Family law

Texas’ Recognition of an Out-of-State Divorce Decree: A Look into the Court of Appeals’ Approach

January 17, 2014 | by Guest and Gray Law Firm

Chapter 8 of the Texas Family Code governs spousal maintenance, Texas’ own form of “alimony”. Spousal maintenance is not easily obtained by divorcing parties; in fact, the legislature has created a pretty high threshold. But, the issue becomes what if you have an out of state decree that speaks to spousal support and then you have the spouse ordered to pay subsequently wanting to get out of that arrangement? This is the exact issue that the Fifth Circuit Court of Appeals addressed in In the Interest of L.T.H., R.R.H., and A.W.H., Minor Children.

In that case, the wife appealed a trial court’s ruling to refuse to enforce a California divorce decree modification and the husband’s obligation to pay spousal support. In California, husband and wife were divorced, subsequently modified the divorce decree in California with a settlement agreement, and entered a reformed decree. Then, everyone subsequently moved to Texas. Later, the wife sought to enforce against the husband several times due to his nonpayment of the spousal support and child support. After the first enforcement, the parties signed a mediated settlement agreement agreeing to certain terms regarding the spousal support (payment was definitely one of those terms) and then an order was subsequently entered. The wife had to seek a subsequent enforcement due to the husband not paying again pursuant to the orders and in that case, the trial court ordered that they could not enforce the modification of the California decree and ordered that wife take-nothing. However, the Court of Appeals thought differently and reversed and remanded ruling that they would strictly comply with the parties’ MSA, uphold the MSA and the parties’ agreement.

The Court of Appeals reviewed this case under contract law, which is sometimes unusual when discussing family law cases. However, most people forget that every agreement entered into (when the proper elements are present), create a contract between the parties that can be enforceable as such. The Court of Appeals looked to previous appellate decisions to reach this decision such as Schwartz v. Schwartz which held that “When such an agreement is executed by the parties and incorporated into the judgment of a divorce, it is binding upon the parties, and is interpreted under general contract law.” Schwartz v. Schwartz, 247 S.W.3d 804, 806 (Tex. App.—Dallas 2008, no pet.). Therefore, the Court would not review the MSA under Chapter 8 of the Texas Family Code stating that this was a contract turned into a court order which did not effectively create court ordered maintenance under the Texas Family Code.

How long do I have to pay child support?

December 26, 2013 | by Guest and Gray Law Firm

Whether you are just now to the realization that you will have to pay child support or whether you have just been ordered, the sinking feeling may be setting in as to the fact that you will be paying this monthly amount for quite some time. The real question is, however, when does your child support obligation end? What if your child moves in with you, what if your child moves out entirely, what if your child gets married before they graduate high school? All questions to be considered when paying monthly child support.

Understand that if nothing out of the ordinary occurs and your child continues to live with the parent receiving the child support, you have a statutory obligation to continue paying your child support. More than likely, you were ordered to pay a certain amount in child support each month due on the first day of each month and every month thereafter. You may have a court order that states the following:

“and a like payment being due and payable on the first day of each month thereafter until the first month following the date of the earliest occurrence of one of the events specified below:

What is the difference between an alleged and presumed father?

December 26, 2013 | by Guest and Gray Law Firm

You may not think that this distinction is important, but in the world of family law it is imperative that you understand the difference. It could be the difference between you actually being the father of a child in the eyes of the law as well as differing burdens of how to overcome that label if you are not the child’s biological father. In fact, if you are in the middle of a divorce or a suit affecting the parent child relationship, knowing your definitions is crucial when it comes to duties to support children and your rights to visiting those children.

Texas Family Code Section 101.0015 defines alleged father as a man who “alleges himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, but whose paternity has not been determined.” So, if you think that you are the father of a child but it has not been concluded by court ordered genetic testing—then you are an alleged father. We see this type of scenario come up in situations such as cases involving the Attorney General’s Office of Texas. If a woman petitions the Attorney General’s Office for child support, then that agency will file a lawsuit and have all of the alleged fathers served. It is then your duty to ask for genetic testing if there is any doubt in your mind about whether or not you are the father. Once genetic testing is completed and paternity is established, you then become an adjudicated father. Adjudicated father is defined in Texas Family Code Section 160.102(1) as a man who is determined to be the father of a child by the Court. Therefore, once your paternity is established by results of genetic testing then the Court will name you as the father and proceed forward with child support, visitation, etc.

In contrast, Texas Family Code Section 160.204 defines a presumed father as follows:

What is the duty to report child abuse/neglect in Texas?

December 26, 2013 | by Guest and Gray Law Firm

Many parents, grandparents, and even professionals do not fully understand their duty to report child abuse let alone the consequences for their failure to report. But what about such duty to report of just an ordinary person? That is right; ANYONE who has knowledge or reason to believe that a child is being abused in any way must report it to the appropriate agency. That agency would be the Texas Department of Family and Protective Services, your local law enforcement and even your local district attorney’s office. The family code does not exclude anyone in the duty to report. Examples of professionals would be teachers, attorneys, doctors, nurses, and daycare employees.

Chapter 261 of the Texas Family Code encompasses the duty to report, definitions, etc. Once you have determined what abuse or neglect means in Texas, and you know a child who is being subjected to such acts, you must report it. Unfortunately, many of the cases we see are children being sexually or physically abused. Once you learn of this abuse, what do you need to do?

Texas Family Code Section 261.101 legislates and defines those who are required to report as follows:

Divorce and its Psychological Aspects

December 10, 2013 | by Guest and Gray Law Firm

I am by no means a licensed mental health professional, psychologist or psychiatrist; however if you have been a follower of my blog regarding divorce, child custody, or any family law issue you know that I constantly write about the psychological tolls that the cases take on my clients. This is because I witness every day the psychological struggles that my clients go through. Divorce is hard on everyone involved, no matter how you slice it. Many people hear this, but do not actually understand until they are in the trenches. However, it is so important to understand, for your mental and physical health, before you are in the trenches that this will be a difficult process and have a list of coping mechanisms to help you through it.

So many people fall into the trap of bitterness, anger and resentment and cannot get past those emotions. While I will agree that your feelings are legitimate, you also need to work through those feelings so that you can get to the other side and feel a release. Many people hang on, even after the divorce is finalized. I have seen what this does to people, and I do not wish it on anyone. Getting past that anger is not an easy feat, but one that is beyond necessary.

Also, divorce is difficult because it bring change—the familiarity is no longer there, you have to move, your holidays are not the same, you lose a pet, you have to split the time with the children, etc. Change is so hard and I will be the first to admit that I hate it. But, change is a part of life; in fact, life is about seasons and weathering those seasons. How will you weather in a mentally healthy way?

What are the Holiday Child Possession and Visitation Schedules in Texas?

December 10, 2013 | by Guest and Gray Law Firm

In Texas, if the child custody visitation schedules are court-ordered they are typically either standard possession or expanded standard possession (alternate beginning and ending times). One parent will have the exclusive right to designate the child’s primary residence and then the non-primary parent has the visitation schedule. In contrast to the school year, summer and spring break visitation schedule, the holiday visitation schedule is regardless of distance between the parents’ residences and most courts only focus on Thanksgiving, Christmas, Mother’s Day and Father’s Day. However, additional holidays can be requested and ordered such as Easter, Halloween, etc.

In custody orders, holidays are divided out as even and odd years. So, if you are the primary parent you typically have odd Christmas and even Thanksgiving. A parent will not have the same year for both holidays. Because Christmas falls in an odd year this year, the primary parent would have possession of the child from the day the child is released from school until December 28 at noon. Texas Family Code Section 153.314 specifically sets out the language for the court orders and is follows:

Sec. 153.314. HOLIDAY POSSESSION UNAFFECTED BY DISTANCE PARENTS RESIDE APART. The following provisions govern possession of the child for certain specific holidays and supersede conflicting weekend or Thursday periods of possession without regard to the distance the parents reside apart. The possessory conservator and the managing conservator shall have rights of possession of the child as follows:

My divorce lawyer will not call me back. What should I do?

November 11, 2013 | by Guest and Gray Law Firm

Have you called your attorney multiple times to the point that you are tired of leaving a message? Have you emailed your attorney only to find that it is a week later and you still have not received a response? It is frustrating to have paid someone to communicate with you and represent you, yet you cannot even get in touch with them to give them updates or ask questions. You are wondering what is going on. Your emails might not have gone through (firewall on some computers) or your messages might not have been translated correctly (automated system for messages translates but sometimes it turns into gibberish in print). Whatever the reason, you need a response.

If you are faced with this situation, it is important to try every attempt possible to communicate with your attorney. Try sending them a certified letter letting them know the times you called, the messages you left, etc. and wait for a reply. If that does not work, you might want to go ahead and go to the office to see if the attorney is available for you to speak with them. If the attorney is not available same day, you can schedule an appointment to meet with them soon to discuss their case. Surely your presence would give a clue as to the urgency of the matter.

Some attorneys are what we call solo practitioners in that they have their own practice but they are the only practicing attorney. They may not have the time or the staff to answer you as quickly as you would like. If you are not receiving a response, the attorney could be in a trial, have multiple hearings, mediation, be out sick or might be on vacation. They may not have someone working in their office during this time and so when they get back, they have to play some major “catch up” in answering messages and emails. While it is a valid excuse on their end, it is still frustrating for you because you need a response and you deserve one.

10 Ways to Help Your Divorce Case

November 11, 2013 | by Guest and Gray Law Firm

You may be just beginning your divorce case or you may be in the middle. Regardless of your current position, there are certain tips that will make this painful process much smoother in the grand scheme of things. In fact, if you would follow these ten easy tips, you would be worlds ahead of other people going through divorces.

Stress management. There are a couple of ways our clients are able to work through the stress that occurs with a divorce; here are a couple of my recommendations: Research and find a counselor with whom you are comfortable. I know, I know—most people hate the word “counseling” and feel as though it would not help them. But, so many of our clients attend counseling and I am amazed at the way they are able to process as we go through the divorce. It does not matter if it is a pastor, licensed counselor, psychologist, psychiatrist, or a free clinic; you just need to talk to someone. The emotional toll of the divorce can be so taxing and many people need help with coping; this includes you. OR if you are not ready to take the counseling step, get out and exercise. Or even better, you can do both. Go for a walk with a friend, join a gym, or attend a fitness class that interests you. Start a fitness routine and it will give you something to look forward to. And remember what Elle Woods says, “Exercise gives you endorphins. Endorphins make you happy. Happy people just don’t shoot their husbands, they just don’t.”
Keep off of social media. I cannot stress enough—do not post anything on any social media account about your soon to be ex, their paramour, the children, the case, etc. While it may feel good at the time, it will only hurt you in the long run. All judges frown upon it and it will make the case harder than it already is.

What are the grounds for divorce in Texas?

November 7, 2013 | by Guest and Gray Law Firm

When pleading for a divorce in Texas, you have to consider—aside from the emotional aspect—why exactly you are getting a divorce. Did your spouse cheat on you? Did your spouse abandon you and what does abandonment mean? Or, do you and your spouse argue often and have you grown into separate people rather than being the one person united on the date of your marriage? To answer this question, it is important to discuss your options and what could be included in your pleadings. Reason being, Texas has two separate statutory grounds for divorce—fault or no-fault.

Fault grounds of divorce are specifically outlined in Texas Family Code Chapter 6, Subchapter A. They are listed as follows: cruelty (you are a victim of cruel treatment at the hands of your spouse and you cannot continue to live with him/her); adultery; conviction of a felony (and they have been imprisoned for at least a year and not pardoned); abandonment (your spouse left you and has remained away for at least a year without an intent to return); living apart (you and your spouse have not lived together for at least three years); confinement in a mental hospital (spouse has been confined to a mental hospital for at least three years and their mental state is so severe that a relapse is probable). Therefore, the Texas legislature has carved out why you could ask for a fault divorce and what exactly those faults entail. As you can see, the grounds are very specific and most are uncommon. Most often, we see cases under the fault grounds of cruelty or adultery.

So, now you are wondering why, if you qualify under any of these grounds, would you plead a “fault” ground—what would be the benefit? Basically, pleading for a fault ground leads to a request for a disproportionate share of the community estate. The court can consider one of the spouse’s “fault” when deciding how to divide community property between the two parties. The Texas Family Code mandates that the court make a “just and right division” of the community estate. Most people believe that this means an outright 50/50 split, but that is incorrect. The judge has a lot of determination and leeway in determining which spouse gets what property and/or debt. So, if you would like for the court to consider giving you more than what would be given absent the fault it is important to discuss this with your attorney and consider your options.

How can I get a restraining order?

November 4, 2013 | by Guest and Gray Law Firm

In Texas family law cases, there are two separate types of protective documents that parties can seek. Restraining orders are not to be confused with protective orders. Most often, parties seek a restraining order in a divorce or suit affecting the parent-child relationship to take exclusive possession of property or the children. If a restraining order is needed, it is important to seek the restraining order from the very beginning of the case or at or near the time the need is realized.

For instance, in cases involving children and concerns for their safety, the requesting party requests the court to order that the children be removed from the other party’s custody and placed into the requesting party’s custody solely until the court hearing. This means that once removed, the other party will not have any access to the children until the hearing. To qualify for a temporary restraining order of this nature, one must present an affidavit that on its face alleges that if the court did not grant the restraining order, then the child’s physical health and/or emotional development would be significantly impaired. In many cases, this arises when it is discovered that other parent’s actions, decisions, or behaviors are dangerous for the children. Examples include drugs, criminal activity, neglect, absence of the other parent due to hospitalization, jail, etc.

Restraining orders are typically sought when initial pleadings are filed and they are presented to the judge ex parte (without the other party present). Your sworn affidavit will be attached to the pleadings for the restraining order and will contain all of the information for the judge as to why he/she should grant the restraining order. The hearing will be set the same day the judge signs the order and it must occur within 14 days. Therefore, the court holds a quick hearing to allow the other party time to present their own case. It also gives you a chance to put on evidence and bolster your case as to why the judge made the right decision to grant the restraining order in the first place. At this hearing, you can request that the court continue the restraining order. Thought, often times, the court will not completely deny access to the children but rather grant supervised visitation by an appropriate supervisor; this is, of course, if supervised access is warranted and proven necessary. With that said, there are some cases when the need for a a restraining order to remove children arises while the case is pending. You will still need to submit an affidavit and a request for a restraining order. However, some counties require that you also send notice to the other party/attorney so that they may be present when you present the restraining order to the court initially. The hearing will still be held 14 days from the date the judge signed the order.