Texas Court Includes Father’s Personal Injury Annuity in Resources When Calculating Child Support

Texas Court Includes Father’s Personal Injury Annuity in Resources When Calculating Child Support

Originally published by Kelly McClure.

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The Texas Family Code provides guidelines to assist courts in calculating child support that are based on a percentage of the parent’s net monthly resources.  The statute sets forth what types of income are included and excluded from the parent’s net monthly resources.  In many families, it is fairly straight-forward to determine what is included in the calculation.  If a parent’s only income is from the wage or salary he or she earns from employment, it is relatively simple to identify the net monthly resources.  Some families, however, have more complicated financial circumstances making it less clear what should be included.

In a recent case, a father appealed the inclusion of an annuity payment in his net monthly resources for purposes of the child support calculation.  Prior to the marriage, the father settled a claim for a work-related accident with his employer.  As a result of the settlement, the father receives $6,970 per month from an annuity.  The payments will continue until either the the father’s death or June 1, 2044.

The couple had one child during the marriage.  The mother filed for divorce less than a year after the couple was married.  Although the couple reached agreement on some issues, they were unable to agree on child support and medical support.  The trial court found the annuity payments were “resources” under Texas Family Code 154.062 and included them in the father’s resources when calculating the child and medical support payments.

 

The father appealed, arguing the trial court erred in including the annuity payments in his net resources and therefore erred in calculating the amount of child support and medical support.  The appeals court considered the plain language of the statute defining resources.  The statute specifically addresses annuities, stating, “Resources include…all other income actually being received, including… annuities…”  Although previous cases distinguished between settlement annuities and other types of annuities, the appeals court declined to draw such a distinction.  The appeals court pointed out that the statute included “annuities” within “resources,” and did not differentiate between types of annuities.  Furthermore, the statutory language did not differentiate between the portion of the annuity payment representing repayment of premiums and the portion that represented earned interest.  The appeals court therefore found no error in the trial court including the full amount of the monthly annuity payment in the father’s resources.

The appeals court in this case found that the entire annuity payment could be included in the parent’s net monthly resources.  However, this holding is inconsistent with the previous holding of another Texas appeals court.  Although the language in the statute provides that annuities are included in net monthly resources, there is also language stating that the “return of principal” is not included.  The issue, therefore, may not be completely settled.  Different facts or a different court could lead to a different result.  If you are anticipating a child support dispute involving an annuity, the skilled child support attorneys at McClure Law Group can help.  Call us at 214.692.8200 to schedule an appointment to talk about your case.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Divorce Based on Abandonment in Texas

Originally published by Family and Criminal Law Blog.

Why might I choose to file for divorce based on a fault ground?

Forty years ago, the first no-fault divorce was granted in California. Prior to this time, couples seeking a divorce were required to list a valid ground for divorce, which often included adultery, abandonment, and cruelty. If one of these grounds did not exist in the marriage, but the spouses nonetheless wanted a divorce, they were forced to fabricate a grounds for divorce. Recognizing a need for more honest and efficient divorces, California, and soon after every state in the union except for New York, adopted a version of no-fault divorce.

Most couples in Texas looking to file for divorce today will file for a no-fault divorce, in which the parties will list that the marriage cannot continue because the spouses can no longer get along in the marriage and there is no chance of reconciliation. However, per Texas law, several fault grounds for divorce continue to exist. At times, it can be advantageous or even necessary for a spouse to seek a divorce based upon one of these fault grounds. Below, our Midland, Texas divorce lawyers discuss divorce based on abandonment in the state.

Abandonment Can Influence a Custody Award and Division of Assets

Abandonment occurs when one spouse deserts the other spouse with the intention to end the marriage. Proving abandonment by your spouse can influence the court’s decisions when it comes to custody of your minor children. To successfully demonstrate abandonment, you will need to show that your spouse has been absent for one year or more. Further, filing for divorce based on abandonment might become essential if you cannot reach your spouse.

Family courts in Texas take the position that generally it is in a child’s best interests to have a relationship with both parents. However, where one spouse has abandoned the family, this will negate that presumption. A judge weighing the custodial rights of a spouse who left his or her family is less likely to award joint custody and will likely allow for just limited visitation.

Further, a judge may take your spouse’s abandonment into account when determining how your marital assets will be divided. Texas is a community property state and marital assets will be divided in accordance with what is just and right. While this typically means equally, where one spouse abandoned the family, a judge may be included to issue the other spouse a disproportionate share of the assets. Your divorce lawyer will review the circumstances surrounding your spouse’s abandonment to determine your best bet in filing for divorce from your spouse. Armed with full knowledge of your individual situation, your attorney can develop a divorce strategy that will benefit you and your family.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Texas Appeals Court Upholds Permanent Injunction Prohibiting Contact Between Father’s Girlfriend and Child

Texas Appeals Court Upholds Permanent Injunction Prohibiting Contact Between Father’s Girlfriend and Child

Originally published by Francesca Blackard.

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Generally, a permanent injunction is difficult to obtain and requires proof that certain requirements are met.  In Texas child custody cases, however, a court may be able to issue a permanent injunction, even if those requirements have not been met, if it finds that the injunction is in the child’s best interest.  In a recent case, a father appealed an injunction prohibiting him from allowing contact between his girlfriend and his child.

The parents had agreed to temporary orders prohibiting any unrelated adult in a romantic relationship with one of the parents from spending the night in a home with the child.  The temporary order also stated that the father’s girlfriend would not be around the child while the father had possession.

Following a mediated settlement agreement addressing all other issues, the trial court held a hearing to address this issue. The trial court granted an “injunction” prohibiting contact between the father’s girlfriend and the child without hearing evidence.  The mother’s attorney stated they had been unable to serve the father’s girlfriend with notice of the hearing.  The court indicated it was entering a “permanent morality clause” based on the girlfriend not testifying. The father’s attorney argued there was no evidence to support a permanent injunction.  The court stated it was a “moral clause,” not an injunction, but then heard evidence from the mother, the mother’s other daughter, and the process server.

 

The process server testified regarding his attempts to serve the girlfriend.

The mother’s 15-year-old daughter testified the father’s girlfriend had contacted her on Instagram and made negative comments about her mother.  The court allowed screenshots of the Instagram communications into evidence over the father’s objection that they were hearsay and had not been authenticated.

The mother testified the girlfriend had contacted her about her affair with the father.  She alleged the girlfriend had posted nude photos of herself online and had made social media posts about marijuana and alcohol.  She also testified the girlfriend and child got along well and she had no evidence that the girlfriend had ever harmed the child.

The father moved for rehearing after the court granted the “morality clause.” After the hearing, the trial court entered both a morality clause and an injunction.  The morality clause provided that no unrelated person of the opposite sex in an intimate relationship with a parent could spend the night when the child was in that parent’s care.  The permanent injunction enjoined the father from allowing the child to have any contact with his girlfriend.

The father appealed, arguing the injunction was not supported by proper evidence.  He argued the trial court should have excluded the daughter’s testimony because she was not disclosed as a witness.  Evidence that is not properly disclosed can generally not be admitted just to satisfy the interest of justice, but may be admitted if there is a good cause.  The mother argued that the Instagram messages were sent during the week before the hearing, and this timing constituted good cause not to supplement the discovery responses before the hearing.  The father argued he was unfairly surprised and prejudiced.  Some Texas appeals courts have held a trial court should admit testimony despite unfair surprise or lack of good cause for a delay in disclosure if admission of the evidence is in the best interest of the child.  Based on this standard, the appeals court found no abuse of discretion in the admission of the daughter’s testimony.

The appeals court also rejected the father’s argument that the Instagram messages should have been excluded as hearsay.  A statement is only hearsay if it is offered to prove the truth of the matter asserted.  The messages were not presented to prove the truth of the matter asserted.  The mother presented the negative statements about her not to prove they were true, but to show the communications had been made.  The communications were therefore not hearsay.

The father also argued there was not sufficient evidence to support a permanent injunction.  Generally, to get a permanent injunction, a party must show there is a wrongful act, imminent harm, irreparable injury, and no adequate remedy at law.  In child custody cases, however, a court may grant a permanent injunction that is in the best interest of the child even if all of these elements are not met.  The appeals court found no abuse of discretion in the trial court’s granting of the permanent injunction upon finding it was in the child’s best interest.

The father also argued that there was insufficient evidence to support the injunction.  The appeals court noted that sufficiency of the evidence was not an independent ground to overturn the injunction.  It is instead a factor in determining whether the trial court abused its discretion.

The mother’s daughter testified the father’s girlfriend made negative comments about the mother and the screenshots she provided reflected the nature of those messages.  The trial court could have found the child was at risk of being exposed to similar comments as those directed at her 15-year-old half-sister.  The mother had also testified she had spoken to the father about the girlfriend’s drug-related posts, and he indicated he was aware of her drug use.  The trial court could have found the girlfriend had used illegal drugs, that the father was aware of it, and that he was not opposed to the drug use.  The trial court also could have found the girlfriend presented a risk of promoting parental alienation.  The trial court could therefore have found that it was not in the child’s best interest to allow contact with the girlfriend.  The appeals court found no abuse of discretion in the issuance of the permanent injunction and affirmed the judgment.

If you are involved in a child custody matter, a skilled Texas custody attorney can help pursue any necessary court orders.  Set up an appointment with McClure Law Group by calling 214.692.8200.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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7 Strange Divorce Laws Still “On The Books”

7 Strange Divorce Laws Still “On The Books”

Originally published by Hendershot, Cannon and Hisey, P.C. Blog.

At Hendershot, Cannon & Hisey, P.C., many of our blogs shed light into the intricate inner workings of Texas divorce and family law – from property division and child custody to spousal support, taxes, and more.

While divorce is certainly a serious subject where being well-informed is of crucial importance, taking a moment to reflect on some of the more unusual aspects of this practice area can provide a different perspective on your own issues, as well as a few laughs or food for thought.

Few things offer such an opportunity than a look into the most unique and unusual divorce laws.

7 Unusual Divorce Laws

In the U.S. and other countries around the world, there remain a number of strange divorce laws that are still technically in effect.

Whether they’re inexplicably bizarre, reminders of times gone by that haven’t yet been changed, or newer laws that address issues not ordinarily associated with the divorce process, these obscure laws are enough to make anyone think twice about their own cases.

Here are some of the strangest divorce laws still on the books today:

  1. Divorce is still illegal in some countries – Laws prohibiting divorce are some of the most tangible reminders of its historical evolution. Even well into the 21st century, a number of countries across the world do not allow spouses to divorce. In the Philippines, for example, divorce is generally illegal with the exception of certain circumstances, such as those involving Filipino citizens who marry foreign nationals and divorce in their spouse’s country of residence (but even when two Filipino spouses divorce in another country, their divorce won’t be recognized under their own country’s laws). In the Philippines, as well as countries that have just recently implemented some form of legal divorce (like Chile), terminating a marriage often requires spouses to navigate complex and lengthy proceedings. This includes having to prove a reason for divorce, as well as requirements that spouses be separated for several years before any formal separation or annulment is granted.
  2. Married on a dare? – Although there may not be many spouses who chose to tie the knot on a dare, those in Delaware who regret doing just that have the right to file for an annulment under a strange provision of the Delaware Divorce and Annulment Act. Among other qualifying reasons for granting an annulment, Delaware courts will grant a decree of annulment when one or both parties entered into marriage as a “jest” or dare.
  3. Marrying the same person four times – Though not common, there are cases of spouses who get divorced only to reconcile and rekindle their relationships later on, sometimes to the point of getting married again. While that’s understandable and perhaps part of the mystery of love, spouses on that trend should be careful of one unique Kentucky law prohibiting multiple marriages to the same spouse. Under state law that could have only been passed in an attempt to help couples stop the madness, it’s illegal for folks in Kentucky to marry the same person four times. For most people, however, that’s probably not a concern.
  4. Strange grounds for divorce – Today, all states in the U.S. have adopted some form of no-fault divorce, though there are still fault-based divorces and justifications for citing a reason to divorce (such as domestic violence or other issues that would impact case outcomes). While grounds for a fault-based divorce usually make sense (i.e. adultery, abandonment, or a criminal conviction resulting in incarceration), some states still have more unusual statutory provisions for permitting divorce. These include divorce on the basis of mistreating a spouse’s mother-in-law (Wichita, Kansas), or a spouse going “insane” up to five years after a marriage (New York). In Tennessee, you can even cite “attempted murder” as a valid grounds for divorce thanks to a law that permits divorce when one spouse tries to kill the other in a malicious manner (one example of “malice” cited in the statute is by using poison). There are also laws in other countries which provide some unique grounds for divorce. In Samoa, women can legally divorce their husbands for forgetting their birthdays, and in Saudi Arabia, married men who fail to bring their wives fresh coffee each day could very well find themselves served with divorce papers.
  5. Divorce can be simple for some societies – While the divorce process can entail a range of emotional and financial concerns in many countries, it can actually be pretty simple for spouses elsewhere. In Eskimo societies, for example, spouses who live apart from one another for any period of time can formally end their marriages. In Australia, Aboriginal women with husbands who won’t file for divorce (since women cannot file) have the option of simply marrying another spouse. An elopement instantly ends the previous marriage.
  6. Pet Custody – Child custody proceedings are among the most important matters in divorce, but what about custody of pets? While deciding who keeps the dog, cat, or other furry friend may not have been as much of a concern years ago, many people today view their pets as a part of the family. As such, there’s been a growing focus on “pet custody” and how family courts handle these matters upon divorce. In states with evolving pet custody legislation, family judges have discretion to consider the best interests of pets, rather than treating them solely as property.
  7. Marriage Laws – In addition to divorce laws, many states have laws addressing how spouses marry and even what they’re allowed, and not allowed, to do during the marriage. In South Carolina, for example, the state’s Offenses Against Morality and Decency Act makes it a misdemeanor for men over the age of 16 to propose to women as a means of seduction. There are also laws prohibiting married couples from sleeping nude in a rented room (Salem, Massachusetts), wives from wearing false teeth without the written permission of their husbands (Vermont), spouses from getting married if the county clerk issuing the marriage license believes either spouse is drunk, insane, or an imbecile (Mississippi), and even husbands from scowling at their wives on a Sunday (Colorado).

Help for Houston Spouses Seeking Divorce

If there’s anything worth taking away from these strange and arguably outdated laws, it is that divorce and family law, like any area of law and the societal views that shape them, are constantly evolving.

At HCH, we know staying apprised of current laws and issues that impact our clients is critical when it comes to providing personalized, quality representation. That includes everything from helping clients who attended college in a time of rising tuition rates address the division of student loans, helping older adults determine how their retirement accounts will be divided, and more.

If you are currently considering divorce in Houston or any of the surrounding areas of Texas, our award-winning legal team at Hendershot, Cannon & Hisey, P.C. is here to help. Call (713) 909-7323 to speak with a lawyer.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Texas Court Finds Prenuptial Agreement Was Enforceable

Texas Court Finds Prenuptial Agreement Was Enforceable

Originally published by Robert Epstein.

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Texas law generally favors the freedom of contract.  This principle also applies to prenuptial agreements.  In Texas divorce cases, prenuptial agreements are generally valid and enforceable unless they were involuntarily signed or were unconscionable and signed without proper disclosures.

A wife recently challenged the enforceability of a prenuptial agreement. The couple met online while the wife lived in Vietnam.  When the husband visited Vietnam, he gave her a copy of the prenuptial agreement his attorney drafted.  The wife did not speak English, so she had it translated.  She requested a change to the agreement.

The wife came to the U.S. and told the husband she was pregnant a few months later.  He told her she needed to sign the agreement before they got married. The husband stated a paragraph was removed from the agreement based on the wife’s request.

 

He took her to a Vietnamese-speaking attorney for a consultation. The husband paid the fee, but was not there for the consultation.  The parties signed the prenuptial agreement in the attorney’s office after the consultation.

The wife filed for divorce in 2015.  The trial court found the prenuptial agreement was enforceable and incorporated it into the final divorce decree.  The wife appealed, arguing the agreement was unconscionable, involuntarily signed, and violated both federal law and the Texas Constitution.

In support of her unconscionability argument, the wife asserted she was pregnant “when it was made clear” she had to sign or go back to Vietnam.  She also argued it was unconscionable to “forc[e] a mother to accept a likely future in which her child would seldom see his father,” especially when both “would be at risk of shame and humiliation” in Vietnam.  She said she thought her child’s life would be better in Texas.  She argued it was unconscionable to require her to sign to avoid having to go back to Vietnam. She claimed taking her to a lawyer found in the yellow pages was just “window dressing.”  She asserted she was more unsophisticated than the husband and did not speak English.  She also argued he had not disclosed information about his assets and liabilities.  Finally, she argued it was a one-sided agreement.

When reviewing unconscionability, courts consider the circumstances, including available alternatives, bargaining ability, illegality or public policy against the contract, and whether it is “oppressive or unreasonable.” When reviewing prenuptial agreements, courts may consider age and maturity, business and educational backgrounds, and prior marriages.  The court will generally enforce a voluntarily-entered contract unless there is mistake, fraud, or oppression.

The wife knew the husband expected a prenuptial agreement before she met him in person. She testified they commonly discussed it after their engagement.  He gave her a copy when he was in Vietnam in the summer of 2007.  They executed the agreement in August 2008. The appeals court found she knew about the prenuptial agreement long before she arrived in the U.S. and became pregnant.

The court found the wife’s various reasons for not wanting to return to Vietnam did not make the agreement unconscionable. There was no evidence the mother or the child would be in danger there.

The appeals court also rejected the mother’s argument regarding her attorney. She argued the attorney could not have performed independent due diligence, such as finding out the property values.  The appeals court found no evidence that information was necessary or the wife did not already know it.  She testified she understood the terms of the agreement.

The wife argued the husband had not disclosed information about his assets and liabilities.  There was testimony the husband had disclosed.  Even if he had not, it would not make the agreement unconscionable.  Lack of disclosure is the second prong of the test and only matters once the agreement is found unconscionable.

The appeals court also rejected the wife’s argument she was less sophisticated and had less bargaining power.  Both parties were mature adults.  Although she had less formal education, the wife had owned and operated two businesses in Vietnam.

An agreement is not unconscionable just because it is one-sided or unfair. The appeals court found no evidence of mistake, fraud, or oppression.

There was no error in the trial court’s finding the agreement was not unconscionable.

The wife also argued the agreement was not voluntarily executed. In reviewing voluntariness, courts consider whether the party had an attorney’s advice, whether there were misrepresentations, what information was provided, and whether anything was withheld.  She argued her attorney had not had opportunity to study the agreement, analyze the information about the assets and liabilities, and “review the immigration agreements.”  The appeals court found no evidence the attorney did not have sufficient time to review the agreement.  Both the wife and the attorney testified she understood the agreement’s terms. She did not claim she received incompetent legal advice.

The appeals court rejected her claim the agreement was involuntary because it contained material misrepresentations regarding whether it disclosed the value of assets and liabilities.  There was evidence the husband had disclosed the information regarding the assets and liabilities.

The wife also argued she was under duress because she did not want to return to Vietnam.  The appeals court noted duress is only a defense to a contract if it involves a threat to do something the party has no right to do.  The husband did not have a legal duty to marry the wife, so his threat not to marry her if she did not sign did not constitute duress.

The wife argued the agreement violated federal law because it conflicted with the affidavit of support the husband signed.  She argued the affidavit created an obligation requiring the husband to use all of his assets to support her, while the prenuptial agreement only obligated him to use community property.  The appeals court found any obligation created by the affidavit ended when she became a citizen.  The appeals court also rejected the wife’s argument the agreement violated the Texas Constitution.

The appeals court affirmed the trial court’s judgment.

If you are facing a divorce involving a prenuptial agreement, an experienced Dallas divorce attorney can assist you.  Call McClure Law Group at 214.692.8200 to set up a consultation.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Same Sex Marriage: Can a judge stop you from getting a divorce in Texas?

Same Sex Marriage: Can a judge stop you from getting a divorce in Texas?

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

Despite the decision out of our federal Supreme Court a few years ago that legalized same sex marriage across our country there are still some misunderstandings and questions regarding that subject. This is understandable to a degree. The change in laws dramatically altered the landscape of family law in terms of who is and is not able to participate in the family law courts. In addition, some folks I have spoken with in my capacity as a consultative attorney with the Law Office of Bryan Fagan still have questions if marriage and divorce work the same for opposite sex and same sex persons. Today’s blog post will discuss marriage and divorce for same sex couples.

Expected length of time for a same sex divorce in Texas?

There are two roads that your divorce could go down. The first is the path of least resistance- an uncontested divorce. To be considered truly uncontested you and your spouse would need to be in agreement on getting a divorce, have a plan in place for diving up any marital property and if you have children would need to have every aspect of a parenting plan agreed upon as well. This means conservatorship, visitation, support, etc. all need to be decided prior to hiring an attorney. If even one piece of this pie is missing, then your divorce is not uncontested and will therefore require some degree of negotiation.

The second path is unfortunately the more common road that most divorces go down- a contested divorce. All of the above issues that I laid out are in play in a contested divorce. The more substantial your martial property or the more detailed your parenting objectives and plans are the more complicated and longer your divorce will likely take. There is not anything wrong with this as a general rule, but it can get tedious and tiresome for most people who are eager to complete their divorce and move on with the rest of their lives.

Generally speaking, a divorce in Texas must take at least sixty days from the date on which the Original Petition for Divorce is filed with the court. Ostensibly the sixty first date is the earliest date on which you and your spouse can have a judge sign a final decree of divorce. A final decree could be signed and ready the day after your petition is filed but absent extreme circumstances (like family violence being an issue) it is unlikely that a judge would waive the sixty-day waiting period. For those of you wondering, the waiting period exists in order for you and your spouse to make absolutely sure that you want to get a divorce rather than remain married and try to work it out together.

How can you avoid a long and protracted divorce?

The key to a fast-moving divorce is to understand early on that you are not going to get 100% of what you want. I wish there were some way to ensure that all of our clients always got just what they wanted out of a divorce but to this point I have not been able to do the math on how to get there. If any attorney ever does get to that point, then the rest of us may as well give it up and start looking for work elsewhere.

The reason that divorces end up being situations where you and your spouse both give up (and therefore gain) things in order to settle the case is that most family courts in Texas require that you attend mediation at least once throughout your case’s life. Typically, you will attend mediation once before any temporary orders hearings and then again before your trial.

Temporary Orders hearings have everything to do with how you and your spouse will be situated during your divorce from the perspective of making sure bills are paid, the kids are cared for and one another are treated with respect. Mediation involves attending a formal negotiation session with your attorneys in the office of a third-party mediator. The mediator is also very likely a practicing family law attorney him or herself so you will be able to gauge the relative strength or weakness of your arguments with the mediator as well.

In mediating for final orders you will likely be extending much of the temporary orders out into your post-divorce life as well as deciding what will happen with any marital property accumulated by you and your spouse. Texas is a community property state. This means that any property that you acquired during the course of your marriage is considered to be jointly owned by both of you and is therefore subject to being divided up in your divorce case. If it is your contention that something acquired during your marriage is your property separate from your spouse- like a gift of some sort- then the burden is on your to prove by clear and convincing evidence that this is the case.

Tips for preparing for mediation in your same sex divorce case

Attending mediation will be the same for you as it would be for persons going through any other divorce. You and your attorney should come prepared with settlement offers, a list of property that may be in play as far as negotiation is concerned as well as plans and ideas on how to divide up parenting time with your children. The more prepared you are and the more variations you have available to you of the different parenting plans the more likely you will be to reach a relatively pain free settlement.

For instance, it is commonly thought in opposite sex divorces that mothers have the advantage when it comes to being named the primary conservator of your child. Primary conservator means the parent who has the right to determine the primary residence of your child- among other rights. This allows your child to live with you throughout the school year and provides visitation time (mostly on weekends) to your spouse once the divorce has been completed.

In same sex divorces there would not be an apples to apples comparison due to there not being a male and female parent from which to choose from. You and your spouse should have had discussions heading into mediation regarding which of you is better suited to be named as the primary conservator of your children. Having an honest conversation with your attorney about which parent has been more active, more involved, and better acquainted with your children’s day to day needs is a good place to start. My admitting to yourself that your spouse has taken the lead in these areas throughout your marriage or has a work schedule that is more conducive to providing the level of care that is needed to raise a child on a daily basis is not admitting that you are not a good parent. It can, however, help you to eliminate contentious delays in your case and lead to a more developed settlement agreement.

Another aspect of divorce mediation that you need to be prepared for is determining how to divide up your bigger financial assets. Retirement plans, bank accounts, home equity and the like are probably the type of assets that you will have in play for your case. If you have not considered these subjects prior to entering into mediation you will find out that you will need to work through them in mediation. Seeing as how most mediation sessions are only four hours long you will not be optimizing your time by spending an undue amount of time on these sort of brain storming sessions while in mediation. Rather, spend a few weeks prior to mediation using your attorney as a go-between to communicate settlement offers to your spouse.

Finally, it is important to note that what you settle upon in mediation cannot (in most circumstances) be changed. That means that you cannot wake up the morning after mediation and call your attorney in a panic because you think you made a huge mistake in deciding to agree to a geographic restriction for your child when you really want to move back home to Colorado to be closer to family once the divorce is over with.

You can avoid problems like this by asking questions of your attorney about anything that you are agreeing or not agreeing to. If any settlements are reached (either in part or in full) then the mediator will present rough draft copies of what is known as a mediated settlement agreement to you and your spouse. You can and should go over them with your attorney to make sure that you understand everything that is being agreed to. If something doesn’t make sense, or if the wording of what the mediator included does not comport to the agreement as you understood it please raise that issue before mediation is over with.

Will you ever have to go to court in your divorce?

Thankfully you will likely only have one court date that you will have to attend during your divorce. That court appearance will be an uncontested appearance in what is known as a Prove Up hearing. The petitioner (party who filed the Petition for Divorce) will attend a quick hearing with their attorney in court. At the prove up hearing your attorney will be presenting you and your Final Decree of Divorce to the judge for his or her approval. The attorney will ask you questions regarding the divorce decree as a means to show the judge that you and your spouse have come to an agreement and are ready to move forward to close out your case.

In all likelihood your judge will not ask any questions and will send you off on your way. The divorce decree will be signed by the judge later that day and will likely be posted online in the day following. You can pay for certified copies at the clerk’s office shortly thereafter.

One question that I am sometimes asked by clients is how much of your prove up hearing will be heard by the public. It is true that anyone can walk into your courtroom during your prove up hearing and hear some details about your case. If you are at all trying to keep the divorce from becoming an “event” or something like that I understand why you may not be too excited to set foot in court and put your life on display in front of a handful of people.

I cannot emphasize, however, that it is unlikely that anyone in court other than the court report, judge, your attorney and you will be paying attention to a word of what is said. In Harris County, for example, you and your attorney will approach the bench and speak to the judge in a conversational tone. Therefore, a person in the first row of courtroom seats will have problems hearing what is happening in your case. The bottom line is that if you are worried about airing your business for all the world to hear then you should be at ease because a Prove Up hearing is not that kind of court appearance.

Closing thoughts on same sex divorce cases

It could be that you never imagined that you would ever get married in your life. Now you are having to contend with the thought of getting a divorce. This cannot be an easy time for you and your family. However, the attorneys and staff with the Law Office of Bryan Fagan are here to tell you that our office will stand with you throughout your case until your process is complete.

If you have any questions about the material that we have covered please consider contacting the Law Office of Bryan Fagan. We offer free of charge consultations six days a week with our licensed family law attorneys. It would be our pleasure to talk with you and to answer your questions and concerns in a comfortable, pressure-free environment.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Handling military retirement intelligently during your Texas divorce

Handling military retirement intelligently during your Texas divorce

Originally published by The Law Office of Bryan Fagan, PLLC Blog.

Your marriage of ten, twenty or thirty years may have flown by but now you are considering a divorce. Not only is this going to affect you and your spouse presently but your future well being may be impacted as well. Beyond the immediate loss of your spouse is the long term impact that losing out on retirement savings that may be needed for your post-work survival. In an age where we are all concerned about the viability and sustainability of Social Security is the reality that many people remain married to their spouse into retirement age because they feel like they have no choice but to remain married in order to ensure a comfortable life after retirement.

What can be done in the event that your spouse is in the military and you are now moving towards a divorce? Can you divide military retirement benefits as you could civilian retirement benefits? What are the risks to you in moving forward with a divorce from a financial perspective? There is a lot of information about military retirement benefits in a divorce from a general perspective but I wanted to share some in-depth content with you all on this subject. Today’s blog post from the Law Office of Bryan Fagan will seek to answer those questions.

There are really two kinds of divorces: military and nonmilitary

While the divorce laws in our state are the same for all married people, it is important to note that military divorces have several components that differentiate them from non-military divorces. The reasons for that are due to the unique lifestyle that military members have, the effect of military service on a servicemember’s family as well as the challenges that division of military retirement benefits has on divorce participants.

The problem that you as a military member or military spouse are going to run into in trying to do research and locate an attorney that has knowledge of these issues is that very few attorneys have the collective experience in handling military divorces and dividing up military benefits correctly for their clients. The attorneys with the Law Office of Bryan Fagan do have that experience and are therefore interested in being able to share that experience with you today.

Think about it- you wouldn’t want to ask an attorney with no divorce experience to represent you in a divorce case (Although many people do). You also wouldn’t want to ask an attorney with no experience handling military divorces to represent you in a divorce case either. Still, you may be surprised when I tell you that many people walk into courtrooms and mediation offices with an attorney who has never dealt with military divorces before. While I appreciate those who have never had that experience attempting to gain it I cannot recommend that you be the person that the lawyer “practices” with.

As much as offering you advice and perspective on the specific subject of military divorces I would like to use this blog post as a means by which you can figure out if the attorney you are speaking to actually has the requisite knowledge of military divorces to represent you and your family. Interviewing family law attorneys is not something that comes naturally to most people. It is not difficult for you to lose sight of your objective in a meeting with an attorney when it comes to actually try to determine how much that particular attorney has in handling military divorces. It is not something that you want to try to figure out on the fly, either. You need to prepare yourself to listen for certain things and ask certain questions to elicit those responses.

Finally, I hope that this blog post impresses upon you the complexity with which family law cases operate- especially divorces. You may have people in your life- friends or family- that have handled their divorce without any representation. Those people may have been able to walk away from their case unscathed but remember that not all cases are created equal. Even if you believe that you and your spouse want a quick and easy (painless) divorce that may not be how it actually turns out. Your divorce case could very well be contentious and we know that it is going to be complicated if yours involves military retirement.

How much of your military retirement benefits does your spouse stand to receive in a divorce?

From the perspective of a member of our military, you likely did not enter the service in order to gain the approval of your friends and family. There are certain jobs that require less effort and sacrifice that you could have entered into. Rather, you joined the military because you love our country and wanted to help your fellow citizen. Maybe your family has a history of military service. Maybe you had a role model growing up that was a Marine and so that inspired you to become a Marine as well. Either way, you entered the military as a genuine reflection of your appreciation of our country and our values.

However, that’s not to say that you also don’t appreciate the material benefits afforded to you as a member of the military. That includes military retirement benefits. There is nothing wrong with looking out for yourself and your longevity in relation to your divorce. You have worked hard to accumulate some security for yourself after you retire from military service and you do not want to sacrifice that security unnecessarily. At the same time, you likely don’t want your spouse to walk out of your divorce with nothing to show for their commitment to you and what sacrifices for made at home so that you could complete your objectives in your military life.

The number one question that I am asked in consultations with military members is what is likely to happen with their retirement savings in a divorce. If you are a military member you may be wondering the same thing- what does your spouse stand to be able to leave your divorce with as far as your military retirement benefits are concerned?

In most Texas divorces your military retirement benefits will be divided, at least that portion that you accumulated during the course of your marriage. Obviously the longer your marriage has lasted the bigger the slice of your retirement pie that can be divided up. Those benefits that accrued during your marriage are considered to be community property. Community property is subject to division in your divorce. It does not matter that your spouse did not work a day in their life for the military, or perhaps at all outside the home. The State of Texas does not distinguish between spouses in this regard. If you and your spouse were married then your earnings are theirs and vice versa, for better or worse.

Whatever you have earned towards your military pension before your marriage is yours to keep with your spouse having no rights to it. This falls in line with general theories of separate property in Texas. The discussion becomes much more complicated once we get past these fairly straightforward concepts surrounding community and separate property, however.

Military pensions are a bit different from civilian pensions

One important thing to take note of when it comes to military pensions is that the military will not allow your spouse to take home from your divorce more than 50% of your pension. As I touched on in the section prior to this one, the question then is how long have you been married? The longer the length of your marriage the higher the percentage of benefits that your spouse could potentially walk away from the divorce with.

The way that the State of Texas calculates how much your spouse could stand to keep from your military pension compares your total number of months married while you were an active duty member of the service with the total number of months that you have towards retirement benefits.

For example, if you were in the military for twenty years and only married for the last ten years, your spouse wouldn’t have any standing to ask for anything related to your first ten years of military service from a retirement perspective. If you are still in the military at the time of your divorce things become even more complicated than this.

When you are still an active duty servicemember at the time of your divorce

The State of Texas uses a complicated equation to determine the exact amount of retirement benefits that your spouse is able to walk away from the divorce with if you are still actively engaged in your military service at the time of your divorce.

There are basically six component parts to the equation. If you were not a great Math student in high school then you may want to sit down for this. You would take 50% (the percentage of your spouse’s community interest in your military retirement) and multiply that by the number of months that you were in service as a military member during your marriage divided by the number of months in total that you have served as an active duty military member.

Once you have that percentage you will multiply it by .025 x the years and months in active duty military service. That number is then multiplied by the average of your military base pay for the past three years.

Once you have that number you would divide by your monthly gross retired pay at retirement.

Finally, multiply this number by your monthly disposable retired pay at retirement and you finally have a number that your spouse will be able to walk out of your marriage with.

Not only is that fairly convoluted but it takes to research and communication with your attorney to arrive at the correct number. For instance, to figure out what your 36-month base pay is you would need to turn over your payroll records to your attorney. Your attorney will then create a table that will show your base pay for the past three years. Asking an attorney to do math is risky in and of itself (kidding) but to do so you better be sure that your lawyer knows their math and the law.

Is it possible for you to keep all of your military pension in your divorce?

The short answer to this question is, “yes.” The longer answer is yes with some details attached to it. The main detail is that you will have to negotiate with your spouse to get to a point where you are walking away with the entirety of your retirement benefits intact. Sometimes you have a situation where your spouse does not want any of your retirement. Believe it or not, these case happen- not often, however. In other situations, you will need to trade retirement benefits for something else. Maybe you have a separate property interest that you can offer in place of the pension. Maybe a portion (or all) of the rest of your community property share of your equity in your home or some other significant asset can be offered to your spouse.

More on the specifics of dividing a military pension will be discussed in tomorrow’s blog post

I hope that today’s blog post was not only interesting to read but also caused you to stop and think about some of the specifics associated with dividing military retirement benefits. It is not a simple or straightforward process and should not be entered into lightly. While your attorney will be charged with providing advice and counsel to you, it is ultimately your case and your livelihood that is at stake. Be prepared for your case by joining us tomorrow to read more about this important subject.

In the meantime, if you have any questions about the material that we covered today please do not hesitate to contact the Law Office of Bryan Fagan. We offer free of charge consultations with our licensed family law attorneys six days a week. We can discuss your case with you, answer questions and address your concerns in a comfortable and pressure-free environment.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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What Can You Include in Your Prenuptial Agreement?

Originally published by Family and Criminal Law Blog.

Essentially, a prenuptial agreement is a legal contract between two people who are planning to get married. While there are those who have an adverse reaction to the mention of a prenuptial agreement and think of it as, not a preparation for marriage but preparation for divorce, a prenuptial agreement can set and manage expectations for marriage. It can also bring peace of mind to the parties to the agreement knowing that certain assets will be protected in the event of divorce or, should divorce occur, they will already know how certain things will play out. Of course, the full extent of what can be accomplished by a prenuptial agreement will largely depend on what the parties choose to include in the agreement itself.

What Can You Include in Your Prenuptial Agreement?

One of the best, and most popular, uses of a prenuptial agreement is to address the issue of marital property and how it will be distributed in the event of divorce. In this case, the prenuptial agreement should specify the assets and liabilities that each party are bringing into the marriage. It should then set forth the property rights of each throughout the marriage and what will happen to property rights, should the parties ever divorce. The agreement can accomplish this by distinguishing what property will always be considered separate property and which property will be considered marital or communal property. In divorce, marital property is subject to division between the parties.

A prenuptial agreement can also be used to manage financial expectations for a couple during the marriage. The agreement can set forth future financial goals and how these goals will be accomplished by certain investment strategies, among other things. The agreement should also address if, and how much, income should be paid into any joint or separate bank accounts. If there will be spending allowances distributed to a party, this should be included as well. The agreement can also include budgetary restrictions. For example, it can specify the way household expenses will be managed, who will pay which bills, and how much each party will financially contribute in general to the payment of household expenses.

A prenuptial agreement can also set forth financial expectations for the parties should the marriage end in divorce. The agreement can establish the fact that one spouse will not be liable for certain debts of the other spouse should the two divorce. This will protect the spouse from assuming financial liability for debts of the other party. Additionally, the prenuptial agreement can establish whether or not alimony, or spousal support, will be paid in the event of divorce. The agreement can also state how much alimony will be paid. It is important to note, however, that a court will not enforce an agreement that it determines to be punitive or will leave one spouse without any financial resources.

A prenuptial agreement can also work to protect inheritance rights. For instance, if you have children from a previous marriage, the prenuptial agreement can make sure that these children still have property rights. It can help ensure that they will still inherit a portion or all of your property as outlined by the prenuptial agreement.

Helping Set You Up for a Successful Marriage

While many view a prenuptial agreement as a plan for divorce, it can actually be of great help in working to help a marriage succeed. Setting forth and managing expectations of a marriage is a great way to start off the marital journey. For all of your prenuptial agreement help, Navarrete & Schwartz, P.C. is here for our clients. We are proud to serve the residents of Midland, Texas. Contact us today.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Pet Custody in Texas: Who Keeps the Pet in a Divorce?

Pet Custody in Texas: Who Keeps the Pet in a Divorce?

Originally published by Hendershot, Cannon and Hisey, P.C. Blog.

For many Americans, pets are part of the family. While that means our pets can bring years of companionship and joy, they can also become a significant point of contention when spouses choose to divorce. In fact, the issue of “pet custody” has evolved so much throughout the years that it’s become a matter many courts across the country are willing to hear, as well as a focused niche in family law.

At Hendershot, Cannon & Hisey, P.C., our divorce and family law attorneys have worked with all types of clients – from individuals and single parents to large families, married business partners, and yes – pet owners.

Because we know each client has their unique goals, we’re passionate about structuring the strategies to address what matters most them, and what’s most appropriate for their given circumstances. If your pet is part of your family, then we know it’s important to make them a priority – even if Texas courts that have traditionally treated pets as property fail to fully grasp that pets’ value is far more than monetary.

If you are considering divorce and are concerned about what will happen to your furry friend (or any pet or animal you’ve owned with a spouse), working with experienced attorneys can make all the difference in reaching a workable resolution. To help you understand how pets and divorce work in Texas, we’ve put together a few important things to know.

Pet Custody & Divorce: New Trends for the Modern Family

The role pets play in the family unit have made pet custody an increasingly more common area of focus in many divorce cases. Some of the latest developments related to pet custody and divorce make it clear it’s becoming an issue that’s gaining attention:

  • According to a report published by the American Academy of Matrimonial Lawyers, there was a nearly 30% increase in family law cases involving issues of pet custody between 2009 and 2014. During that same five-year period, almost a quarter of attorneys also reported an increase in cases where family judges characterized pets as assets in divorce.
  • Dogs and cats are the most common animals involved in divorce-related pet custody. However, there have been documented divorce cases involving all types of pets and animals, including reptiles, birds, and exotic animals. While many Texas divorces involve farm animals and cattle and livestock, those animals tend to viewed in terms of their monetary value, rather than the emotional value we attach to household pets.
  • Alaska became the first state in the nation to pass pet custody legislation in 2017. Under that state law, courts can consider the wellbeing of pets when making decisions over which spouse will be awarded custody, similar to how courts consider the wellbeing of children in proceedings over child custody (or “possession and access” as it’s known in Texas). A similar law passed in Illinois took effect in 2018, and a measure in California providing judges with the power to treat pets as people (by considering their best interests) became law on the first day of 2019.
  • Advocates and lawmakers from across the country are supporting efforts to raise awareness about this unique issue and introduce and pass pet custody legislation in other states. Earlier this year in Pennsylvania, for example, lawmakers introduced a measure that would differentiate domesticated pets as “companion animals,” and allow judges, if necessary, to decide upon custody of the pet.

Pet custody is certainly not a new issue; spouses have been battling over pets or animals in family courts for decades. However, a lack of clear legislation on how pets are to be viewed in divorce, in addition to the larger role they play in modern families, often means it becomes a matter of discretion, with some judges taking the issue more seriously than others.

Still, it’s indisputable how much we love our pets, and questionable as to whether we may love them even more than people. As one New York State Supreme Court judge who oversaw a pet custody trial involving a mini-dachshund in 2013 noted in his opinion:

“People who love their dogs almost always love them forever. But with divorce rates at record highs, the same cannot always be said for those who marry.”

Pet Custody in Texas Divorce Cases

Although there has been no specific pet custody law passed in Texas, there are still many pet owners who wish to protect their relationships with their pets when it comes time to divorce, and many cases in the past that have dealt with all types of situations and disputes related to shared animals.

Even without a statutory law, there are a few things to consider when dealing with pet custody in a Texas divorce:

  • Pets as Property – The status quo in most Texas divorce cases is to treat pets like personal property. This means they can be deemed community property or separate property. In these cases, courts will generally follow statutory laws when awarding a pet to an owner who purchased or adopted the pet on their own prior to marriage (separate property).
  • Discretion – Although pets can generally be considered property in divorce, any owner knows they are far more than that. Given the emotional significance of the relationship between owners and their animals, judges may exercise discretion to allow owners to raise arguments over custody arrangements, and even consider the best interests of the pet. However, there’s now law requiring that they do.
  • Agreements and Options – As with many aspects of divorce, couples may have the ability to reach mutual agreements with one another over what happens to family pets. This may be facilitated through out-of-court negotiation or mediation that resolves the issue with a property division agreement. It can also result in any number of options for what that agreement looks like, such as having one spouse take one pet and another spouse take the other, or awarding a spouse other assets in exchange for possession of the pet. For some divorcing spouses who end a marriage on good terms, or for whom their pets are that important, it can even involve time-sharing or visitation, depending on their personal wishes.
  • Disputes – Although pets bring us unconditional love and companionship, they can become a focal point for disagreement in divorce. When disputes arise, it becomes important for pet owners to work with experienced attorneys who can leverage their understanding of existing laws, case law, and their ability to illustrate the unique and special relationships clients have with their pets when pursuing a positive outcome. This can be especially important in cases where custody of a pet is being sought as a means to harm the other spouse (i.e. as an act of “revenge”), or when there are other factors involved that would mean pets carry more “value” in terms of being a unique asset, such as pets used as show animals, for breeding, or for performances.

HCH: Protect Your Rights & What Matters Most to You

Hendershot, Cannon & Hisey, P.C. has earned national recognition as proven and experienced divorce and family lawyers, as well as the trust of clients who valued the personalized focus and dedication we devote to their cases and the issues which matter most to them. By working closely with clients, we gain a better understanding of the key issues in their cases, and are driven to help protect their rights as we pursue the most positive outcome possible.

If you have questions about divorce, property division, or your pets, our team is here to help. Call (713) 909-7323 or contact us online to speak with an attorney.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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Spousal Maintenance Awards in Texas Divorce Cases

Spousal Maintenance Awards in Texas Divorce Cases

Originally published by Robert Epstein.

By

A court in a Texas divorce case may only order spousal maintenance if certain conditions are met.  The court must then consider relevant factors in determining the duration, amount, and manner of the payments.  The other spouse may challenge a maintenance award if there is insufficient evidence to support a finding of eligibility for maintenance or if the trial court abused its discretion in ordering the specific award.

In a recent case, a husband challenged a maintenance award and the property division in his divorce.

Under Tex. Fam. Code Section 8.051, a spouse may receive spousal maintenance if he or she cannot earn enough income to meet his or her “minimum reasonable needs” due to certain specified circumstances.  In this instance, the applicable provision of the statute provides that a spouse may be eligible for maintenance if he or she does not have the ability to make sufficient income to meet his or her minimum reasonable needs and has been married for at least 10 years.

Maintenance is generally only available under this provision if the spouse has been diligent in trying to develop skills to provide for his or her minimum reasonable needs during the separation and while the divorce case is pending, but this is a rebuttable presumption.

The husband argued the court had not made sufficient findings regarding the wife’s minimum reasonable needs to support its maintenance order.  The court considered several factors and found the wife earned $76,000 per year from working full time.  The court also found good cause to require the husband to pay $1,500 per month in spousal support from March 2018 to May 2021.

The appeals court found the express findings made by the court supported an implied finding the wife was eligible for a maintenance award.  The appeals court also found evidence in the record supporting the implied finding.  The wife had testified she needed the support to adjust to maintaining a household and improving her career.  She also provided a budget showing her monthly expenses exceeded her gross-monthly income and the child support she received.  The appeals court found this evidence was sufficient to show that her combined income and child support did not meet her minimum reasonable needs.

With some evidence supporting a trial court finding the wife had rebutted the presumption against maintenance, the appeals court could not find the trial court had abused its discretion.

The husband also argued the evidence did not support the amount of the award based on the statutory factors in Tex. Fam. Code Section 8.052. Under the statute, courts are to consider several factors in determining the amount and duration of a maintenance award.  In this case, the trial court considered those factors.

The appeals court found evidence supporting the statutory factors.  The wife had spent most of the 19-year marriage supporting the husband in his education and career.  She testified she had worked part-time for several years so she could be home with the children.  She had to increase her hours since the divorce case was filed.  She testified she would have a hard time finding a similar position locally if she lost her current job and that her employment was limited by the geographic restriction on the children’s primary residence designation. She also testified to having a serious medical condition.

There was evidence the husband made approximately $193,000 per year.  They had used their retirement to buy their first house. The appeals court noted the husband had been able to fund his accounts in the years since, but the wife had not. The wife testified regarding her lack of retirement savings, and there was evidence of an account in her name with $15,325.91.

The appeals court found there was evidence relating to the statutory factors the trial court could have based its determination on regarding the amount and duration of the maintenance payments. There was no abuse of discretion as to the amount, manner, or duration of the maintenance award.

The husband also argued the trial court abused its discretion in awarding the wife 70% of the community estate.  The divorce was granted on the grounds of insupportability.  The wife had spent most of the marriage caring for the children as a homemaker and supporting the husband’s pursuit of his own education and career.  The appeals court noted that the wife’s job and the geographic restriction limited her ability to obtain other employment. Furthermore, most of the assets she received in the property division were not liquid.  She would not have immediate access to those funds if she or the children needed them. The appeals court found no abuse of discretion in the property division.

The appeals court affirmed the trial court’s judgment.

In this case, the appeals court found sufficient evidence to support the trial court’s order.  If you are facing a divorce, an experienced Texas divorce attorney will work with you to identify the evidence to support your case.  Call McClure Law Group at 214.692.8200 to schedule a consultation.

Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.



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