Dallas Divorce Lawyer Blog

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.

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.

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.

 

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.

You may be entitled to an expunction if you arrested but never tried in court either because you were never formally charged (this is called a no-bill) or the case was dismissed before trial. In those situations, you are entitled to an expunction if a) you are released without there being a final conviction or court-ordered supervision (aka deferred adjudication), and b) the statute of limitations has expired, the case was dismissed for a specific reason or a waiting period has passed.

The first requirement is fairly simple to understand. You can’t be found guilty, plead guilty, or take deferred adjudication and later be eligible for expunction. The only exception to that is that you can take deferred adjudication for Class C misdemeanors (typically traffic offenses) and be eligible for an expunction.

The second requirement is a bit more complicated. Well, parts of it are. The simple part is if the statute of limitations has expired. If you meet the first requirement and you can no longer be prosecuted for the offense because the statute of limitations has run, you are entitled to an expunction. That’s cut and dry. If you’re wondering if the statute of limitations has run, call our office to set up a consultation to see if you’re eligible for an expunction.

The other two parts of the second requirement are a bit more complicated.

First, you may be eligible for expunction if your case was dismissed for a specific reason. But what are those specific reasons? One is that you complete an authorized pretrial intervention program. These programs are often called pretrial diversion (Kaufman County) or memo agreements (Dallas County). Another is that the case is dismissed for a reason indicating lack of probable cause. It’s often very difficult to satisfy the lack of probable cause requirement. But some examples of reasons that would indicate lack of probable cause are a material witness lying to the grand jury, fabrication of important evidence like a drug test, or failure to present evidence to the grand jury that likely would have exonerated the person charged.

Second, you can be eligible for an expunction if you are never indicted after a certain amount of time has passed. In other words, if the prosecution is not proceeding with your case, you can get an expunction after a certain amount of time. For Class C misdemeanors, the waiting period is 180 days. It’s one year for all other misdemeanors and three years for all felonies. If you are charged with both a misdemeanor and a felony, you must wait three years to be eligible for expunction on the felony and the misdemeanor. It should be noted that waiting period expunctions are not full expunctions. Law enforcement agencies and the prosecution are allowed to retain records, but outside agencies may not obtain the records. In this respect, waiting period expunctions operate like non-disclosures.

This is quite a bit of information, and it can be difficult to determine if your case is eligible for expunction. Call Guest & Gray today at (972) 564-4644 to set up a free consultation with our expunction attorney to see if you are eligible for an expunction.

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.

You just finalized your divorce or custody matter, however it seems like every time you turn around you think that your child should live with you instead of the other parent primarily of the time.  Even though it is has not even been a year yet since your final orders were rendered, it just seems as though something is constantly coming up and you are genuinely concerned.  The other parent may be endangering the child’s physical welfare or emotional development such as engaging in criminal activity, drug usage, physical/mental/sexual abuse, or overall endangerment of the child.  You want to change the custody orders now but you have been told that there are certain roadblocks in requesting the modification this soon.  What should you expect?

Less than One Year Requirements 

If you are filing your petition to change the parent who has the exclusive right to designate the child’s residence in less than one year, there are specific requirements that you must follow.  In fact, you must qualify within these statutory parameters to even file your case.  The most important and crucial requirement is the affidavit that must be attached to your petition.  In fact, Texas Family Code Section 156.102 mandates that an affidavit must be attached to your pleadings and “(b) must contain, along with supporting facts, at least one of the following allegations: (1) that the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development; (2) that the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child; or (3) that the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least 6 months and the modification is in the best interest of the child.”  Frequently, we see the first requirement being the grounds on which someone files a modification.  Allegations are made that something bad has happened in the other parent’s care and this is why that parent should no longer have possession of the child.  But, the key is that the allegations must be made in the affidavit.  Many people get hung up on this requirement and many times affidavits fall short on their face.

What’s in an Affidavit?

This issue was discussed recently in an appellate case from the 14th Court of Appeals in In the Interest of A.D.  There, mom appealed the trial court’s decision to allow dad to be primary in a case less than one year and said that his affidavit was not sufficient.  Mom had made several false sexual abuse allegations against dad regarding their daughter over the course of an entire year.  The trial court found that this behavior on mom’s part was physically and emotionally dangerous and detrimental to the child and therefore awarded primary to dad.  Mom requested a jury trial over the matter in which several experts and witnesses testified that mom had made severely poor decisions regarding the child and these sexual abuse allegations.  That is, even though every professional (including police, CPS, and doctors) ruled this out, she continued to pursue it.  The jury ruled that dad should continue to be primary and mom appealed arguing that the court’s decision was improper and that the dad’s affidavit was not sufficient.

However, the Court of Appeals disagreed and reiterated the standard from Texas Family Code Section 156.102(c) which states that “The Court shall deny the relief sought and refuse to schedule a hearing for modification under this section unless the court determines, on the basis of the affidavit, that facts adequate to support an allegation in (b) are stated within the affidavit.”  Therefore, the Court must look to the affidavit on its face to determine if it can move forward with a hearing on modification.  This is why it is so important that your affidavit contain all of the allegations and facts that you believe would necessitate a modification and it would not hurt to include the “magic language” from subsection (b) either.  The Court of Appeals also clarified that the trial courts are to just look to the facts of the affidavit and if they were true, would that justify having a hearing.   Therefore, this is the key part that most people miss—the trial court should have a hearing if the affidavit alleges facts showing “the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development”.  Thus, you do not have to prove the allegations are true before a hearing is held—just have to prove that they are true at the hearing to bring about the change you are requesting.

For any additional information regarding modifications in less than one year, schedule a free consultation with Guest & Gray today.  Our family law team is ready to help.

If you are in the middle of an adoption—whether it is a stepparent, grandparent, aunt/uncle, or new parent adoption—you know that your child must have a representative in court to ensure the child’s best interest standard is being met.  Many people do not realize that there are a few options for the courts in determining what option is best for your particular case.  In adoptions, the two most primary appointments are either amicus attorney or attorney ad litem.  But, which would be best for you?

Amicus Attorney 

Amicus attorneys are appointed in termination/adoption suits not to specifically represent the child but rather to assist the court in protecting a child’s best interest.  So, unlike the attorney ad litem an amicus attorney does not have an attorney-client relationship with the child.  In fact, an amicus attorney can even relay what would otherwise be privileged communication from the child to the court if it is necessary to assist in the court’s decision.  Amicus attorneys can be appointed for a number of reasons; but typically, they are appointed when the child is young and cannot express their desires to the court unlike a child who is 12 or older.  Amicus attorneys do meet with the child and determine what their objectives are in the case; however, the amicus attorney does not have to act in favor of those objectives and must always advocate for the child’s best interest.

Attorney Ad Litem

In contract of an amicus attorney, an attorney ad litem is appointed to represent the best interest of the child and has a direct relationship with the child. Therefore, the attorney-client relationship is created with the child and any communication with the child must remain confidential at all times.  However, like the amicus attorney an attorney ad litem must at all times represent the best interest of the child.  This individual does make representations to the court as to what is in the child’s best interest but it is also in line with what the child wants.

Procedure

Regardless of which appointment is made for your termination/adoption suit, the Family Code makes it very clear that at least one of them must be appointed (and you cannot appoint both).  So, once your case begins you will petition the court to appoint the appropriate representative for the child in the case and the court will make the appointment and choose an attorney from the community to do so.  That attorney will then, upon notice of the appointment, proceed forward to fulfill their duties and obligations in the case.

For any additional information regarding amicus attorney vs. attorney ad litem or adoptions in general, schedule a free consultation with Guest & Gray today.

If you are in the middle of an adoption—whether it is a stepparent, grandparent, aunt/uncle, or new parent adoption—you know that you have to complete a social study in order to proceed forward with the adoption.  Because this is a new concept to many people, it is better to gain knowledge regarding this process beforehand to put your mind at ease.  You will find that this step is actually one of the more rewarding (absent the actual adoption day) throughout your case.  It is your chance to tell the social worker all about your family and why you should be able to adopt the child.

Purpose of Pre-Adoptive Social Study

One of the purposes of the pre-adoptive social study is to guide the Court in its decision on the termination and adoption because the social worker is literally the eyes and ears for the Court.  Reason being, the judge cannot visit your home and do a background check on all of the parties in the case to determine whether or not the adoption would be in the best interest of the child.  Therefore, a social worker is appointed to do that and much more.

Process of Pre-Adoptive Social Study

Once appointed, the social worker will schedule a time to visit with the adopting family and all parties in the case.  The appointments will be separate (separate house meeting for each household).  Once at your home, the social worker will meet with the family all together and then have individual interviews to gather more information regarding each person on a more intimate level.  The social worker will go over your background information (childhood to present), medical history, drug and/or criminal history, CPS history, your thoughts about the other party/parties, and your requests. If the children are of the appropriate age, the social worker will also interview them individually.  In addition to the home visit, the social worker will also go through all of your references (which you provide) and will contact all professionals appropriate in the case.

Once the “investigation” portion of the social study is completed, the social worker will then write their written report to the Court which will ultimately be filed and will be disseminated to all parties in the case.   In true impatient fashion, once the social study is received everyone flips directly to the recommendation.  As long as the adoption is ultimately recommended by the social worker then you would proceed forward with a final hearing.  If the adoption is not recommended, you/your attorney would need to speak with the social worker and proceed forward from that point.  It might require doing some steps that would satisfy the social worker to the point of recommending the adoption or it could possibly require an additional home visit.  The key is to just remain calm and patient throughout the process.

For any additional information regarding pre-adoptive social studies or adoptions in general, schedule a free consultation with Guest & Gray today.