Divorce — Page 4

March 22, 2013 by Aaron Tress

Texas Collaborative Law

Collaborative Law History

One alternative to traditional, court litigated divorces is collaborative law. Collaborative law was invented in 1990 in Minnesota in an effort to find less destructive methods of divorce. Texas adopted collaborative law in 2000. The Texas Family Code states “It is the policy of this state to encourage the peaceable resolution of disputes.”

Divorcing parties should consider the possibility of collaborative law. Collaborative law divorces offer many benefits that traditional divorces don’t.

Collaborative Law Pros

First, divorcing parties in traditional divorce proceedings are subject to a judge’s ruling. To persuade the judge to rule in their favor, both parties paint the opposing party in the least favorable light. Not only is this system highly confrontational, neither party can directly determine the outcome. Collaborative law, on the other hand, allows the divorcing parties to negotiate their outcome. This method focuses on the interests of both parties and does so in a less adversarial fashion.

Second, traditional divorce proceedings aren’t concerned with the parties’ financial and emotional needs. Besides hiring attorneys, collaborative law encourages the involvement of neutral financial and mental health professionals.

Third, collaborative law keeps couples out of court. This means that information is more private and scheduling meetings is more flexible.

Fourth, collaborative divorces can be less expensive.

Collaborative Law Cons

First, if the collaborative process fails then both divorcing parties must hire new attorneys. The collaborative process fails when an attorney fires a client, when a client fires an attorney, or when one party abandons collaborative divorce for a litigated divorce.

Second, collaborative law is not appropriate in cases of domestic violence, mental illness, or substance abuse.

The Collaborative Law Institute of Texas

The Collaborative Law Institute of Texas is the premier association of professionals who advocate the practice of collaborative law. The mission of the Institute is to “create a culture in which collaborative law is the prevailing process for the resolution of family law matters.” Their website seeks to educate the public about the benefits of collaborative law, and provides names of local legal, financial, and mental health professionals who practice collaborative law. Bill McNamara is a member of the Collaborative Law Institute of Texas.

One excellent collaborative law mental health professional in Lubbock is Ray Holt Brown, PhD PsyD.

March 8, 2013 by Aaron Tress

HBO Documentary “Don’t Divorce Me!: Kids’ Rules for Parents on Divorce”

Educational Resources for Divorcing Parents

Many good resources help educate parents on how to maintain relationships with their children during and after divorce. For example, I highly recommend Dr. Richard Warshak’s book Divorce Poison: How to Protect Your Family from Bad-mouthing and Brainwashing. Dr. Warshak gives great advice to those parents who find that their ex-spouse is trying to alienate their children from them.

Another outstanding educational resource recently entered the market. HBO released a new documentary, Don’t Divorce Me!: Kids’ Rules for Parents on Divorce. The viewer is shown the effects of divorce on children from the perspective of children. Over two dozen children from the ages of five to ten are interviewed in the documentary. The documentary seeks to impress upon the viewer that they not forget to consider the child’s perspective.

“I recommend that all my clients watch this short documentary. It will make an impact.” —Bill McNamara

December 3, 2012 by Aaron Tress

When multiple courts may have jurisdiction over my divorce

Q: My spouse and I filed for divorce around the same time but in different counties. Which court has jurisdiction over my divorce?

A: The first to file acquired jurisdiction.

“The general common law rule in Texas is that the court in which suit is first filed acquires dominant jurisdiction to the exclusion of other coordinate courts.” Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974).
McAlister v. McAlister, 75 S.W.3d 481 (Tex. App.—San Antonio 2002, pet. denied) (applying the Curtis rule to a divorce case).

Q: If I moved to a different county in Texas, how long must I wait before filing for divorce?

A: At least one of the spouses must be a resident of the county for 90 days preceding the filing.

Q: If I moved to Texas, how long must I wait before filing for divorce?

A: At least one of the spouses must be a domiciliary of Texas for 6 months preceding the filing.

November 26, 2012 by Aaron Tress

How Tort Awards are Divided in Divorce

Q: How does Texas divide property in divorce?

A: Texas is among a small number of community property states. Community property states distinguish between separate property and community property. Property that constitutes separate property is set out in the Texas Family Code and case law. Everything that is not separate property is community property. Divorcing spouses keep all of their separate property. Community property, on the other hand, is divided between the spouses.

Q: What property constitutes separate property?

A: The Texas Family Code limits separate property to

property the spouse owned before marriage;
property acquired through gift, devise, or descent; and
recovery for personal injuries, unless the recovery is for loss of earning capacity.

Q: Which types personal injury damages are separate property?

Damages based on a loss of consortium are separate property. Whittlesey v. Miller, 572 S.W.2d 665 (Tex. 1978).
Damages based on a parent’s mental pain and anguish at the wrongful death of a child are separate property. Johnson v. Holly Farms of Texas, Inc., 731 S.W.2d 641 (Tex.App.—Amarillo 1987, no writ).
Recovery for medical expenses during the marriage and recovery for loss of earning capacity during marriage are community property. Graham v. Franco, 488 S.W.2d 390, 396 (Tex. 1972).

Q: What if I move to Texas from an equitable distribution state?

A: As long as the couple divorces in Texas, Texas treats the property as if the couple had always lived in Texas.

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.).