is too short to be living in a joyless house. Divorce is not a pleasant process, but it is often a healing one. The divorce will be difficult for the children, but social studies have borne out the fact that most kids do adjust and wind up doing just fine.

Texas House Bill 180 on "Covenant Marriage"

House Bill 180 by Rep. Bill Zedler (Arlington), the “covenant marriage” bill, is scheduled for debate by the full House of Representatives on Tuesday, April 24th.

The bill is extremely poorly drafted and does not address numerous issues that must be addressed to successfully implement a new kind of marriage.

Please call your Texas House member’s office Monday or before noon on Tuesday. Ask for the aide who works on family law issues, specify the bill and state your views.

Click here to find out who represents you and their contact information.

Dividing Marital Property In a Texas Divorce- Separate Property

It is well established that the court cannot divest a party of their separate property- see Cameron v. Cameron, 641 SW2d 210; and Eggemeyer v. Eggemeyer, 554 SW2d 137.

However, the court may award the use of separate property to the non-owner spouse for a limited time and for a defined purpose, see Gerami v. Gerami, 666 SW2d 241.

A husband’s separate property which was the parties’ homestead can be set aside to the wife for the use and benefit of the children while they are minors.

In Smith v. Rabago, 672 SW2d 38, the court held that a husband’s separate property homestead may be awarded to the wife for her use and occupancy.

The court cannot order separate property sold except in very narrow circumstances such as when the community has a lien on the separate property to secure a claim for reimbursement. In Halamaka v. Halamaka, 799 SW2d351, it was held that where a husband and wife each owned a ½ undivided separate property interest in real property, the divorce court would have authority to consider a partition suit with the divorce suit and order a partition and sale where the property could not be divided in kind.

Frozen Embryo Custody- The Man's Perspective

Here is a story from The Daily Mail (UK) which presents the often unheard perspective in the frozen embryo custody debate- the sperm donor and his struggle for his right to not become a biological father.

Howard Johnston’s relief is palpable. For five years he has been on tenterhooks, nervously waiting for the final ruling on whether his former fiancee should be allowed to make him an unwilling father in order to fulfil her dream of becoming a mother.

This week, his wait finally came to an end as 35-year-old Natallie Evans was told she could not use the six fertilised embryos she and Howard had had frozen in 2001 shortly before the cancer treatment that left her infertile.

The Grand Chamber of the European Court of Human Rights, her last legal option, ruled unanimously that she could not use the embryos without Howard’s consent – which he had withdrawn when they split up in 2002.

For Howard, 30, the ruling means that he can put the trauma of being publicly branded a baby killer behind him and move on with his life.

But he insists that the implications of the decision reach far beyond his personal rights – and go right to the heart of what it means to be a father in today’s society.

In his first newspaper interview since the historic judgment, Howard, a successful IT consultant, says: “Had the European Court of Human Rights supported Natallie’s claim that she has the right to motherhood whether I consented or not, it would have effectively cut men out of the process altogether.

“I believe very strongly that men should not be used as sperm donors to father children without their permission. The idea that men may one day become virtually irrelevant in the creation of life – as some suggest they could and even should – is abhorrent to me.

“A father has as important a part to play in a child’s life as a mother so his rights should be the same. That the law was upheld gives me hope that the importance of a man’s consent in conception will be safeguarded in the future.’

Since he withdrew his consent for the embryos to be used, Howard, from Cheltenham, Gloucestershire, has been vilified in some quarters for heartlessly denying his former fiancee her last chance to become a mother.

But he insists that his unwavering refusal to give in to her repeated pleas was borne of his strong sense of what the role of a father should involve and that the scenario Natallie was proposing would betray those principles.

“I have attracted negative comments because I have fought for what I believe in. Just yesterday, a woman called me at home and told me that what I had failed to understand was that those six embryos were human beings that had been offered the chance of life but I had destroyed it. It was very disturbing.

“I’ve had to live with going through this in public and it has been incredibly stressful. I’ve tried to put it to the back of my mind but every day I’ve thought about it and worried that eventually Natallie might have been allowed to go ahead and bring a child of mine into the world against all my wishes.

“But my stance has always been about the welfare of the child. To me the bedrock of any decision over whether to go through the process of using embryos to try to have a baby should be two people who are united. The law requires both partners’ consent and to me that makes absolute sense.

“Natallie wanted to have my child and bring it up with her new partner without any involvement from me but I have never been able to contemplate that.

“I would have known he was mine and constantly thought about him. That child would have known he wasn’t wanted by his father, and what impact would that have had on his life?
“And it would have been my name on the birth certificate so what would have stopped Natallie approaching me ten years down the line for financial help?”

Howard is an intelligent and fiercely rational man and it has been all too easy for him to be portrayed as cold. He says this is far from the truth.

“The friends I’ve had for many years know me as a very sociable, positive guy who loves going out and writing music.

But they also know that although I’ve tried not to change as a result of the court case, it has been very hard at times for me to carry on my life as normal.

“Whenever I meet new people, I’m always worried about what their reaction to me will be: will they think I’m a callous person?

Everyone has seen my ex-girlfriend on TV, pleading with me in extremely emotional terms and I know it must have affected people’s views of me. I’ve had very difficult times but my friends and family have been very supportive.’

Natallie has found love with new partner Dave Richardson, a cable jointer, but Howard has not had a serious girlfriend since their relationship ended.

He says: “I haven’t met anyone I have wanted to become serious with. I hope that if I met someone I really liked I wouldn’t be held back by the past.”

He hopes to be a father one day and envisages himself giving his children the kind of stable upbringing his parents Andy and Fiona gave him and his older sister.

“There’s so much more to being a father than just the biological or financial aspect. I see myself being involved in every aspect of the child’s upbringing – teaching him to read, shaping his life. I want to be a real father or not at all.”

Ironically it was not so long ago that Howard envisaged creating such a happy, stable family with Natallie.

They met in 1999 when they were working in a call centre for Virgin Mobile in Melksham, Wiltshire.

They fell in love and moved in together, despite their different backgrounds – Howard, then 22, was the Sherborne educated, university graduate son of a retired Merchant Navy officer while Natallie, five years his senior, was twice divorced and had grown up on a council estate.

In June 2001, Howard proposed to Natallie under the Eiffel Tower – with a diamond solitaire ring.

Natallie has claimed that at this stage they were trying for a baby. When she failed to conceive the couple were referred to the Bath Centre for Assisted Reproduction.

Howard says: “I thought we were there to get to the bottom of whether something was the matter with Natallie, not to help us have a baby. I was in my twenties and had no intention of becoming a father then. It was a question of Natallie’s health to me.”

In October 2001, the couple were told that pre-cancerous tumours discovered on Natallie’s ovaries would have to be removed.

It was then that they decided to freeze the embryos, though Howard says: “I wasn’t really thinking about babies at that point – just that the woman I loved might not survive.”

But after the operation, Howard says, Natallie fell into depression and became very difficult to live with.

“She kept telling me she didn’t feel like a real woman any more. She became incredibly possessive and, in the end, I couldn’t handle it any more and left.”

A month after they split, the clinic told both parties that since Howard had withdrawn consent, the embryos would be destroyed.

Howard says Natallie sent him a text message saying: “You are going to pay for this. Your name is going to be all over the papers.”

Since then the case has been heard by the High Court, the UK Court of Appeal and the European Court of Human Rights. Now Howard hopes both he and Natallie can move on.

“I hope Natallie does go on to become a mother because it is what she has always dreamed of. We talked about other options such as adoption or having a baby from donor eggs. She told me she could love any child as her own.

“I don’t hate her – part of me feels sorry for her. Now I just want it all to be over so I can get on with my life.”

Dividing Marital Property In a Texas Divorce- The General Rule and Tax Affection

Texas Family Code 7.001 details the way that community property is divided in Texas. It will be divided in a “just and right manner, having due regard for the rights of each party and any children of the marriage.”

Many people assume that because the community property is owned equally, then it will be divided equally upon divorce. However, 7.001 expressly provides that this is not the case. Unequal shares are often awarded by the courts based on factors that have been developed over time by case law.

In 2005, a new section was added to the Texas Family code which provides that in dividing the marital assets the courts can specifically consider the effect taxes will have on the division.
7.008 Consideration of Taxes
In ordering the division of the estate of the parties to a suite for dissolution of a marriage, the court may consider:
(1) whether a specific asset will be subject to taxation; andif the asset will be subject to taxation, when the tax will be required to be paid.

Dividing Property In a Texas Divorce- Intrinsic Value

"Intrinsic value" is what the property or business is worth to the owner. In cases in which the particular property has little marketabilty, or if the owner has special knowledge that is hard to replace by a buyer, Texas law does permit the consideration of what the property or business is worth to the owner. Inman v. Parr, 311 SW2d 658; Howell v. Bowden, 368 SW2d 842; and Beavers v. Beavers, 675 SW2d 296.

The use of interinsic value is usually restricted to situations in which the court is trying to determine the value of a professional services business which has little to value in the way of tangible assets, but has "intrinsic value" to the owner.

One method used to determine "intrinisic value" is to calculate how much a buyer would have to invest to produce the same income as the current owner.

Valuing Property In a Texas Divorce

Although appraisers and valuation experts may be used to determine how much property is worth, spouses are generally qualified to testify about the value of property in which they have an ownership interest. Barstow v. Jackson, 429 SW2d 537.

Property is valued at the "fair market" value. This is defined as the price a willing buyer, would pay for the property in it's current condition at the time of trial. I often refer to this as the "yard sale" value- that is, what could you get for a particular piece of property if you put it on your front lawn with a "for sale" sign on it.

Some assets are very difficult for a non-expert to value such as:

• present value of future interests (such as annuities or pension plans);


• small family businesses and closely held businesses;
  
• goodwill

Coming up with a dollar figure for these type of intangibles can be very difficult, and often times experts themselves value these very differently. In these cases, there is often a "battle of the experts" that is waged and the judge must judge the weight of the evidence based on the credibility of the experts.

Texas Covenant Marriages and Crisis Marriage Education Courses- Two Stinkbomb Family Law Bills from Austin

There is bad air coming from Austin in the form of two stink bomb family law bills.

HB 180 is before the Texas legislature to create something called a "covenant marriage". Parties who enter into this special uber-marriage can not file for a divorce unless they first go to counseling.

Sounds innocuous enough, but here is the kicker: either the counselor or one spouse could forever keep the other spouse from EVER filing for a divorce. All they have to say is that the marriage is "salvageable" (whatever that means). This is simple blackmail. To say nothing of the increased costs of getting a divorce this counseling would create, think of the nightmare scenario of an abusive spouse having complete veto power over an abuse victim's ability to even file for divorce simply by saying he thinks the marriage is "salvageable". Sure, the counselor could give permission to file for divorce, but under this bill, the counseling is without any time limit, and as long as they are getting paid, why would a counselor end steady work?

And what kind of person would ever voluntarily enter into a "coventant marriage" with such negative consequences? The same type who enter into garden variety bad marriages everyday - those who thought it was a good idea at the time.

Another lousy bill up for consideration is HB 2684 which would require parties to wait two years (TWO YEARS!) after filing before they can finalize a divorce. Under this bill, there would only be three ways to avoid being committed to this bleak divorce limbo/hell. One would be to attend a ten hour "crisis marriage education course". The cost of such a course could easily be in the thousands and would likely not be available in all counties.

Another would be to file divorce "for cause" such as adultery. What will happen as a result? We will be taking a step backwards into the bad old days before no-fault divorce when people lied in court about fake cruelty or adultery just so they can get a divorce. Naturally the other party will have to hire a lawyer to protect themselves and mitigate the possibility that these lies will result in a judge awarding more property to the other, or perhaps taking their children away. The net result of the bill is not only that the pain and cost of divorce will be increased, but also that one or both parties are unfairly going to get their reputation dragged through the mud on public record or even possibly face criminal charges because of these "necessary lies". In addition, it will be harder for victims of domestic violence to get out of bad marriages.

The final way would be if one party obtained a protective order. Already there are some unscrupulous parties who will file false protective orders to gain an advantage in a divorce. No doubt you will see a ten-fold increase of false statements of domestic abuse to avoid the bureaucratic red tape put up if this bill passes. Not only would this be devastating to innocent parties falsely accused, but such "cry wolf" tactics could desensitize family law judges to the point where they might turn down protective orders when they are really justified.

For a good article by The Texas Observer on HB 180, click HERE.

These bills represent wrong-brained thinking about the source of the problem of increased divorce in this country and an artless solution that totally misses the mark. The bill may go to vote this week or next. All readers are encourage to call their representative in the Texas Legislature and tell them to vote against this bad bill before it becomes bad law.

Finding Property

The first step in any property division is first locating the property that might be out there.

Remember that in Texas property is either characterized as separate or community. If it is community, it is subject to division of the court and therefore should be identified so the court can divide it. If it is separate it will still need to be identified so that the court can formally declare it as separate property. Without a separate property finding by the court, the particular item- be it your dear departed aunt Sally's china or the stocks your purchased prior to marriage could be still at risk of being awarded to your former spouse. This is because most decrees of divorce contain a clause that any property not disclosed will be subject to future division of the court.

At the beginning of a case in which it looks like lot of property issues will be involved, it is a good idea to start a property file. it will contain cover sheets of financial statements, health insurance, insurance policies, deeds, employee benefits, 401(k) statements, brokerage accounts, etc. This will provide a good start in drafting a preliminary spreadsheet of what property exists and where to begin digging deeper.

It is generally a bad move to try to conceal property during a divorce. If there is a doubt that one of the parties are not being voluntarily forthcoming in disclosing all the property that exists, any divorce lawyer worth his or her money will use pre-trial discovery to uncover the truth of what exists. This can include reviewing of all financial records including bank deposits, tax returns, accounting books, deposit slips etc. In addition, parties generally must exchange Inventories and Appraisements, which are sworn statements that detail all property of the parties whether they are of a community or a separate nature. If it later turns out that one of the parties was intentionally not being truthful, the judge or jury can punish that party by rendering awards of property that grant most of the property to the innocent party. This is in addition to the possibility of being charged for perjury and false swearing.

Protection from Discovery in Texas Family Law Cases

In general, a party must produce discovery when a proper request is made under the Texas Rules of Civil Procedure. However, sometimes a discovery request may be an undue burden, an unnecessary expense, harassment, annoyance or invasion or personal, constitutional or property rights of a person. In those cases, the person upon whom the request is made (or any other person affected by the request) may file a Motion for Protective Order with the court to prevent the discovery.

The party requesting protection must prove to the court that the need for full discovery of facts is outweighed by the burden of responding to the discovery. In most cases, this is too high of a burden to overcome because our legal system is dependent on the discovery process to allow the facts to come to light at trial. Any request to curb discovery with a protective order is met with skepticism by the judge, so you better make sure you have a very good reason for asking for protection from having to answer the discovery.

A motion for protection should not be used when a legal objection should be made instead. And as with objections, a party can't rely on the protection to keep him from answering any discovery at all. The party must respond to any part of the discovery request which he would not absolutely need to be protected from.

Sometimes a party is not so concerned about the other party knowing information, but they wish the general public from getting the information. This can happen when a public official or famous person is involved in a divorce which may have some embarrassing facts. Or a party may wish to not disclose certain information simply because the information is very confidential, such as corporate trade secrets. They seek protection because they do not wish the information to become part of the public record.

In these instances, instead of seeking a motion for protection, the party would be better off seeking an agreement from the other party that the information will be kept confidential and to request that the file be sealed.

Approval of Texas Family Mediated Settlement Agreements

One of the issues that inevitably comes up in Texas Family Mediations, especially when the parties are trying to creatively resolve their dispute by coming up with a custom made possession order for the child, is the question of whether the judge will approve the mediated agreement once it is presented to the court to be fashioned into a court order.

It would seem to be a fundamental right for two parents to come up with a parenting plan for their child. However, in Texas, this is not the case. The parties, even if they are in full agreement with how the child will be parented, must present their plan to the judge for his or her approval. This is because it has been the practice of some family law judges to take a heavy handed approach of setting aside agreements of parents because, in the judge’s own opinion, the agreement is not in the child’s best interest. The judge’s assumption of this sweeping power is based on case law and the long standing tradition of judges.

However a 2005 amendment to Texas Family Code 153.0071, the statute governing alternative dispute resolution procedures in family law cases, adds a new requirement that effectively takes the sweeping power away from judges to override the judgement of parents. In the the old statute, a court could decline to enter a judgement on a mediated settlement agreement regarding the conservatorship of a child if the court found “the agreement is not in the child’s best interest”. In 2005, subsection (e-1) was added which strictly limited this right of the judge. Now for a Court to disapprove a properly executed and submitted mediated settlement agreement, not only must the court find that the plan is not in the child’s best interest, but also it must find that a party to the agreement was a victim of domestic violence and was too impaired by that to make a good decision. In essence, the legislature has taken away the power of judges to override the wishes of parents to decide at mediation what is in the child’s best interest. The only time the court may not render an order based on a mediated settlement agreement is in the very narrow situation when one of the parents is (a) a victim of domestic violence and (b) that past domestic violence has caused the person to psychologically not be able to make decisions that are in a child’s best interest.

There are several outstanding questions that need to be answered in how this new provision of the ADR procedure statute will be applied. For example, does the domestic violence referred to have to stem from the specific relationship or facts surrounding the present case, or does any past domestic violence count? What if the domestic violence occurred years ago? What if the domestic violence was from a former relationship that has no connection with the present case?

Despite these and other unanswered questions, this newly revised statute is a long step in the right direction for Texas Family Law. It has firmly placed the power of parents to enter into written agreements about their children without unnecessary influence of the courts. For parents going through a divorce or other suits affecting the parent-child relationship, they have the freedom to fashion their parenting plans according to their wishes, and with minimal interference from an impersonal court. For Texas family law mediators and family law attorneys, this means that they have the freedom to help the parties fashion a binding parenting plan with as much customization as is necessary for the personal situation of the parties. No longer will it be necessary to worry about creative solutions for custody and possession going outside of the comfort zone of judges who are afraid to approve any parenting plan that is not cookie-cutter. In today’s age of mixed and blended families, non-traditional families and families separated by long distances, this flexibility is absolutely essential for parties to peaceably resolve their issues regarding their children.

Texas Family Code Sec. 153.0071 as amended states in part:

“…(d) A mediated settlement agreement is binding on the parties if the agreement: (1) provides in prominently displayed statement that is in boldfaced type or capital letters or underlined that the agreement is not subject to revocation; (2) is signed by each party to the agreement; and (3) is signed by the party’s attorney, if any, who is present at the time the agreement is signed.

(e) If the mediated settlement agreement meets the requirements of Subsection (d), a party is entitled to judgment on the mediated settlement agreement notwithstanding Rule 11, Texas Rules of Civil Procedure, or any other rule of law.

(e-1) Notwithstanding Subsections (d) and (e), a court may decline to enter a judgment on a mediated settlement agreement if the court finds that: (1) a party to the agreement was victim of family violence, and that circumstance impaired the party’s ability to make decisions; and (2) the agreement is not in the child’s best interest.” (emphasis added).

Hiring a Private Investigator For Your Texas Divorce or Texas Family Law Case

Certain Texas divorces or other Texas family cases benefit from the use of a private investigator. Investigators can be very helpful in obtaining documentation regarding lifestyle, assets, income, roomates, friends, paramour and parent s including their criminal history, work history, demonstrating hidden affluence, locating and interviewing witnessess, and obtaining information regarding abuse or neglect.

The best way to select and hire an investigator is to find someone referred to you by a lawyer. A next best way would be to simply look in they yellow pages- these investigators typically do more family work. At a minimum, the investigator should have a Class A (investigatons only) or a Class C (investigations or security) license from the Texas Department of Public Safety- Private Security Board. Beyond that, there are several advanced certifications which may distinguish one investigator from another such as the designation of Texas Certified Investigators (TCI) or the national designation of Professional Licensed Investigator (PLI) or Certified Legal Investigator (CLI).

When hiring a private investigator, costs are always a consideration. Costs for a private investigator in Texas varies widely across the state. Rates can range from $35 to $150 per hour. A recent survey of the Texas Association of Licensed Investigators found that the average hourly rate of approximately $85.00 per hour with mileage rates at $0.40 per mile. you have the right to a written contract at the time you are contracting the service. The average for an infidelity surveillance will typically run about $3500 to have a real chance of likely success.

In every Texas family law case, be it divorce or a suit affecting the parent-child relationship, there a issues of both law and fact. In cases where it is called for and a private investigator is employed, then the facts become clearer. And everyone wants the the outcome of their case dependent on solid, verifyable facts, as opposed to the vague and uncertain outcome that is dependant on your attorneys’ art of persuasion. Even the greatest attorney in the world wants facts on their side and hiring a private investigator may be the best way to get those facts brought to light.

Texas Property IV: Tracing Rules

In Texas Family Law, one of the most challenging things to do is attempting to establish the existence of funds that are the separate property of one of the spouses.

Luckily, there are some tracing rules that have been developed over time to assist us in identifying separate property.

The first, and possibly most popular, is the Community First Out Rule. As the name implies it is a generally accepted rule that when separate property funds are commingled into an account which also contains community funds, it is presumed that the withdrawals are first made with the community funds. Welder v. Welder, 794 S. W. 2d 420 (Tex.App.--Corpus Christi 1990, no writ).

Suppose you are married and your late aunt Henrieta wills you $500,000 and place it into your joint checking account which has $30,000 in it. You then buy a home for $200,000 and pay cash for it. How much of the home is community property?

Its kind of a trick question.

First, we know that the $500,000 is your separate property because under 3.001 of the Texas Family Code, anything bequeathed to you is separate property. Next the Community First Out Rule, says that the first $30,000 you paid on the home is presumed to have been from the community portion. However, it is not correct to ask 'how much of the home is community property'. The inception of title rule says that the entire house is characterized as community property. The court would still have the power to rule on what happens to the home. (In most cases it is ordered sold). Title however is different from equity.

Pretending for the moment that there is no appreciation in the value of the home, the separate estate would be entitled to reimbursement from the community estate in the amount of $170,000 (that is, once the house is sold, the spouse who had the inheritance would get the first $170,000 from the sale automatically). The remaining equity in the home ($30,000) would be considered community property and would be apportioned between the spouses in the way the judge feels is best . Finally, the remaining money in the joint account ($200,000) would be confirmed as the property of the separate estate because it is presumed that the $30,000 was spent on the home.