Dallas Divorce Lawyer Blog

Articles Posted in Divorce

When the judge signs your divorce decree you and your ex must abide by the terms of the decree from that moment. If you or your ex does not comply with the terms you can be held in Constructive Contempt. Constructive Contempt is a type of contempt that is used to enforce the court’s order making the party perform an act that he or she has failed to do. Contempt is either civil contempt or criminal contempt and the court can either impose a fine, imprisonment, or both in any case. For civil contempt, the court will try to persuade your ex to abide by the order, for criminal, the court is invoking punishment for an act your ex may have completed that offended the court.

Once your ex has failed to comply with the divorce decree or custody order, you and your lawyer will need to make sure and do several things before the court will seek compliance from your ex.

Plead a proper contempt

         You will want to make sure and properly plead to the court how your ex has violated the divorce decree or custody order. To do this, first you must list in the pleading the portion of the order that has been violated. For example, listing where in the order that your ex is supposed to pay child support. Then you will want to list how the ex has violated this order. Going back to the child support example, there you would list that a payment, in a specific amount, was due on a specific date and your ex failed to make this payment. Third, you and your lawyer will want to make sure and notify your ex of the contempt hearing. Your ex must be personally served, serving his or her attorney will not be sufficient. If you are pleading contempt for child support your ex must be served with a citation and show cause order, a citation must be given to support a money judgment. If your ex has violated an order by a criminal act that has offended the court then the punishment cannot exceed 6 months, if so, he or she will be entitled a jury trial.

The Hearing

Next, the pleading will need to be proven up before the court. To prove up the case, first you will be asked to identify your ex as the person whom who are filing contempt against. Second, you must ask the court to take notice of the order that you are trying to enforce. Third, you will have to prove, before the court, that your ex was given notice about which he or she is being filed for contempt against. Example: prove that your ex was aware that he or she was supposed to pay child support on a certain day but did not. Fourth, you and the lawyer will need to make sure and have a proposed order ready at the hearing, such as an order holding your ex in contempt and committing him to jail or based on certain conditions. Fifth, your ex will need to be read his rights and it must be put on the record.

What to do next if you have a successful contempt hearing:    

         There will need to be a punishment assessed for each act of contempt that you have won against your spouse. You and your lawyer will want to do this in case your ex is able to appeal one of the charges, assuming there are multiple. If he or she wins on appeal for one charge, he or she will still have to face the punishments for the other contempt charges.

The order for contempt must include how your ex can meet the requirements for the punishment that is given.

Can I file contempt against my ex for debts?

         Under Article I Section 18 of Texas Constitution a person cannot be jailed for not paying a debt, except for: child support, spousal support, and attorney’s fees and costs incidental to the collection of a child support obligation. Failure to pay attorney’s fees can be enforced by contempt, if the fees or costs are being paid out of property or funds in your ex’s possession when the order was made.

Can I file contempt against my ex for not following a child possession order?

         Yes, but only if you have strictly followed the order in your custody agreement. You must have attempted to get the child at the time, date, and location that are designated in your order and your ex must have refused to turn over the child to you. It will not be enough in court if your ex has only called and told you that you could not have the child.

What If my child refuses to visit me, according to the possession order?    

         This is known as passive contempt. Your ex, having primary possession, may claim that he or she had the child ready and packed, but the child refuses to go. If so, the courts have taken different views on this subject. Some courts refuse to acknowledge passive contempt and some hold the parent that has primary possession is in contempt. The Houston 14th Court of Appeals recognizes passive contempt, and has said that it is the obligation for the parent to drag the child to the visiting parent.

A trial court has plenary jurisdiction (complete control) over a case for 30 days after the judge signs the final judgment in a divorce decree. During those 30 days, one of the parties may file a motion for a new trial or a motion to modify, correct, or reform a judgment. That is, either party can file a motion to have the divorce re-tried before a court or if a party is not satisfied with the final judgment given by the court, then the party can file to have it changed. But, each party only has 30 days from when the judge signs the final divorce decree to do so. Rule 329b(c) requires that these motions be in writing and signed by the court for them to be enforceable. Parties cannot give their consent to allow the court to have more control than what it specified in the rule.

Take, for example, the Dallas Fifth District Court of Appeals Case, In the Interest of M.A.C. and M.T.C. Here a Final Decree of Divorce was rendered on August 28, 2013. The Mother filed motions for a new trial and a motion to modify, reform, and correct the judgment on September 6, 2013, well within the 30 days set out in the rule, but the record did not contain a written and signed order from the trial court on either motion. Because there was no written and signed order, both motions were overruled by law on November 11, 2013. But, the record in the case contained a “First Amended Decree of Divorce” signed on January 22, 2014. Thus, the father here filed a motion for a new trial January 27, 2014 were he argued that the trial court’s plenary power had already expired when the First Amended Decree was signed.

The two motions the mother filed were overruled by law November 11, 2013, seventy-five days after the final divorce decree was signed. When she filed the motions, the court retained control over the matter for 30 days after the law overruled the motions. Therefore, the court here had control over this case until December 11, 2013, one hundred and five days after the Final Divorce Decree judgment was signed. The First Amended Decree signed on January 22, 2014 was void because the court no longer had jurisdiction or plenary power over the matter.

Thus, if a court renders a final judgment for your divorce the court will have jurisdiction 30 days after it is signed. You or your ex-spouse will have those 30 days to file a motion for new trial or a motion to modify, correct, or reform the judgment. If there is no written and signed order on those motions, they will be overruled 75 days after the final divorce was signed. Once these time periods have run, the court will no longer have any control or jurisdiction over the matter.

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.

What happens if the person I am alleging a common law marriage with marries someone else?

            The Texas Family Code in Section 2.401(d) explains that if someone is trying to prove an informal marriage neither party can be presently married to an outside third party. If either party is legally married to someone else, courts will not allow for you to establish an informal marriage to a different person.

During the time that Miller had moved back to Texas, a couple of months later, Prince married a different woman. “When a person alleges two marriages, courts will consider the most recent marriage valid, unless a party from a previous marriage can prove the previous marriages’ validity.” In this situation, we know that Miller was unable to establish that the common law marriage was valid because she and Prince did not live together. Therefore, Prince could not be a party in Miller’s alleged common law marriage because he was ceremoniously married to another person.

How long do I have to prove an informal marriage existed?

            A party will have a certain amount of time that they can try and prove a common law marriage once the relationship ends. Before 1995 the law said that parties had one year from when the relationship ended to prove a common law marriage. The law now has changed and it is established in Section 2.401(b) of the Texas Family Code. Parties now have two years to prove an informal marriage. The clock on the two years will begin to run once the parties have separated and stopped living together. If the validity of the common law marriage is not brought before the court within two years, courts will then decide that the parties did not enter into an agreement to be married, and an informal marriage will not be recognized.

In Miller’s case the two parties stopped living together in April 1993. Miller only had one year to allege a common law marriage because the relationship ended before 1995. Had the relationship ended after 1995, Miller would have had two years to allege the common law marriage once they separated and stopped living together. In this case though, no matter which law applies, Miller did not bring her claim until 2011. Miller waited too long to try and establish her common law marriage to Prince and the court held that the statute of limitations barred her claim. Once the relationship ends, either party will have two years to bring their alleged common law marriage before the court.

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.

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.

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.

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.

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.

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.

Are you facing a divorce with your spouse and you are concerned that you are not the father of your child?  You have probably always had that feeling (given your spouse’s cheating history) that you are not the child’s biological father but you just have never acted on that feeling.  However, now that you are facing a divorce you feel that it is important to raise this as an issue and deny your paternity.  Absent addressing all of the issues that can arise with a denial of paternity, you need to know what can happen in the interim while the case is pending.  You may not be the biological father, but you still may be the presumed father.

What is a presumed father?

You are the presumed father for all legal purposes if one of the following is true: you are married to the mother and the child was born during the marriage; you married the mother before the birth of the child even if the marriage could be invalid; you married the mother before the birth of the child and your name is on the birth certificate.  This means, even if you are not the biological father of the child you are the father in the eyes of the law.  Therefore, the judge can make orders according to that legal fact and most likely will do so.

Presumed fathers can be made to pay child support, even if they are not the biological father

If you have a temporary orders hearing coming up and the issue of denial of paternity is not on the court’s docket then the court can make orders with respect to visitation and even child support. Yes, you read that correctly—even child support.  You could be ordered to pay child support on the child until the denial of paternity is set for a hearing and granted by the court.  In fact, Texas Family Code Section 160.309 commands that the court must do so.  Reason being—it is not the child’s fault that you have decided to question your paternity now at this point and most courts will not leave a child without support.  You are the presumed father and therefore the Family Code allows the court to make appropriate orders in line with such.

Therefore, the suggestion would be that if you are in fact going to question your paternity you need to do so in the beginning and make sure the appropriate pleadings/requests are on file and a hearing over this issue should be heard before any other.  That may eliminate any interim orders of child support, or it may not. It will depend upon the court and the facts of your case.

It is essential that if you have any question of paternity that it must be raised at the time that you have this question.  You cannot wait in an attempt to avoid payment of child support or any other duty that a presumed father has because a court would not be too keen on someone trying to dodge their obligations.  If you are facing this issue, you sh0uld meet with a family law attorney who can advise you along the way.  Schedule a free consultation today.