What if I don’t like how the court divided the property in my divorce? Can I appeal it?

 You can try and appeal the courts division of your property in a divorce settlement but the appeals court will have a certain standard that they will use when reviewing the trial court’s decision. The appellate court is going to review the court’s decision by using an abuse of discretion standard. What this means is that the appellate court will review the case and make sure there was sufficient evidence for the trial court to base its division of property on. Then, based on that evidence, the appellate court will decide if the trial court’s division was reasonable. If the trial court can show that its decision is based on meaningful and firm evidence, then the appellate court will not overrule the trial court’s division of property.

In my divorce, the court did not divide the property equally, is this fair?

When someone decides to become a lawyer he or she must go through a rigorous process before becoming certified to practice law. It is required that he or she complete law school, which can take anywhere from to three or four years, and pass an extensive exam. During the course of study, prospective lawyers will learn civil procedure, criminal procedure, evidence, legal writing, and various other courses that will prepare them to sufficiently represent a client in the courtroom. Years of preparation and thousands of hours are spent for a person to prepare to be able to adequately represent another person. With all the criteria that must be met for a lawyer to represent another person in court, it would be unreasonable to expect people, without adequate education, to be successful in representing themselves in a courtroom. But, some people try to represent themselves in the courtroom with no legal assistance. This is what the legal field refers to as “pro se”, the Latin phrase meaning “for oneself”. Unfortunately, in some cases, people do so to no avail and Mr. Lares, in his appeal to the Fourth Court of Appeals Court, Lares v. Flores, found out just how difficult the process can be.

Why did Lares’ attempt to represent himself fail?

When a decision is made on a case a person can attempt to appeal the decision by claiming the original court made an error. When making an appeal there are certain rules of procedure that must be sufficiently followed for the court to consider your appeal. Lares had several issues that he wanted to appeal from the trial court. He claimed the trial court erred by failing to provide him notice of the hearing, denying his motion for continuance, refusing to hold his ex wife, Flores, in contempt, and believing his ex wife’s testimony over his because he was incarcerated at the time. Lares needed to prepare an adequate brief of these issues that followed the Texas Rules of Appellate Procedure. Lawyers are trained to know these rules and expected to follow them when they are submitting a brief to the court. If the brief is not adequate, the court will wave the complaints made and the appeal will not be considered.

Usually, it is in the best interest of a child to live with their parent. This is not always the case though, and there are times that a court may need to terminate the rights of a parent. The court will terminate a parent-child relationship if it finds it to be in the best interest of the child and if the parent committed one or more of the statutory acts set out in Texas Family Code 161.001. Abuse and neglect will not always be the only reasons that a parent’s rights have been terminated. Instead, each case that is brought before the court will be determined on a fact based analysis considered by several factors.

How does the court determine the best interest of the child?

In 1976 the court came up with several factors that determine the best interest of the child in Holley v. Adams, and are now termed the Holley factors. These factors include 1) the desires of the child; 2) the emotional and physical needs of the child now and in the future; 3) the emotional and physical danger to the child now and in the future; 4) the parental abilities of the person seeking custody; 5) the programs available to assist the person seeking custody in promoting the best interest of the child; 6) plans for the child by the person seeking custody; 7) the stability of the home or proposed placement; 8) the acts or omissions of the parent that may indicate the parent-child relationship is not a proper one; and 9) any excuse for the acts or omissions of the parent. Not all of the factors listed above will apply to each case brought before the court. The court will use the factors on a case-by-case basis to decide if termination of the parent’s rights is in the child’s best interest.

How do I prove that I am in a common law marriage?

Texas is a state that recognizes common law/informal marriages but certain elements must be met to prove that a common law marriage between a man and woman exists. Section 2.4019(a)(2) of the Texas Family Code establishes these elements. If a person wants to prove that an informal marriage existed, he or she must be able to prove each of the following. First, it must be established that both persons have made an agreement to be married. After this agreement has been made, during the time that the informal marriage is alleged, both persons must live together in Texas, as husband and wife. While living together it must also be shown that both persons represented to others in the community that they are husband and wife.

In a Texas First District Court of Appeals case, Miller v. Prince, Miller was unable to establish that she and Prince had a common law marriage because she did not live with Prince during the relevant times of the alleged common law marriage. During the course of the relationship, Miller moved to California and then returned to Texas in 1994. When Miller returned to Texas in 1994, she did not live with Prince and therefore was unable to meet that element needed for a common law marriage to be established. A person must be able to prove all of the listed elements when trying to establish a common law marriage. Because Miller and Prince did not live together at the relevant times the court found there to be no common law marriage. Even if Miller had been able to offer some proof to the other elements of common law marriage, it still would not have been granted because all criteria must be met.

When you are married, you and your spouse accumulate debts together.  Most likely, those debts are either in one or both of your names.  From a divorce attorney’s perspective, it is always best if the debt is in your name or your spouse’s name and it is associated with an asset that you are receiving.  For instance, if you are awarded the car but there is still a note on the car—as long as the note is in your name alone, awarding you the car and the debt associated with it does not create an issue for your spouse.  But, if the debt is in both of your names then the other spouse either wants you to refinance OR sell the asset.  Reason being, if your spouse is ordered to pay a debt that is in both of your names but fails to do so then it affects your credit and the creditor can still come after you for repayment of that debt.

In some instances, people rely upon indemnification provisions within divorce decrees in order to protect them when a debt is in both parties’ names but only one spouse is ordered to pay the debt.  An indemnification provision looks like this:

“Each party represents and warrants that he or she has not incurred any outstanding debt, obligation, or other liability on which the other party is or may be liable, other than those described in this decree.  Each party agrees and IT IS ORDERED that if any claim, action, or proceeding is hereafter initiated seeking to hold the party not assuming a debt, an obligation, a liability, an act, or an omission of the other party liable for such debt, obligation, liability, act or omission of the other party, that other party will, at his or her sole expense, defend the party not assuming the debt, obligation, liability, act, or omission of the other party against any such claim or demand, whether or not well founded, and will indemnify the party not assuming the debt, obligation, liability, act, or omission of the other party and hold him or her harmless from all damages resulting from the claim or demand.

I have answered this question time and time again for people and the answer is always the same—nothing good would come of you representing yourself.  While law school does not prepare us for everything the legal world has to throw our way, it definitely prepares us to analyze legal issues on your behalf.  There are numerous examples out there in the appellate cases as to why you should never represent yourself.  But, most people try to rationalize and say that it is not a big deal and that they will ultimately be okay.   My thought process is if you can pay an attorney to even review the documents you are about to sign that is always better than just outright signing something.  Reason being, when it turns out to be something that you did not ultimately want the likely result will be that you will just have to get over it.

The most recent example of why you should never go this alone is out of a bill of review from the 422nd Judicial District Court of Kaufman County.  The case is entitled Laurie Faye Walker v. Brad Vincent Walker and in that case the wife filed a bill of review in the 422nd Judicial District Court, the same court that signed off on her decree, asking the Court to basically review and reconsider her divorce.  The Court denied her bill of review and the wife subsequently filed an appeal.  The Fifth District Court of Appeals upheld the 422nd Court’s denial of the bill of review for numerous reasons.  A bill of review carries a high burden and you have to exhaust all other remedies before filing it.  Thus, the bill of review has to be your last resort that you seek when you do not have any other remedy and the Court of Appeals found that the wife did have a remedy when she was mailed the decree within a week of it being filed.  At that point, she could have filed an appeal but she did not.  She waited four years later and filed a bill of review.  Also, she stated that she signed the decree out of duress but the Court clearly found that she could not be believed when she was in a different state and her husband was not even around her when she signed.  Finally, she claimed that she did not have notice of the final hearing but the Court found that she had signed off on all of the documents and she did have hearing that those documents were approved by the trial court within a week of being filed.  Therefore, the Court held that this was sufficient notice and based on all of these reasons agreed with the trial court.

Do not let this happen to you—hire an attorney to assist you in your divorce.  You always want to hire someone (no matter what stage you are at in your divorce) as opposed to not hiring and then facing the consequences of representing yourself.

Many parents worry about paying for the children’s medical expenses after divorce. If you have a final decree or custody order there should be provisions that detail how the children’s medical expenses will be split among the parents. Typically, one parent is ordered to maintain or obtain health insurance coverage for the children, the other parent might be ordered to pay all or half of the premium (depending upon the custody and visitation arrangement) and then the parties are ordered to pay 50/50 of the unreimbursed or uninsured medical expenses. Most likely, the parent who receives the bill of the medical expenses is ordered to send the actual bill to the other parent within 30 days of receiving the bill. Then, that parent has 30 days from receipt to reimburse the paying parent for their 50% of the expense. The problem arises in that most parties either do not realize or do not comply with the time limitations in the orders. So, what does that mean? If you have received a medical bill and failed to send it to the other parent within 30 days, does that mean that you have to count your losses on the medical expenses?

The Dallas Fifth District Court of Appeals answered this issue recently on an appeal from a Collin County case in In the Interest of I.O.K., J.C.K., and M.O.K., Children. In that case, the parties were divorced and subsequent to that, the mother filed an enforcement seeking reimbursement of medical expenses on the children’s psychology bills. The father failed to pay. The parties’ agreed decree stated, in part, that the party receiving the medical bill must send “all forms, including explanation of benefits (EOB), receipts, bills, and statements reflecting the uninsured portion of the health-care expenses within 30 days after” the party receives them. The father argued that mother never did this and so he should not have to pay. This is despite the fact that he knew the children were attending sessions with the psychologist and had received the bills in the discovery that the parties completed. The father was even receiving the bills from the insurance company with the EOBs. However, at the final hearing the mother admitted that she never sent the bills directly to father within 30 days of receiving them.

Based upon these facts and the reviewed testimony, the Court of Appeals agreed with father that his obligation to reimburse mother his portion of the unreimbursed medical expenses does not arise until mother complies with the terms of the decree and sends the bills to father within 30 days of receiving them. Mother even admitted this in her testimony. Therefore, the Court of Appeals held that you cannot hold the father responsible for the unreimbursed medical expenses when mother did not comply with her obligation under the decree. Therefore, they reversed the trial court’s ruling and ordered that mother take nothing.

The most common adoption that we encounter is that of a stepparent.  In many cases, the stepparent has substituted for years as the child’s biological parent that has been absent from their life.  That is, the stepparent cares for the child, provides for the child, consoles the child, and does anything that a “normal” parent would do for their child.  Thus, it is understandable when so many couples come into our office and want to make it official.

To begin this type of proceeding, the parent who is married to the stepparent would petition the court for the termination and adoption and the stepparent would join in that petition.  The child must have lived with the parties for at least 6 months before you can file.  You must have the biological parent whom you are seeking termination on served.  In many cases, the biological parent wants to voluntarily relinquish their rights.  If this is the case, they would sign an affidavit voluntarily relinquishing their rights and consenting to the stepparent adopting the child.  The affidavit would be filed with the court and then the case would basically proceed without that party.  This is, as you can imagine, the easiest way to accomplish the stepparent adoption.

If the other side is not in agreement, then you must seek an involuntary termination which can be very difficult.  The grounds for an involuntary termination are contained in Texas Family Code Chapter 161 and this is a complete list.  Meaning, if it is not on the list, then it is not grounds for involuntary termination.  So, if you have an order and the other parent is not exercising their ordered visitation or not paying child support as ordered, most likely this will not be enough.  While these are arguably contained in the list, you still have a court order that you could enforce rather than say, “Okay, they are not doing what they should and so their chance is over.”  In fact, many courts would wonder why you would not seek enforcement rather than a termination.  Most courts if presented with this type of situation would give the other parent a chance to have involvement in the child’s life.  Also, as in all family law cases, even if the parent has done one or more of the things on the list, it must still be in the best interest of the child that the court terminates that parent’s rights to the child.

As a general rule in Texas, all property that you acquire during marriage is community property.  There are some exceptions in which property can be deemed one spouse’s separate property.  These are pretty basic concepts but the issues arise when property is commingled or wasted by another spouse and how does a court compensate the other spouse for that?  For instance, most people may realize that if you buy a home prior to marriage then that home should be your separate property.  However, if there was still a mortgage on the home and your spouse contributed to the mortgage then the contributing spouse now has a reimbursement claim.  Also, reimbursement arises when one spouse “wastes” or spends money from a community property account.  For example, if the parties have a savings account and one spouse spends money from that account and cannot prove it is for necessary living expenses then the other spouse may be able to recover their portion of the funds.  Equitable reimbursement can be a tricky concept that family lawyers have to deal with because it is not as cut and dry as people think and sometimes, even though the law may seem clear.

The important thing is to know the law and understand whether or not you qualify for an equitable reimbursement claim.   If you are making a claim for reimbursement, then you bear the burden of proving that expenditures were made and that you have a right to be reimbursed for those expenditures.  So the two issues to focus on are (a) either funds of one estate were used to enhance another estate without receiving any benefit (separate property money used to pay off a debt that arose during that marriage; separate money used to put towards the purchase of a community asset) OR (b) the other spouse “wasted” the funds of the community estate.  The latter is proved by stating that the “wasting spouse” has committed constructive fraud—they spent your portion of the estate without your knowledge or consent.  This is not to be confused with actual fraud which requires malice intent.  If you prove this, then your spouse must defend themselves and prove that it was “fair” spending on such things as necessary living expenses.   The spouse defending themselves can always have a claim for an offset which is where they state that they are owed some deduction in the claimant spouse’s total reimbursement because they may have done some other form of reimbursement.  For example, you may have a claim for reimbursement of $50,000.00 but your spouse can claim an offset if they purchased something for you with a portion of those funds (i.e. a car or paid off some debt).

We have several cases involving claims of reimbursement in Kaufman County.  It is a normal occurrence in divorces, especially if people have separate property coming into the marriage or inherit something during the marriage.  If you feel that you are eligible in any way for an equitable reimbursement claim or have questions regarding property division in a divorce in general, please contact Guest & Gray and schedule a consultation.

Getting divorced doesn’t have to be expensive. But if you’ve been through one or looked into getting one, you know that it usually is. Sometimes it’s expensive because attorney’s fees are so high. Other times it’s expensive because the parties involved can’t help but fighting over every little thing. But if you and your spouse can come to an agreement on how to split up your property and/or time with your children, we’ll do our part to keep the attorney’s fees to a minimum.

Guest & Gray, P.C. is now offering flat fees for agreed divorces, and we’re accepting payment plans. Here’s how it works. The base fee for an agreed divorce is $1,800.

There may be additional fees if you require additional documents to be drafted so that an interest in a house or a retirement fund can be transferred. But the base fee covers the things every agreed divorce requires: a petition for divorce, a waiver of service (so a process server doesn’t have to serve the other party) and a final decree of divorce. Again, we can do this on your timeline, so the payment plan can proceed at the pace at which you need it to proceed.