What goes into an award of spousal support here in Texas?

Have you given notice of your summer custody plans?

Originally published by On behalf of Laura Dale.

It’s not too early to be thinking about summer and your plans with the children. You may have a trip in mind, visits to distant relatives or other arrangements to make. Don’t be too quick to make reservations and travel plans if you share custody of the children with their other parent. There are certain steps you must take before changing your possession order.

Creating a workable plan for possession of and access to children is often one of the most difficult parts of a marital breakup. Unfortunately, life is not predictable, and it is sometimes necessary to adjust the schedule. Your summer plans may present unusual circumstances that interfere with your co-parent’s scheduled time with the kids. April is the ideal time to make important decisions about those temporary summer changes in your parenting plan.

What do summer possession plans look like?

You may be among the fortunate parents who worked together to create a unique plan to accommodate the special circumstances in your family. On the other hand, if you and your former partner were unable to reach an agreement, the court probably stepped in an issued a standard possession order. Typically, this alternates special holidays on even and odd years and allows the non-custodial parent to have possession of the children during the month of July.

However, what if your plans for summer fall outside of the weeks between July 1 and July 31? If you want the children at some other time over the summer, you must notify your parenting partner as early as possible in April. The other parent also has the right to be with the children for one weekend during your extended possession. Scheduling your summer plans right now makes it easier for both you and the other parent to arrange dates that will suit everyone.

Fighting for your rights this summer

Departing from your possession order is not always easy, especially if your parenting partner is not willing to cooperate. However, you have rights as a parent, and in most cases, Texas family courts support your right to access to your child.

If you are fighting to extend your standard possession of the children over the summer, you may find the effort frustrating. You may benefit from learning more about your rights and obtaining the strong and compassionate advocacy of a Texas attorney who will assist you in reaching your goals.

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



Read More –>

Can a Texas family court reduce an above guidelines child support obligation in an out-of-state Order?

Can a Texas family court reduce an above guidelines child support obligation in an out-of-state Order?

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

One of the cool parts of being a family law attorney with the Law Office of Bryan Fagan is that there is never a dull moment. There are always unique people with unique circumstances who walk through our door with questions about their lives and their families.

Like Texas, many other states lay out a specific percentage of a non-custodial parent’s income to pay in child support to the custodial parent. Texas has it that for one child, a non-custodial parent should pay 20% of their net monthly resources towards the support of that child. For two children, 25% would go towards child support. The percentages increase by increments of 5% until you reach five or more kids topping out at 40%. In this way, courts have a straightforward mechanism to be put into action for determining child support in most cases. It has become so predictable that the guideline levels of support will be implemented that most attorneys and clients don’t bat an eye when the issue of paying guideline support is raised.

Recently, a potential client presented a scenario where he and his wife were divorced in a state other than Texas, and after the divorce the man’s ex-wife and children had moved to Texas. The state that the children and ex-wife had previously lived in was a higher than average cost of living state and our potential client was ordered to pay child support that is above and beyond the “guideline” levels of support for that state.

Our potential client was thus left with a child support order that obligated him to pay an amount of child support that was above and beyond what is proscribed in the family code of his native state. When a judge decides regarding any subject that is related to a child, he or she must do so based on what is in the best interests of that child. This is a standard that most every state utilizes when applying the law towards the specific circumstances of a child and their family.

Based on the needs of that child, their current circumstances, the ability of their parents to provide the necessities of life and any medical/social/educational needs of that child, an amount of child support will be ordered. Whether the parties to the divorce agreed in mediation to that level of child support or a judge ordered that the amount be paid after a trial, the fact is that the current child support order for this man obligates him to pay an above guidelines level of support.

Where does the Law Office of Bryan Fagan come into play?

Here is where our office becomes relevant to the discussion. This gentleman contacted us about representing him in a child support modification case. His thoughts on the matter center around the reduced level of expenses that his ex-wife is responsible for now that his children live in the Great State of Texas. Having moved from another state whose cost of living is much higher than Texas, our potential client wanted to see what a judge would consider as far as reducing the above guidelines level of child support. Is there a basis in prior court cases to argue that an out of state child support order can be modified to see a reduction in the child support obligation based on circumstances like this?

Today’s blog post from the Law Office of Bryan Fagan will seek to answer that question. As I see it, there are two parts to this discussion that we have to tackle. The first is whether or not a Texas Court has the jurisdiction to modify an out of state child support order. The second is what basis in the law would a family court judge have to reduce the above guidelines level of child support when there has been a change in the cost of living associated with raising children.

When does a Texas court gain the jurisdiction to modify an out of state child support order?

There are a couple of ways that a child support order that comes from a court outside of Texas could be modified, potentially, by a Texas family court. The Texas Family Code states in section 159.613 that if both the child support obligor (parent who pays child support) and the oblige (parent who receives child support payments) and the child all reside in Texas then our state has attained jurisdiction over the case and may modify and/or enforce the out of state order.

Likewise, when only one party (parent) live in Texas, then a modification is possible even if both parents do not reside in Texas. This occurs when the parent bringing the modification cases (in our above scenario, the father) is not a resident of Texas and the responding party (the mother in our example) lives in Texas and is subject to personal jurisdiction in Texas. Here, too, a Texas family court would have jurisdiction over the case.

What have Texas courts stated about subject matter like this?

So now we at least have a basic understanding of how a Texas court gains the ability to make rulings regarding an order issued by an out of state court. The jurisdiction to do so is critically important. You may be in a situation like our potential client- having seen a change in circumstances that have materially affected your family since the issuing of that order. Thus, some portion of your prior order is no longer suitable for you or your children. However, if you cannot successfully argue to a Texas court that jurisdiction is proper in Texas you will not be able to make an argument about any of the facts and circumstances that justify a modification.

A fairly recent Texas state appellate court decision would further assist us in our discussion. In re Dennis J. Martinez, 450 S.W.3d 157 (2014) contains within it a good discussion of the relevant law regarding how and when an out of state court can lose jurisdiction over a case and its parties.

This court notes that in section 159.205 of the Texas Family Code, our state law provides only two ways in which a court may lose jurisdiction over a case and its parties about a family law matter. First, the obligor, the oblige, and the child would have to all move out of the state that issued the order (as we discussed previously). Another and less likely scenario would be that all individuals file written consents in Texas allowing a Texas court to assume jurisdiction and modify the other state’s order.

As noted above, the circumstances under which a court may modify a support decree from another state are found in section 159.611 of the Family Code. SeeTEX. FAM.CODE ANN. § 159.611. A modification is permitted by the non-rendering state under the circumstances outlined in section 159.611 because under such circumstances the rendering state no longer has a sufficient interest in the modification of its order.

If you are facing a situation like a gentleman who contacted us about potentially representing him in a child support modification case here in Texas, you need to consider whether or not a Texas court will even be able to hear your arguments and potentially grant you whatever relief you are requesting. Keep in mind that if you cannot clear this jurisdictional hurdle you won’t even get the opportunity to submit any of your arguments to the court as to why your child support order needs to be modified.

Can a Texas court grant a reduction in the child support obligation of a parent under an out of state order?

Here is the question that our potential client is interested in knowing the answer to. He wanted to find out what facts and circumstances would need to be in play that could lead to a court in Texas reducing his above guidelines level of child support that he is currently obligated to pay.

A modification of a child support order is warranted when the petitioning party (the person asking for the modification) can provide evidence showing a material and substantial change in the circumstances of one of the parties to the order or a child of the order. As the court in Tucker v. Tucker, 908 S.W.2d 530 (1995), notes, there is an inherent fact-finding nature of child support issues and the cases that are made up of those issues.

The high court in Texas was stating what every family law attorney worth his salt could tell you: that family law cases are extremely fact-specific. If you would like to modify a child support order then you will need to present facts clearly and concisely to the court. This means that your initial petition to the court and in your oral arguments inside of a modification hearing need to display the requisite level of material and substantial change needed to grant the modification.

Cost in living expenses has been a factor alleged by prior parties seeking child support modifications

Part of the analysis that your court will look at when considering whether or not to grant a child support modification is the expenses incurred by the custodial parent who is raising the children on a day to day basis. Remember- our potential client would like to make an argument that because his ex-wife and kids now live in Texas, with its lower cost of living than their native state, is no longer in need of a child support payment that is above the guidelines of his home state.

Costs associated with special education for your child, school tuition and things of this nature are relevant to our discussion. A court would look to the expenses of your ex-spouse to determine whether there is sufficient evidence in the record to compare the expenses of her and your children at the time that the original child support order was issued and what the expenses are now. This means that you will need to do some digging to produce this kind of evidence, especially if the child support order is from a decade ago.

In the case, In the Interest of C.C.J. and C.M.J, Minor Children, 244 S.W.3d 911 (2008), the court went over a good analysis when that has to be shown to a court to justify a modification:

To determine whether there has been a material and substantial change in circumstances, the trial court must examine and compare the circumstances of the parents and any minor children at the time of the initial order with the circumstances existing at the time modification is sought. London v. London, 192 S.W.3d at 15. 

In that case, the parent who was attempting to modify the prior court order was the mother. She was arguing for an increase in the level of child support based on a material and substantial change in the circumstances of her and her children. Her expenses, she attempted to argue, had increased dramatically in recent years, while the income of her ex-husband had increased. The evidence she presented, the court determined was insufficient to justify an increase in child support. Here is what the appellate court determined:

Here, without both historical and current evidence of the financial circumstances of Mother and the children, the trial court had nothing to compare. See id. Because there is no evidence in the record of the financial circumstances of Mother or the children at the time of the entry of the divorce decree, we conclude the trial court’s finding of “a substantial and material change of circumstances since the rendition of the prior order” is not supported by the record. Accordingly, we conclude the trial court abused its discretion in increasing Father’s monthly child support obligation.

What does the Texas Family Code have to say about a decrease in the needs of a child about child support?

The Texas Family Code states that an increase in the needs, the standard of living, or lifestyle of the oblige since the rendition of the existing order does not warrant an increase in the obligor’s child support obligation. Texas Family Code section 156.405. I would also argue that the opposite could also be potentially held by a Texas court. Specifically that an argument that a decrease in the needs, the standard of living or lifestyle of the custodial parent is not necessarily a reason in and of itself to modify a child support obligation.

A Texas case that is important for our purposes is In the Interest of J.A.H. and M.K.H, Children, 311 S.W.3d 536 (2009). Here, as in the prior case we discussed, a mother was attempting to argue that an increase in her expenses due to a change in the cost of living after a move justified an increase in the child support obligation of her ex-husband. What the court found, in this case, was that all of the evidence submitted by the mother tended to show that there had been a change in her circumstances rather than a change in a substantial change in the circumstances of her children.

The court argued that simply showing a change in lifestyle and not a material or substantial change in circumstances of the children does not in and of itself justify a modification of the child support order. If you attempt to argue that because your ex-spouse’s mortgage payment has decreased or that their utility bills are lower and that justifies a decrease in the child support obligation, then this case should give you pause.

How are the needs of your child taken into account by a court?

Specifically, to justify an award of child support above the guidelines outlined in the Texas Family Code, your ex-spouse must show that there would be needs of your child that would be unmet but for the higher than guidelines level of support. Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 (Tex. 1993). Note that the needs of your child are not the bare necessities of life, either. Each court will decide as to what the needs of your child are. Like we mentioned earlier in this blog post, the facts of your case will guide the judge in large part.

The bottom line: if you wish to modify a child support order come with plenty of evidence

Whether yours is an out of state child support order or an order that originates in Texas, you need to come to court with plenty of evidence that justifies the modification request A family court judge has the authority to reduce a level of child support that is currently set above the guidelines of your home state, but to earn that decrease in the support obligation you have to submit sufficient proof showing a change in the conditions of your spouse, your children or you. A material and substantial change regarding the cost of living is a trickier argument to make than one based on a change in your income or an increase (or decrease) in the educational or medical needs of your child.

Please consider contacting the Law Office of Bryan Fagan if you have questions about today’s material. Our licensed family law attorneys offer free of charge consultations six days a week where we can answer your questions in a comfortable and pressure free environment.

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



Read More –>

COVID-19 and family law: What every attorney needs to know

Originally published by Aimee Key and Lindsey Obenhaus.

The COVID-19 pandemic has upended nearly every facet of daily life in the U.S. When Gov. Greg Abbott declared a state of disaster in Texas due to COVID-19, he invoked emergency powers for his administration to control the spread of the virus. In a time of sudden school closures, social distancing, travel restrictions, working from home, and more, family law judges and practitioners have worked swiftly to respond to these changes affecting family law clients and their children.

At the time of this writing, the Texas Supreme Court has enacted seven unprecedented emergency orders affecting all courts in the state of Texas, effective March 13, 2020, and lasting through May 8, 2020, unless otherwise extended by the court. Pursuant to these orders, individual courts are given the authority to modify or suspend deadlines and procedures, allow remote appearances to proceedings (such as by video or phone), consider testimony/evidence offered electronically, conduct proceedings away from its usual location in the county, and take any other reasonable action to avoid exposure to COVID-19.
Additionally, the highest court ordered that courts must not conduct “non-essential” proceedings in person contrary to local, state, or national directive, whichever is most restrictive, regarding maximum group size (currently, the statewide restriction is 10 people). Jury trials are also suspended during this time. Specific to family law cases, the Texas Supreme Court ordered that for purposes of determining a person’s right to possession of and access to a child under a court-ordered schedule, the originally published school calendar shall control in all instances. Further, parties must continue to follow their court-ordered possession schedules (unless they agree otherwise) because the court has held that possession of and access to a child shall not be affected by any shelter-in-place order issued by any governmental entity.
Specific counties and judges have been proactive about creating a unified family law response to this crisis. To see how your county is affected, the State Bar of Texas is maintaining a database of all resources and updates on Texas court closures and orders relating to the COVID-19 pandemic.(1). Additionally, the Texas Children’s Commission has compiled a helpful database of all resources relating to child protective services cases on its website.(2). Most counties have issued orders limiting in-person courtroom settings to only “essential family court matters,” including protective orders, family violence, writs and habeas corpus, CPS matters, and other matters that may be designated by the court at its discretion. Some courts are allowing “non-essential” matters to be heard by submission or a virtual hearing (teleconference or videoconference). Individual judges, too, have gone above and beyond to accommodate the public health by allowing electronic “prove ups” of orders and even suspending business dress code (per the celebrated emergency standing order the 470th Judicial District in Collin County).
The innovative way that courts are handling hearings is ultimately an experiment of forcing courts and litigants to adapt to technology almost overnight. Many courts are turning to social media accounts to advertise new policies, thereby increasing transparency and communication with the bench. Practitioners are working together to help adapt to new electronic tools such as Zoom, Skype, and other virtual platforms. It will be interesting to see what changes stick, or not, after the dust has settled from the crisis. The Texas Judicial Branch has provided guidelines for setting up and managing court hearings via Zoom.(3).
Family law firms are also adapting to the changing landscape. First, for many counties, shelter-in-place orders have eliminated in-person meetings and physical office attendance. As such, lawyers have to communicate with clients remotely and disburse critical information and guidance through alternative mediums. Lawyers have also taken to social media to share court directives and advice helpful to cases. Further, with hearings being conducted remotely, many family lawyers are having to learn how to use Zoom, Skype, and YouTube, and instruct their clients on how to appear for a hearing separate and apart from their lawyer. Additionally, with courts being closed for an indefinite period of time and restrictions being in place for some counties for gatherings, attorneys are turning to electronic means to conduct mediations and arbitrations.
In addition to transforming the way matters are handled in court, the COVID-19 pandemic poses a number of new issues for family law clients and their children, which are considered here:

How is parenting affected by a “shelter-in-place” lockdown?
While there is no statewide “shelter in place” directive at this time, different counties are promulgating individual responses to this ongoing crisis. At the time of this writing, several large counties have issued “shelter in place” orders, including Harris, Dallas, Tarrant, Denton, Hunt, and Bexar counties. The Texas Supreme Court issued guidance on March 24, 2020, in the Seventh Emergency Order Regarding the COVID-19 State of Disaster, ordering that parents must follow their possession and access schedule and that possession of and access to a child is not affected by any shelter in place order. This applies to the entire state and clarifies that unless otherwise agreed, a parent must follow the court ordered possession schedule regardless of his or her individual county’s order.

How is co-parenting affected if a parent is potentially exposed to COVID-19?
This is an area where the Texas Supreme Court has not made any specific rulings or guidance for parents. However, individual counties have guidance and direction on exposure. In Dallas County, if a conservator has reason to believe that he or she has been exposed to COVID-19, that conservator shall notify the other conservator and they shall confer to discuss actions necessary to protect the child’s safety and well-being. In making a decision whether visitation between a parent and a child shall continue, it is best to first confer with the health care provider, if possible, regarding your child and his or her potential exposure to the virus. If you decide that there is reasonable concern for your child’s safety and welfare making visitation impossible, a parent should employ electronic communication and visitation and also resume visitation as soon as possible after self-isolation has ended. Additionally, parents should be prepared to offer and expect makeup time for any missed visitation.
Co-parenting is hard, even in the best of circumstances, and during this time, it is even harder. However, parents should try to be a team in this situation, even if it is difficult. This is not the time to keep a minute accounting of how many overnights the other parent has had or to argue that the current school closures should be treated like summer vacation. The most important priority today is to ensure the safety of your family and the public. Talk through concerns and be open to new arrangements. Attorneys should encourage parents to keep detailed records, including contact with the other parent in writing (by text or email), explaining what the concerns are about the current custody plan in light of exposure and proposing a reasonable solution. While family law is often contentious, a child should have as much consistency and stability with visitation as possible.

Are there long-term guidelines for making sure parents are up to date on remote learning activities for school?
Parents are suddenly having to take on teaching responsibilities in addition to working from home. For divorced parents, it is essential that parents communicate with one another about school activities and distance learning so that they are both ensuring that the child is completing his or her activities as well as possible. Schools and teachers are also adjusting to the shift to remote learning so it is possible that a teacher may only communicate information to one parent, and that parent needs to communicate and document shared information with the other parent. Additionally, as children thrive on routine, parents need to communicate and try to establish a consistent schedule with respect to schooling so that the child is impacted as little as possible going in between homes. While it is unlikely that a court will intervene if one parent is not doing his or her part to fully complete online learning, this is another issue that can later be considered when parents return to court.

Will summer possession still take place?
At this time, extended summer possession is not affected by the COVID-19 pandemic. The Texas Supreme Court guidance orders that possession shall continue pursuant to the court order. However, if travel is still affected by COVID-19 at the time of summer possession, or a stay at place order is in effect, the ability of a parent to travel or take a vacation will obviously be limited.

Does a parent have to pay child support if he or she becomes unemployed?
If a parent loses his or her job and is unable to pay child support, the child support obligation still continues until such time as that parent has filed a petition to modify child support and a judge has ruled on the issue. The filing of a modification is the date that a court may consider for modifying support, so it is imperative that a parent file as soon as possible after losing his or her job. However, even after the petition is filed, the obligation to pay continues until a court makes a ruling, which may be some time from the initial filing. During this in between period, a parent should continue to pay child support, or at the very least, as much as possible, to avoid an enforcement order after the courts reopen and address this issue.
It is stressful for everyone—parents and children alike—to navigate through this pandemic. Resources continue to evolve to help parents and attorneys alike manage this crisis. There are resources available to help parents talk to their children about COVID-19,(4) as well as tips for effective co-parenting. The Association of Family and Conciliation Courts in collaboration with the American Academy of Matrimonial Lawyers has provided seven tips for family law practitioners during this time.(5). Despite the uncertainties of this time, family law attorneys still have the necessary tools to help their clients through their crisis and can adapt and overcome to reach resolution.

AIMEE PINGENOT KEY
is a partner at Goranson Bain Ausley in Dallas, where she practices exclusively in family law. She is certified in family law by the Texas Board of Legal Specialization and is a frequent author and speaker on family law issue across the nation.

LINDSEY OBENHAUS
is an associate attorney at Goranson Bain Ausley in Dallas. She is certified in family law by the Texas Board of Legal Specialization.

1. Coronavirus Court Closure & Court Order Updates, State Bar of Texas Family Law Section, www.sbotfam.org/recent-news/court-closures-orders.
2. COVID-19 Resources Related to CPS Cases, Texas Children’s Commission, texaschildrenscommission.gov/reports-and-resources/covid-19-resources-related-to-cps-cases.
3. Electronic Hearings With Zoom, Texas Judicial Branch, www.txcourts.gov/programs-services/electronic-hearings-with-zoom.
4. Autumn Schoolman, Hey kids, coronavirus has changed everything. Here’s what you need to know., USA Today (Mar. 20, 2020, 9:34 AM), www.usatoday.com/in-depth/graphics/2020/03/20/coronavirus-kids-has-changed-everything/2864140001.

5. Kathleen McNamara & Lisa Hall, 7 Tips for Family Law Practitioners in the Midst of the COVID-19 Pandemic, 15 Ass’n of Family and Conciliation Courts eNews 3 (Mar. 2020), files.constantcontact.com/6beb60a3701/fb0d830f-d282-4e6c-8f3c-76654770c31d.pdf.

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



Read More –>

Texas Court Denies New Qualified Domestic Relations Order More Than 20 Years After Divorce

Texas Divorce Court May Base Property Valuation on the Evidence Before It

Originally published by Kelly McClure.

By

Texas family law requires a just and right division of community property by a divorce court.   The court must, however, have the relevant information before it to identify and appraise the assets.  A party who refuses to disclose assets or information about their value generally may not complain about the court’s valuation of those assets.  A former husband recently challenged the court’s division of property.

Prior to the marriage in 1994, the parties signed an “Agreement in Contemplation of Marriage.”  The wife filed for divorce in 2005, and the husband counter-sued.  The divorce decree was issued in July 2009.

Issues related to the case had already been before the appeals court five times.  The appeals court had previously remanded certain issues related to the property division back to the trial court.  The husband appealed the “Judgment on New Trial for Property Division.”  He argued the trial court erred by not enforcing the prenuptial agreement regarding a bank account and a legal settlement.  He argued the agreement required property held in the name of either party to be presumed to be that party’s separate property.

 

The appeals court had previously held there was more than a scintilla of evidence that community funds had been commingled into the account and remanded the case so the trial court could consider the characterization of the account.

On remand, the trial court found there was substantial evidence community funds had been commingled into the account.  It also found the husband “offered no documentary evidence, and no clear and convincing evidence tracing separate funds into the [account]…”  The court found the account was a community asset and awarded 50% of the funds to the wife.

The appeals court acknowledged the prenuptial agreement contained a presumption that property held in one party’s name was that party’s separate property, but found the presumption had been rebutted with evidence of commingling.  The husband therefore had the burden to trace the deposits to separate funds by clear and convincing evidence, but the trial court found he did not meet it.  The appeals court found the trial court did not err in concluding the account was community property.

The husband also argued the trial court erred in characterizing a legal settlement as community property.  According to the record, the husband filed the suit in his own name after the divorce petition was filed but before the divorce was finalized.

The husband did not disclose the asset during the divorce.  The decree stated that undisclosed assets were awarded to the party who did not have control or possession of them.  The trial court therefore did not err in finding the asset was not the husband’s separate property.

The husband also argued the trial court erred in failing to value the community estate at the time of the divorce.  The general rule is that property should be valued as of the date of the divorce.  The trial court generally had the discretion to determine if an appraisal is close enough to the date of the divorce to be considered in determining the value.

The husband argued the court should have based the division of the account on its value on the date of the divorce, not the date of the filing.  There was evidence, however, that the husband refused to provide information about the account during discovery.  The wife testified he refused to provide her with bank documents, but instead only offered her a release so she could obtain the information herself.  She testified that she only had one statement showing information from the account.  The appeals court noted that the husband was challenging the valuation and property division and therefore he had the burden to show the division was unjust.  He did not provide values of the property, and could therefore not complain that the court used the information it had.  The trial court valued the property using the only bank statement it had.  The appeals court found no abuse of discretion in an unjust or unfair way when it awarded the wife half of the property appraised based on the evidence before it.  The appeals court made a similar finding regarding other accounts where the only evidence of their value was the wife’s testimony.

The husband also challenged the valuation of a CD account that was awarded to the wife.  The wife testified the husband and his mother opened the account with funds from the first account.  She testified about its value as of November 2005 and how much was withdrawn when it was closed in August 2007.  The husband did not offer any information regarding valuation of this asset at the time of the time of the divorce.  On remand, the trial court valued the CD account based on the testimony of its value in 2005.  The appeals court found the trial court abused its discretion by failing to use the evidence closer to the divorce.

The husband also argued the trial court improperly awarded the wife 100% of assets it found were undisclosed.  The trial court had ordered in the decree that undisclosed assets were awarded to the party who did not have possession or control of them.  The husband had not challenged that part of the order in the previous appeals.

The accounts in question were first disclosed in the trial on remand.  The accounts had been opened during the marriage by the husband and his mother, who had passed away.  They were therefore in the husband’s control, and he failed to disclose them during the original proceedings. The trial court awarded the accounts in accordance with the decree.  The appeals court therefore found no abuse of discretion in that action.

The appeals court affirmed the judgment in part and reversed in part.

If you are anticipating a divorce with complex assets, the experienced Texas divorce attorneys at McClure Law Group can advise you and help you through the process.  Call us at 214.692.8200 to set up an appointment.

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



Read More –>

What goes into an award of spousal support here in Texas?

What goes into an award of spousal support here in Texas?

Originally published by On behalf of Laura Dale.

Very few people come out of a divorce without some financial impact. Any time the same income must stretch over two households instead of one, both parties will experience some adjustments to their finances.

What the courts want to make sure of is that one of you doesn’t experience a significant drop in income while the other party receives an unfair financial advantage. Under these circumstances, spousal support may be appropriate.

How do the courts come up with the amount needed?

Of course, the first hurdle for anyone requesting spousal support is to prove a need exists. After you show that you do not earn enough to support yourself without help, the court will then assess how much you need in order to make up for the difference between what you bring in and what you need for support. Below are generalities regarding what the law says about amount and how long you will receive spousal support:

  • You could receive either up to 20% of your former spouse’s gross income or $5,000, whichever is less.
  • If you or one of your children who resides primarily with you has a disability, you could receive spousal support indefinitely since your need may not end.
  • If you were married for at least 30 years, you could receive alimony for up to 10 years.
  • If you were married between 20 and 30 years, your alimony will more than likely end after a maximum of seven years.
  • If your marriage lasted between 10 and 20 years, you may receive spousal support for up to five years.
  • If your spouse was abusive and you were married less than 10 years, you could receive alimony for no more than five years.

Within the confines of these limits, you and your future former spouse may not agree on duration and amount. If that happens, you will need to present evidence to the court to support your position, whether you are the one needing spousal support or the one who may end up paying it.

You don’t have to go it alone

Nothing less than your financial future is at stake regardless of which side of the issue you are on, so it would be wise to enlist some experienced legal assistance for help. An attorney knowledgeable in Texas law will provide you with an understanding of your rights and an explanation of what you face, along with your legal options.

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



Read More –>

Attn: Pete Flores Texas Senate

Pete Flores Texas Senate there are people living in your district in these videos. Please see the below petition

www.change.org/p/investigation-into-forensic-custody-evaluator-dr-alissa-sherry-and-legal-consensus

 

Attn:  Pete Flores Texas Senate, TSBEP Alissa Sherry Legal Consensus Psychologist Complaint  – TBHEC Texas Family Courts – Gloria Canseco, Darrel Spinks, Alissa Sherry, Legal Consensus

 

family-court-corruption.com/tag/alissa-sherry/

 

TSBEP, Custody Evaluation, Forensic Psychology, Texas Family Courts, TBHEC, Gloria Canseco, Darrel Spinks, Alissa Sherry, Legal Consensus,

#TSBEP, #CustodyEvaluation, #ForensicPsychology, #TexasFamilyCourts, #TBHEC

 

 

 

The Effects of COVID-19 on Child Custody Matters

The Effects of COVID-19 on Child Custody Matters

Originally published by Francesca Blackard.

By

As cases of COVID-19 are continually popping up in the North Texas region (currently 155 confirmed cases in Dallas County and growing) and with the recent “Stay Home Stay Safe” Order that went into effect at 11:59 PM on March 23, 2020, parents are scrambling to find reliable answers to their questions regarding possession schedules and quarantine, as well as concerns about child support. These are questions that are relatively unprecedented in today’s world, and with the courts recently ruling on several of these topics, this blog seeks to provide helpful updates during this difficult time.

In its March 17, 2020 emergency order, the Supreme Court of Texas, ordered that court-ordered possession schedules remain in accordance with any original published school calendar regardless of the newly extended Spring Breaks or school closures. This order is effective until May 8, 2020 or until further notice. However, as the situation continues to ramp up, and fears about this pandemic are at an all-time high, many parents want to take precautionary measures to keep their family safe.

Various concerns have arisen regarding possession schedules when one parent is quarantined for possible contraction of COVID-19. The Dallas County family courts have recently released a statement encouraging parents to keep open lines of communication with and one another and to make all decisions with the well-being and health of the child as the primary concern. This communication should include notifying the other parent of any exposure to or a positive diagnosis of COVID-19, as well as discussing any actions necessary to ensure the child’s safety. Unfortunately, disagreements regarding the custody or possession of a child may arise, and it is imperative that you consult with your attorney to discuss questions about establishing alternative schedules before making any decisions with your co-parent or ex-spouse
Continue reading →

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



Read More –>

Once More, With Feeling: Business Entities Must be Represented in Court by a Licensed Attorney

Once More, With Feeling: Business Entities Must be Represented in Court by a Licensed Attorney

Originally published by Carrington Coleman.

R2Go Transport LLC a/k/a Ready 2 Go Transport LLC v. Xellex Corp.
Dallas Court of Appeals, No. 05-19-01246-CV (March 18, 2020)
Chief Justice Burns (Opinion, linked here), and Justices Molberg and Nowell
Ken Carroll

The Dallas Court of Appeals reminded us today that business entities in the State of Texas cannot appear in court pro se or through non-lawyer employees or members. Generally, except for the performance of ministerial tasks (like posting bond), only a licensed attorney may represent a business entity in a Texas court. The rule originated with respect to corporations in Kunstoplast of America, Inc. v. Formosa Plastics Corp., U.S.A., 937 S.W.2d 455 (Tex. 1996). It now extends to virtually all “fictional legal [business] entities,” including partnerships and limited liability companies. See, e.g., Sherman v. Boston, 486 S.W.3d 88, 95-96 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). “Allowing a non-attorney to present a company’s claim would permit the unlicensed practice of law.” Id. (trial evidence presented for LLC by non-lawyer “had no legal effect” and was “legally insufficient to support a judgment”). The rule applies in all courts, trial and appellate—other than small claims courts, for which there is an express statutory exception. Tex. Gov’t Code § 28.003(e) (“A corporation need not be represented by an attorney in small claims court.”).

Here, R2Go’s counsel was allowed to withdraw from the appeal. When the LLC did not obtain replacement counsel, despite having been warned and ordered to do so, the Dallas Court dismissed its appeal, because it could not proceed with its appeal without being represented by a licensed attorney.

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



Read More –>

“Zoom”ing into a new era

Originally published by Sally Pretorius.

If there was ever a time to be thankful for technology, it is now. During the novel coronavirus  pandemic, a majority of attorneys are finding themselves practicing social distancing, which means working remotely. Given our professions, many times court appearances, emergency motions, client meetings, and emergencies cannot wait. To be honest, I was skeptical of using technology for court appearances and hearings because I have been taught the value of in-person relationships and the power of in-person advocacy. However, after a call with Elizabeth Lippy from Trial Advocacy & Consulting, my mind was quickly changed. Our clients trust us to make sure we are capable of assisting them with their legal problems, and given our current circumstances, attorneys need to make sure we are able to rise to that occasion.

That being said, many courts (Collin County being one of the leading counties on this front) have begun to conduct their hearings via a platform called Zoom. To ensure we are fully capable of representing our clients in whatever platform is necessary, I dug into Zoom to make sure I was prepared to use it as an advocacy platform should the need arise. Here are some tips that should help you get started.

Zoom Basics

Creating an account

Aside from Zoom being user friendly and intuitive, the great thing about Zoom is that it’s free—for three people for up to 40 minutes. If you need more people on a call or need more than 40 minutes, you will need to pay for a plan. Even if you do need to pay for a plan, the cost is minimal: $14.99, which gets you up to 100 participants and 24-hour time limit per call (which I hope you don’t need for a hearing). To sign up for an account, you simply enter your email address and then Zoom sends you a link to verify and you are in. Once you have an account, you log in to Zoom and you are usually immediately logged in to your profile. This is where you can see the details of your account, including your personal meeting ID. You can now go in and change your profile picture and manage your account to do more advanced things (once you are proficient and ready to advance).

Pro Tip: Pin the Zoom icon/app onto your desktop for easy access.

Scheduling

So now you are logged in and ready to go. If you are scheduling the meeting, at the top of the Zoom screen, there is a link to “Schedule a Meeting.” Click on that link and begin to enter the details for your meeting. As mentioned, Zoom is pretty intuitive, so filling in the details of your Zoom meeting is similar to creating a calendar invite. The nice thing about Zoom is you can make it audio only or you can make it video as well. If you want video, make sure you turn on video for the host and participant. For the audio selection, I recommend keeping both clicked on so people using their computer can have the sound capability from their computers as well.

Pro Tip: If you want to mute participants upon entry so you don’t have endless chatter and lots of distractions, click that option. You can also record the meeting on your computer if you want to make sure you have a record of the call. While Texas is a one-party state, I would make sure to let the participants know that you are recording them as a courtesy. If you are setting up a meeting with a judge, I would absolutely ask permission before recording the conference as many judges have local rules and policies on recording their proceedings outside a court reporter. If you want a court reporter, you can also invite your court reporter so he or she can make an official record of the hearing/meeting/conference.

Next, click “Save” to create the meeting. The meeting is now saved and ready to share. To invite other people, copy and paste the “Join URL” and send it to other participants. I would suggest including this information in a calendar invite so people aren’t searching for the meeting information.

Participating in a Meeting

If someone is scheduling a meeting and inviting you, he or she will send you a link to join the call or send you a meeting ID. At the top of the Zoom screen, click on the “Join a Meeting” link, enter the meeting ID, and click “Join.” You should then be directed into the meeting space.

Starting the Meeting

To access meetings that you have created, click on the link called “Meetings” on the left-hand side of the screen and you will see all of the meetings you have scheduled. You can use this link to edit your meeting, add the meeting to your calendar, and to share the meeting with other people (remember the three-person limit for a free account).

When it is time for the meeting, click “Start this Meeting.” Follow the prompts to run from a browser or download and run Zoom. You will be asked if you want to join audio—click that selection to hear others and participate.

Tips for Conducting a Hearing on Zoom

Join early

Enter the conference early and make sure that everything is working properly and the features are set up to your preference—just as you would arrive early at a new courtroom to check on things and make sure you are good to go.

Witnesses

If you are going to have witnesses, including your client, present, you need the pro version of Zoom to invite them to participate in the hearing because there is a limit on the number of people allowed on a Zoom session under the free version. Invite witnesses and clients to the session just like any other participant (as detailed above).

Share documents

The easiest way to share documents with the group is through the chat feature. There are more advanced ways, but on a basic level, the best way is to use the chat feature. I would recommend having all of your exhibits ready to go in a folder saved to your desktop. If you have your exhibit stickers added on, that would make it best for everyone present to identify the documents and keep a clear record. I would also recommend emailing your exhibits to the court beforehand, so the court is able to maintain a clear record. Once you have your documents ready to go, click on the chat icon on the bottom middle right of the Zoom screen and a chat feature will be populated on the right side. On the bottom right of that chat feature is a file icon where you can upload a document and everyone on the chat can then see the document. You can proceed as though you are tendering to the court.

Pro Tip: There is an option at the bottom of your home Zoom page to screen share when on a conference call to facilitate the exchange of information and documents. As an attorney, I don’t recommend using the screen share feature because I often have chats and emails coming through on my desktop.

Mute Everyone

It is frustrating to be on a call/conference/chat with background noise because someone did not hit mute. Zoom allows you to mute everyone. To mute everyone on a call, go to the three-dot icon on the bottom right that says “More.” Then click on “Manage Participants” and click “Mute All.” You will then be prompted to either allow or not allow participants to unmute themselves.

Turn Off Video

If you don’t want to be seen on a conference call, simply click the “Start Video/Stop Video” icon on the bottom left-hand corner.

Ensuring Uniform Views

When everyone first logs on, ask them to go to their video settings (the up arrow to the right of the video camera icon) and click the box that says “Hide Non-Video Participants.” If everyone does this and your hearing requires the questioning of witnesses, this ensures that everyone does not have to see all of the Zoom participants on their screen. Similarly, if you click “Speaker View” in the top right corner, the person speaking will be the larger screen in the middle.

Pretty Filter

It is nice to have a softening effect to your video. Under “Settings,” go to “Video” and click the box for “Touch Up My Appearance,” which adds a nice “Pretty Filter” to help out with those blemishes.

Pick a Professional Background

When logged in to Zoom, you will see on the bottom right-hand corner of the screen an icon that looks like a video camera and next to the icon a little carrot arrow pointing up. Click on the carrot arrow and select “Choose Virtual Background.” You can then visit a free background website like unsplash.com and download a free background. This way, it looks like you are in a professional background when you are really in your dining room or home office.

Speaking with your client offline

Once you get proficient at Zoom, there is a capability to use breakout rooms; however, on a very basic level, I would recommend setting up a different call with a client or session with your client to have offline conversations.

Practice makes perfect

Practice! It is going to take some time getting used to speaking into a computer monitor and looking at the right spot for the camera. Try it out with a colleague or by yourself in a practice session. We can do this. Attorneys are trained to think on our feet and adapt.

Sally Pretorius is a shareholder at KoonsFuller Family Law in Dallas. Her practice focuses on divorce, complex property division, child custody litigation, and child support matters. She is certified in family law by the Texas Board of Legal Specialization and has received many notable accolades.

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



Read More –>

In A Venue Dispute, Court Held That A Personal Injury Claim Against An Estate Representative Could Be Filed In The County Where The Estate Was Pending

Originally published by David Fowler Johnson.

In UPS Ground Freight, Inc. v. Trotter, parties filed claims against an estate representative based on a car accident in the county where the estate was being administered. No. 12-19-00135-CV, 2020 Tex. App. LEXIS 1127 (Tex. App.—Tyler February 10, 2020, no pet. history). A defendant, employer of the decedent, moved to transfer venue to the county where the accident happened. The trial court denied the motion to transfer, and the defendant filed an appeal.

The independent administrator alleged that venue was proper pursuant to Texas Civil Practice and Remedies Code Section 15.031 because the estate was being administered in that county. The defendant argued that Section 15.031 did not apply because the suit was not one against the administrator “as such, to establish a money demand” against the estate. They contended that the statute limits its applicability to suits involving a claim for a fixed, liquidated sum, and the plaintiffs sought an undetermined amount of personal injury damages.

The court of appeals noted that the term “money demand” was not defined by the statute. It held: “Venue statutes dictating permissible counties in which to sue an administrator of an estate must be read in conjunction with Texas Estates Code provisions regarding procedures for pursuing claims against an estate.” Id. The court noted that the Texas Estates Code defines “claims” as liabilities of a decedent that survive the decedent’s death, regardless of whether the liabilities arise in contract or tort or otherwise. Id. (citing Tex. Est. Code Ann. § 22.005(1)).

The court then discussed the claims process for estate administration. In light of this framework, the court looked to the Texas Civil Practice And Remedies Code to determine the proper county in which the plaintiffs could file suit against the estate administrator for their alleged personal injury damages. The court held:

Pursuant to Section 15.031, a suit against an estate administrator, in her capacity as administrator, to establish a money demand against the estate which she represents, may be brought in the county in which the estate is being administered. A suit for personal injury damages caused by the alleged negligence of the decedent is a suit for unliquidated damages. A suit for personal injury damages against the estate administrator is a “suit to establish a money demand” because the result is that the unliquidated demand is reduced by judgment to a liquidated amount. Therefore, Appellees were entitled to file their personal injury lawsuit against McElduff, as estate administrator, in Rusk County, where Clark’s estate is being administered to establish a money demand.

Id. (internal citations omitted).

The court noted that venue was not exclusive, and that the plaintiffs could have filed suit in the county where the accident occurred. The court also noted: “Because Appellees’ claims against the administrator and Appellants arise out of the same transaction, occurrence, or series of transactions or occurrences, venue in Rusk County is also established as to Appellants.” Id. The court affirmed the trial court’s order denying the motion to transfer venue.

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



Read More –>