Monday, April 20, 2009

Austin Divorce Lawyer Tip Regarding Separation, Community Property, and Divorce in Texas.

I am asked all the time whether there is a way to "legally" separate in Texas. The short answer to this question is no. There is no "Legal Separation," per se, in Texas. There are no Court proceedings to essentially put a marriage "on hold." To the contrary, even though the parties may be living in separate homes and doing everything separately, the community property presumption still applies to the marriage.

In Texas, all property (and liabilities) on hand at the time of Divorce are presumed to be those of the "community." The community property presumption exists irrespective of whether the parties are living together at the time they divorce, or whether they are separated.

Over the years, I have had several cases where the parties separated and then went on with their lives -- sometimes for many years -- accumulating properties (and debts). Sometimes, the assets, which included real estate, stocks, and mutual funds, appreciated substantially. These assets, just like all of the other property, are subject to being divided by the Court. This sometimes comes as a shock to the party that finds out that they have to share the property that they separately bought, paid for, and maintained.

As a result, when you separate and fail to follow through with a Divorce, all assets are subject to a "just and right" division by the divorce court. Likewise, despite a separation, the debts that are accumulated by either spouse will also be presumed to be community debt. For example, you and your husband separate. He goes out and charges a big screen TV on the joint credit card. Not only is the credit card company going to look to you for payment, the divorce court can order that you pay part of the debt (hopefully, the TV is still around and maybe you can get it).

One way around these problems, is to enter into a Property Agreement Between Spouses so as to eliminate community property (and community liabilities). With such an agreement, the Divorce court could treat all property owned at the time of Divorce as the separate property of one or the other spouse. Even accounts that are jointly owned are oftentimes treated under this type of an agreement (and, hence, by the Court) as being owned 50% by each spouse. Such an agreement could completely avoid the possibility of having the Judge (or worse, yet, a jury) decide what constitutes a "just and right" division of the property.

This type of agreement is a relatively simple document that can prevent the continued accumulation of community assets and liabilities, even during a period of separation. If you would like to set up a consultation with an Austin, Texas Divorce Lawyer, contact Erik E. Cary.

Sunday, April 19, 2009

Austin Divorce Lawyer Tips about Common Law Marriage.

Many people believe that they can become married by virtue of only living together. "I have lived with my boy/girl friend for the last 12 years, do we have to get a divorce?" Although the answer to this question is relatively simple, there are some complications that you should keep in mind.

A common law marriage (or "Informal Marriage" as it is called in Texas) can be established in two ways:

(1) By the actual signing of a "Declaration of Marriage" under Texas Family Code, Section 2.402 -- by signing the Declaration, the law will treat the parties as having been married for all purposes; or,

(2) By creating an Informal Marriage under Texas Family Code, Section 2.401 (a) (2).

Under the second scenario, the Informal Marriage is created by: (a) forming an agreement that the parties are to be married, (b) by living together (or "co-habitating"), and (c) by holding themselves out to the public as being married. It also bears noting that the parties must have been "unmarried" at the time of their agreement. If they were actually married, then the second marriage would be void under Texas Family Code, Section 6.202. Interestingly, you could overcome the impediment to marriage by actually ending the prior marriage(s) and then continue living together as husband and wife (and continue holding yourselves out as being married), then the marriage would be essentially ratified under Texas Family Code, Section 6.202(b). It is also important to note that in order to have the requisite consent to marriage, the persons forming the agreement to be married must be over the age of eighteen (18).

As a result, clearly you cannot become married only by living together. This is true, even if you have a child or children together. More is required. So, the answer the question: "Should we file for a Divorce if we have just lived together?" is probably "no." You should also be aware that Texas law provides for a cut-off period for establishing the common-law or informal marriage. After you have stopped living together, your "spouse" will have two years within which to "establish" the "Informal Marriage." Texas Family Code, Section 2.401(b). Significantly, this provision applies in other contexts other than just a Divorce -- perhaps, say a Probate or Administration of an Estate, too, for example.

Many people believe that after the two years is up, there is no need to get a divorce (even if they were common-law married). In my opinion, this is a bad idea. A rebuttable presumption is just that -- rebuttable. Let me give you an example that maybe you haven't thought about. You start living together with your boyfriend and at some point agree to be married, you (or he) start telling others that you are married. The law now treats you as being married. Let's take it a step further and say that you decide to separate and not get a Divorce. What happens if you have significant property? What happens if you die? You may have an incentive for the other person to file a divorce action, a challenge to your probate, or show up at an administration of your estate later on. The rebuttable presumption is nice, but this it not the same an an actual "adjudication," or court decision that is much more difficult to overcome later. To complicate matters, if you are deceased, you are not there to tell your version of events.

As a result, if you are common law married (or if there is, perhaps, any possible argument that you could be), and you decide to stop living together, it may be best to actually get a divorce. This is especially true if you either: (a) plan to get remarried -- you don't ever want to be accused of "Bigamy," under Texas Penal Code, Section 25.01, or (b) you have significant property, inheritance, life insurance, etc., and don't want to be a target for a vengeful former spouse.

Taking the law into your own hands can be very dangerous, if you have questions about how any of this works, you should seek the advice of an experienced divorce lawyer or Texas Family Law Attorney.

Tuesday, April 14, 2009

Geographical Restrictions and Relocation Issues in Austin and Travis County Texas

Geographical restrictions and relocation issues generally come up in three contexts: (1) at the time of a divorce or other Suit Affecting the Parent-Child Relationship (“SAP-CR”), (2) during a suit for modification when one parent seeks to move or “relocate” and there is a geographical restriction which does not permit this move, or (3) where there is no geographical restriction – or the restriction is insufficient – to prevent the proposed relocation, and the other parent wants to prevent the relocation – also usually with a suit for modification.

Because of our rapidly changing world regarding relatively inexpensive video-conferencing options, the constant connectivity of the internet, and relatively quick airline options, the attitudes of Judges and our law has been changing – although slowly. Here are some of the basics regarding Geographical Restrictions and Relocation Issues in Texas.

A. Texas Public Policy.

The Texas Family Code sets out that it is the public policy of the State of Texas to:

(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child;
(2) provide a safe, stable, and nonviolent environment for the child; and
(3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

Tex. Fam. Code § 153.001(a)(1). As a result, obviously, “frequent and continuing contact” between parent and child is more likely when the child lives nearby. This is the primary reason that Geographical Restrictions are imposed.

Also, on the subject of “frequent and continuing contact,” it should be noted that the Texas Family Code, Section 153.137, makes clear that the Standard Possession Schedule only constitutes a presumptive minimum amount of time that a parent should have with his / her child.

B. Best Interests of Child.

For decades the Legislature has made clear that Texas Courts should be primarily concerned in conservatorship and possession and access issues with what is in the “best interests of the child.” Tex. Fam. Code § 153.002. As a result, and because of the fact that there is sometimes a big debate between parents as to what is “best” for their children – especially when the parents reside in two different homes or come from differing cultures – there is much room for disagreement as to whether the Court should impose geographical restrictions, and whether a proposed move (or relocation) due to family, job opportunities, or other issues, will be deemed to be in the child’s best interest. However, we should keep in mind that this will ultimately be what the Courts are concerned about.

C. Who has the Right to Choose?

If a parent is appointed as the “Sole Managing Conservator,” or SMC, then this parent usually has the exclusive right to determine the primary residence of the child. Also, the individual who is appointed as the “primary” Joint Managing Conservator, or JMC, will also likely have the exclusive right to determine the primary residence.

It should also be noted that under the “Parenting Plan” provisions of the Family Code, the Final Decree granting conservatorship must either:

(1) establish a geographic area for the residence, or
(2) specify that the managing conservator may determine the residence without regard to geographic location.

Tex. Fam. Code §§ 153.133; 153.134.

D. Types of Geographical Restrictions.

The primary custodian is oftentimes restricted to a specific geographical region. Some of the more common restrictions are:

(1) mile limitation – say 100 miles;
(2) The County of the Suit;
(3) The County of Suit and “contiguous” or “adjoining” counties;
(4) The entire State of Texas; or,
(5) A specific city.

For example, in the Austin, Texas area, a common geographical restriction that courts might impose upon the primary conservator might be “Travis County or any county adjoining Travis County.” If this provision were part of your divorce decree it would mean that you could relocate to any home (house, apartment, condominium, etc.) within Travis County, or any county that abuts Travis County – these counties are: Blanco County, Burnet County, Caldwell County, Hays County, Lee County, and Williamson County.

E. Modification Lawsuits.

In the typical modification lawsuit, the Court is concerned with whether there has been a “material and substantial change in circumstances” in order to justify the change in terms. In suits for modification, it has been specifically held that a parent’s (or conservator’s) desire to move (or relocate) can be a material and substantial change in circumstances. Bates v. Tesar, 81 S.W.3d411, 430 (Tex. App. – El Paso 2002, no pet.). However, no every desired move will bring about a material change. Id. In determining whether the move is justified, and in addition to the “best interests” of the child as addressed above, the Court will look to:

(1) The distance of the proposed move;
(2) The proximity, availability and safety of travel arrangements.
(3) The quality of the relationship between the non-primary parent and child;
(4) The nature and quantity of the child’s contact with the non-primary conservator;
(5) The possibility that the relation would deprive the non-primary conservator of regular and meaningful access to the child;
(6) The impact of the move on the quantity and quality of the child’s future contact with the non-primary conservator;
(7) The motive for the proposed move (or opposing the move); and,
(8) The feasibility of preserving the relationship between the non-primary conservator and the child through suitable visitation arrangements.

F. Allocation of Relocation Expenses.

The Family Code allows for the court to allocate any increased expenses resulting from one conservator’s relocation. Tex. Fam. Code § 156.103. The allocation is to be made “on a fair and equitable basis, taking into account the cause of the increased expense and the best interest of the child.” Id. The statute creates a rebuttable presumption that any increased expenses should be paid by the relocating party.

G. Jury Issues.

It should be noted that not all issues arising in the context of a family law matter may be submitted to the jury; however, under Texas Family Code § 105.002, with regard to relocation, a party is entitled to a verdict by the jury and the court may not contravene a jury verdict on the issues of:

(1) the determination of which joint managing conservator has the exclusive right to designate the primary residence of the child;
(2) the determination of whether to impose a restriction on the geographic area in which a joint managing conservator may designate the child’s primary residence; and
(3) if a restriction is imposed, the determination of the geographic area in which a joint managing conservator must designate the child primary residence.

H. Remedies for Violation of a Geographical Restriction.

The Court can take action with respect to any parent who violates a geographical restriction. If the move is without the parent’s consent, the non-relocating parent could file a Habeas Corpus action commanding a peace officer or the conservator to produce the child to the Court. The Court can also use the geographical restriction violation to modify the Court’s order, including up to modifying conservatorship, or perhaps other potential modifications of the Order. Finally, the Court can issue a Show Cause Order, and hold a contempt hearing to determine whether punitive contempt (i.e. – incarceration or fine) is appropriate.

If issues relating to geographical restrictions are likely to come up in your Divorce or SAP-CR case, or if you expect to have issues concerning relocation matters, or a modification suit, you should hire an experienced family law attorney to help you with your case.

Wednesday, April 1, 2009

Austin Lawyer Tip: Retroactive Child Support.

In both Texas paternity cases and other Suits Affecting the Parent-Child Relationship “SAP-CR” cases (including Divorces), a Texas court may order so-called “retroactive” child support, or what is essentially back child support for periods of time in the past where child support was not ordered, but where there was a duty of support.

In a Texas paternity case, absent evidence that the prospective obligor knew about the obligation and “sought to avoid the establishment [of an Order],” the Court will presumptively limit the award of retroactive child support four years of support. Tex. Fam. Code § 154.131. In setting the amount of retroactive child support, the court shall consider the net resources of the obligor during the relevant time period and whether:

(1) Whether the mother of the child had made any previous attempts to notify the obligor of his paternity or probable paternity;

(2) Whether the obligor (Dad), had knowledge of his paternity or probable paternity;

(3) Whether the award of retroactive support will impose an undue hardship upon the obligor or his family, and

(4) Whether the obligor provided any actual support or other necessaries before the filing of the action.

In ordinary SAP-CR cases under Tex. Fam. Code § 154.009 (a), the Texas Courts can order a parent to pay retroactive child support if the parent:

(1) has not previously been ordered to pay support for the child; and

(2) was not a party to a suit in which support was ordered.

Notwithstanding Subsection (a), the court may order a parent subject to a previous child support order to pay retroactive child support if:

(1) the previous child support order terminated as a result of the marriage or remarriage of the child's parents;

(2) the child's parents separated after the marriage or remarriage; and

(3) a new child support order is sought after the date of the separation.

In these situations (as contrasted with paternity, above), the Court may order retroactive child support back to the date of the separation of the child's parents.

It is also significant to note that unless the Texas Office of the Attorney General was “a party to an agreement” which settles past, present, or future support obligations by prepayment or otherwise, an agreement between the parties does not reduce or terminate retroactive support when the Attorney General so requests.