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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.

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I frequently see parties involved in litigation who are furious at the other side for the things they have asked for in their paperwork. Most often this comes up in family law cases when children are involved and one side is asking the court to exclude one party from seeing the child or to severely limit access to the child in some other way like supervised possession. But it happens in more tame situations as well. A request for spousal maintenance or a reimbursement claim can set people off. It can also happen in non-family cases. In civil cases, people are often outraged at the amount of money the other party is claiming they are owed. A request for attorney’s fees in any type of case can be upsetting.

It’s the law’s fault.

The problem is that the law requires a party to a suit to list everything it wants in its pleadings filed with the court. To put it simply, if you don’t ask for it, you can’t get it. Rule 47 of the Texas Rules of Civil Procedure outlines what must be pled for in a civil suit, and section 102.008 of the Texas Family Code does the same for a family law suit. If you want something, or even if you think you might want something depending on information obtained during the lawsuit, you have to ask the court for it in the pleadings.

Asking for the moon.

Because of this requirement to put all claims for relief in your pleadings to the court, attorneys often just include anything they could possibly want. In addition to this being a legal requirement, it’s also just a negotiation tool. You can ask for the moon but know full well that you’ll settle for less than that. If you start out by asking for the baseline that you would settle for, it leaves you no room to negotiate.

Unfortunately, this practice of pleading for everything imaginable can cause animosity. Parties involved in litigation naturally assume the other party wants to take everything from them, and then the paperwork filed with the court often confirms that natural instinct. Though asking for the moon is a good negotiation tactic, it can negatively affect negotiation and the possibility of a settlement in this way.

Keep calm and call us.

If you have been served with a lawsuit, don’t jump to conclusions about the worst possible scenario. Keep in mind that an attorney drafted the paperwork you were served with, not the party suing you. The attorney representing the other party may have taken the facts given to them by their client, and applied them to the law by taking the opportunity to ask the court for any relief even remotely related to the facts of the case. That attorney is doing that a) because the law essentially requires them to do so, and b) to set the case up as favorably as possible for their client when the negotiation phase of litigation is reached.

If you have been served with a lawsuit, whether it makes you angry or not, give our family and civil attorneys at Guest & Gray a call at (972) 564-4644. We would be happy to meet with you for a free, initial consultation to review your paperwork and your case. We can often tell you what the motivations of the other party might be and the options available to you.

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If you have a current pending divorce or suit affecting the parent-child relationship then you most likely have temporary orders in place.  If not, in most family law cases you do want to ensure that you have temporary orders granted by the Court so that you know what you should and should not be doing while the case is pending.  That is, temporary orders set the status quo of your case and instruct the parties as to their rights and duties with respect to their children, property, debts, and other issues in the case.  For instance, you may have been granted exclusive use of the marital residence, your vehicle, and primary possession of the children.  These are all essential things to establish in a case without delay, unless you and the other party are working amicably towards a final resolution.

Enforcement of Violated Temporary Orders

Once the Court has granted the temporary orders, they are enforceable against both parties.  If any portion of those orders is violated by either party, there are options.   The other party may have been ordered to pay child support and they may not be doing that and you may need that support in order to survive.  Or, the other party may have been ordered to participate in counseling or drug testing and they not be doing so.  It might even be that the other party will not stay away from the property or give you the car you were awarded temporarily.  All of these issues are concerning and when you are not getting the results from the provisions the Court put into place it can be very frustrating.  But, you do have recourse.  Typically, you can file an enforcement action of temporary orders asking that the wrong be corrected and asking for attorney’s fees for having to go back to Court and ask the judge to tell someone to do what they were already ordered to do.  If it is a failure to pay child support, the violating party also faces possible jail time.  You will have to be able to prove that the temporary orders were put in place, prove the violations, and then the burden becomes the other party’s to state why they did all of those things.  Depending upon those reasons, the Court may be a little lenient upon the person.  It is always a hope that the Court would at least grant your attorney’s fees for your attorney’s time to draft the enforcement and have the hearing.

What Should You Do?

If you are in a situation where the other party has violated the temporary orders in any way, do not delay in consulting with an attorney regarding this issue.  You will want to address it as soon as possible to correct the issue at the outset.  It might be that you file your enforcement and then the other party realizes you are serious and they will either start doing what they are supposed to be doing, refrain from what they were not supposed to be doing, or pay what they were ordered to pay.  If that occurs, then you have saved a lot of money in just filing the enforcement and not having to proceed forward with the hearing.  However, this occurs in a very small number of cases and unfortunately you typically have to proceed forward with the hearing and have the judge sort out the issue.  Contact a family law attorney at Guest & Gray today to consult regarding your present circumstances.  Guest & Gray takes cases all over the Dallas/Fort Worth area and has offices in Forney and Rockwall.  We are here to help and look forward to representing you.

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You have been served with a Petition for Divorce or any family law petition by either a private process server or constable and you wonder what to do at this point.  You have never been through something like this before and you do not know when or if you even need to respond.  But, if you were served with anything you must file a response.  You cannot allow the case to proceed forward without your response because if you do, you will be setting yourself up for failure.   In not filing a response, the other party can secure what is called a “default judgment” against you.  If they do this, that means that the judge can entertain and sign any order that the other party presents to the court without further notice to you.  You definitely do not want this to happen in a family law case because unfortunately there will not be anything to reverse that awful one-sided order once it is entered because you had ample notice to participate once you were served.

So, to avoid that catastrophe it is important that you, at the very least, file what is called a “general denial” or what some people call an “answer.”  This puts the court on notice that you have received the petition (though they will also see that in the return of service filed after your service by the process server and constable) and that you are contesting the case.   Therefore, if any additional actions are taken in the case like a hearing or order presented to the court you will be entitled to notice before any of that can occur.

Deadline to Respond – 10 AM on the Monday after 20 Days

The important issue in this situation is your deadline to file an answer in a family law case.  That is correct, you not only have to get an answer on file but you also have to make sure it is timely.  Texas Rules of Civil Procedure Rule 99(b) and (c) state that you must “file a written answer to the plaintiff’s petition on or before 10:00 am   on the Monday next after the expiration of twenty days after the date of service thereof.”  So, that means that you look at the date you were served and then you county twenty days and if the twenty days expires in the middle of the week (for instance, on a Tuesday-Wednesday) then you have until the following Monday by 10:00 am to file your answer.   The good news is the citation that you are served with (attached to the petition) contains this information on it.  It will also state your date of service so that the Court also knows when to start counting from.

When you meet with your attorney, always take a copy of the petition and citation that you were served with so that they can review it and determine when your answer should be filed.  As discussed, you never want to miss that deadline.  Be sure to contact Guest & Gray if you are ever served in a family law matter to schedule a free consultation.  Our family law team is ready to help you.

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What is the law in Texas on marriage fraud?

The first step in determining whether or not you qualify for an annulment based upon fraud is to ensure that you fit within the parameters of the law on this issue.  Specifically, Texas Family Code Section 6.107 states that, “a trial court may grant an annulment of marriage to a party to the marriage if (1) the other party used fraud, duress, or force to induce the petitioner to enter into the marriage; and (2) the petitioner has not voluntarily cohabitated with the other party since learning of the fraud or being released from the duress or force.”  Therefore, if someone used fraud to get you to marry them and you stopped living with them after you learned of the fraud, you qualify so far.  The next question becomes, what constitutes as fraud?  Many Texas Appellate Courts have addressed this issue and have come up with a standard as follows, “Fraudulent inducement is established by proving that a false material representation was made that (1) was known to be false when it was made; (2) was intended to be acted upon; (3) was relied upon; and (4) caused injury.”  See Desta v. Anyaoha, 371 S.W.3d 596, 600 (Tex. App.—Dallas 2012, no pet.); Zhang v. Zhang, not reported.  Therefore, if your spouse says something to you prior to marriage that is false and you depend upon that false statement to marry them and then you find out and it has caused you injury in any way you might have a strong legal argument for an annulment.

What is an example?

Because this issue in the law can be quite confusing, it helps to review it in context.  In Zhang v. Zhang, the Dallas 5th District Court of Appeals had to determine whether or not the trial court was correct in granting an annulment based upon fraud.  In that particular case, the spouses had first dated and had a child together and then subsequently married.  Prior to marriage, the husband did not have his U.S. Citizenship and he told his soon-to-be bride that he loved her very much and wanted to be married to her.  Any woman would think that this is legitimate, especially since they already had a child together.  However, after they got married the husband then proceeded to tell his wife that he actually did not love her and had cheated on her prior to their marriage.  The wife did not live with the husband again after these statements were made by the husband.  The trial court heard all of the testimony and determined that the husband had made false statements prior to marriage, knowing that they were false statements at the time that they were made, and that if those statements had not been made then the wife would not have followed through with the marriage.  The trial court also determined that the husband had received a legal benefit (citizenship) by marrying the wife.  Therefore, the trial court annulled the marriage based upon fraud.  The Dallas Court of Appeals reviewed the evidence and determined that the trial court was correct in its ruling.

What should I do?

Often times I have consults with people who believe that they might be eligible for an annulment because they find out things about their spouse post-marriage that they did not otherwise know prior to marriage.  For example, you might learn after your marriage that your spouse has a criminal history.  Unfortunately, unless your spouse told you “I do not have a criminal history and you have nothing to worry about” and those statements caused you marry that person, you do not qualify.  Also, many people miss the whole “you cannot cohabitate after you find out” part about the law.  Therefore, if your spouse told you something prior to marriage and you married that person relying upon those statements and they turned out to be false it is important that you cease living with your spouse and consult with an attorney regarding your rights.  Contact Guest & Gray as we offer free family consultations and are ready and able to assist in your legal needs.

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One of the most common questions I receive in family law consults is “How long is a case like this going to take” and the answer that I have to give every client is that it just depends.   Unfortunately, this is the nature of family law cases in that the length of your case depends upon everyone’s calendars (yours, the other party’s, the attorneys’ and the court’s calendar), the facts, the issues, and the steps that may arise in your case.   This is one of highest concerns among my family law clients because they do not want to have their case drag on for months or even years.   I completely understand wanting the case to be finalized as quickly as possible, but it is just not something that is doable due to the circumstances that these fact-driven cases present.  Many people also do not realize there is not a way that we can speed up a case at all and if there is a way, it is very costly.  Therefore, once in the trenches, people typically opt to go with the flow so that they can hopefully achieve the results they are seeking to achieve.

One of the most prominent reasons that a case involving child custody can last long is because the Court or one of the parties requests a social study.  A social study is where a social worker investigates both parties, their respective homes and backgrounds, does reference checks, etc. in order to render an expert opinion for the court as which parent the child should primarily reside with and the visitation the other parent should receive.  I have had several cases where a social study took up to 9 months to complete.  Also, once a social study is completed and if new evidence arises after the social study is completed, a party can request a supplemental social study to be completed.

Even if you do not have a case involving child custody issues, in general, family law cases contain several steps that parties must complete before a case can be finalized.  Typically, you have an interim temporary orders hearing to set the status quo of the case and then other steps can be ordered at that time such as counseling, appraisal for property, drug tests, psychological examinations, mediations, pretrial conferences, depositions, etc.  Also, both parties will want to complete discovery in order to learn about each other’s cases and gather information/evidence as to the issues.  All of this can be very time consuming.  Also, and quite common, the other party may be doing everything within their power to drag out the case and it may all be within the limits to where sanctions cannot be requested.  We have had several instances of people just not wanting a divorce and so there are several temporary orders hearings scheduled and many different steps that must occur before a final trial can be scheduled.

Therefore, while it can be frustrating it is important to understand that you are not alone in this and many people experience a long process in their cases.  So, while it may seem as though your case should not be taking as long as it is understand that it is not typically the attorney’s fault.  At Guest & Gray, we work to ensure efficiency however sometimes some things cannot be avoided.  If you are facing a family law dilemma, contact our firm today to schedule your free consultation.

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In Texas, if a mediated settlement agreement is properly executed you cannot challenge it.  Texas Family Code Section 153.0071(d) and (e) mandate that courts shall issue an order in compliance with a mediated settlement agreement.  This is why it is so important to have an attorney attend mediation with you.  You cannot go back after the fact and change it.   When the mediated settlement agreement is signed and on file with the court, that is it.  Those are the terms and they cannot be changed.  Many have tried and failed.

Why Would a Party Want to Back Out on a Mediated Settlement Agreement?

Mediations can sometimes be very difficult and long days.  You typically do not reach an agreement until the very last hour after you have already been there for eight hours without a break.  At this point, you are exhausted and you may not be thinking clearly.  So, you might forget something.  Also, a lot of parties have what we call “buyer’s remorse” in that you thought it sounded good at the time but now in practice it is not working out.  For instance, a visitation schedule for a child—a party may end up wanting more or less time due to demanding schedules and want that changed.  Or, a party may want to say that they actually wanted more child support than what they originally agreed to and they want to challenge that now.  However, the law is pretty clear that you cannot.

Example of Recent MSA Challenge and Result

A perfect example of how solid this law is and how serious the appellate courts take it is fond within In the Interest of S.K.D. and J.E.D., Minor Children.  In that case, the mother filed a modification of the divorce decree seeking sole managing conservatorship of the children.  The trial court ordered the parties to attend mediation and the parties settled at mediation, entering into a binding mediated settlement agreement.  After the mediated settlement agreement was filed, the mother filed an “emergency motion to modify the MSA” and the trial court did modify the terms but in complete opposite terms as to what the mother was wanting.  She did not like that and so she appealed arguing that the trial court could not have issued these orders because they were contrary to the mediated settlement agreement.  Yes, you read that correctly—mom wanted the mediated settlement agreement changed and when it did not go her way she appealed wanting the mediated settlement agreement terms reinstated.

Fortunately for the mother, the Fifth District Court of Appeals of Dallas County agreed with her and stated that the trial court did not have the authority to alter the terms of a mediated settlement agreement and overturned the trial court’s order.  Citing In Re Lee, this Court held that “Section 153.0071 encourages parents to peaceably resolve their child-related disputes through mediation by foreclosing a broad best interest inquiry with respect to the entry of judgment on properly executed MSAs, ensuring that the time and money spent on mediation will not have been wasted and that the benefits of successful mediation will be realized.”

What is the Consensus for Mediated Settlement Agreements?

It is not a secret that courts take settlements very seriously and that most judges are proponents of agreements.  Judges would prefer that you and the other parent are able to work out the issues and come up with a solution that you both believe is best for your child rather than the judge do it.  The judges are strangers to your situation and only have a short amount of time to hear all of the facts and evidence and determine what should be done.  This is a heavy burden to bear at times.  However, sometimes settlements are not possible.  But, when they are and when one is reached through a mediated settlement agreement you can assure yourself that it will be implemented by the trial court and if it is not the appellate court will make it right.

 

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If you have a final decree or final order in a family law case with an obvious mistake from what the trial court ordered or the parties agreed, you can get it fixed through what is called a Nunc Pro Tunc.  The key is that this mistake has to be a clerical error—did it mix up the judgment of the court.  It cannot be one that requires “judicial reasoning and determination” or in other words any thought process on the judge’s part.  If it is in fact a clerical error, then under Texas Rules of Civil Procedure, the trial court can fix this clerical error at any time.

What is an Example of a Clerical Error?

In Bernardo Reyes v. Olga Reyes, the Amarillo Seventh District Court of Appeals had to address this issue.  In that case, the trial court made an initial order on the record divorcing the parties and making appropriate orders regarding conservatorship and child support.  Most importantly, the trial court ordered that mother be the parent who has the exclusive right to designate the primary residence of the children and father to pay child support. The trial court rendered the orders on the record but the final decree was never actually signed by the court until three years later.  The problem was that the actual decree ordered mother to pay child support.  Mom filed a nunc pro tunc to fix this obvious error.  The trial court entered the nunc pro tunc, correcting the error that it was actually father who was supposed to be paying child support.  Father challenged that.  In reviewing the trial court’s record, the appellate court was able to determine that this was in fact a clerical error and affirmed the trial court’s ruling.

What do I do if my Orders are wrong?

Make sure that the error in the orders is due to someone’s name being incorrectly used or incorrect numbers, etc.  Child support is a typical area where nunc pro tunc orders are used.  If you find an error, file a nunc pro tunc as soon as possible.  It is always better to correct the error when you find it.  If you are facing this situation, contact a family law attorney at Guest & Gray for a free consultation.

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Your spouse has filed for divorce but tells you that you guys can agree on everything and that you do not need an attorney.  They also tell you that you do not even have to be served by process server but instead that you can sign a “waiver”.  This means that you sign the document, accept the petition informally from your spouse, and you will not be formally served by a process server or constable.  Many people just sign the waiver without even knowing what it means or consulting with an attorney.  The reality is you probably do not want to sign this.  Reason being, when you sign this document you waive citation, filing an answer, and further notice in your divorce.  Thus, if your spouse wanted to they could proceed forward with whatever final orders that they wanted to present to the court giving you absolutely none of the property and/or no rights to your children.

An example of just how bad a waiver of service could be is found in Garduza v. Castillo from the 5th District Dallas County Court of Appeals.   In that case, the husband appealed a Dallas trial court’s opinion to allow a default judgment order against husband and in favor of wife.  The wife initially filed a pro se (not represented by an attorney) petition for divorce and represented to the trial court that she and her husband would agree on everything.  Husband then filed a waiver of service that waived everything—future notice of any hearings, citation, filing an answer, being a part of the case.  After that, the wife hired an attorney (because apparently she could not get that agreement) and they filed a couple of amended petitions seeking primary of the children, back child support, and other issues.  The wife and her attorney then proceeded forward to the default docket and presented an order to the trial court which was signed because the husband filed a waiver.  However, once the husband received a copy of the decree he was not very happy.  All of the orders were completely against what he and his wife had initially discussed and he was not in agreement with the trial court’s determinations.  Thus, he proceeded forward with an appeal.  He still did not get an attorney and filed the appeal himself.  The appeal was not properly filed; however, because the appellate court determined that husband was never “served” properly with the amended petitions this was sufficient to grant the appeal.  That is, the appellate court did recognize that husband filed a waiver of service.  However, the appellate court determined that wife filed two amended petitions and they were never “served” on the husband as required by Texas Rules of Procedure Rule 21a.  That is, once you sign a waiver or even if you are served by a process server, if the other party files any additional affirmative pleadings they must give you proper notice of this.  This is accomplished through sending the additional affirmative pleadings via certified mail return receipt requested.  The appellate court found that the wife did not do this and thus they could overrule the trial court’s orders.

Chances are you will not be as lucky as Mr. Garduza.  He genuinely skated by and got another bite at the apple from the sheer fact that his spouse filed amended petitions and failed to serve him those by mail.  If they had not filed amended petitions and just proceeded forward with what the wife wanted in the orders, this would not have been a successful appeal.   There are actually three morals to this story—always get an attorney to protect your rights and interests; do not sign a waiver unless you are absolutely certain of the orders that will be presented to the court AND you attend all hearings; and you have to be served by a process server with the initial pleading unless you sign a waiver of service and then all future notice goes to you by certified mail.  If you are facing this situation, contact an attorney at Guest & Gray today.

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A federal judge in San Antonio struck down the ban on same-sex marriage earlier this year citing that the ban has “no legitimate governmental purpose.”   In fact, the judge said that the ban is unconstitutional because it prevents equal rights across the board for marriage.  Even though this seemed to be a large step for the LGBT community, the law prohibiting same-sex marriage is still in effect until the decision can complete the appeal process.   Attorney General Greg Abbott plans to fight for Texas’ right to regulate the marriage institution.

Thus, the Texas ban continues on same-sex marriage but the question of same-sex divorce is becoming an ever increasing issue in the family law world.  Reason being, because Texas does not recognize same-sex marriage it also in turn does not currently recognize same-sex divorce.  That is, if you and your partner get married out of state and move back to Texas you only have two choices right now—either just separate indefinitely or declare the marriage void.

Texas Family Code Section 6.204(b) states that “a marriage between persons of the same sex for a civil union is contrary to the public policy of this state and is void in this state.”   Further, subsection (c) states “The state or an agency or political subdivision of the state may not give effect to a (1) public act, record, or judicial proceeding that creates, recognizes, or validates a marriage between persons of the same sex or a civil union in this state or any other jurisdiction; or (2) right or claim to any legal protection, benefit, or responsibility asserted as a result of a marriage between persons of the same sex or civil union in this state or any other jurisdiction.”  Therefore, even if you are legally married in another state you are not considered married in Texas and therefore do not have the rights a married couple would have including the right to divorce.  Many people do not see divorce as a right until it is considered in the context of what you gain during a divorce.  A divorcing couple has rights in that their property is considered community and there are claims to exclusive use of property, spousal support, child support, and even custody.   On the contrary, if your marriage is declared void then it is as if the marriage never existed.  Therefore, you would not have any rights to anything that was accumulated during the marriage such as children or property.

At least two appellate courts are considering the impact of this law as it stands now.   In Tarrant County, a woman named Cori Jo Long is fighting for her right to divorce.  She was married out of state and is now seeking a divorce from her partner.  She is advocating for a change and it will be interesting to see how the Tarrant County trial court decides this issue.  There is some guidance out of San Antonio in which Judge Barbara Nellermoe dismissed the State of Texas as a party to a same-sex divorce suit and is proceeding forward with a hearing to decide certain issues in the case, including custody.  Attorney General Greg Abbott will be appealing Judge Nellermoe’s decision to refuse to ban the same-sex divorce.   Both cases are just in the beginning stages, so it will be interesting to track the results as the cases progress forward.  This could mean a major shift for the same-sex community and family law practitioners alike.