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

Texas appeals court asked to reconsider same-sex divorce case

Originally published by On behalf of Laura Dale.

The battle for equal rights for same-sex couples didn’t end when the Supreme Court quashed the Defense of Marriage Act in 2015. New sorts of battles — many of them related to the way that same-sex couples were treated in the past — were just beginning.

One of those battles is determining what exactly makes a marriage when your marriage isn’t recognized under the laws of your state. Same-sex couples who were in long-term, committed relationships that fall technically short of the definition of marriage only because the parties were of the same gender find themselves facing this question often when such a marriage comes to an end.

Why does the date of a same-sex marriage matter if the couple is splitting? It’s simply because the start and end of a marriage is both a social and a financial contract. The date of a marriage often informs issues like how much spousal support a dependent spouse is due or what assets are really marital assets and subject to division in a divorce.

Now, the Texas Fifth District Court of Appeals is being asked to grant a new divorce trial to a man who split from his partner of 15 years just prior to the Obergefell v. Hodges decision that made same-sex marriage legal throughout the country. A lower court said that no marriage existed because there was no legal same-sex marriage in Texas.

The plaintiff and his attorneys argue that the couple did everything short of legally marry. They say that since they were prevented from doing so by a law that is now considered unconstitutional, that shouldn’t prevent the court from treating their relationship as a marriage.

Cases like this will, unfortunately, continue to come up for a long time into the future. That’s why same-sex couples seeking a divorce are wise to look for attorneys who understand their unique concerns.

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



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Child Court Order – What Is It And Do I Need One?

Child Court Order – What Is It And Do I Need One?

So your ex has stopped you from seeing the children or is making decisions which you disagree with.  They refuse to communicate and so you have no choice but to seek legal advice and apply for a court order.

What is it?

Firstly, we need to take a step back.  In the UK, applications for care orders will not been heard unless mediation has been attempted.  It is a legal requirement, the aim of which was to reduce the volume of applications going to court.  Sadly, if you are dealing with a hostile ex mediation will not work.  Mainly because (much like co-parenting) it requires them to cooperate and negotiate.  Narcissists don’t negotiate.  They have a “my way or no way” attitude and so invariably you will have your C100 signed off giving you permission to apply to the court.

 

Child court order (or Child Arrangement Orders) have replaced residency and contact orders.  They decide:

  • where your child lives
  • when your child spends time with each parent
  • when and what other types of contact take place (phone calls, for example)

As long as you have PR, you can apply for a CAO.  In order to apply you must follow these steps to apply for a court order.

  1. Read guidance CB001 on making an application.
  2. Fill in the C100 court form. You must show you’ve attended a meeting about mediation first – except in certain cases (there’s been domestic abuse, for example).
  3. Send the original form and 3 copies of it to the nearest court that deals with cases involving children.

 

It costs £215 to apply for a court order. After you apply for a court order, the court will arrange a ‘directions hearing’ with both parents if you apply for a court order (known as a First Hearing Dispute Resolution Appointment or FHDRA)

child court order

Cafcass

Children and Families Court Advisory and Support Services

There will usually be a family court adviser from the Children and Family Court Advisory and Support Service (Cafcass) at the hearing. Before the first hearing Cafcass will do

 

  • Safeguarding checks: they carry out checks with the police and the local authority to find out whether there are any known safety or welfare risks to your children.
  • Telephone interview: In most cases, they will phone you and the other party to find out if either of you have any concerns about the safety and welfare of your children. You are unlikely to have a home visit before the first hearing. Only people who are parties to the case will be interviewed.
  • Safeguarding letter: At least three days before the first hearing Cafcass will provide the court with a short report on the outcomes of the safeguarding checks and any child welfare issues raised in the telephone interviews with you and the other party.

At the hearing, a judge or magistrate will try to work out:

  • what you can agree
  • what you cannot agree
  • if your child is at risk in any way

They’ll encourage you to reach an agreement if it’s in the child’s best interests. If you can, and there are no concerns about the child’s welfare, the judge or magistrate can end the process.

 

The court will make a consent order which sets out what you’ve agreed, if necessary.

 

If you cannot agree at the first court hearing the judge or magistrate will set a timetable for what happens next.

 

They may ask you to try again to reach an agreement, for example by going to a meeting with a mediator.

 

You may have to go on a course if your case is about child arrangements. The course is called a ‘Separated Parents Information Programme’, and could help you find a way to make child arrangements work.

 

The court can ask Cafcass to provide a report on your case to help decide what’s best for the child (known as a section 7). The Cafcass officer may ask your child about their feelings. You’ll get a copy of the report when it’s written.

 

The judge or magistrate will consider:

  • child’s wishes and feelings
  • child’s physical, emotional and educational needs
  • effect any changes may have on the child
  • child’s age, gender, characteristics and background
  • possible risk of harm to the child
  • ability of parents to meet the child’s needs
  • orders the court has the power to make

 

A judge or magistrate will only make an order if they think it’s in the child’s best interests. 

(from www.gov.uk)

Do you

If your ex is stopping you from seeing the children or making co-parenting extremely difficult, then yes, you need one.  

  1. Your ex will not negotiate with you at all and so it is your own real way of being part of the decision making process with regards to your children
  2. Any parent who tries to erase a parent out of their child’s life needs to be held to account.  Mild cases will usually be resolved through the “Separated Parents Information Programme” but moderate to severe cases often involve a parent with mental health issues which will need to be managed.  If their behaviour is allowed to continue, you can find yourself completely alienated from your own children.

Is it worth it?

I wanted to add this section because although it is absolutely necessary and your only real option at this moment in time, I do feel you need to be aware of the realities of going to Family Court.  

 

With certain personality types, they will see the court process as an opportunity for them to not only bleed you dry, but also to play the hero and victim in one go.  They will present as a victim of your treatment (abuse claims are common) and the hero for trying to keep the children safe.  They will rope in the children to deliver this powerful and damning report which is incredibly harmful to the children.  In any other circumstance I would also argue for keeping children and families out of court.  However, if you don’t go to court you are not only kissing goodbye to a relationship with your children but also ensuring only one side of the situation is ever heard.  By fighting through court (and unfortunately it is a battle) you are showing the children in the only way possible, that you want them in your life.  

 

One other point is that even with a CAO, if your ex is determined, they will do everything they can to breach it and not comply.  They will make continued false allegations to delay the process and they will induce behaviours in the children which make them believe you are dangerous and so they should stay away from you.  Sadly, the court doesn’t have a robust system for dealing with this and so breached go unpunished and Fact Finding Hearings delay contact for months at a time.  

 

I realise this is a bleak picture but parental alienation (the psychological manipulation of a child to reject their loving parent) is a very real issue in the court process and one which you need to be aware of.  Hopefully your ex is not severe but if you check multiple items on the list below, you are likely to be dealing with a personality disordered individual and need help FAST. 

Your Best Weapon Yet

Everything you need to know about parental alienation

The post Child Court Order – What Is It And Do I Need One? appeared first on The Nurturing Coach.

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

Divorce in a Global Pandemic- COVID-19 and Family Court

What to Do if you Are Divorcing During a Pandemic 

For the past five years this website has been run by an all volunteer team trying to bring attention to California’s family courts. Each month thousands of reporters, lawyers and divorcing spouses have come to this site trying to understand what has been happening in divorce courts across the country. 
 
Major news outlets regularly refuse to cover family court, but reporters including reporters from NPR, Center of Investigative Reporting, ABC, NBC and the San Francisco Chronicle have been reading this website for years. But few ever actually report what is happening inside these courtrooms. 

Covid-19 and the related global pandemic and economic crisis have created a crisis in homes in every neighborhood across the globe. Now family matters will be handled differently. 

For the past 30 years, lawyers and judges have acted to corrupt our courts. Lawyers in family court can appear before the same judge so often, it is impossible to not be corrupt. However, now that courthouses are closed, and law enforcement agencies appear ill- prepared to handle domestic violence. Divorcing children and their children are looking to websites such as these to navigate their deeply  emotional and financial matters. 

We are now going to use this platform to teach children about our family courts and the players behind them. If we can’t explain family court to a 5th grader sheltering in place in the middle of Silicon Valley, then we have failed. 

​In the spirit of  Judy Blume’s  best selling coming of age novel, Are you There God? , It’s me Margret, we are pleased to bring you this important information. The stories contained herein come directly from the Santa Clara, Monterey, Sacramento, and Contra Costa Family Court Files dating back to 1970.  

Warning: If you are an attorney, judge, lawyer, custody evaluator, court transcriptionist, baiiff or court staff member who did harm to families and children before this global pandemic, we are going to expose you here on this website in order to protect families and our legal system in the future. 

What if My Mom and Dad Didn’t Get Married? 

Marriages are different all over the world. Some people get married in the churches they have belonged to all of their lives, and some get married in a courthouse. Marriage is deeply personal and involves the culture, history and family of parents that happened long before they have a child. 

In California 40% of children have parents who never get  married. This can be for several reasons., In a global pandemic it can mean parents couldn’t get married because churches and courthouses were closed! Whatever the reason,  children of unwed parents are treated differently in California’s family courts. 

In California a mother presently have the full right to determine how her child’s birth certificate will be written and this can matter most if parents get into fights. A mother who is abused or hurt by her child’s father might decide not to put that father’s name on the birth certificate. If a father doesn’t know about his baby before it turns 2, California law says he is not the real dad. 

If the dad is on the birth certificate, he may never know he has children.  This is not much different than what we have seen during times of war. For soldiers assigned to Japan, Vietnam and Iraq, they have sometimes learned that they had babies they never knew about until those children were grown. 

Perhaps the best way to explain this best is to tell you the story about a little girl named Audrie. 

The Real Story of Audrie Lazarin Pott

Most little girls are given the last name of their father. When Audrie was born  on May 23, 1997 her mother decided to put a man, Larry Pott,  on Audrie’s birth certificate and Audrie went home to live with her mother, and Larry. 

A few months later, Audrie’s mother decided to take Audrie to live with her real father, Michael Lazarin. As Audrie grew, her father surrounded her with love. He played with her, and cared for her while Sheila was at work. Her grandparents were sad they had missed their granddaughter being born, but they loved her so much, they forgot they had missed any time with her. Audrie loved them too. She loved visiting Arizona and eating food that was different than the food her mom made. When they went on trips, her grandma and grandpa loved to come too. 

Audrie’s mom worked a lot. She had fancy clothes and shoes and loved to go shopping. Sheila Pott was very important at work. She made lots of money and had lots of houses. Audrie liked the house her dad had best, and that was near the Rose Garden in San Jose, California. In the Rose garden her dad played with her and gave her all of his attention. Her mom was so busy with her important work, but her dad  made up for it and was always there. He made her laugh, and she made him laugh too. She remembered her dad always watching over her. Always smiling and always happy. The sounds in Aurie’s house were always happy. Her mom was always working. Aurie’s mom was always shopping. She was always busy, 

The Year Christmas Died

Aurdrie loved that she looked like her dad. She could see his soul smiling back at her each time she looked in his eyes. She could feel his love always staring back at her. Everything she did with her dad felt happy, safe and comfortable. 

When Audrie was 7, she and her dad were decorating the Christmas tree. The lights sparkled the way  her dad’s eyes did when he looked at her. Each ornament carried a special memory and was carefully placed on the tree. Audrie knew their were presents and she couldn’t wait for Santa to come. She and her papa laughed and sang songs as they hung each ornament to make the most beautiful tree Audrie would ever see. 
Before they were done Audrie’s mom came home. She was with another man and wanted to talk to her papa alone. After the talk Audrie had to go with the man and her mom. They drove to their other house and as they did, colorful lights dotted every house. Audrie missed her dad. ” Is Papa coming in a different car? , she asked her mom. 
” No” said Shelia. ” 
Audrie’s room felt cold that night. She missed her Papa’s eyes. Her mom came in before sh fell asleep, but not to read Audrie a story as Papa would do, no Audrie’s mom came in and told Audrie that her Papa was not her real dad and she would not be going home. 

Audrie screamed and cried for her Papa. but he did not come.  In the morning, Audrie’s mom told her that her grandparents weren’t her real parents. In the morning Audrie’s mom went to work and Audrie went to school. All day Audrie thought about her Papa. She knew he would pick her up at the end of the day. But he never did. 

To Be Continued. . . . . . . . . . .

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3 Ways To Make Family Court More Aware Of Narcissism

3 Ways To Make Family Court More Aware Of Narcissism

Family Court is set up to be adversarial. It pits one parent against another.  This unfortunately feeds into the narcissist’s ego defence which is to win at all costs.  They do this by masterfully playing the role of either hero or victim (often both at the same time).  They will claim you are alienating them or abusing them. They will even manipulate the children to confirm their story thus proving their prowess.

I have worked with hundreds of parents who have sought support and protection for them and their children from Family Court only to be disappointed and disillusioned to see that the court is easily duped by the narcissist and given more time with the children. In many cases the narcissist manages to use Family Court to cut the other parent completely out of the child’s life.

How can this happen?

The Problem

One would think that those highly experienced in law (solicitors and judges) would have what it takes to easily recognise deception, or at least know how to ensure that a person is examined thoroughly enough to make reasonably sure that they are telling the truth. But those in law are just as vulnerable to the highly skilled narcissist as the average person is. 

Narcissists love the court arena because they get to take centre stage and express their grandiosity.  It feeds their ego and they seek to control the process. Some will do this by not turning up, issuing last minute changes to mean you have little or no time to prepare.  Others will keep breaching the order so you have to take them back to court. They will all threaten court repeatedly as a way to control you and get their own way – “if that’s what you want, then we had best go back to court”.  The fact they get to financially ruin in the process is the cherry on the cake for them.

Because narcissist’s are naturally talented imposters, charmers, and deceivers, many judges get duped on a routine basis by narcissistic parents, who are simply using the court and the judge to continue to humiliate, exert control, and abuse their ex, and force their ex to react to them in some way. Narcissists live to manipulate and control others emotions, self-esteem, and behaviours. Many will describe the ‘high’ they get from manipulating others successfully, and if they get the judge to believe them, they will begin to brag that the judge is their ‘ personal friend’.

chess

How Can They Get Away With It

Narcissist’s get away with what they get away with because they are so very talented at presenting themselves as innocent victims of their ex, their boss, their parents, etc. etc. They have an uncanny talent to manipulate situations and people and to twist the obvious facts to fit their lies. You know in your own relationship how they managed to convince you that they were worth falling in love with.  This is their own personal superpower – manipulating others.

Part of the problem is that in the context of family court, no one really believes that a parent (especially ones who presents so well) can be so cold, calculating and abusive to use their own children to hurt their ex in such extreme ways.  Nor do they believe that children would lie about such matters as being abused. I always found this very strange because, having worked in child protection, we know that child abusers ARE highly manipulative and deceptive AND that children will lie to protect the abuser. 

face with mask

Narcissists have survived by understanding people and how they tick.  They know exactly how to get others to do their bidding and convince them it is all of their own doing.  Charles Manson is a prime example of how charming and manipulative a narcissist can be at getting people to do the unthinkable.  The problem in Family Court is that no judge (or professional) will ever want to admit they have been manipulated like that. It hurts their ego as well and so very often, they will continue on the path the narcissist has led them down to save their own ego.  People are inherently selfish and so even those charged with protecting children rarely act from a completely unbiased and empathic place. It’s human nature. We all want to be seen to do the right thing and not be criticised. Narcissists use this to control others.  

 

How can court recognise a narcissist

Firstly I would always advise against labelling your ex as a narcissist (unless they have an official clinical diagnosis).  You are not a psychologist or psychiatrist and so you cannot diagnose them. To do so undermines you. There are ways however that you can alert the court and professionals to the behaviours which are problematic:

  • Narcissists will continuously be going back and forth to court sometimes with issues which barely make sense or are fully nonsense or are taken back to court for repeatedly breaching the order
  • They will be constantly changing legal representation
  • They may attempt to act as an equal or friend to professionals
  • They can be very demanding about the treatment they receive when attending court
  • They present as being very agreeable but breach the order within days (sometimes hours) of leaving court
  • They will refuse to take any responsibility for anything
  • There will be multiple, unsubstantiated claims of abuse/harassment against the ex 
  • There may be a pattern of behaviours in past relationships
  • There is inconsistency in what they say and how they behave
  • There may be multiple allegations of abuse against the ex but with NFA’s from the police
  • The children display very black and white thinking against the other parent (one is all good, the other all bad)
  • The narcissist has cut contact with everyone involved with the ex including all the children’s aunts and uncles 

How to make judges take notice

The reality is that within the court arena it is very hard for judges to decipher everything.  They are reliant upon other professionals, usually social workers, to provide them with reports and recommendations.  It is therefore important that, as a parent going through this process, you remain child focused and allow the narcissist’s behaviour to reveal itself. 

  1. The court can order both parents into counselling towards the goal of effective co-parenting. Once a custody order is made, the court can monitor the compliance of both parents. This is often when the narcissist begins to show their true colours. They just cannot comply with any authority other than their own self-inflated opinions and will.  In most cases, if they comply at all with the counselling (many do not even make it to one session), it only takes a short time before they will discredit the counsellor, petition the court for some other counsellor, and just stop showing up. What they really want is a counsellor that cannot ‘see through them’ and find one that they can manipulate for their own purposes, meaning supporting their position that their ex is persecuting them.
  2. Another option is for the family to undergo a psychological evaluation.  Usually this will entail the psychologist spending time with each parent individually, the children separately if possible and the children with each parent.  They will then evaluate the dynamics and make recommendations to the court about next steps. It really helps if the psychologist can include a thorough description of the IMPACT and capacity for change of the parents within these situations.  Unfortunately I have seen time and time again where psychological evaluations identify the issues but fail to inform the court what this means. Again, judges are not mental health or child development professionals. They need guidance on what this means for the children moving forward and the impact of any action taken.
  3. As the other parent, you can contribute to this process by not biting when the narcissist tries to bait you.  They will deliberately push your buttons in public to get a reaction out of you which they will then use as “evidence” of all the allegations they are making about you.  It is therefore important that you prepare fully for court both in terms of how you feel on the day but also dealing with your own trauma from the relationship. We have specifically designed our Get Court Ready programme to help you with this. It provides you with tools, insights and activities to rewrite the narcissists narrative, manage your own emotions and protect the children.  Find out more at the Get Court Ready page on our website.

Finally, it would greatly benefit all professionals involved in child protection (solicitors, judges, social workers, court workers) to undergo basic training on personality disorders, domestic abuse and parental alienation.  This will at least provide them with an additional theory to examine the evidence against. I personally have developed numerous courses on these areas which are CPD accredited and available online. Head to my other website, Child Protection Centre, for more details.

 

What are your experiences of Family Court?  What more do you think can be done?

The post 3 Ways To Make Family Court More Aware Of Narcissism appeared first on The Nurturing Coach.

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Men’s Divorce Podcast: So You’ve Been Served Divorce Papers

Divorce Settlement vs. Going to Court – Men’s Divorce Podcast

In the final episode of a four-part series of the Men’s Divorce Podcast, Cordell & Cordell CEO/Managing Partner Scott Trout and Litigation Partner Kristen Zurek discuss the last stage of divorce: settlement.

While the first three segments focused on the early parts of the divorce process – such as how to respond to being served and the basics of filing – this installment breaks down the pros and cons of settling out of court versus pursuing a trial.

Click the link below to listen to the full episode. Also make sure to subscribe to the podcast on iTunes or whichever podcast app you prefer.

The post Divorce Settlement vs. Going to Court – Men’s Divorce Podcast appeared first on Dads Divorce.

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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.



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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.

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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.



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

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

Originally published by Francesca Blackard.

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A court generally may not amend or change the property division made in a Texas divorce decree.  The court may issue an order to enforce the property division, but such an order may only clarify the prior order or assist in its implementation.  If a court improperly amends or modifies the substantive property division in the final divorce decree, it is acting beyond its power and that order is unenforceable. Tex. Fam. Code Ann. § 9.007.  Qualified Domestic Relations Orders (QDRO) are separate orders that set forth the distribution of retirement plan assets.  They are considered a type of enforcement or clarification order and cannot change the property division made in the divorce decree.

In a recent case, an ex-wife sought an additional QDRO years after the divorce was finalized.  The couple divorced in 1995, and the parties have been in litigation for the past several years regarding the husband’s retirement accounts.

The divorce decree awarded the ex-wife 50% “of any and all sums … related to any … retirement plan, pension plan, … or other benefit program existing by reason of [ex-husband’s] past, present, or future employment, including without limitation, [ex-husband’s] Retirement Fund, Provident Fund, and SPIF Fund with Shell Oil Company per Qualified Domestic Relations Orders …”  The trial court signed a QDRO awarding the ex-wife half the funds in the ex-husband’s Shell Provident Fund on the date of the divorce.  The court found the total community property interest in the Shell Provident Fund was the total amount of contributions, interest, and earnings made or accrued by or on behalf of the ex-husband into any of the Shell Provident Fund accounts.  The QDRO stated the ex-wife was “divested of all right, title, and interest in and to any balance remaining in any account of the Shell Provident Fund…” and that the fund would be discharged from all obligations to her when full payment was made pursuant to the QDRO.  It also said it would become an integral part of the divorce decree.

 

The ex-wife received the funds from the QDRO.  In 2015, the ex-wife petitioned for another QDRO and the court signed it, with a valuation date of July 15, 2015.  The husband said he was not given notice of the hearing and that neither the petition nor the QDRO were on file with the court before the hearing.

The ex-wife did not receive the funds from the 2015 QDRO.  She filed an amended QDRO in April 2016 with a 2015 valuation date, but the trial court did not sign it.  She filed a petition to enter an amended QDRO the following month, with the 2015 valuation date and amount.

In April 2017, the husband filed a petition for bill of review of the divorce decree.  He asked the court to clarify that the retirement benefits were to be divided as they existed on the date of the divorce.  He argued the court did not have jurisdiction to sign the 2015 QDRO because it conflicted with the divorce decree and the 1995 QDRO. The ex-wife then filed another amended petition to enter a QDRO.  After a hearing, the trial court granted the bill of review, modified the decree, and set aside the 2015 QDRO.

The ex-wife filed a response, arguing the bill of review had been untimely.  The court then signed a “Court’s Rendition,” in which it denied the bill of review, set aside the reformed decree and QDRO, and reinstated the original decree.

The ex-wife then filed another proposed QDRO, but the trial court did not enter it due to a missing signature.  She filed a “Motion to Sign QDRO.” The docket entry indicated that the motion was not properly served, and the hearing was rescheduled.  The husband’s attorney argued the 1995 QDRO divested the ex-wife of all interest in the fund.  The trial court denied the motion, finding the 1995 QDRO awarded the wife half the funds as of the date of divorce and that she was not entitled to anything else from the fund.

The trial court denied the wife’s motion for a new trial. She appealed, arguing the divorce decree had awarded her half of the fund through the ex-husband’s last date of employment.  The ex-husband argued that the proposed QDRO was an impermissible collateral attack on the 1995 QDRO.

The appeals court noted that a QDRO is a final, appealable order.  A party who does not appeal a QDRO may not collaterally attack it through a separate proceeding.  The appeals court found that the ex-wife’s motion to enter a new proposed QDRO filed so many years after the divorce was such a collateral attack.

The court also noted that the 1995 QDRO awarded the ex-wife half of the fund as it was valued on the date of the divorce and divested her of any further interest.  The QDRO she sought to have entered would have awarded her a share of all amounts contributed on behalf of the ex-husband “in the past, present, and future.” The ex-wife received the funds she was awarded in the 1995 QDRO in 1995.  Her proposed QDRO sought to avoid the effect of the decree and the 1995 QDRO, making it a collateral attack.

The appeals court also rejected the ex-wife’s argument that she was entitled to QDROs awarding her half of the ex-husband’s other benefits and employer-based savings plans through his past, present and future employment.  The court found she was also barred from collaterally attacking the division as to these benefits as well.

The appeals court affirmed the trial court’s denial of the motion to sign the QDRO.

Although this case is procedurally complex, it illustrates the importance of addressing issues promptly through the appropriate procedures.  If you think your marriage may be ending, a skilled Texas divorce attorney can help you through the difficult process.  Schedule 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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Texas Appeals Court Upholds Modification Allowing Unsupervised Visitation

Texas Appeals Court Upholds Modification Allowing Unsupervised Visitation

Originally published by Robert Epstein.

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Sometimes in a Texas custody case, the court may find it appropriate to place certain restrictions on a parent’s access to the children.  In time and with changed circumstances, it may be in the children’s best interest to remove those restrictions to allow the children to spend more time with that parent.  In a recent case, a mother appealed an order modifying visitation.

The parents had two children during their marriage.  The mother moved to another town and filed for divorce.  The decree required the father to use a Soberlink alcohol monitoring device before and during visitation.  The court ordered the father’s visitation would be supervised in Hidalgo County, but he would be allowed unsupervised visits beginning in August 2018 when the youngest child turned three.

The mother petitioned to modify the parent-child relationship to postpone the unsupervised visits.  She argued unsupervised visits were not in the children’s best interest because the oldest child had significant speech delays and the younger child lacked emotional maturity.  She also alleged the father failed one of his alcohol tests.

 

The father filed a counter petition, asking for standard visitation with exchange of the children occurring about midway between the parents’ homes in Alice.  He claimed the modifications were in the children’s best interests and that there was a material and substantial change in circumstances since the divorce decree.

The trial court ordered a mental evaluation of the father, and based on that evaluation, allowed him unsupervised overnight visitation. The trial court issued a final order granting standard unsupervised visitation, omitting the Soberlink requirement, and requiring the parents to meet in Alice to exchange the children.

The mother appealed, arguing the trial court abused its discretion in ordering the parents to exchange the children in Alice.  Pursuant to Tex. Fam. Ann. § 153.316, the court must order the parents to surrender the children at one of their homes.  The appeals court noted, however, that this section only applies to the original possession order, and this case involved a modification.  Modifications are governed instead by § 156.101, which allows modification of a possession order if it is in the children’s best interest and the circumstances have changed.  The mother had alleged a change of circumstances in her own petition to modify.  Under Texas case law, that allegation of changed circumstances constituted a judicial admission for purposes of the other father’s similar pleading.

The mother argued exchanging the children in Alice was not in their best interest.  The appeals court noted, however, that there was evidence supporting a conclusion that meeting in Alice was in the children’s best interests.  The father testified he had not exercised his right to communicate with his children electronically because the mother had stated she would not allow them to communicate through video-teleconference or Skype.  He claimed she was trying to prevent him from having a strong relationship with his children.  He asked the court to have them meet in Alice if standard visitation was granted.  He said it was a little more than halfway for him and he thought it was in the children’s best interests for him to be in their lives.

The mother’s attorney argued she was working on her master’s degree in clinical psychology and was required to be at a facility all day and could not get from work to Alice at the scheduled time.  The father offered to change the time, but pointed out it would only be once a month.  The court agreed to order the weekend visitation exchange to occur in Alice.

The appeals court found there testimony that seeing their father more often was in the children’s best interests and found no abuse of discretion in the court ordering the exchange to occur in Alice.

The mother also argued the court abused its discretion in eliminating the Soberlink requirement.  The divorce decree required sobriety testing before and during the father’s time with the children for five years after the divorce.  The mother argued the father had not requested the removal of the condition and the judgment had to conform to the pleadings. The appeals court noted, however, that the best interests of the children are the most important issue in custody cases, and technical rules should not interfere with acting in their best interests.  The appeals court found that the trial court did not abuse its discretion in not conforming to the pleadings if it did not do so arbitrarily.

The mother argued the Soberlink requirement was in the children’s best interests.  The father testified he used a breathalyzer twice a day for another court and did not have any violations.  The mother offered evidence of an alleged positive Soberlink test result, but the father testified it was a false positive and another test six minutes later was confirmed at 0.000.  The trial court found the first test was a false positive. The court further stated the father testified he was receiving psychological and psychiatric treatment.  The appeals court found no abuse of discretion in the trial court’s elimination of the Soberlink requirement because there was some evidence it was no longer in the children’s best interests.

The mother also argued the trial court erred in granting overnight visitation to the father.  The children’s counselor testified that “It would be very difficult and traumatic for them to be away from their mother at night.”

The father argued the original divorce decree granted him unsupervised overnight visits.  The father’s psychological evaluation resulted in a recommendation the father have full access to his children with standard visitation.  The appeals court found the trial court had sufficient evidence to exercise its discretion and did not abuse its discretion.  There was evidence it was in the children’s best interests to have unsupervised, overnight visits with the father.

The appeals court affirmed the trial court’s judgment.

If you are seeking or fighting a modification of a custody order, an experienced Texas custody attorney can help you fight for your children.  Call McClure Law Group at 214.692.8200 to set up a meeting to discuss your case.

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



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Can A Court Order for Post-Divorce Spousal Maintenance Be Modified?

Originally published by San Antonio, TX Family Law and Military Divorce Blog.

Yes, it can.  The Petitioner or Movant must file a Motion to Modify Post-Divorce Spousal Maintenance in the Court that made the initial order.  Procedures for filing an original suit apply, which means the former spouse receiving maintenance must be served with citation.

At an evidentiary hearing, the Movant bears the burden of proving that a material and substantial change has occurred such that the Movant no longer can longer afford to pay the Court-ordered amount.  In proving that a material and substantial change has occurred, the Movant must prove the facts and circumstances that existed at time of the original order and the facts and circumstances that exist now.

Whether the comparison proves to be “material and substantial” is determined at the judge’s discretion.  If proved, the amount of reduction is at the judge’s discretion.

Author Jim Cramp is a retired active duty colonel and the founder and principal attorney at the Cramp Law Firm, PLLC.  The firm provides a spectrum of family law-related services to clients in the greater San Antonio region, across the United States and throughout the world.  The firm specializes in Federal Civil Service and Military Divorce matters.

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



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