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her last legal option, ruled unanimously that she could not use the embryos without Howard’s consent – which he had withdrawn when they split up in 2002.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.

Child Abuse, Family Violence and Protective Orders

A protective order may be put in place to protect past and present family members including children. An action can be brought either as part of a divorce (Texas Family Code 6.504) or in any suit affecting children (82.005).

Any adult may bring a protective order to protect the welfare of children. For protection of an adult, the protective order may be filed by an adult member of the family or household, or a prosecuting attorney, or a Texas Department of Family and Protective Services employee for the protection of anyone alleged to be a victim of family violence. (Texas Family Code 82.002).

A protective order shall be rendered if the court finds that family violence has occurred and is likely to occur in the future. (Texas Family Code 71.004). Family violence is defined as an act by a member of the family or household that is intended to result in physical harm or is a threat that reasonably places the member in fear of imminent physical harm.(Texas Family Code 261.001(1)). This definition of family violence includes dating violence. (Texas Family Code 71.0021 and 82.002(b).

In a divorce, any party may motion the court to render a protective order. The motion can come before the petition for divorce (Texas Family Code 85.061) or after the petition for divorce is filed. If the circumstances allow, the protective order should be filed in the court that is handling the divorce. However, the protective order can be filed and rendered in any county where the applicant resides. However, it may be later transfered into the court where the divorce is pending. (Texas Family Code 85.064(b)). The respondent is entitled to notice of the protective order and should be served. If the protective order is part of a divorce, some attorneys serve the protective order and notice of the hearing date at the same time as they serve notice of the divorce.

EMERGENCY TEMPORARY ORDERS: A sworn affidavit by the applicant is needed for a temporary protective order which is being sought without a formal hearing with both parties in front of a judge. (Texas Family Code 82.009). This is called an ex parte protective order and is valid only for 20 days unless extended. (Texas Family Code 83.002). The purpose is to maintain peace until a formal hearing can be scheduled in front of a judge.

The emergency ex parte temporary order can include excluding a party from a home (Texas Family Code 83.006). However, this is a very serious remedy and judges are very cautious about granting such an order. There are some careful restrictions on this relief so that parties cannot abuse this process.

The scope of a protective order can be broad and cover almost every aspect of family life. Under the Uniform Interstate Enforcement of Domestic Violence Protectio Orders Act, the State of Texas will fully enforce out of state protective orders. It is also illegal to possess a firearm or ammunition if you are under a protective order and have been found to have committed family violence. See also: Pistol Packing Problem

Latest Texas Statistics: Less Divorces, Less Marriages

The latest statisics reveal that divorces in Texas have been decreasing over the last two years. There were 63,717 Texas divorces so far in 2005*. There were 7.3% less Texas divorces this year than over the same time period last year and a nearly 12% decrease from the same time period in 2003.

The number of marriages has also decreased. There were 141,156 marriages made so far in 2005*. However, this is 11,192 less marriages made than the pervious year and 11,296 less than the same time period in 2003.

*From January to October

Source: National Vital Statistics Reports, Vol. 54, No. 17, May 10, 2006

Temporary Orders: Property Issues

After children issues, one of the most important issues decided on in temporary orders is which party will have use and possession of property while the divorce is going on and who will pay the debts.

The facts of each case make it hard to make any generalizations about the temporary disposition of property, but the following are some rules of thumb.

First, on the use of the house, the Judge will generally give the party who has the children the use of the family home. The reason, obviously is that the Judge wants the children's lives to be as stable as possible and he doesn't want the kids moving around unless absolutely necessary. Howver, if the home is the separate property (usually because it was owned in full prior to the marriage by one of the parties), then the Judge generally cannot order the party without the kids out of the house.

Another generally rule of thumb is that each party will be temporarily awarded the use of the car in their respective possession. This is usually not a contested issue, but sometimes one party may demand temporary use of a specific vehicle (such as the party with primary custody needing the minivan instead of the sports car).

The ongoing payment of debts (such as monthly bills) will also be decided during temporary orders. Often the sticker shock of trying to support two households is too much for the community budget to bear. Even though a party may be ordered to pay certain debts (such as credit cards)while the divorce is pending, they may not be able to afford to. The party may only be able to pay the secured debts (such as the car and the mortgage) to keep them from being forclosed on. Generally, if a party does not pay (with a few exceptions) general debts, this is not actionalble by contempt, because the Texas Constitution does not allow imprisionment for debts.

Case Update: Grandparent Access

A recent Texas Supreme Court case has come down in applying the new Constitutional standard of the seminal case of Troxel v. Grandville530 U.S. 57, 120 S.Ct.2054. We haven't got to grandparent access yet, so if you are interested, check out the full post at my "blanco" blog by clicking here: Texas Divorce and Family Law Blog.

Temporary Orders: Children Issues

Don't ever let anyone tell you that a temporary order is not a big deal. Temporary orders may have a profound impact on not only your life, but the life of your children. When the lives of your children are being affected, I don't know what could be a bigger deal.

The filing of a suit affecting the parent child relationship places a lot of power over chilren into the hands of the Court. The Court can make any temporary order it sees fit regarding children so long as the Court feels it is in the safety and welfare of the child. (TFC 105.001). The amounts to the sobering reality that once parents put themselves into the hands of the court, they are putting their children in the hands of the court. Even if neither one of the parents agree to certain provisions, the Judge can override the will of the parents and make nearly any binding order regarding the child so long as it determines it is for the child's best interst. This means that in the span of a short hearing, the Judge can make significant decisions that for a potentially long period of time will affect all aspects of a child's life. Kind of scary, hun?

The Court can order temporary restraining orders regarding the children without the need of hearing. TROs of this nature usually relate to enjoining either party from withdrawing the child from their school or daycare, and keeping either party from taking the child out of a geographic area.

After an evidentiary hearing, the Court has even more sweeping powers to determine the temporary situation for any child who is a subject of the divorce or suit affecting the parent child relationship. The court is empowered to determine the temporary conservatorship of the child (custody), temporary child support, orders restraining a party from determining the peace of the child, keeping someone from removing the child from a certain geographic area, and the payment of attorneys's fees. (TFC 105.001(a)).

As sweeping as these powers are, there are a few restrictions on the court. Unless there is a verified (sworn) pleading or affidavit by a party, the court cannot on its own, take possession of the child away from a person who has lawful custody, nor can the court exclude a parent from possession or having access to their child. (TFC 105.001(c)).

The normal requirement of an evidentiary hearing is done away with if the order is an emergency order sought after by a governement agency such as Child Protective Service. (TFC 105.001(h)).

This post was simply to give you an understanding of the impact of temporary orders on children issues. We'll discuss children issues in more more detail in latter postings.

Paying the Piper: Interim Attorney Fees

So who is going to pay the bill for all this great legal work? What if one party is in control of the community funds and the other party cannot afford to get an attorney?

The solution is to request interim attorney fees during the pendency of the case. Interim fees may be awarded through temporary orders under TFC 6.502.

The Court will want to hear testimony about why there is a need for interim attorney fees. Reasons include great disparity of incomes, or lack of access to credit by one party. Generally, the Court should strive to equalize any inbalances so that each party has a fair chance to put on their case.

Many times, the judges will look for a source of income that they can channel to the disadvantaged party. This for example could be a large tax refund or yearly bonus that the judge orders on temporary orders to be used by a party to pay interim attorney fees. The judge can also order that spouse ordered to pay the interim fees must cash in stock or take a loan out against a retirement account.

The payment of interim attorney fees is considered temporary spousal support and is enforceable by contempt. (TFC 6.502 and 6.506 see also In re Bielefeld, 143 S.W. 3d 924 (Tex. App.-Fort Worth 2004)).

Show Me The Money..Honey: Temporary Maintenance

In cases in which one party is the primary wage earner, that party has an ongoing duty to support their spouse. Just because a divorce has been filed doesn't change that obligation. At a temporary order hearing, the judge has the power to order one spouse to make support payments to the other until a final decree is entered. (TFC 6.502). If they fail to make this payment, they could be found in contempt of court. (TFC 6.506(a)(2)) If they continue to refuse to pay that "*itch" or "b*asterd", the may find themselves in "j*il" under a contempt order for up to 18 months (Texas Government Code 21.002(f).

A common tactic while one party is paying support to another is to try to delay the end of the trial and "lezzes les bon temps roule" (let the good times roll) in regards to receiving the temporary spousal maintenance. That is why some attorneys will request that the temporary spousal maintenance remains just that..TEMPORARY and ask that a limit of three to six months be put on the obligation to pay. Most judges will allow that. But even if this limit is not requested in the temporary orders, the court may listen to a motion to modify the temporary orders in which the benefiting spouse is receiving payments, but has made no efforts to seek employment or make other financial arrangments to support his or herself after the divorce. Since the State of Texas does not beleive in permanent alimony, the courts will not allow a spouse to suckle at the money teet longer than is necessary to be weened and go out to forage on their own.

Remember we are only talking about spousal support here. CHILD SUPPORT is a whole other matter...

Don't Slip On the Temporary Order A"peel"

Chiquita is mad because at her temporary order hearing, her husband received temporary possession of the bowl of bananas she likes to wear on her head. Can she "appeel" the banana decision because she doesn't like how they were split? Well, if she had the temporary order hearing in front of an associate judge, (the "second banana" judge, if you will..)then she would be able to appeal the associate judge's ruling if she files the proper motion withing three days of the judge's rendering. However, if she have the temporary order hearing in front of the sitting, elected judge, then she cannot appeal because the judgement is "interlocutory" (not a final judgement). There is one exception- if the judge appointed a receiver to manage, protect, or dispose of the bowl of bananas, then she could appeal that to a higher court. (TRC 6.507).

Appealing temporary orders however, should not to be confused with a temporary order on appeal.

Hun?!

Temporary orders generally end when the final order is entered (unless the final order specifically says otherwise). However, if you are appealing a final order, the lower court retains jurisdictional power to render temporary orders while the appeal is pending to protect the parties and the property. These interim orders can even contain things that were not in the final order being appealed. These interim temporary orders are fully enforceable, even by contempt. (TFC 6.709(b) and 109/001(b)). That means even though a party is appealing the order, spousal support and child support must still be paid if they are in the interim temporary order.

One trick though. The interim temporary order must be rendered within 30 days after the appeal is perfected, or the court loses it's jurisdictional power over the case. (In re: Boyd, 34 S.W.3d 708 (Tex.App. --Fort Worth 2000).

Temporary Orders: The Pistol Packin Problem

If you are a card carrying member of the NRA, beware of Temporary Orders! Even if violence was never raised as an issue, if you carry a firearms under a domestic court order by any jurisdication (which a Texas temporary order is), you may be up against federal criminal sanctions. U.S. v. Emerson (270 F.3d 203 (5th Cir.2001).

Most judges are unaware of this, but I have seen some judges ask the parties if either of them own firearms before they grant temporary orders.

The constitutionality of domestic orders is really at issue. How the need for the stability of temporary orders in family law case measures against the fundamental right to bear arms of the second amendement to the constitution has yet to be decided. It seems that nobody really wants to knoch these two heads together by challenging it.

But this being Texas, we do love our shooting irons. So it is probably just a matter of time before this issue comes up before the Supreme Court.

See also: Child Abuse, Family Violence and Protective Orders

A Quick Fix: Temporary Orders

Temporary orders are often necessary to keep the peace and sanity of parties going through a divorce. Ben Franklin, or some other wizzen old guy once said "good neighbors are made with strong fences" (or something like that) and that sentiment goes double in a divorce. A hearing must be had in front of a judge to rule on temporary orders. In Texas, the courts are supposed to set a hearing within 14 days of the request for one, but with the overcrowded courts being what they are nowadays, it is becoming rare that you can get a TO hearing that quickly. Temporary orders are the marching orders for the parties and they are put in place so that everybody knows what will be what until the divorce if final. The parties will be granted posession and access to certain property at the exclusion of the other party. The house, cars, personal effects, etc. will be awarded and the use of community funds may be restricted. Another useful temporary order that is often include is the requirement that both parties must file an inventory and appraisement of the property and other records that will help the parties value and divide the property when it comes time to finalize the divorce.

Divorce Part II: How May I Serve You?

Of all stages of the divorce process, giving and receiving service of process is probably one of the most emotional and misunderstood.

In most cases getting served with notice of a divorce is never a complete suprise. People in a happy marriage don't generally just wake up next to their loving spouse and say "I'm gonna get a divorce today". However, despite the many signposts that may pop up in the months and years preceeding a divorce suit, there is often a sense of suprise and betrayal by the one being served- even if it is simply the thought that "that SOB did it before I had a chance to!"

So why is all this sneeking around with a stack of papers necessary?

It is a basic tenent of the law that the person being sued in court has the right to know the action is happening and to appear in court to defend against the actions. There are strict requirements for service of process and the family law practictioner who ingnores them risks the prospect of a default ruling being retried in a motion for new trial.

Only certain people may serve process. Under the Texas Rules of Civil Procedure, this is (1) any sheriff or constable or other person authorized by law; and (2) any person authorized by law who is at least 18 years old and has not interest in the outcome of the case. (TRCP 103).

Process may also be served by mail. The problems with that is that if the party does not personally sign the return green card, there is no proof of the service if the party then complains and seeks a new trial.

A party may sign a waiver of service that they have received notice of the suit. This is usually the easiest method, but many times parties refuse to sign anything thinking that they are giving up some sort of rights. Usually the only thing they are doing is forcing delaying the inevitable.

Alterntive forms or service are available if personal service or mail by service is not possible. Permission must be obtained by the court to use the methods covered by TRCP 106. These substitute services include delivering the citation to anyone over 16 years of age at the last known address of the person to be served. These require an affidavit as well as a court order.

Another method of service is by publication. Service may be obtained by publishing under Rule 116. There are special provisions in the Family Code under TFC 102.010 and 6.409 which allow the publication to be only once. Also, if there is the case does not involve children, service may be obtained by posting notice of citation at the courthouse door. (The only exception to that is if the name of the respondent is not known in a termination case.)

Whoa There Cowboy!: Temporary Restraining Orders

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

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

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

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

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

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

Divorce Part I: Pleadings and Other Preliminaries

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

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

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

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

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

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

Legislative Update: Parenting Plans In Texas Divorces

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

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

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

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

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

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

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

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

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

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

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

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

Void Marriages

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

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

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

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

The Un-Marriage: The Meretricious Relationship

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

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

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

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

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

"Have You Met My Other Wife?: Putative Marriages

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

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

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

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

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

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