A New Judge for the 360th District Court

Does it matter who the Judge is?

As of January 1, 2017, the Judge of the 360th District Court in Tarrant County, Texas is the Honorable Patricia Bennett. Judge Bennett replaces Judge Michael Sinha, who had been the Judge of the 360th and, the prior to that, the Associate Judge of the 360th for years.

Judge Bennett has chosen Matt Riek to be her Associate Judge, and Judge Riek will take the bench on or about January 16, 2017. Judge Riek replaces Judge Cynthia Mendoza.

Both Judge Bennett and Judge Riek are Board Certified in Family Law by the Texas Board of Legal Specialization, and each has years of experience in divorce, custody, and family law. Additionally, Judge Riek was one of the most sought after and well-respected family law mediators in the Dallas-Fort Worth Metroplex prior to agreeing to accept the position of Associate Judge.

So, with these changes, one might ask: Does it matter who the Judge is?

The short answer, particularly in Family Law is Yes!!!

Family law – meaning divorce, custody, grandparent rights, child support, spousal support, alimony, etc. – is an area of the law that, unlike most areas, is governed by the “discretion of the court.” Under Texas law, the trial court judge has wide discretion in determining a number of items in family law. What that means in simple terms is that you are not entitled to have a jury make the decision, it has to be the judge, and your chances of getting an appellate court to overturn the trial court’s decision are extremely small.

Some of the things that a family court judge gets to decide with little chance of being overturned are:

  1. How the property will be divided in a divorce – Will the property be divided 50/50 or 60/40 or 80/20 or in some other ratio?
  2. What happens to the property in a divorce – Do you get to keep the house? Or does your soon-to-be Ex? Or is there a Court Order to sell it?
  3. Who gets to live in the house while the case is pending?
  4. Who has to pay which bills while the case is pending?
  5. Who gets custody of the children while the case is pending?
  6. How much child support will be paid and by whom to whom?
  7. How much temporary spousal support will be paid, if any, while the case is pending – even if it’s for years – and by whom, to whom?
  8. Does anyone deserve Spousal Maintenance – the Texas version of court-ordered alimony – and if so how much and for how long, within some limits?
  9. What will the rights and duties be with respect to the children? Do you have a say in who the children’s doctor is? Dentist is? Surgeon is? Will there be surgery? Will the children go to a psychiatrist?
  10. On what days and at what times will you be allowed to see your children?
  11. Will you be able to Facetime with your children? Call them? Email them?

These are just a few of the things that family court judges get to decide, and as long as that Judge stays on the bench and as long as the children stay in the county, the same judge will keep deciding these issues regarding your children until they age out of the system.

So what do you think? Does it matter who the judge of your court is?

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.

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.

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.

Divorce: How are stock options and restricted stock handled?

According to Texas law, at the time of divorce, all community property is divisible. Moreover, all property owned by the parties in a divorce is presumed community until and unless proven to be separate property.

The court has no jurisdiction to divest either party of his or her separate property. Jurisdiction means power. Divest means take. So the court has no power to take anyone’s separate property from them.

Employer Provided Stock Options and Employer Provided Restricted Stock that are owned at the time of divorce are divisible, just like any other property. The community portion is divisible, the separate portion is not.

So, in order to determine how much of the Options or Stock is divisible, you must first determine how much of it is separate and how much of it is community.

The Texas Family Code explains how to perform the calculations to find out what is separate and what is community.

Pursuant to Section 3.007 of the Code:

A spouse who is a participant in an employer-provided stock option plan or an employer-provided restricted stock plan has a separate property interest in the options or restricted stock granted to the spouse under the plan as follows:

if the option or stock was granted to the spouse before marriage but required continued employment during marriage before the grant could be exercised or the restriction removed, the spouse’s separate property interest is equal to the fraction of the option or restricted stock in which:

the numerator is the sum of

the period from the date the option or stock was granted until the date of marriage; and

if the option or stock also required continued employment following the date of dissolution of the marriage before the grant could be exercised or the restriction removed, the period from the date of dissolution of the marriage until the date the grant could be exercised or the restriction removed;

and

the denominator is the period from the date the option or stock was granted until the date the grant could be exercised or the restriction removed; and

if the option or stock was granted to the spouse during the marriage but required continued employment following the date of dissolution of the marriage before the grant could be exercised or the restriction removed, the spouse’s separate property interest is equal to the fraction of the option or restricted stock in which

the numerator is the period from the date of dissolution of the marriage until the date the grant could be exercised or the restriction removed; and

the denominator is the period from the date the option or stock was granted until the date the grant could be exercised or the restriction removed.

The Code also provides that the computation must be done separately “for each component of the benefit requiring varying periods of employment before the grant could be exercised or the restriction removed.”

So basically, the value of the Options or Stock that is attributable to the period before marriage or after marriage is separate property. The amount attributable to the time that a person is married is community. These concepts are completely consistent with the analysis done for all property to determine whether its character is separate or community.

If you would like to discuss your situation with the attorneys at 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.

Common Law Marriage: How do I know if I have one?

In Texas, there are two ways to get married, and two ways to get unmarried. You can be ceremonially married or common law married. To get unmarried – regardless of how you got married – you need a divorce or death.

There is no such thing as a common law divorce.

There are circumstances that would seem to warrant a finding of common law divorce, but they don’t. For example, if two married persons cease living together, haven’t seen each other in a couple of decades, haven’t spoken to or communicated with each other in decades, and have no property which they consider joint, many people would feel that their status is tantamount to divorce. It’s not.

Once again, there is no such thing as common law divorce.

So, it’s best to know when you are married, since being married means that everything you own is presumed to be community property, if you die or end up in a divorce.

A common law marriage arises when three things have happened:

  1. The two people live together;
  2. The two people represent to others that they are married; and
  3. Both people have agreed to be married.

Think of people living 100 years ago out in the remotest part of west Texas. There had to be a way for them to get married, since having sexual relations or living “in sin,” without the benefit of marriage, was considered taboo.

Common law marriage provided people that did not have a preacher or courthouse handy a way to make themselves “legal.”

It all made sense back then. Whether it does now is a question for another day. Regardless, the law still exists.

If you live together, even for a brief period of time, and represent to others that you are married – by, for example, introducing the other person as your wife to new people you meet, filing joint tax returns, etc. – then the only question is whether the two of you have agreed that you are married.

If neither person claims that there was an agreement of marriage, the issue may never arise. In family court, however, the problem can arise when the couple breaks up, if the first two requirements have been met. Then, the one that would most benefit from a finding that they are married sometimes claims that they are.

If the court is convinced that all three requirements have been met, then the break up becomes a divorce. And divorces have all sorts of consequences with respect to division of property, spousal maintenance, etc.

To discuss any of this with a Beal Law Firm attorney contact us at lawyers@dfwdivorce or call us at 214.414.0418 or 817.261.4333. Our website is www.dfwdivorce.com