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Spousal Maintenance Awards in Texas Divorce Cases

Spousal Maintenance Awards in Texas Divorce Cases

Originally published by Robert Epstein.

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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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Handling issues related to the Right of First Refusal in Texas family law cases

Handling issues related to the Right of First Refusal in Texas family law cases

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

The right of first refusal is an issue that comes up in family law cases that can cause even the most creative and experienced family law attorney to scratch their heads on how to proceed. Essentially, the right of first refusal allows a parent who is not entitled to possession for a specified period of possession to be able to take possession of the child if the other parent is not able to do so. Allow me to provide you with an example of how this situation could arise in real life.

Suppose that your ex-husband is scheduled for a visitation period with your son beginning at 6:00 p.m. on this Friday and ending at 6:00 p.m. on the following Sunday. In the morning on Thursday, he receives a phone call that alerts him to the fact that he will need to work this weekend. Since your divorce decree contains a right of first refusal, he must contact you as soon as he becomes aware of this scheduling conflict and provide you with your right to refuse visitation that is offered to you. You have the option to take possession of your son this weekend even though the divorce decree states this is your ex-husband’s weekend for possession of him.

We also see issues that arise when parents like yourself begin dating again after a divorce has concluded. If you are not able to take possession of your child for a weekend visit, you may want your girlfriend to be able to pick your child up from his mothers’ home and then drop him off the following Sunday. Since you are able to designate an adult to pick your child up in the event that you are unable to, what’s the harm in having that same adult care for your child during a weekend that you’re not able to see him? Your girlfriend may really want to see your child, and after all- it’s your weekend so it should be your call, right?

How is the right of the first refusal defined in your custody orders?

This is the first question that we need to ask ourselves in relation to your particular circumstances. If you are considering whether or not to include a right of first refusal in your child custody orders, you and your attorney need to first think about how that term is going to be defined and applied as it pertains to your family. What is the specific period of time that a parent cannot be with the child that will cause the right of first refusal to be triggered?

You may be able to negotiate that if you or your new spouse is unable to be present with your child during a period of possession (sometimes lasting between four and eight hours), then you must contact your ex-spouse and allow him or her to come and pick up your child for that certain period of time. Whenever the predetermined/agreed to amount of time is over, your ex-spouse would then return your child to your home and allow you to complete your period of possession as scheduled.

Even when you get specifics as this handled, you need to consider the effects of including that kind of language in your order. If your ex-spouse gets home from work at 12:00 a.m. do you have to get your son dressed and over to the other parent’s house within the hour? That would seem impractical and not necessarily in your child’s best interests, but strict language regarding the right of first refusal could theoretically make this a necessity. A compromise could be that if the parent were to become available to possess the child at a time after 9:00 p.m., the parent in possession of the child on a temporary basis could wait until 9:00 a.m. the following day to drop the child back off at the other parent’s home.

The other issue that we need to discuss is what your child would be comfortable with as far as a substitute adult to possess him or her when you or the other parent is not available. It sounds ok enough for you to have your mother, father, aunt or girlfriend available to watch your child for half a day when you have to work unexpectedly. However, if your son doesn’t get along with any of those people then it would not seem like it would be in his best interests to leave him with any of those folks. Unless you and your child’s other parent have a group of people that are able to care for your child in these situations then a right of first refusal may not be a wise thing to include in your orders.

How will extracurricular activities be handled?

In this day and age, there are camps, classes, training sessions, and other activities for any sport or extra-curricular event under the sun. Odds are decent that you and your ex-spouse may not see eye to eye on your child’s potential or the role of these activities in the life of your child. For instance, you may believe that your child should only be involved in extracurricular activities to the extent that they can make friends and build their self-confidence. However, your ex-spouse may believe that these additional activities are essential for the development of your child and that he or she has the potential to become a professional ball-player, musician or dancer. How can this fundamental disagreement be solved?

I have seen some families achieve success when each parent is allowed to select one activity for their child to participate in each semester of school. The costs for activities would then need to be divided up in some manner between parents. Additional activities (camps, classes, etc.) would be paid for by the parent who selected that activity. Transportation to and from activities would also need to be determined. If you and your ex-spouse earn similar incomes the costs could be split evenly. Otherwise, a proportionate split may be more appropriate.

Another issue that may be relevant to discuss for your family is whether or not both parents may attend practices or rehearsals. If you and the other parent can be around one another without issue then this is not a problem. However, if you all have shown an inability to be in close proximity to one another you may have to limit attendance to the parent who paid for the camp or activity. Both parents in most cases can attend performances and games, no matter what parent is in possession of the child on that particular day.

How will you be reimbursed for uninsured medical costs?

As a part of any child custody order, you or your child’s other parent will be made to be responsible for providing health insurance for your child. Whether it is insurance provided for by one of your employers, insurance through the private marketplace, Obamacare or Medicaid, your child will need to be covered. One of you will pay for that insurance or will reimburse the one who pays for medical coverage.

However, not every cost that your child will incur for medical treatment will be covered by insurance. These are called uninsured medical costs. Suppose that you take your child to a pediatrician appointment and he orders a test for your child that is not covered by insurance. Once you receive a bill for that test you would need to submit the bill to your child’s other parent so that he can pay you back for the test you paid for (in the event that it is his responsibility to pay uninsured medical expenses).

What I will advise clients to do is to negotiate to include a deadline by which medical bills have to be submitted for reimbursement purposes. For instance, a provision in the order that specifies how much each parent has to pay towards uninsured medical costs, as well as a deadline to submit the relevant bill to the other parent, is a good idea.

I would tell you that it is common to have parents agree to split 50/50 uninsured medical costs. Since it is usually the primary conservator who takes the child to the doctor or for unscheduled visits to hospitals and such, it will be that parent who has to pay the bill upfront. What I tell parents in this position to do is to set up a reminder on their phone to submit bills by the end of the month to the other parent to be reimbursed, However, a good practice is to simply scan and email the bill to the other parent as quickly as you can. That way you have a record that the bill was submitted and you can be paid back as quickly as possible.

Issues related to military parents

If you are the primary conservator of your child and have been deployed overseas as a member of our military, you have the ability to designate an adult to exercise your possession and conservatorship rights while you are overseas.

The law in Texas is there is an order of preference as far as assigning that right. For example, you should first give preference to the other parent. That other parent would not normally have the right to determine the primary residence of your child, but you could allow him or her to act in that capacity for as long as you are overseas and unable to do so yourself. However, if selecting the other parent to take these rights on a temporary basis were not in the best interests of your child, then a nonparent may be chosen instead.

Special provisions for special needs children

When you are involved in a case with a special needs child then you and your attorney will need to pay especially close attention to the rights and duties that you and your opposing parent have in relation to that child. There are likely aspects of your special needs child’s life that are extremely important to spell out in the order. Unfortunately, a “typical” child custody order will not do so. You all need to take the extra step and include provisions to protect that child’s interests and well-being.

Both you and your child’s other parent will need to be able to provide to one another more detailed information regarding the child’s educational, medical and psychological needs. Trading information and updates may be difficult for you all if communication is not your strong suit. As a result, it may be necessary to have some special orders included in the parenting plan that requires you to share updated medical information with the other parent on an as-needed or regular basis.

You would need to come to terms with what your child’s specific needs are and then determine how frequently updates need to be provided to each other. If your child sees the doctor on a weekly basis, and you are the parent who always goes to the appointment, it may be necessary for you to provide a weekly update to your ex-spouse on your child’s condition via email or another electronic means.

More information on special needs children to be provided in tomorrow’s blog post

The issue of special needs children is an important one. As such, we will continue today’s discussion in tomorrow’s blog post. We will introduce additional topics related to special needs children that we have observed in our years of practicing family law in southeast Texas. If this is a topic that is relevant to you or your child, it is a good idea to head back to our blog tomorrow to read more.

In the meantime, if you have any questions about the material that we covered in today’s blog post please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed family law attorneys are available six days a week to meet with you at no cost. These consultations are a great opportunity to ask questions and receive direct feedback about your particular circumstances.

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



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Divorce Attorney Elise Mitchell's Private Files Document Blow Jobs to Judges

Santa Clara County Politicians Tied to Sex Trafficking in Family Court Cases

After months of sifting through documents reportedly left at a Catholic high school by Silicon Valley divorce attorney Elise Mitchell it appears  attorneys Heather Allan, Nicole Ford,  BJ Fadem, Jessica Huey, Irwin Joseph, Michael Smith, John Schroder, James Cox and Nat Hales have spent the past 2 decades using a complex money laundering scheme to traffic children through Silicon Valley’s family courthouses.

The enterprise appears to be expanding to Contra Costa, Santa Cruz and Orange Counties through court staff, judges and administrators. 

CAPTURING CHILDREN & MONEY 

The enterprise includes workers from CPS and Family Court Services and  appears to require cooperation from  court appointed experts including  Matthew Sullivan, Leslie Packer, Valerie Houghton, Ken Perlmutter, John Orlando and Michael Kerner. The players are different in every county, but the enterprise is easily detected with assistance of documents and secret recordings parents have been making for decades. 

Leaked documents and  secret recordings made at a ” Power Lunch ” appears to implicate Santa Clara County Supervisor Cindy Chavez who made  comments to local judges and members of the district attorney’s office that indicates she and Supervisor Dave Cortese have full knowledge that that the sex trafficking operation exists in the local courts, and elected judges and politicians are on the take for the enterprise. 

Family courts are often a source of strife in a child’s life. Family Court Services and CPS social workers appear to have  been using divorce and custody cases to identify children who offer the greatest potential for trafficking. These children are then marked by judges who appoint lawyers to assure the children are separated from loving or protective parents. 

At risk children are those whose parents have been involved in divorce or custody cases for more than 3 years. Judges then appoint lawyers to represent children and within a year these lawyers make recommendations to isolate the children from a loving parent. 

Payments recorded in the documents put Judges Stuart Scott, James Towery, Judge Roberta Hayashi, and  Joshua Weinstein at the center of the corruption. Court appointments made by these judges correlate to children being separated from their families, based on reports issued by corrupt custody evaluators . The activity is especially insidious when private judges are appointed to hear these cases. 

Donelle Morgan, Bradford Baugh, Mark Erickson, James Mc Manis, Catherine Bechtel, Jim Hoover, Travis Krepelka and Julia McDowell appear to be charged with assuring payments to private judges are delivered in the form of loan payoffs for personal homes, and real property rentals. 

Once a court appoints a lawyer to represent children, or to act as a private judge, this group of lawyers moves in to sell families homes, and later kickback fees to the private judges from fee awards the private judges make. 

Documents indicate Chavez and Cortese have been getting political contributions and kickbacks where transgender and gay children  are taken from their families in cases where Walter Hammon is involved.  Cortese, who is running for the California State Senate reportedly kept news of pedophile persists from making local headlines, assuring donations to local non- profit news organizations who kill stories that could expose the enterprise. 

Family Court Services staff are heard in the recording talking about how BJ Fadem works behind the scenes to take gay and bisexual children form their families, where they are more vulnerable t0 being trafficked through the local courts. Once the children have been alienated from protected parents, they are easier to get into sex trafficking rings. 

Digging through the documents, and searching titles of local properties parents have found court appointments made by Judge James Towery, Judge Stuart Scott, Judge Roberta  S. Hayashi   and Judge Joshua Weinstein to be the forefront of the trafficking activity, which has been known and supported by Santa Clara County Supervisors Cindy Chavez and Dave Cortese for several years. 

Payments to court appointed experts show that 

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Santa Clara County Politicians Dave Cortese and Cindy Chavez  Tied to Sex Trafficking in Family Court Cases

After months of sifting through documents reportedly left at a Catholic high school by Silicon Valley divorce attorney Elise Mitchell, it appears  attorneys Heather Allan, Nicole Ford,  BJ Fadem, Jessica Huey, Irwin Joseph, Michael Smith, John Schroder, James Cox and Nat Hales have spent the past 2 decades using a complex money laundering scheme to traffic children through Silicon Valley’s family courthouses.  Pedophiles are paying top dollar for white affluent children at the center of a divorce or custody case. Court CEO Rebecca Fleming and David Yamasaki appear to be the linchpin of the operations. 

The enterprise appears to be expanding to Contra Costa, Santa Cruz and Orange Counties through court staff, judges and administrators. 

CAPTURING CHILDREN & MONEY LAUNDERING 

By  including   workers from CPS and Family Court Services, and gaining   cooperation from  court appointed experts including  Matthew Sullivan, Leslie Packer, Valerie Houghton, Ken Perlmutter, John Orlando and Michael Kerner, the enterprise has thrived for the past two decades. 

The players are different in every county, but the enterprise is easily detected with the assistance of documents and secret recordings parents have been collecting over the past three years. 

Secret recordings made at a recent  ” Power Lunch ” appear to implicate Santa Clara County Supervisor Cindy Chavez, Dave Cortese and employees in the DA’s office in RICO activity that sells children to abusers and pedophiles, White children raised in Silicon Valley’s elite neighborhoods bring as much as $1 million to the enterprise in the form of cash and loan payoffs on real estate transactions. Attorney Sharon Roper has recently been selling properties as a temporary judge in a manner that has poured over $100 million dollars into the enterprise to strengthen and expand the operation.   

Family courts are often a source of strife in a child’s life. Family Court Services and CPS social workers appear to have  been using divorce and custody cases to identify children with the potential for being trafficked without detection. High conflict custody cases often lead to children ” running away” , or so the public is told. In fact these children are taken in through religious organizations, or non- profits assured funding by local politicians, only to disappear as a ” nanny” or child needing placement in foster care managed by the county. 

Payments recorded in leaked documents put Judges Stuart Scott, James Towery, Judge Roberta Hayashi, and  Joshua Weinstein at the center of the corruption. Court appointments made by these judges correlate to cases where parents are placed on supervised visitation, children are sent to reunification camps, and foster care programs are introduced once children have been isolated from ” problematic parents”. 

Judges are issuing Domestic Violence Restraining Orders to keep these parents permanently from their  own children. These orders often label a parent as ” abusive ” or ” crazy” to justify the orders.  

The Mitchell documents tie divorce and custody cases to the enterprise, where judges  appoint lawyers to represent children,  or act as private judges,  where the enterprise can be further secreted.  The documents show Judge Joshua Weinstein has been issuing appointments directly and indirectly as he prepares to leave the bench and go into private judging where other judges will regular appoint him to divorce and custody cases with the most money, real estate and children.  The Mitchell documents appear to indicate that in the average middle class divorce case minor’s counsel are assured appointments with $10,000 retainers, and private judges earn up to $200,000 in fees. 

Buyers of the children appear to be hiring young women to work as  a nanny, and young boys are promised scholarships and internships as a cover. In fact these children have reported they are essentially groomed to perform sex acts.

One young woman described her experiences  in family court where she was told her protective mother was alienating her from her father. The father then got fully custody and went on to  rape his own daughter  several times a week. When she tried to go to doctors or teachers for help, she was returned to her father.

The lawyer appointed to represent this women during  her parent’s divorce case,  only met with the young client once, but continued to represent to the court the girl did not want to see her mother.  The girl repeatedly heard her father on the phone with the lawyer demanding recommendations to the court that would maintain his custody position.

The young woman  noted that her brother was sent to live with a man who suddenly gave her father a home after the family home had been sold in the divorce to pay all the lawyers. The girl was told her brother was ” working ” for a Silicon Valley tech executive, she has had no contact with him for the past five years. 

The Mitchell documents indicate affluent white children bring millions to judges, lawyers and others acting in Silicon Valley’s family courts.

Local politicians know what this sex trafficking enterprise is doing and refuses to act in order to assure their reelection. Dave Cortese, a Santa Clara County supervisor  is running for California’s state senate in 2020. Mr. Cortese has reportedly been told he will have the powerful support of the Catholic church and support of the state’s judges in return for his silence. 

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