Articles Posted in Divorce

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Aren’t half of marriages going to end in divorce no matter what?

Sort of. It is true that about 40 to 50 percent of marriages in America end in divorce. With numbers that high, some might assume that divorce is almost inevitable in most marriages. But research indicates that there are certain things that successful couples are doing to keep their marriages successful while there are things that couples who end up divorcing are doing that make divorce almost certain. Understandably, most of our clients are past the point of looking for ways to save their marriage, but hopefully some of the people who are seeking out this divorce blog may be able to use the research to make positive changes in their marriages and avoid the costly and stressful process that is divorce.

What does the research show about divorce?

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Can I appeal my divorce while still accepting benefits from the parts of the judgment that work in my favor?

As with most questions asked about the law, the answer to whether you can appeal a part of your divorce while accepting benefits from the parts of the divorce you do like is, it depends.  More accurately, the answer is, probably not. This is because of a legal concept called estoppel.

What is estoppel?

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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

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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.

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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.

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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.

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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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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.

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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?

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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.

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