Friday, October 11, 2013

Two Wrongs Don't Make A Parental Right: Watts v. Watts

Under Texas law, when there is a pattern or history of abuse by one parent against another, then the Court may not grant Joint Managing Conservatorship.  (Texas Family Code 153.004).  But what if BOTH parents are found to be abusing EACH OTHER?  When both parents act as the abuser and the victim can the court ignore the rule of 153.004 and appoint both parents Joint Managing Conservators?

No.  Under the case of Watts v. Watts, 2012 Tex. App. LEXIS 8978 (Tex. App. - San Antonio, October 31, 2012) (Cause No. 04-11-0777-CV) the Court of Appeals held that rulings on conservatorship must still follow the "no JMC" rule of 153.004 because it reasoned that when there is a history or pattern of abuse by both parties against each other, it necessarily includes a history of abuse by one against the other.  Therefore 153.004 kicks in even though there is plenty of blame to go around.

In such cases of mutual spousal abuse, the jury or judge must appoint only one of spouses as the sole managing conservator.  This is truly a choice of the lesser of two evils.

Saturday, August 31, 2013

Who Makes Decisions About The Children?

Before 1993, the law in Texas gave virtually all decision making to one parent, usually the mother.  After 1993 however, the legislature rewrote the code so that parental rights and responsibilities are presumed to be given somewhat equally to both mother and father.  This is known as “joint managing conservatorship”.  However, if evidence is brought out in court to show that one parent is not fit to make these decisions, the court may grant virtually all decision making power to one parent in what is called “sole managing conservatorship.”  If no such evidence is brought the court will generally appoint both parents as conservators and will specify what kinds of decisions can be made by either parent, what kind require agreement by both parents and what kind can be made exclusively by one parent only.

Tuesday, June 11, 2013

Don't Host Underage Drinking in Texas!

As this is the graduation/beginning of summer season, it is worthwhile to clarify a misconception about underage parties.

Many parents are under the FALSE belief that they can throw parties for underage kids and provide alcoholic beverages as long as it is under adult supervision.  WRONGO.

It is true that it is not a crime for a parent to purchase an alcoholic beverage for or give an alcoholic beverage to their child if they are visibly present when the children possesses or consumes the alcohol (Tex. Alco Bev. Code Sec. 106.06(b)). 

 HOWEVER it is NOT TRUE that you can do so for other people's kids.  Even if they have permission from each of the minor children's parents.  If you purchase or give an alcoholic beverage to a person under 21 who is not your child you are committing a Class A misdemeanor and are subject to a $4000 fine and 1 year in jail for each kid you let belly up to the bar.

And here is a basic fact: underage kids should not be drinking.  Period.  You may think you are being clever by having a party at your house instead of the kids having a party somewhere where they may drink and drive.  But this is wrongheaded thinking.  Parents should teach their children to obey the law.  The law in every state is clear: no drinking until you are 21!  And no matter how you think you are going to force all the kids to not drive, to sleep in your house etc., there are thousands of ways all that can go wrong.

Which brings up the issue of liability.  Any person who hosts a drinking party for minors can be held civilly and criminally liable for any injuries that are caused by drunk kids.  (Tex. Alco. Bev. Code Sec. 2.02(c)).  Do you really want that kind of heat coming down on you because you wanted to be the "cool" parent?   Instead, teach your children well and early about drug and alcohol abuse and demand zero tolerance for abuse.  That is the best way to ensure your children stay safe at this time of year.

Monday, June 10, 2013

Who Gets the House in A Divorce: Texas Has An Odd Inception of Title Rule

My husband and I lived together for about a year before we got married.  We were looking for a home and decided on one just before our wedding ceremony.  To make sure the loan went through, we applied through my husband's credit (which was excellent- mine was not good due to a recent bankruptcy).  He got the loan and we financed 100% of the payments.  My husband signed an earnest money contract and we went off to our wedding.  When we got back, we closed on the house and I co-signed all the paperwork as the wife.  Thereafter, we made all the loan payments from our joint account.

Now that we are divorcing, my husband claims that the house is his separate property and the court cannot award it to me in the divorce.  Is he right?

As odd as it may sound, and as unfair as it may seem, your husband is probably right.

All property that is possessed during a marriage is presumed by the courts to be community property and subject to division by the courts.  However, this presumption can be rebutted if a party can show that the property was acquired before the marriage.

The result is what is called the "Inception of Title" rule, which basically says if you can prove the property became the legal ownership of one party before the marriage, it is considered that party's separate property and cannot be taken from him or her in the divorce. 

Normally ownership begins in the moment when you obtained legal title to the property, but oddly, not in the case of real estate.  For real estate, the court traces the characterization back to the earnest money contract.  This was the holding in Wierzchula v. Wierzchula, a 1981 case. 

However, there are several factors here which should give you some solace:

1.  It is your husband's burden to overcome the community property presumption.  For example, if he can't produce the earnest money contract in court, the judge may declare the property community anyway.

2.  Just because the property is characterized as your husband's separate property doesn't mean you loose out on all the mortgage payments that were made from your joint account.  You will still have an equitable reimbursement claim on all that money- which the court may award you.  You may not get the house itself, but you can get back a lot of the value of it.  Make sure that your pleadings ask for this.

3.  The Wierzchula case mentions the fact that the house in question was the homestead of the parties, that is, they were living in it.  If your house was not a homestead but instead was, or at some point became, a rental or other investment property, you may be entitled to the income generated from that property.  The general rule is that rents collected during a marriage, even if from one party's separate property are considered community property. (McElwee v. McElwee, 1995).

So the bottom line is that although your husband can't lose title to the house, under your circumstances, the court is free to reimburse back to the community estate the mortgage payments made on the house, and also any income generated from the house as it deems fair and right.  I would also suggest that if you can prove that the house has appreciated in value significantly over the time of the marriage, then you may also be able to convince the court that the appreciation is also community property, subject to right and proper division.  However, you would have to investigate this further because in today's depressed real estate market such appreciation is no longer an assured fact.  

Saturday, June 08, 2013

Rice at the Wedding, Ricin at the Divorce

Throwing rice around used to be the symbol of marriage, now in one case, mailing ricin is likely the symbol of a divorce.

Last week, Texas resident and pregnant mother of five, Shannon Guess Richardson tried to accuse her husband of mailing three ricin-laced letters to the president, the mayor of New York City, and a gun control lobbyist.

But as it turned out, it was Richardson herself who mailed the letters.  In an attempt to frame her husband Nathan, Richardson met with FBI investigators to try to pin the felony charges on him.  Although Richardson is an actress with several small T.V. and film credits, her performance apparently wasn't convincing to the FBI.   When her story did not add up to the federal investigators, the direction of the case quickly turned on Richardson herself. 

On Thursday she confessed to mailing the letters knowing they contained the deadly ricin.   That same day, Nathan filed his Texas petition for divorce.  In the pleadings, he said that his him marriage had become " insupportable because of discord or conflict of personalities".

Talk about an understated pleading...

Saturday, June 01, 2013

Ten Things Your Divorce Attorney WONT Tell You.

We live in a world in which getting a divorce is no longer the social stigma it once was.  Since the advent of the "no fault divorce", divorce has never been easier to start, and therefore we see an incredible spike in divorce rates.  A billion dollar industry has sprouted up to feed off this intensly personal and difficult time in some people's lives.  Before, during and after this process there are millions of therapists, lawyers, form prep services, financial analysist and an army of others who will be selling all kinds of services and products to the unwary.  They all will claim to help, but they all have a financial interest which may or may not align with your real best interests.  In short, my fellow attorneys and all others of our ilk will attempt to sell you on the process of divorce and fail to tell you unequivocably the real truth about divorce.  As someone who has been both the seller, and buyer of these services, I want to tell you what the others will not.  Here then are the 10 truths about divorce that your attorney (and all others in the divorce industry) will NOT tell you.  They don't apply to ALL situations, (such as domestic abuse) but they do apply to MOST ALL cases.

1.  You should avoid divorce at all costs.
Divorce is a tragedy.  You will suffer greatly during the divorce process and that suffering will last a long, long time.  The divorce itself can take up to two years in Texas.  If you think it will be over quick, you are probably wrong.  And you may suffer long after the actual legal procedure is over.   In fact you will be shocked at how much you will suffer during this process.  You therefore should be  ABSOLUTELY CERTAIN that at the very least, the outcome will be worth the emotional hell that you will be put through.  And the fantasies which you harbored as you thought about filing, about a wonderful life of peace and personal satisfaction are probably blown way out of proportion to what reality has is store for you after the divorce.  The best you should hope for is that things will be worth it in the long run.  Then again, they may not.

2.  Your children will suffer.
No matter what the age of the children, 2 or 52, your children will suffer pain from this divorce.  This is absolute and uncontested in any scientific study.  Generally those justifying divorce will talk about how resilient kids are, how they will adjust over time, etc.  That may be true, but you can also survive and adjust to injuries from a car crash, but that doesn't mean you should intentionally drive into a brick wall.  I am not here to debate certain decisions to divorce but only to say that decision always comes at a price of emotional pain that your children will have to pay either now or sometime in the future.   You need to be certain that the outcome is worth this.  And be cautious that you are not rationalizing a selfish decision for your own happiness by convincing yourself this is the best decision for your children simply because you are happy.  Have you asked them how THEY feel about it?

3.  There are NO friendly divorces.
Divorce is a legal process.  Legal processes by their very nature are - adversarial.  Sure you can reduce some of the animosity by use of mediation and other things, but just because we have the Geneva Convention, that doesn't mean it is not still war.  Divorce is the most personal thing you will ever go through that is open for all the world to see.  You will feel besieged.  You will feel sad.  You will feel vulnerable.  And if you wind up going to court, you will feel bloody and beaten- no matter who "wins" the fight.  

4.  You will lose out on 50-75% of your kid's childhood.
This is especially true if you are a man and don't get good legal representation.  You will have to split your children with your ex and that means all those precious moments they spend with the other will be lost to you-- forever.  I recently had to watch my child go off to California and experience Disneyland for the first time- without me.  I had dreamed of experiencing that with her since she was born.  Now the moment is gone and I mourn it like something precious has died.  In a way it has- I have missed a irreplaceable moment of her childhood which is now gone forever.

5.  You lose the right to control your children without interference from the State
When you divorce, the State basically is saying to you that because you messed up your relationship with your spouse you no longer can be trusted to know what is best for your kids.  From the moment papers are filed, your children become wards of the State.  And that is permanent.  They will be overseeing all your parenting from this point forward- thank you very much.

6.  If you let the lawyers take over you are doomed.  They will try to take over.
Make no mistake: there is a difference between a counselor-at-law and an attorney.  A COUNSELOR tries to help you make your own decisions.  An ATTORNEY tells you what to do because he/she is the expert and the only one allowed to speak out in court.  Most family attorney's don't talk to you anymore.  They want to push you through "the system".  And you probably don't want to talk to them that much anyway because most all attorneys will only talk to you at the full hourly rate- same as if they were making a brilliant closing argument in a complex court case.  Who can afford that at $300 per hour?  So the lawyers find it easier to just do what they want with your case without consulting you.  Consulting is expensive.  Besides they are the "EXPERT".  And then if you allow them to make decisions for you, they are going to pick every decision that is for their convenience.  I'm not saying they will intentionally not work for your best interest, but some will do very little to figure out what that means to you and then tailor the case to your particular needs.  So you will be pushed towards standard this, standard that.  Mostly because you don't understand the pros and cons but also because the lawyers don't want to take time to explain it to you except at their most exorbitant hourly rate.

7.  You will be replaced.
Chances are that you will replaced by another person that your spouse chooses.  In your spouse's eyes that person is a far, far better person than you in almost every way. You may say you don't care.  Deep down you will care and it will not be a pleasant feeling.  And this "far better" person will eventually enter your kid's world.  They say you will not be replaced, but it will feel that way.  If you are a wife, think about how you will feel about some other woman lovingly braiding your daughters hair.  If you are a husband think about another man taking your son to the park to fly some radio controlled toy you couldn't afford to give because of the divorce.

8.  You will be financially ruined.
Divorce will devastate you financially.  You may face bankruptcy.  This truth is too complex to detail here, but it is the truth and it is universal.  Even if the degrees of financial ruin are different for each individual, they are felt proportionately the same.  To figure out HOW financially ruined you will be after a divorce, follow this simple equation:  Take the amount you think the divorce will cost you, then double it.  Now double it again.  And multiply that by the time you think it will take you to get back on your feet (increased to the third power).  Then again you may never get back on your feet.  Before your divorce, Saturdays may have been for you mowing your lawn.  After your divorce, Saturdays may find you mowing someone else's lawn.  Imagine having the living standard of a struggling 20 something in the body of a 40 something.

9.  You will miss being a family.
You may not miss your spouse, but you will miss being part of family.  You will miss tag team aspects of parenting.  You will miss the social certainty of having a wedding ring on your finger.  During and after a divorce you will be thrust into a grey social limbo.  Yes, you will have a great opportunity to reinvent yourself.  But you will do it in a stinky apartment.  With a cat.  If you start talking to the cat, you are already doomed.

10.  It IS your fault.
Couples don't work hard enough at marriage.  In this age, we demand instant gratification and we feel we are entitled to bliss every moment of our lives.  The fact is that although the highs can be high, the lows can be very low too.  But if seen from a longer perspective, many couples who have chosen divorce were living pretty pleasant lives together.  But we cry havoc when things don't meet our unreal expectations and the modern divorce system has made it very easy to cut bait and run.  Even if you don't file for the divorce you helped bring it about by your own actions or inactions.  At some point you didnt fight hard enough or soon enough or both.  If it is too late for your marriage, then you need to own that and steel yourself for all the misery to come-so you can survive it.  But if it is not too late, then please consider the immutable effects of getting a divorce I have outlined here.  In the end, you may still decide to go forward with the divorce, but you should do so knowing the whole truth.

Friday, May 03, 2013

Baby Daddy: Fathers Seeking to Establish Paternity

It may seem that in today's world there are too many men trying to avoid fatherhood.  But this may just be that those who do so are getting all the press.  Good men who want to meet their obligations and share in the joys of parenting will want to establish their legal rights over their children.

If a man thinks himself the biological father of a child, he has the right to file a lawsuit to prove that.  The case is called a "Suit Affecting the Parent-Child Relationship" (SAPCR).  Even if the mother has a husband (making him the "presumed father") a man can challenge the paternity in court.

Texas has set up a Paternity Registry, the purpose of which is protect the parental rights of fathers who want to assume responsibility for children they have fathered.  The registry is run by the Texas Bureau of Vital Statistics.

So let's suppose a man thinks he may have fathered a child.  He is a stand up guy and wants to meet his responsibilities, or perhaps would welcome the joys of fatherhood.  He can file a registration before the birth or within 31 days after the date of birth of the child.  If he fails to do this, should the mother decide to give the child up for adoption, he would not receive any notice of the proceedings and could have his paternal rights terminated without his knowledge.  If he registers however, he must be given notice of any lawsuit to terminate his parental rights and have the child put up for adoption.  Once he knows this is going on, he can join the suit and file his own claim of paternity so a judge can official rule that he is the father and has the rights of a parent.  If he does this, and the judge rules he is the biological father, the mother cannot have his rights terminated on her own, even if she wants to give up the child for adoption or someone else wishes to adopt the child.  The father would have to either voluntarily give up his rights or be found to be an unfit parent to have his rights involuntarily removed.

Saturday, April 27, 2013

Jurisdiction in Family Law: Specialized Family Courts

 Jurisdiction is the most important initial quesiton a practitioner of family law can ask.  Jurisdiction consists of two things: (1) the court's power, conferred by constitutional or statutory authority, to hear a cause alleged in the petition, and (2) the court's power to award the relief requested. 

In the family law context, a court can only hear a suit affecting children if it has been granted jurisdiction in "family-law matters" which include adoptions, divorces, annulments, child welfare, custody, support issues and relationships of the wife and husband and children.

In Texas, district courts are the primary trial courts and all district courts have family law jurisdiction.  However, the Texas Constitution gives the legislature the power to create specialized "family district courts" to help handle the huge caseload in certain counties.  Follows is a list of counties that have family law district courts:

  • Brazoria
  • Dallas
  • El Paso
  • Fort Bend
  • Galveston
  • Gregg
  • Harris
  • Hutchinson
  • Jefferson
  • Midland
  • Nueces
  • Potter
  • Smith
  • Tarrant
  • Taylor
  • Wharton
These courts have the same jurisdiction as general district courts, but they have primary responsiblity for handling family-law matters, including child support.  This does not prevent a general district court from hearing a family law case however.  But family cases in counties that have these specialized courts will almost always be filed in those courts.

Monday, April 22, 2013

Today I am a Man: Removal of Disabilities of a Minor

 A minor under most Texas law is anyone who is either under the age of 18 years, or over 18 with certain conditions and under certain circumstances (for example 18 but still enrolled in high school).   However, in law, we see many occasions when a child is treated as an adult- most notably in the criminal law context.

On rare occasions a sixteen or seventeen year old may desire to have some of the limitations we place on children removed ("disabilities of minority").  This can occur when a 16 or 17 year old is living on his or her own and is seeking to enter into a rental lease or perhaps seeks to purchase a car or other contractual relationship and cannot because those under 18 may not be legally bound to a contract.   Chapter 31 of the Texas Family Code provides an avenue for the removal of the minority status of an individual who is at least  16 years of age. 

The minor can file this suit in their own name and must show the court that they are living separate and apart from a parent, managing conservator or guardian and that they are self-supporting and managing their own financial affairs.

A complicating factor is that the parent, guardian or managing conservator must "verify" the petition.  It is unclear whether this means the petitioner must serve them formally with notice, or merely that they sign the petition with a notary. I think this is up to the judge what this means- so a practitioner would due well to inquire beforehand.  If the parent, guardian or managing conservator cannot be found, or is unavailable then the court may appoint an amicus or attorney ad litem to verify the petition.

Other states call this procedure "emancipated minor" proceedings.  If such a proceeding was obtained in another state, a minor moving to Texas may file a certified copy of the order int the deed records of any county in Texas.

Although the procedure is rather straight forward, most 16 or 17 year olds may need to seek the help of an attorney for this procedure.  This may not be financial feasible.  Remember too that the removal of disabilities of minor only applies to the ability to contract, to get the right to make one's own educational decisions, and the like.  It does not remove other restrictions such as the right to vote, no drinking etc.

It also should be noted that depending on what age the petition is sought, it may not make sense to file this petition.  It take many months to obtain a court date in some courts.  Obviously if the minor turns 18 before or very soon after a court date, the issue becomes moot.

Saturday, April 20, 2013

SAVE Child Support Act Being Pushed


Recently, U.S. Senators Robert Menendez (D-NJ) and Chuck Grassley (R-IA) reintroduced Senate Bill 508, the Strengthen and Vitalize Enforcement of Child Support (SAVE Child Support) Act.
According to the senators' websites, the purpose of the legislation is to provide states with tools and procedures to help them collect child support from parents who are not complying with their payment court orders.
Specifically, the SAVE Child Support Act provides that every state, including Texas, will be able to access a nationwide child support lien registry. The purpose of the lien registry is to allow liens to be placed against property in the event that a person falls behind in child support payments. The lien registry will help states easily identify these liens and where they are located.
Along with the lien registry, this Act also enables states to intercept payments that are made to individuals other than the parent receiving child support, in order to satisfy delinquent child support orders. Moreover, the Act strengthens procedures which allow for the revocation of non-custodial parents' certain licenses, permits, and passports when these parents fail to completely abide by child support orders. This part of the Act will require increased coordination between various child support agencies and license-issuing agencies.
Moreover, the bill also clarifies existing state jurisdictional rules in order to facilitate states' efforts to collect any and all outstanding child support orders, as well as expedites procedures for redirecting child support payments if the child has relocated. Importantly, the bill also improves the ability of the courts to enforce outstanding child support orders.
Along with these important measures affecting state procedures, the proposed legislation also encourages and facilitates coordination among the multiple child support agencies and corrections facilities to assist in managing and collecting on child support orders.
Finally, the bill also helps safeguard non-custodial parents' visitation rights by requiring states to report on any plans to facilitate or improve access to and visitation of children by their custodial and non-custodial parents. It will also implement measures to protect vulnerable families from any harassing or deceptive practices employed by private child support collection agencies. To do so, the bill extends existing federal debt protection laws to include these collection agencies.
This Act is introduced to address the nearly 11.5 million cases of delinquent payments of child support. This statistic comes from the Health and Human Services Office of Child Support Enforcement FY 2011 Preliminary Report. According to this same report, the amount of child support that was due in FY 2009 totaled more than $33 billion and only 62% of that amount was actually collected. To put that in context, over $111 billion in child support was due for all previous fiscal years, but less than $8 billion were collected and distributed in 2011.