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.

Life Insurance As a Marital Asset In a Texas Divorce

Are insurance policies generally characterized as separate or community in a Texas divorce?

Texas follows the inception of title rule in classifying the proceeds from a life insurance policy. Ownership is established by the source of funds for the initial premium. If that premium was paid before marriage or with funds clearly traceable to separate property, the policy remains separate property even though some or all subsequent premiums are paid with community funds. This means that the full value of the life insurance proceeds will be includable in the deceased spouse's gross estate for federal estate tax purposes. The surviving spouse, if not named beneficiary, has not claim to any of the proceeds. However, the community estate has an equitable claim for reimbursement in the enhanced value of the policy attributable to payment of premiums with community funds.

Ordinary value and term life insurance with guaranteed renewable and guaranteed convertible features are covered by this rule. The insured can convert the term policy to an ordinary value policy at any time. Furthermore, the insured needs no proof of insurability to renew the policy.

For example, in Estate of Cavenaugh v. Commissioner, the insured's policy was considered an option contract, and the future payments related back to the initial acquisition of the contract. The court applied the time of acquisition rule stating that the insured's subsequent actions could to convert the character of the property.

First Premium From Community Funds
If the initial premium was paid out of community funds, the life insurance policy is a community asset. One-half the insurance proceeds are includable in the deceased spouse's gross estate for federal estate tax purposes. If a third person is named beneficiary of a community owned life insurance policy, this action may be challenged by the surviving spouse under the rules governing lifetime transfers. If naming the other person is found to be a fraud on the surviving spouse, the spouse will be awarded one-half the death benefits and the named beneficiary will be entitled to receive the deceased spouse's one-half interest in the proceeds.

Note, however, that there is no basis for asserting an equitable claim for reimbursement in the policy's enhanced value if the spouse is unsuccessful in a "fraud on the spouse" challenge, because community funds were expended on a community asset. An equitable claim for reimbursement arises only if financial contributions from one estate enhance the value of another estate (i.e., community funds enhance separate property or vice versa). Contrast this result if the spouse had paid the first premium on the policy with funds from an inheritance. This would result in the policy being separate property, and as such the community estate would have an equitable claim for reimbursement in the enhanced value of the policy attributable to the payment of premiums with community funds.

Policy Acquired After Marriage But While Domiciled In Common Law State
Suppose a life insurance policy is acquired after marriage but while the couple was domiciled in a common law state, and the couple later moves to Texas. In determining the rights to proceeds at divorce, the policy is considered quasi-community property and is community.

Computation of Equitable Claim For Reimbursement
Since the insured on a life insurance policy is not required to pay the premiums, payment of premiums is not considered a discharge of debt. Thus, the use of community funds to pay life insurance premiums is measured by the enhanced value test in relation to the contribution of spousal labor to separate property.

(1) growth of a policy’s investment feature
One way to measure the enhanced value would be to measure the growth of the policy’s investment feature (i.e. the cash value). Problems arise, however when using this approach with non-cash value term insurance policies, or when both separate and community funds have contributed to the growth.

(2) Prorate according to premiums paid.
Another approach would be to prorate the proceeds in proportion to the source of the funds that paid the premiums, (i.e., if 40% of the premiums were paid from community property funds, then the equitable claim for reimbursement added tot eh community property would only be 40% of the growth). However, this proration method has been rejected by the court in McCurdy v. McCurdy, 373 SW 2d 381 (Tex.Civ. App. 1963). In this case, the court chose to apply the inception of title rule due to its inherent simplicity and in order to ensure an equitable distribution. The inception of title rule grants the spouse a right in the proceeds from the date of the policy.

Property IV: Classification of Particular Assets

Now that we have gone through some general classification principals, we can look at some specific applications.

Most questions of "is it yours or is it mine" are simple to figure out. Texas marial property can be classified in most cases simply by applying the meaning of Texas Family Code 3.001. The section states that a spouse's property consists of : (1) the property owened or claimed by the spouse before the marriage; and (2) the property acquired by the spouse during the marriage by gift, devise, or decent; and (3) the recovery for personal injuries sustained by the spouse during the marriage, except any recovery for loss of earning capacity during the marriage.

However sometimes classification is a little more complex. What follows are some general principals and likely outcomes of classifing certain property as separate or community. However caution must be used in applying these principals. Certain facts may change how the property is characterized. Remember, as I keep saying in this blog, any person should consult with an attorney prior to making any decisions based on any information obtained in this blog. This blog is for educational (and maybe entertainment) purposes and is NOT LEGAL ADVICE! Ok, enough said. Let's look at some specific assets begining with the next post..

Property III: Mutations

Changes in the form of an asset are referred to as "mutations".

For example, let's say that Mary owns a house prior to marriage. She then marries John. As we have discussed, the house is clearly the separate property of Mary.

Now assume that after the marriage she sells the house and purchases two giant atomic ants. She then sells THEM to a circus sideshow and with the proceeds, buys stock in Atomic Widgets Inc.

We say that the house "mutated" into Atomic stock by the subsequent transactions of Mary.

The interesting thing about mutations is that under Texas law, the characterization, does not change. The fact that the property is the separate property of Mary is not changed by the fact that the property changes in type over time and through various sales. As long as the proceeds from the sale of separate property are used to purchase other property, the new property retains the separate property character. Of course, as we have previously mentioned , the spouse trying to prove the separate nature of the property has the burden of proving that it is not community. However, this can be done if there are records to trace the assets.

Another interesting thing about mutations is that even if the value of the mutated asset goes up, it still retains it's character. So in our example, if the Atomic Widgets stock goes up and are not other wise sold during the marriage, then the increased value of the stock is still all the separate property of Mary.

Although any dividends or other payouts from the stock are considered community, (because such payouts are much like "income" from the stock), the stock themselves (and their increased price) are still Mary's separate property.

Property II: Texas Separate Property Tracing: Proving What's Yours

Under Texas Law, there is a presumption that all property owned by either the wife or the husband is community property. At the time you seek a divorce, all the property you own is considered community property (TFC 3.003) and it is subject to having a judge divide between the spouses. The party wishing to prove that he or she owns separate property must put on "clear and convincing" evidence that the property is separate and not subject to the power of the court to divide between the spouses. "Clear and Convincing" is that measure or degree of proof that will produce in the mind of the judge or jury a firm belief or conviction as to the truth that the property is separate (TFC 101.007).

Texas Tracing
When we describe the process of proving the existence of separate property, it is called "tracing". This can involve investigating past transactions, gathering documents, and presenting to the court, through testimony and written documents such as titles and financial records, how you obtained the property so that it can be characterized as separate property. If fact the community property presumption is so strong, that even if you verbally testify that a certain property is yours, without any written records, and the other side does not offer any evidence against what you say, the property may still be considered community property. Boyd v. Boyd, 131 S.W.3d 605 (Tex.App--Fort Worth, 2004).

A certain piece of property can be considered separate if it was purchased with money from the sale of separate property. For example if a party owns a boat prior to marriage, and then uses the proceeds from the sale of the boat to buy a car after the party marries, then the new car may be considered the separate property of the spouse. However, this tracing must be by clear and convincing evidence. The party trying to make this claim must show how the certain funds clearly went from one separate property to another. If the funds became mixed up with community funds (such as the proceeds from the sale of separate property being deposited for a period of time into a joint checking account) then it may become impossible to prove the tracing and the party will not be able to prove that the car is separate property.

Often times, an expert is used to trace funds through an account. This expert witness will have specialized knowledge due to experience, training or education such as an accountant. They will be able to form an opinion even if their testimony is hearsay and the records they use are not otherwise admissible. They can also submit summaries of their evidence that will be admitted as long as the other side had access to the records which these summaries are based, and would otherwise be admissible as business records.

Property I: My Stuff, Your Stuff, Our Stuff

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.

Parenting Coordinators In Texas

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.

At Ease! The Soldier's and Sailors Relief Act

A member of the military service who is unable to attend a court hearing because of his or her military service can be protected from appearing in court through the Soliders and Sailors Relief Act of 1940 and the Servicemembers Civil Relief Act of 2003.

If a member for the military is being sued in Texas (or any other state- because this is Federal Law) for divorce, child custody, child support, or any other family law related matter, and they are stationed in another state or another country, they can delay the matter for a reasonable time.

Upon request of the servicemeber, a 90 day leave is automatically granted. If the servicemember requires more time, then he or she must show the court that they have tried, but have been unable to obtain a leave of absence to attend the scheduled hearing.

In some cases, a default case may not be taken against a servicemember unless an attorney has been appointed to represent the servicemember. (Hawkins v. Hawkins, 999 S.W. 2d (Tex. App.--Ausin 1999)).

The length of the delay that may be obtained depends on what is reasonable, but the maximum amount of time is the entire length of the servicemember's duty plus 3 months.

The acts protect all active members of the army, navy, air force, marines, coast guard, officers of the public health service assigned to the army or navy, reservists on active duty, dependents and perosns or business who may be liable along with the servicemember.