Articles Posted in No-Fault Divorce

You are divorced and in your final orders you were awarded spousal maintenance on the basis of your disability and inability to earn sufficient income.  So, you went through all of the stages of proving your disability and proving that you could not earn the money that you need to meet your minimum reasonable needs and the judge ordered that your ex-spouse a certain amount per month to you for a certain period of time.  As you know, spousal maintenance is governed by Chapter 8 of the Family Code and with respect to a disabled spouse, it does state that maintenance can be ordered for as long as the disability persists (longer than the statutorily limited period of time).  If it is nearing the ending date of your receipt of the monthly spousal support payments, you are becoming worried because you do not know what you are going to do at this point.  Can you seek further maintenance from the Court because you are still disabled and need the money to survive?

This question was directly addressed in Stephanie Ann Novick v. Andrew A. Shervin by the Fifth District Court of Appeals in Dallas.  There, the trial court held that the wife was “presently disabled” and ordered that the husband should pay her “$2000 per month for 24 months.”  When the time was drawing near for the husband’s payments to cease, the wife filed a motion to modify to continue the support payments and the trial court dismissed that claim to which the wife appealed.  Therefore, the Dallas Court of Appeals had to determine whether or not the trial court erred in failing to honor the wife’s request in continuing the spousal support payments.  In doing do, the Court reviewed a few other appellate cases involving this particular issue to seek guidance which led the Court to render a bright line rule to determine whether or not the support payments could be continued.

The Court held, “An award of spousal maintenance in a divorce decree is properly the subject of a motion for continuance only if the decree indicates the trial judge intended to make the award pursuant to section 8.054(b) rather than 8.054(a).”  Section 8.054(b) allows a trial court to find the spouse disabled (giving guidance as to how and what it means) and in finding the spouse to be disabled, the trial court will make an award of maintenance.  This award can be made subject to periodic request based upon the request of either party and also subject to a motion to modify.  However, Section 8.504(a)  places a duration limit on how long the court can award the maintenance for (5 years) and states that a trial court must render the shortest period possible unless the spouse’s ability to earn income is totally diminished by physical or mental disability.    The key for this Court was that you can seek continuance of the maintenance if the award was under Section 8.054(b).  An example of this type of award would be where a spouse is found to be permanently disabled, awarded spousal maintenance for longer than 5 years, and the Court also order that the spouse receiving support can seek continuance beyond the court-ordered termination date.

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.

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:

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:

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.

  1. 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.”
  2. 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.

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.