Christmas Gifts: What happens to them if a divorce comes along?

The holidays are a time for gift-giving. For those going through a divorce at this time of year, the consideration of gifts is especially important.

That’s because, in Texas, all property owned at the time of divorce, including any gifts, must be classified as either separate or community property.

Community property is jointly owned by the married couple and divisible by the judge at the time of divorce. Separate property, however, is not. The court cannot take away separate property in a divorce.

  1. Gifts do not fall under the community presumption.

The general rule is that all property received during a marriage is community property. Gifts, however, are one of the few exceptions. Unlike most property received, gifts are classified as separate property.

  1. The community estate cannot receive a gift.

A gift cannot be given to the community. If the gift is to one spouse or the other, it is the separate property of that spouse. If the gift is made to a married couple, the property is one-half the separate property of each spouse.

  1. Income from a gift belongs to the community estate – usually.

If a gift is received that generates income, even though the gift is separate property, the income generated from the gift is community property. So although a divorce court cannot take away the gift, it can divide and take away some or all of the income. Income includes interest, dividends, and rental income.

  1. A gift from one spouse to the other includes the income – probably

The rule stated above in #3 does change a little bit when it is one spouse giving something to the other. According to the Texas Family Code, Section 3.005, “If one spouse makes a gift of property to the other spouse, the gift is presumed to include all the income and property that may arise from that property.” The presumption can be challenged, however, so if you are giving something to your spouse that you want to not follow the presumption, you need to make sure that you have some written evidence of your actual intent.

To discuss your case with the attorneys of the Beal Law Firm, call us at 817.261.4333 or 214.414.0418, or write us at lawyers@dfwdivorce.com. You can find us on the web at www.dfwdivorce.com.

Custody and Support: Five Simple Answers for Christmas Related Questions

But what if…

  1. Can I count the Christmas presents that I buy as child support?

No.

Generally speaking, court-ordered child support can only be discharged according to the terms dictated in the order. In fact, most orders contain a warning that says:

                No Credit for Informal Payments

                IT IS ORDERED that the child support as prescribed in this decree shall be exclusively discharged in the manner ordered and that any direct payments made by ______________ to ______________ or any expenditures incurred by ________________ during his/her periods of possession of or access to the child, as prescribed in this decree, for food, clothing, gifts, travel, shelter, or entertainment are deemed in addition to and not in lieu of the support ordered in this decree.

  1. If my ex agrees that I don’t have to pay all of my child support this month because I will be buying Christmas presents, is that true?

No.

In 1991, the Texas Supreme Court determined that the Family Code prohibited parents from making agreements to “modify court-ordered child support without court approval.”

Meaning that any agreements with your ex regarding child support, even if in writing, are unenforceable.

  1. If my ex does not let me have the children like he/she is supposed to for Christmas, can I withhold child support?

No.

A standard warning that is to be included in all support orders is as follows:

REFUSAL BY A PARTY TO ALLOW POSSESSION OF OR ACCESS TO A CHILD DOES NOT JUSTIFY FAILURE TO PAY COURT-ORDERED CHILD SUPPORT TO THAT PARTY.

So, regardless of whether the denial of access is a few minutes or the entirety of Christmas vacation, court ordered child support is still due. Whether the court will later put your ex in jail and give you make-up time is another matter for another day.

  1. If my ex is behind on child support, do I still have to give him/her the children for the Christmas possession?

Yes.

Another standard warning that should be in all orders is:

FAILURE OF A PARTY TO PAY CHILD SUPPORT DOES NOT JUSTIFY DENYING THAT PARTY COURT-ORDERED POSSESSION OF OR ACCESS TO A CHILD. 

So, regardless of whether your ex is ten payments behind in child support, one payment behind, or just late with this month’s payment, the court ordered possession is to be allowed. Note, however, that unlike child support, possession can be informally modified by the parties.

  1. If my court order does not contain all of the warnings discussed in this blog, is the answer different for me?

No.

These warnings simply state the law. And the law is the same, whether you have been warned or not.

To discuss any of this with the attorneys at the Beal Law Firm, call us at 214.414.0418 or 817.261.4333, or write us at lawyers@dfwdivorce.com. We are on the web at www.dfwdivorce.com.

The Importance of Filing First

Being the first to file can give you advantages, regardless of how your divorce, custody, or other family law case proceeds.

If you know you’re about to be in a fight, hit first.

That advice works well on the playground, in a bar, or just about anywhere else you find yourself. It is especially true in the world of litigation, including divorce, custody and just about every other type of family law.

To understand why being the first to file matters, it is important to understand a little bit about the rules of the game you are in.

Texas family law cases are like all other civil litigation. They are governed by the Texas Rules of Civil Procedure.

Under the Rules of Civil Procedure, the party filing first is called a Plaintiff or Petitioner. The other party is the Defendant or Respondent. In family law cases – divorce, custody, modification, child support, enforcement, etc. – the terms Petitioner and Respondent are used.

The Petitioner gets a tremendous number of advantages, if the case goes to trial. The Petitioner gets to conduct his or her portion of Voir Dire (Jury Selection) first. The petitioner gets to make his or her Opening Statement first. The petitioner gets to put on his or her Case-in-Chief first, and when it comes to Closing Argument, the Petitioner gets to speak both first and last.

These advantages are huge. Why? Think about it. When you were a child and in an argument with a brother, sister, or another child, didn’t you want to get your story out to mom or dad first? Why do people interrupt each other when arguing a point to a third party? Because everyone understands the advantage of trying to convince the arbiter of the logic and correctness of his or her point, before the opponent gets a chance to sway the decision maker.

That’s exactly why the rules are in the Rules of Civil Procedure. They are intended to give an advantage. It is understood that the one going first has an easier time of persuasion. And the Rules give the Petitioner this advantage, because the rules were designed primarily for cases in which the filing party is a Plaintiff, such as a car wreck or breach of contract case.

In those cases, the Plaintiff has the procedural advantages provided by going first, because he or she has the burden of proof.

In many family law cases, however, the parties have essentially the same burden. Both are trying to convince the judge that their proposed division of property is fairer than the other side’s proposed division, and/or they are trying to convince the judge or jury that their proposal for the children is more in the best interest of the children than the other sides proposal.

But what if you don’t plan to go to trial? Most people don’t. The reality is that there is no way of knowing at the beginning of a case whether you will go to trial or not.

There are only two ways to finish the case – settlement or trial. To settle, both people have to agree. If the parties cannot agree, there will have to be a trial.

But what if you absolutely believe that you know there will not be a trial? Unless you are one of the incredibly rare people that have complete agreement from the outset, you will still be negotiating something. In that case, being the one that holds the advantage that would be present if you went to trial gives you an advantage in the negotiation.

Finally, remember that even if you believe that none of this applies to you, the case is going to have to be filed at some point by somebody – assuming that the case is going to happen – so it may as well be you. Nothing about this post should be taken as a comment on how to file. That is a topic for a future post, but as a prelude: be aware that there are very non-threatening and amicable ways to file.

Additionally, nothing in this post should be taken as encouraging any case. As the saying goes, “the two worst days of my life were the day I went to court and lost and the day I went to court and won.” Being in a lawsuit of any kind is an emotionally and financially draining proposition – if you can stay out of litigation, do.

But this post ends as it started – if you know you’re about to be in a fight… And litigation, even if amicable, is a form of fighting.

If you need to discuss any of this with the attorneys of the Beal Law Firm call us at 817.261.4333, 214.414.0418, or write to us at lawyers@dfwdivorce.com. Beal Law Firm is www.dfwdivorce.com.

The Many Parts of a Texas Divorce

In a previous post, we discussed the procedural parts of a Texas Divorce. In this post, the goal is to identify the substantive parts of a Texas Divorce.

Divorces are interesting types of cases, because unlike most cases, they have discrete parts, each of which needs their own jurisdictional analysis. That is, a court may have the power to deal with one part of the case, but not with another.

Not all cases are the same, so some of these parts may not be present in your case, but since there is a great deal of misunderstanding about how divorces work, it is a good idea to at least be aware of them, to be sure that they don’t belong in your case.

1. The Status of the Marriage

The Status of the Marriage is both the most important and least important part of the case – it is the judicial determination of whether the parties are divorced. As long as one or both parties is a resident of Texas, the court generally has the power to make this determination. Since Texas is a “no-fault” State, the court can grant the divorce without reference to either party being at fault. But, either or both parties can allege that the divorce should be granted on “fault” grounds, such as adultery or cruelty.

2. Division of Property

This part of the case involves how the marital estate is divided. The court does not have the power to take either party’s separate property as a part of the division of property. The court does have the power to divide the community estate, as long as the court has personal jurisdiction over the parties. Understanding personal jurisdiction can be tricky, so if either party does not reside in Texas, it is important to get competent legal advice on this topic.

As a part of the division of property, the court may assign the payment of debts, but it is important to note that the court cannot adversely affect the rights of third-party creditors. That is, if the creditor could sue you before the divorce if the debt was not paid, then the creditor will be able to sue you after the marriage if the debt is not paid – there is nothing you can agree to or that the court can order that can change that.

3. Custody

Custody is a legal word with a fuzzy definition. Basically, if there has been a child born or adopted during the marriage that is still a minor or disabled, or both, the court will need to deal with issues of conservatorship, geographic restriction, rights, duties, and possession of the child.

There are a great many presumptions that aid in the predictability of this section, but unlike property division, a jury can be used to decide the ultimate issues of custody, i.e. Primary Conservatorship and Geographic Restriction.

The analysis of whether the Court has the power to issue a valid, binding custody order can be very confusing. The answers are found in a complicated piece of legislation known as the Uniform Child Custody Jurisdiction and Enforcement Act (the “UCCJEA”).

4. Child Support

Although often even courts treat Child Support as though it is a simple mathematical analysis, under the family code it is not. The statutory presumption is that guideline child support should be used, but there are a great many other factors that the court should consider.

See this previous post for a discussion of those other factors.

5. Spousal Maintenance

Texas has had contractual alimony available for a long time, if not forever. Contractual alimony, however, is only obtained when one party or the other agrees to provide cash flow to the other after divorce.

Spousal Maintenance is the term that is used for the type of post-divorce, non-child-support, non-property division payments that the court can order over the objection of the soon-to-be-paying party. In order to get Spousal Maintenance, the party seeking it must prove a great many things, but the starting point is that he or she must fit in one of three categories:

  1. Be disabled;
  2. Be the victim of domestic abuse; or
  3. Be married for over ten years and not be able to provide for his or her minimum reasonable needs.

6.Tort or Other Cause of Action Against Your Spouse

Although many people don’t realize it, you can sue your spouse, in addition to divorcing him or her. To do so successfully, there must be a valid cause of action. That is, the spouse must have done something that amounts to a Tort or other type of cause of action.

Viable causes of action include assault, battery, false imprisonment, breach of fiduciary duty, and intentional infliction of emotional distress (also known as intentional infliction of mental anguish).

Whether one spouse should sue the other is a very complicated question, and competent legal advice is critical in making a decision on how to proceed.

To discuss your case with the attorneys of the Beal Law Firm, call us at 817.261.4333 or 214.414.0418, or write us at lawyers@dfwdivorce.com. You can find us on the web at www.dfwdivorce.com.

Divorce and Custody: Five Military Family Law Quick Hits for Veteran’s Day

Military-Family Law cases can be some of the most challenging.

Here are the quick answers to five common questions that arise for those in the military when facing a divorce or custody case:

1. Is Military Retirement divisible at divorce?

Yes. The portion of military retirement that is attributable to the time that a couple is married is community property. All community property is divisible by the court at divorce. That means that a divorcing couple can agree how to divide military retirement at divorce, or if the case is not settled and a trial is necessary, the court will divide it in what it believes is a fair division.

2. How long do you have to be married to be entitled to a share of Military Retirement?

There is a common misconception that if a couple is not together for over 10 years, then the non-military spouse cannot obtain any part of the military retirement in a divorce. That is not true.

The 10-year rule deals with direct payments from the government. If the divorcing couple has not been together for at least ten years, then the Defense Finance and Accounting Service (DFAS) will not make payments directly to the non-military spouse. All of the retirement pay will be paid to the retired military member, and the retired military member must pay the non-military ex-spouse.

3. Is Military Disability pay divisible at Divorce?

No. Disability payments are not like military retirement in divorce. The court cannot divide disability pay.

Whether and how the court will consider the disability payments in making a determination of how to divide the remainder of the community estate is something to be discussed in depth with an attorney that has good research and briefing skills, and a thorough understanding of family law and the military.

4. Can Active Duty military be named the Primary Conservatory of a child?

Absolutely! There is no legal impediment to an active duty military member being the primary conservator of a child. Whether the court would name the military member as the primary in a contested case would depend on what the court determined to be in the Best Interest of the Child.

A corollary consideration is whether it is possible that a geographic restriction could be put in place that would effectively limit the military member’s ability to be primary, if he or she received orders to live in an area outside the geographic boundary. Such a situation can happen, so the consideration of geographic restriction needs to be thought through at the time of the original order.

5. Can a Military Member designate someone to exercise his or her possession time with children while he or she is on deployment?

Yes, sort of — the Court can. In recent years, with the huge number of military deployments, the Texas Legislature added Subchapter L – “Military Duty” to Chapter 153 of the Texas Family Code.

Subchapter L provides, in part, as follows:

SUBCHAPTER L. MILITARY DUTY

Sec. 153.701. DEFINITIONS. In this subchapter:

(1) “Designated person” means the person ordered by the court to temporarily exercise a conservator’s rights, duties, and periods of possession and access with regard to a child during the conservator’s military deployment, military mobilization, or temporary military duty.

(2) “Military deployment” means the temporary transfer of a service member of the armed forces of this state or the United States serving in an active-duty status to another location in support of combat or some other military operation.

(3) “Military mobilization” means the call-up of a National Guard or Reserve service member of the armed forces of this state or the United States to extended active duty status. The term does not include National Guard or Reserve annual training.

(4) “Temporary military duty” means the transfer of a service member of the armed forces of this state or the United States from one military base to a different location, usually another base, for a limited time for training or to assist in the performance of a noncombat mission.

Sec. 153.702. TEMPORARY ORDERS. (a) If a conservator is ordered to military deployment, military mobilization, or temporary military duty that involves moving a substantial distance from the conservator’s residence so as to materially affect the conservator’s ability to exercise the conservator’s rights and duties in relation to a child, either conservator may file for an order under this subchapter without the necessity of showing a material and substantial change of circumstances other than the military deployment, military mobilization, or temporary military duty.

(b) The court may render a temporary order in a proceeding under this subchapter regarding:

possession of or access to the child; or

(2) child support.

(c) A temporary order rendered by the court under this subchapter may grant rights to and impose duties on a designated person regarding the child, except that if the designated person is a nonparent, the court may not require the designated person to pay child support.

(d) After a conservator’s military deployment, military mobilization, or temporary military duty is concluded, and the conservator returns to the conservator’s usual residence, the temporary orders under this section terminate and the rights of all affected parties are governed by the terms of any court order applicable when the conservator is not ordered to military deployment, military mobilization, or temporary military duty.

Sec. 153.703. APPOINTING DESIGNATED PERSON FOR CONSERVATOR WITH EXCLUSIVE RIGHT TO DESIGNATE PRIMARY RESIDENCE OF CHILD.

(a) If the conservator with the exclusive right to designate the primary residence of the child is ordered to military deployment, military mobilization, or temporary military duty, the court may render a temporary order to appoint a designated person to exercise the exclusive right to designate the primary residence of the child during the military deployment, military mobilization, or temporary military duty in the following order of preference:

(1) the conservator who does not have the exclusive right to designate the primary residence of the child;

(2) if appointing the conservator described by Subdivision (1) is not in the child’s best interest, a designated person chosen by the conservator with the exclusive right to designate the primary residence of the child; or

(3) if appointing the conservator described by Subdivision (1) or the person chosen under Subdivision (2) is not in the child’s best interest, another person chosen by the court.
(b) A nonparent appointed as a designated person in a temporary order rendered under this section has the rights and duties of a nonparent appointed as sole managing conservator under Section 153.371.

(c) The court may limit or expand the rights of a nonparent named as a designated person in a temporary order rendered under this section as appropriate to the best interest of the child.

Sec. 153.704. APPOINTING DESIGNATED PERSON TO EXERCISE VISITATION FOR CONSERVATOR WITH EXCLUSIVE RIGHT TO DESIGNATE PRIMARY RESIDENCE OF CHILD IN CERTAIN CIRCUMSTANCES.

(a) If the court appoints the conservator without the exclusive right to designate the primary residence of the child under Section 153.703(a)(1), the court may award visitation with the child to a designated person chosen by the conservator with the exclusive right to designate the primary residence of the child.

(b) The periods of visitation shall be the same as the visitation to which the conservator without the exclusive right to designate the primary residence of the child was entitled under the court order in effect immediately before the date the temporary order is rendered.

(c) The temporary order for visitation must provide that:

(1) the designated person under this section has the right to possession of the child for the periods and in the manner in which the conservator without the exclusive right to designate the primary residence of the child is entitled under the court order in effect immediately before the date the temporary order is rendered;

(2) the child’s other conservator and the designated person under this section are subject to the requirements of Section 153.316, with the designated person considered for purposes of that section to be the possessory conservator;

(3) the designated person under this section has the rights and duties of a nonparent possessory conservator under Section 153.376(a) during the period that the person has possession of the child; and

(4) the designated person under this section is subject to any provision in a court order restricting or prohibiting access to the child by any specified individual.

(d) The court may limit or expand the rights of a nonparent designated person named in a temporary order rendered under this section as appropriate to the best interest of the child.

Sec. 153.705. APPOINTING DESIGNATED PERSON TO EXERCISE VISITATION FOR CONSERVATOR WITHOUT EXCLUSIVE RIGHT TO DESIGNATE PRIMARY RESIDENCE OF CHILD.

(a) If the conservator without the exclusive right to designate the primary residence of the child is ordered to military deployment, military mobilization, or temporary military duty, the court may award visitation with the child to a designated person chosen by the conservator, if the visitation is in the best interest of the child.

(b) The temporary order for visitation must provide that:

(1) the designated person under this section has the right to possession of the child for the periods and in the manner in which the conservator described by Subsection (a) would be entitled if not ordered to military deployment, military mobilization, or temporary military duty;

(2) the child’s other conservator and the designated person under this section are subject to the requirements of Section 153.316, with the designated person considered for purposes of that section to be the possessory conservator;

(3) the designated person under this section has the rights and duties of a nonparent possessory conservator under Section 153.376(a) during the period that the designated person has possession of the child; and

(4) the designated person under this section is subject to any provision in a court order restricting or prohibiting access to the child by any specified individual.

(c) The court may limit or expand the rights of a nonparent designated person named in a temporary order rendered under this section as appropriate to the best interest of the child.

Being in the military or being married to someone in the military has a great many challenges. Trying to understand all of your rights in a Divorce or Custody case without competent legal help can make for some additional, possibly insurmountable challenges.

To discuss your situation with the attorneys of the Beal Law Firm, contact us at 817.261.4333 or 214.414.0418, or write us at lawyers@dfwdivorce.com. We are on the web at www.dfwdivorce.com.

Understanding No-Fault Divorce in Texas

Fault grounds still exist.

There is a great deal of misunderstanding about “no-fault” divorce. Many people believe that the concept of fault has been eliminated from divorces. That could not be further from the truth.

The passage of the “no-fault” law years ago changed the requirement to allege fault, it did not change the right to allege fault.

Prior to the creation of “no-fault” divorce, in order to obtain a divorce in the State of Texas, one or both parties had to accuse the other of some conduct that amounted to fault. And then the accusing party had to prove it – assuming that the accused did not admit it. The common grounds for fault-based divorces included adultery, mental cruelty, physical cruelty, and abandonment.

The reason for a fault-based system was that the State took the position that it had a vested interest in keeping married people married. If you could not prove a fault ground, the State did not require you to continue to live together, but it required you to stay married. That requirement kept people from being able to marry other people, because doing so would amount to the crime of bigamy.

Now, Texas Family Code Section 6.001 states that “the court may grant a divorce without regard to fault, if the marriage has become insupportable because of discord or conflict of personalities that destroys the legitimate ends of the marital relationship and prevents any reasonable expectation of reconciliation.”

As long as one party of the other alleges that the marriage has become “insupportable,” there is no requirement to allege or prove fault in a divorce. The State looks at marriages almost like a business partnership, when it comes to the right to dissolve it.

If you and a friend went into the business of selling donuts, and after a couple of years your friend decided that he or she did not want to sell donuts anymore, you could not make your friend stay in the donut business. Similarly, in this day and age, if your spouse no longer wants to stay in the marriage, you cannot make him or her stay. If your spouse wants a divorce, he or she is entitled to a divorce.

But, the fact that there is no requirement to allege fault does not mean that fault cannot be alleged. Either or both parties to a divorce can still allege that the break-up of the marriage was due to the fault of the other party. While the Family Code still contains the same list of fault grounds that it used to, typically people now limit the accusations to adultery or cruelty.

So what is the benefit of pleading fault? If it is not needed to get the divorce, why bring it up?

One reason to plead fault is that in a divorce, there is no requirement that the property be divided evenly. The court is required to make a “just and right, equitable division” of the property, and one of the factors that the court can consider is the fault of either party. If one party is guilty of adultery or cruelty, that party may not only get less than 50% of the community estate, he or she may get as little as 40%, 35%, or even less. In fact one Texas Judge has been quoted as saying, “If I find out that a husband has been guilty of actual, physical abuse, I’ll take away everything he’s got, including his dreams!”

While, according to Texas law, even in the most egregious of cases the court cannot take someone’s separate property, it is possible that the court can deprive an individual of the use of his or her separate property for some period of time, under certain circumstances. In one famous case, the court allowed the ex-wife and children to live in the separate property home of the ex-husband, as additional child support.

To find out more about how the system works, call the Beal Law Firm at 817.919.3616 or 214.414.0418, or write us at lawyers@dfwdivorce.com. You can find us on the web at www.dfwdivorce.com.

Custody: Airline Pilot Possession Schedule

Pilots and Crew Members often need unique possession schedules, if they are going to spend quality time with their children.

Parents who are not together often have court orders detailing the times during which they each have possession of their children. These orders arise in Divorce and Custody cases.

Texas has a Standard Possession Schedule, an Expanded Standard Possession Schedule, and rules regarding what type of schedule a court should give for children under the age of three. All of these are laid out in the Texas Family Code, Chapter 153.

But, these standard concepts are not the only schedules available for the court or parties to choose from. When one or both parents have a job that does not allow for set possession times, the parties can agree to use an alternate schedule that is tailored for the lifestyle associated with the job. If the parties cannot agree to use such a schedule, one of the parties can ask the court to order a flexible schedule.

One such schedule is that used by Airline Pilots and members of Airline Flight Crews.

A typical Airline Pilots schedule or Air Crew schedule may include language that includes a “finding” by the Judge that the pilot/crew member is “unable to exercise predictable periods of possession occurring on the same days of each month” because of his or her “work and flight schedule.”

The order may go on to describe how and when the Pilot or other Crew Member receives his or her schedule and what the schedule contains.

In order to have a system that allows for consistent possession of the children by the parent with the inconsistent schedule, the Judge can order the airline-employed parent to deliver a copy of his or her schedule to the non-airline employed parent within a reasonable amount of time after receiving it, and to elect which weekends and weekdays the Pilot or Crew Member will be exercising. Although there may be a designated method that the parties are supposed to use to try to resolve any conflicts, since the Airline parent’s schedule is likely less flexible, an order would typically give the Airline parent’s choice priority.

If an Airline or Pilot’s Schedule is used, it is typical to include language that the unique terms will only apply “until such time as” the Airline parent “is no longer employed as an airline pilot [or crew member].” The order can then include terms for possession that will begin at that time, whether a Standard Possession Schedule or otherwise.

One thing to keep in mind, however, is that there is no requirement that a Trial Judge give an Airline Parent a unique Airline Possession Schedule that meets all of his or her needs. In fact, in one Texas case several years ago, a Fort Worth Judge awarded a pilot a Standard Possession Schedule, despite evidence that the pilot would not be able to effectively exercise the schedule and would thus be denied the ability to frequently and consistently see his children. Fortunately for the pilot, the case was reversed by an Appellate Court on other grounds.

To discuss the unique needs of your situation with the lawyers of the Beal Law Firm, please call us at 817.261.4333 or 214.414.0418, or write us at lawyers@dfwdivorce.com. You can find us on the web at www.dfwdivorce.com.