Archives for October 2012

October 29, 2012 by Aaron Tress

Custody Basics in Texas

“I want joint custody.”

This is a comment my clients initially make. Many parents wrongly believe that agreeing to joint custody will allow for equal sharing of children and reduce conflict at court. Unfortunately, designation as joint managing conservators is often not the end of conflict, but the beginning.

Because appointment as joint managing conservators is the default, disputes over custody do not revolve around joint and sole custody—as is commonly believed. Rather, disputes over custody revolve around which of the joint managing conservators receives the exclusive right to designate the primary residence of the child.

In 1995 the Texas Legislature changed the law requiring Judges to name both parents as “joint” conservators of their children.

However, Judges still have to grant one parent the exclusive right to designate the primary residence of the child. Custody battles typically center around this issue. Most custody battles are decided by a judge, but either parent can request that a jury decide who has the right to determine the child’s residence.

Q: What does Texas seek to accomplish through its custody laws?

A: The guiding consideration behind all of Texas’ custody laws is the best interest of the child. Because the “best interest” standard is incredibly broad, judges and juries have wide discretion concerning how to achieve the child’s best interest. That said, the Texas Family Code sets out criteria to help judges and juries determine the child’s best interests:

It is the Public Policy of Texas that a child should have regular contact with both parents.
Texas requires that the child’s environment be “safe, stable, and nonviolent.”
Texas encourages both parents to participate in raising their child.
Child support is independent from custody and visitation. That is, a child cannot be kept from a parent merely because the parent has not paid child support.

Q: What is a conservator?

A: “Conservator” is the legal title that designates the rights and duties a person has over a child. A conservator’s rights and duties are set out in the Texas Family Code. Although persons other than a parent can become a conservator, this article only addresses parent conservators.

Texas uses the term “conservatorship” rather than “custody” to emphasize the responsibilities and rights of parents rather than emphasize children as objects of property. This article, however, will use the terms interchangeably.

Q: Does Texas give preference to the mother or the father in determining custody?

A: No. Texas no longer presumes that the mother would make the better conservator. Today, judges should not consider the sex of the parents when determining conservatorship.

Q: Does the exclusive right to designate the primary residence of the child contain a geographical restriction?

A: Sometimes. Sometimes the conservator with this right is restricted to a geographical area, but sometimes the conservator with this right has no geographical restriction. If a court assigns a geographical restriction, the geographical restriction could be as small as a school district or as large as the United States.

One common reason the non-custodial parent may ask for a geographical restriction is to ensure that the child attends a particular school. Furthermore, the geographical restriction allows the non-custodial parent greater access to the child. On the other hand, a geographical restriction limits a custodial parent’s liberty. For example, a geographical restriction may affect the custodial parent’s ability to remarry, pursue a career, live near family, or allow the child to attend a different school. If the custodial parent wants to move and the court initially assigned a geographical restriction, the custodial parent must petition that the court modify the restriction. Judges and juries do their best to balance parents’ interests with the child’s best interest, but sometimes the interests of all the parties can’t be satisfied.

Q: Can a child choose which parent she wants to live with?

A: Yes (unless it is not in the child’s best interest). In 2009, the legislature repealed the section of the Texas Family Code permitting the child to file in writing the parent with whom she preferred to live. This section has been surrounded by controversy for years. The practice of filing in writing gave rise to the phenomenon known as “dueling affidavits” because each parent “assisted” the child to nominate their self.

Although courts no longer permit a child to file in writing the parent with whom the child prefers to live, a judge may interview the child in his chambers. Courts are not bound by the child’s wishes, but the interview does help the court determine the child’s best interest.

October 16, 2012 by Aaron Tress

UCCJEA: Order of Confirmation to Register a Foreign Order in Georgia

Here is a sample order: Order of Confirmation to Register a Foreign Order

Here is one court’s granted order.

Q: What is the UCCJEA?

A: After separation, some parents move out-of-state. To enable states to work together to enforce custody and visitation orders, states have adopted the Uniform Child Custody Jurisdiction And Enforcement Act (UCCJEA). (The UCCJEA deals with interstate custody and visitation; to deal with interstate child support issues, see UIFSA.)

Q: What is the purpose of the UCCJEA?

A: The UCCJEA helps to eliminate interstate competition over custody disputes, helps to eliminate forum shopping, and helps to address the problem of child snatching (“the abduction and/or concealment of a child without the consent of the other parent”).

Q: How do states cooperate?

A: Take the example of Jack Doe and Jill Doe. The couple marries and has one child together. Later, the Doe’s divorce in Texas, giving Texas home state jurisdiction. (The home state is the state in which the child lived with his parent or parents for at least six months prior to the commencement of the proceeding. Determining the home state is important because the home state will typically have exclusive, continuing jurisdiction over the custody and visitation orders.)

Jack remains in the home state of Texas, but Jill and the child move to Georgia. Because Texas retains exclusive, continuing jurisdiction, only Texas can modify custody and visitation orders. Georgia, on the other hand, will have the role of enforcing Texas’ orders.

Jack and Jill agreed in their Texas divorce decree that they would alternate primary physical custody of their child every other year. Jill moved to Georgia with the child during her year of custody. At the end of Jill’s custodial year she refused to return the child to Jack in Texas.

Q: How do you begin the process of enforcing the Texas order in another state where the child resides?

A: Look at Chapter 152 of the Texas Family Code.

A: You must send two copies, including one certified copy of the last Texas court order to the appropriate county court in the foreign state.

A: You must draft and submit a statment under penalty of perjury that to the best of your knowledge and belief that the court order submitted has not been modified.

A: You will need to contact the foriegn state’s clerk’s office and find out the cost of filing and serving the request for registration.

A: If Jill fails to contest the validity of the the order sought to be registered you will need to submit an order of confirmation.

A: Here is a sample order: Order of Confirmation to Register a Foreign Order

A: Here is one court’s granted order.

October 8, 2012 by Aaron Tress

Am I common law married in Texas?

Q: Does Texas have common law marriage?

A: Yes. Rather than use the term “common law marriage,” Texas uses the term “informal marriage.”

Q: What is an informal marriage?

A: An informal marriage is a marriage that the State legally recognizes without the couple having acquired a marriage license or performed a marriage ceremony.

Q: Why do common law marriages exist?

A: The justification for informal marriage harkens back to the natural law era when individuals did not need government permission to marry.

Q: Can I informally marry in any State?

A: No. Currently, only a minority of States allow for common law marriages.

Q: What if I informally marry in a State that permits informal marriages but later move to a State that does not permit informal marriages?

A: All States recognize common law marriages established in States that permit common law marriages. The exception to this is same-sex marriages. Not all States recognize same-sex marriages.

Q: If I am living with my partner, am I informally married?

A: Maybe. Living together is one requirement for a common law marriage, but merely living together is not enough to establish a common law marriage.

Q: How do I establish a common law marriage in Texas?

A: The Texas Family Code specifies two ways in which a couple may establish an informal marriage. The first way a couple may establish an informal marriage is through a signed declaration. The second way a couple may establish an informal marriage is through the three-prong test:

the man and woman must agree to marry,
the man and woman must live together after they agree to marry, and
the man and the woman must hold themselves out as husband and wife.

Russell v. Russell, 865 S.W. 2d 929, 931 (Tex. 1993) (“fil[ing] a declaration of informal marriage with the county clerk . . . constitutes prima facie proof of the parties [sic] informal marriage”).

Q: Why is establishing a common law marriage important?

A: Establishing an informal marriage may be important for a variety of reasons. For instance, after a couple separates one party may file for divorce to collect some of the property and money the couple gained while cohabiting. Because the parties often have not signed a declaration of informal marriage, the party wishing to establish the marriage looks to the three-prong test.

If a couple is not married, the couple does not have spousal privilege. Under spousal privilege a defendant can prevent confidential communications to the other spouse from being used against the defendant at court. In Jasper v. State, 61 S.W.3d 413, 418 (Tex. Crim. App. 2001) the court found that the couple was not informally married, so the girlfriend’s testimony was admissible.

If a couple is not married, the remaining partner cannot collect on a wrongful death claim. One element of a wrongful death claim is that the survivor of the decedent be an immediate family member. In Prince, 2010 WL 87334 (Or. A.G. Jan. 7, 2010) Rodrick Williams, Jr., died in a motor vehicle accident, and Tamara Lashae Prince brought a wrongful death claim against Foreman Contractors for his death. Because the jury found that Williams and Prince were not informally married, Prince could not collect damages for William’s death.

Q: How do I satisfy each prong of the three-prong test?

A: Each prong can be satisfied in multiple ways. Of the three prongs, the first prong—the man and woman agreed to marry—is the most difficult to establish. To establish that the man and woman agreed to marry, the court may consider facts like whether the couple raised a family together, whether the couple filed joint tax returns, or whether the couple opened a joint bank account. Additionally, if a party waits to establish an informal marriage until after the couple has separated for two years, the court rebuttably presumes that the couple did not agree to marry. The following does not represent a comprehensive list of all the possible ways to satisfy each prong.

All three of the prongs must be satisfied at the same time. Bolash v. Heid, 733 S.W.2d 698, 699 (Tex. App.—San Antonio 1987, no writ).

The couple must have already agreed to marry, not agree to marry at some future date. In Jasper v. State, 61 S.W.3d 413, 418-419 (Tex. Crim. App. 2001) although the woman lived with the man since she was 15 and although they had two children together, the trial judge found that the couple agreed to marry at some future date.

The agreement to marry requires that the parties intend to have a present, immediate, and permanent marital relationship. Eris v. Phares, 39 S.W.3d 708, 714 (Tex. App. 2001).

Occasional introductions as husband and wife is not enough to establish that the couple held themselves out as husband and wife; the couple needs to have a reputation in the community as being married. Eris v. Phares, 39 S.W.3d 708, 715 (Tex. App. 2001).

Agreeing to be married “in God’s eyes” was sufficient to establish an agreement to be married. Matter of Estate of Giessel, 734 S.W.2d 27, 32 (Tex. App. 1987).

Call my office for a consultation if you have created a common law marriage and need a divorce.

October 3, 2012 by Aaron Tress

Alimony principles in Texas

Q: Does Texas permit alimony?

A: Yes. Rather than use the terms “alimony” or “spousal support,” Texas uses the term “spousal maintenance.”

Q: What is spousal maintenance?

A: Spousal maintenance is monthly payment from one person to that person’s ex-spouse.

Q: What is the purpose of spousal maintenance?

A: The justification for maintenance is to allow time for the receiving spouse to become financially independent. In a marriage, one spouse may earn more money than the other spouse. When the couple divorces, the judge may order the spouse who earns more money to make a monthly payment to the other spouse.

“The purpose of spousal maintenance is to provide temporary and rehabilitative support for a spouse whose ability to support herself has eroded over time while engaged in homemaking activities and whose capital assets are insufficient to provide support.” Tellez v. Tellez, 345 S.W.3d 689, 691 (Tex. App.–Dallas 2011, no pet.)

Q: What are the qualifications for spousal maintenance?

A: The spouse seeking maintenance must show that he or she lacks sufficient property to satisfy his or her minimum reasonable needs and

the spouse paying maintenance must have been criminally convicted on a charge stemming family violence against the other spouse or the other spouse’s child within two years of the divorce,
the spouse seeking maintenance must have a disability keeping him or her from earning enough to satisfy his or her minimum reasonable needs,
the spouse seeking maintenance must have been married for at least ten years and cannot earn enough to satisfy his or her minimum reasonable needs,* or
the spouse seeking maintenance must have a disabled child whose care prevents the spouse from earning enough to satisfy his or her own minimum reasonable needs.

* The family code rebuttably presumes that maintenance is not needed under these circumstances.

Q: How long will spousal maintenance last?

A: For marriages lasting less than ten years, the Family Code requires that the length of maintenance last for the shortest time possible. Yet, for those marriages lasting ten years or more, the following applies:

For marriages lasting between ten and twenty years, maintenance is five years.
For marriages lasting between twenty and thirty years, maintenance is seven years.
For marriages lasting more than thirty years, maintenance is ten years.

Q: Will a judge modify or revoke spousal maintenance?

A: Yes. Grounds for modification of maintenance may include retirement, inheritance, loss of employment, and incapacitating physical or mental disability. Maintenance ceases, however, upon death of either spouse or if the receiving spouse remarries or cohabits.

Q: Will a judge extend spousal maintenance?

A: Judges do not generally extend spousal support.

In Hackenjos v. Hackenjos, 204 S.W.3d 906, 909 (Tex. App.–Dallas 2006, no pet.) the husband argued that his permanent disability justified extending maintenance longer than three years. The court stated the rule that “a party seeking to continue receiving spousal maintenance has the burden to prove by a preponderance of the evidence: (1) his incapacitating physical disability continues; and (2) that the incapacitating physical disability prevents him from supporting himself through appropriate employment.”

A “court may order spousal maintenance for an indefinite period when the spouse seeking maintenance has an incapacitating physical or mental disability.” In Tellez v. Tellez, 345 S.W.3d 689, 692 (Tex. App.–Dallas 2011, no pet.) the court ruled that the wife’s “significant health issues”–diabetes, asthma, nerve damage to her feet and fingers, hypertension, allergies, arthritis, and severe depression–did not constitute an incapacitating physical and mental disability. Spousal maintenance remained limited to three years at $800 per month.

Q: How much is maintenance?

A: The spouse paying maintenance cannot pay more than $5000 per month or more than 20% of the spouse’s income.

Q: What if someone is not paying maintenance?

A: The receiving spouse may hire an attorney to file a petition for enforcement of spousal maintenance and order to appear. The court will determine the arrearages. The receiving spouse is entitled to arrearages even after maintenance terminates at some future date.

Garnishing wages to pay spousal maintenance violates the Texas Constitution. Heller v. Heller, 359 S.W.3d 902, 905 (Tex. App.–Beaumont 2012, no pet.).