Texas Divorce Tips

Complaint for Divorce

2011-01-12T11:38:00.002-06:00

In today's economy, more folks are trying to save money on their divorce by getting forms online and filling them out and filing them without a lawyer. Unfortunately, divorce law is not as cookie-cutter as online forms sellers would have you believe. And divorce laws are significantly different in each state. The divorce forms folks get over the internet are usually prepared by non-lawyers, and they're almost never prepared by a Texas lawyer.

One way to tell that your divorce papers were prepared by someone who isn't a Texas lawyer is if the title of any form contains the word "complaint" or refers to the person filing for divorce as a "complainant." In many states the document used to start a lawsuit, including a divorce, is called a complaint. But not in Texas. Texas divorce law refers specifically to the Original Petition for Divorce, and the person who files for divorce is referred to as the Petitioner (and the other person is the Respondent).

Testing

2010-05-27T14:12:00.001-05:00

Recently I migrated the Texas Divorce News blog because Blogger discontinued support of publishing by FTP. This is a test to make sure things are up and running again. Thanks!

Do It Yourself Divorce Forms

2010-02-06T13:02:00.003-06:00

Lots of divorce forms available over the internet claim to be "valid in all 50 states", and people often ask if the forms are "legal". The answer isn't simple, but the questions you should be asking are whether the judge will sign the forms, and whether they offer you the same protection as papers drawn up by your own Texas lawyer. I've just created a list:

Top 13 Signs Your Divorce Forms Weren't Written by a Texas Lawyer (and are likely to be rejected by the judge):

Your packet includes a Complaint For Divorce, or anybody in the document is referred to as a "complainant"
Your packet includes or refers to a Marital Settlement Agreement
Your packet includes or refers to a Marital Property Agreement
The final order doesn't include all of the warnings and admonitions required by the Texas Family Code (divorces with children)
The packet doesn't include a detailed script for what to say when you're standing in front of the judge (the judge is prohibited from telling you what to say)
The packet includes or refers to a Quit Claim Deed (this can really screw things up in Texas)
There's no paperwork to protect you if your spouse is supposed to keep the house and make the mortgage payments, but doesn't actually make the mortgage payments.
If there are children, there isn't a statement in the papers presented to the judge that states whether there has been a history or pattern of child abuse or neglect within the last two years
If there are children, the word "visitation" is used regarding the time parents spend with the children.
There is no language about where the primary parent can live with the children.
There is no language about making child support payments through the State Disbursement Unit in San Antonio (comlete with their mailing address)
There is no language about withholding for child support from the payor's paycheck
An Employer's Child Support Withholding Order isn't included in the packet

While we're at it, here are the top 4 questions a judge will ask at the final hearing that will stop a divorce cold, if the parties don't have an attorney to help them prepare answers:

Why should I approve this non-standard possession order?
Why is there no time ordered when the father can have the kids with him?
Why isn't child support being ordered?
Why should I approve the payment of child support directly, instead of through the State Disbursement Unit, as provided by law?

Austin Woman Says Her Gay Marriage is Void

2009-12-17T12:58:00.002-06:00

I suppose it was bound to happen sooner or later, but it still surprised me to learn this. According to the Dallas Voice blog, a lesbian couple married in Massachusetts in 2004 and adopted a child together. They moved to Texas and one has filed for divorce. The other one is taking the position that gay marriage is not permitted under Texas Law, therefore there can be no divorce in Texas, so let's divide stuff as though we were roommates.
http://www.dallasvoice.com/instant-tea/2009/12/16/austin-woman-contests-wifes-divorce-petition-by-arguing-that-their-marriage-is-illegal/

Of course, this is taking the opposite position of the two men married in Massachusetts, moved to Texas, filed for divorce here, and the trial court judge has ruled that it is unconstitutional for Texas to prevent folks married in another state from pursuing a divorce here. This case is still in the early phases, and it's certain that when this case is over somebody's going to appeal it, and it's in the appellate court system that you get rulings that amount to law.

I guess that in nearly every divorce it would be advantageous to one side or the other to be able to claim that the parties were never married in the first place. If the parties are married, everything they have is presumed to be community property, subject to a "just and right" division, and if you want to claim something isn't community property, the burden of proof is on you to show that you had it before the marriage, or you got it by gift or inheritance.

If there's no marriage, then there's no community property, and you divide stuff like roommates would, including discussions of who actually paid for something, whose name is on the title or receipt, and whether something was a gift to the other.

In this particular gay relationship, whether there's a marriage or not doesn't make much difference regarding the child they adopted. The court would still make the same decisions and on the same basis on parental rights, possession schedule, and child support whether there's a marriage or not. Adoptive parents are legal parents whether they were married or not, and whether they are gay or straight.

What are the odds?

2009-12-02T14:39:00.002-06:00

I just read an Ezine article by Virginia Keeley who quotes some Texas divorce statistics. Here's a link to the article: http://ezinearticles.com/?Youre-Not-Alone---A-Look-at-Recent-Divorce-Statistics&id=3138848
Let me know if this link doesn't work and I'll snip it out.

She says her numbers come from the Census Bureau, the National Center for Health Statistics, and other independent studies.

According to the article, the average divorce rate in the United States in 2007 was 3.6 per 1000 persons. And, by the way, I believe that the 1000 includes infants, children, bachelors, and widows. So, on average, there would be about 856,000 divorces each year in the United States. But, if Collin County's population is 500,000, you'd expect to see something like 1,800 divorces a year in Collin County, or about 7.2 divorces filed each day that the courts are open. That seems a bit low to me, but feels like it's in the ballpark.

At any rate, her statistics state that of those marriages that end in divorce, first marriages last "an average of 8 to 11 years" and remarriages that end in divorce last an average of 7.4 years for men and 7.1 years for women. This is vaguely in line with a study I did about Texas marriages that end in divorce, mingling first and subsequent marriages, that showed that Texas marriages ending in divorce lasted a little over 7 years (the 7-year itch?).

What I found most interesting was this:
• If you have an annual income of over $50,000, your risk of divorce decreases by 30%.
• If you wait to marry until you're over 25, your risk of divorce decreases by 24%.
• If your parents are happily married, your risk of divorce decreases by 14%.
• If you have strong religious beliefs, your risk of divorce decreases by 14%.
• If you've attended college, your risk of divorce decreases by 13%.

I've never really seen good statistics on the odds of a marriage ending in divorce, but I'm thinking it's in the ballpark of 50%. So, if you start with 50% and apply the adjustments above, you appear to be able to drastically decrease your odds of being divorced, The problem is that if you satisfy all of the adjustments above, the odds of getting divorced are -95% (a negative probability is impossible).

I'm reminded of the quote from Mark Twain: "There are three kinds of lies: lies, damned lies, and statistics."

Gay Marriage Recognized - then unrecognized - then ??

2009-10-02T07:56:00.006-05:00

Dallas Morning News, Friday, October 2, 2009, front page, "Texas judge rejects gay-marriage ban."

The Honorable Tena Callahan, Democrat, Presiding Judge of the 302nd Family District Court in Dallas, ruled that two men married in Massachusetts could legally proceed with their divorce in Texas. She ruled that prohibiting their divorce violated the equal protection clause of the 14th Amendment to the United States Constitution.

It appears that the men had been in relationship for some time, moved to Massachusetts together a few years ago, got married there, moved back to Texas, and filed for divorce in Dallas, and it was randomly assigned to the 302nd District Court. State Attorney General Greg Abbott (Republican) intervened in the divorce to convince the Judge Callahan that the Texas Courts were prohibiting from dissolving a gay marriage, because under Texas law there was no marriage at all. Texas Law specifically defines marriage as the relationship of one man and one woman.

So far this is only the opinion of one judge. Until this is appealed and upheld by an appellate court, there is no authority anyone can cite in other similar cases. Similar cases are working their way up through the appellate courts of other states.

Because this hangs on the United States Constitution, this can ultimately be resolved only through a decision of the United States Supreme Court. I would be surprised by a speedy ruling by the US Supremes. I suspect that they'll want to see the rulings of a number of state supremes to weigh their logic and authority.

-0-0-0-0

Update 10/4/09. I just saw a clip of a network TV news interview with one of the men in the divorce proceeding. He and his lawyer are quick to say that they didn't engineer this as a test case for gay marriage, as it's Attorney General Greg Abbott that had a press conference on the matter, not them, and I'll grant them that. However, Mr. J.B.goes on to say that this isn't about gay marriage, but about gay divorce, and that this is completely different, and I completely disagree on this point. In order for a Texas court to have jurisdiction over a gay divorce, the courts must necessarily recognize the validity of a gay marriage from somewhere else. Recognizing a Massachusetts gay marriage doesn't get you all the way to allowing gay marriages in Texas, but in my opinion it's more than half way.

-0-0-0-0-0

Update 8/5/10. Just saw a news article that the Dallas Court of Appeals affirmed the trial judge's ruling that a same-sex couple married in another state had standing to file for divorce in Texas.

I suspect that this will be appealed to the Texas Supreme Court, and perhaps to the U.S. Supreme Court.

-0-0-0-0-0

Update 9/2/10. This week the Court of Appeals overturned the trial judge's ruling in the divorce of the two men married in Massachusets. They discarded the equal protection argument, and ruled that if you can't get married under Texas law, then you can't get a divorce, either. And, I think this one's on its way to the Texas Supreme Court as well.

Memory Foam

2009-09-15T09:12:00.002-05:00

If you want legal advice, go to a lawyer. If you want relationship advice, go to a professional counselor. But, since you asked, here's a little relationship advice from a lawyer.

Way too often, I'll see folks come to me about a second divorce -- less than a year or two after their previous divorce. I've been curious about this phenomenon, and have been paying attention to some information tidbits that float by me.

At a conference for divorce lawyers a very interesting statistic was thrown out. I can't remember it exactly, and have been unable to run down the source, but the essence was something like this: "Of all relationships begun within 2 years of a divorce, in which the new relationship ends in a marriage, 87% of those new relationships end in divorce."

You may need to read that several times to really pull it apart, but the essence is that after a marriage, you need some time to re-set, to become an individual, before you can productively enter a new relationship.

The image that comes to my mind is that of a memory foam mattress "as shown on TV". You push your hand into the mattress, then remove your hand, and for a while the outline of the hand is still visible.

To me, it seems that whether it's a good marriage or a bad marriage, being married to someone leaves an imprint on you like on that memory foam mattress in the TV commercial. We form patterns of behavior and thinking because of the marriage, whether they're productive and helpful behaviors or not.

Then, when that relationship ends and a new relationship comes along, if it hasn't been long enough for the imprints of the previous marriage to fade, a lot of the behaviors and patters of the new relationship are reactionary: the primary filter is the extent to which the new behaviors or values or whatever are different from or the same as the previous patterns.

There's a lot to be said for long courtships, but there's also a lot to be said for just staying out of relationships for a while to give you a chance for the memory foam imprints to fade, before you go exploring new relationships.

No Primary

2009-09-08T11:38:00.003-05:00

The legislature just meets every two years, but when they meet they always make a lot of changes to the Texas Family Code. This time most of the changes were minor, or about cleaning up language, or don't really deal with the kinds of family law that I practice, Civilized Divorce. There was, however, one change that can affect my clients. For divorces filed on or after September 1, 2009, the parties may agree not to name either parent as the parent who has the right to determine the primary legal residence of the child, provided that the parents do agree that the residence of the child shall be restricted to a specific geographic area, such as Collin and contiguous counties.

Many parents would be negotiating the terms of divorce, and neither party wanted the other to "win" on the right to determine the legal residence of the child, even though the parents were still pretty agreeable on the terms of possession for the children. But mediators would have to keep sending them back in to reach an agreement, because the law previously required that one party be named as the "primary" (the parent with the right to determine the primary legal residence of the child).

So, now, if this is the only thing keeping parties from settling, they can agree that neither parent has the right to determine the primary legal residence of the child.

Now some folks will see this as the key to also having no child support. Well, the parties can agree that there will be no child support, but that's almost never what a judge would do if the case came down to a trial. There has been a LOT of litigation about which parent is responsible for what expenses of the child, whether the other parent has an obligation to contribute, and whether the person receiving child support is required to give an accounting of how child support money was spent.

The courts found long ago that the way to stop all the squabbling about expenses for the children is to make one parent responsible for most of the expenses of the child (school supplies, clothing, etc.) and for the other parent to pay child support. The amount of child support is based on the income of the person paying support. And the person receiving support does not have to account for the money. And the obligation to pay for school supplies and clothing has nothing to do with who has the right to determine the legal residence of the child, or even how many nights a year the child spends at a particular parent's house. So, while the parties can agree that no child support is paid, if a judge has to decide, he or she will choose the option that makes it less likely that the same folks will be back in court in a few months arguing over child support or the expenses of the child: one person will be required to pay child support.

50% Possession = No child support?

2009-09-03T21:43:00.002-05:00

One of the questions I get most often (especially from dads) is: "We've agreed on Joint Custody. That means I don't have to pay child support, right?"

Well, first, the question is wrong. "Custody" is a word that doesn't appear in the Texas Family Code, and really shouldn't be used in discussions about divorce. When one says "custody", he's usually talking about two different concepts: conservatorship and possession.

Conservatorship means the rights and responsibilities of each parent toward the child, such as the right to make educational decisions for the child, and the obligation to pay for health insurance for the child. The obligation to pay for the child's day care, after school care, school supplies, clothing, and karate lessons. The obligation to pay child support.

Possession refers to when each parent has the right to have the child with him or her.

Under a 50/50 possession schedule, most of the expenses of the child are not materially different from under a standard possession schedule. Paying for half the child's groceries isn't nearly as significant as the obligation to pay for school supplies, clothing, and so on.

Lawyers are trained to see how things can go wrong, and to try to limit those opportunities, or at least to provide for what can be done to remedy them. You don't need a lawyer to tell you to share the expenses of the child. But a lawyer will tell you that there has been a great deal of litigation (and attorney's fees) over who is responsible for what expenses of the child if the parents stop agreeing. After decades of litigation, the legislature set up the Texas Family Code to provide that one parent is responsible for the expenses of the child, and the other parent is responsible for paying child support. It just saves so much wrangling in the courtroom. You don't argue about whether $50 is too much to pay for jeans, or that the other parent bought a $40 shirt for the child. One parent pays child support per the guidelines, and the other parent buys whatever she/he believes is necessary (and that she/he can afford) for the child.

Note that the costs for providing for the child's after-school care, clothing, school supplies, extracurricular activities and such have little to do with whether the child spends 2 nights, 3.5 nights, or 5 nights a week with a particular parent. That's why a 50/50 possession schedule has nothing, directly, to do with whether child support will be paid.

Now, the parents can agree to darned near anything they want on conservatorship, possession, and child support. But a good lawyer will likely try to talk them out of an unusual arrangement, because the lawyer sees how many ways this can go wrong, and doesn't want to be accused of negligence when things fall apart and someone doesn't have a legal remedy. And, if you don't reach an agreement and you have a trial, the judge WILL order that only one parent will have the right to determine the legal residence of the child, and the other parent WILL have to pay guideline child support, and will have possession of the child according to the standard possession schedule.

You Don't Want to Know

2009-07-21T10:19:00.002-05:00

Yesterday I was speaking with someone, and he said he had had a "close call." I asked him what happened, and he said, "You don't want to know."

Now, when I was younger I would probably have let my curiosity get the better of me, and I'd hound him until I got a better idea of what was going on.

But as I've gotten older and wiser (and more experienced as an attorney), I've learned that when people tell me "you don't want to know," they're probably right. Knowing would burden me with ethical concerns, and perhaps the obligation to say or do something.

Similarly, there is a couple I've known for several years who have filed for divorce. Neither one of them has consulted with me or hired me, so my interest is purely personal. I'm dying to learn why they're divorcing. But when I look at my motives, I don't need to know the reason for the breakup in order to be a good friend to either of them. I'm afraid my curiosity is really rooted in a desire for gossip -- and that's a place I don't need to go.

2-2-5-5 Possession Schedule

2009-07-14T09:13:00.002-05:00

Recently some other divorce attorneys called my attention to the "2-2-5-5" possession schedule (I had never heard of it before). Several marriage counselors say they like it, but I haven't made up my mind, yet.

The schedule is designed to give each parent half the time, while avoiding some of the pitfalls of other ways of doing it. One way of doing 50/50 is trying to split a week (which is difficult to do without giving one parent all the weekends). Another is to alternate weeks (Dad gets a week, then Mom gets a week), but most child development specialists say that children need more frequent time with each parent, not necessarily so prolonged.

2-2-5-5 is much like the name sounds like. Start with either parent (let's flip a coin and say Dad). Dad gets Monday and Tuesday; then Mom gets Wednesday and Thursday; then Dad gets Friday, Saturday, Sunday, Monday, Tuesday; then Mom gets Wednesday, Thursday, Friday, Saturday, Sunday. So, over the course of two weeks, each parent gets an extended weekend, and each parent gets half the time.

But I have several concerns about the 2-2-5-5 schedule, most of the practical issues having to do with the nuts and bolts of actually putting the Possession Order together so it still works with the messy complications of real life.

Take Spring Break for example. Often one parent will want to take the child (or children) for the entire Spring Break for a ski trip, or a trip to Disney World, or just to go see family. Under the Standard Possession Schedule, one parent always gets Spring Break in odd-numbered years, and the other gets Spring Break in even-numbered years, so these sort of things sort themselves out. But it's not clear where you'd get back into the 2-2-5-5 schedule after a Spring Break.

Or take Thanksgiving. If Dad gets the first 2 of the 2-2-5-5, then Mom gets every Thursday. And Thanksgiving is always on Thursday. So Dad never gets the kids on Thanksgiving. Don't know if that's a problem or not.

And a more subtle but more pronounced problem is that it's impossible to tell at a glance at the calendar 6 months from now who has the child when. The Standard Possession Schedule solves this problem by not using the term "every other weekend", and instead going with "on weekends, beginning on the first, third, and fifth Friday of each month" - which is very slightly more generous than every other weekend, but it has the great advantage that you can look at a calendar 2 years from now and tell who gets the kids each weekend. The 2-2-5-5 schedule just doesn't work unless you count weekends. And there's no natural way to reset the 2-week cycle after an interruption such as a holiday, Spring Break, summer possession, or a child's birthday.

Custom possession schedules work best when the parents remain cooperative and flexible, and agree to exceptions to the schedule as the need arises. But they often fail when the parents become uncooperative, which usually means a trip back to court, and often means that the judge imposes the Standard Possession Order (because it is tested and tried, and all the loopholes have been squeezed out).

Sometimes my client will tell me that he or she and his/her spouse have agreed to a non-standard possession order and I'll prepare the papers. But then the spouse will ask another attorney to review the papers, and that attorney will point out all the potential problems with a non-standard possession order, and we wind up going back to standard, which often results in additional fees to my client for a substantial rewrite of a big portion of the divorce decree.

Issues with do-it-yourself divorces

2009-06-10T17:33:00.002-05:00

Nothing wrong with forms: I use them myself. Mine cost me $100 a month, every month (so they’re updated continuously), but they’re designed to be used by a lawyer, and the software asks questions a non-lawyer wouldn’t be expected to understand. The State Bar of Texas Family Law Section publishes forms for divorces, but the paper form just for one document, the Final Decree of Divorce, takes up an entire 3-ring binder, over 3 inches thick.

To do a divorce right, you have to know a lot about community property law, contract law (debts and credit cards), family law, retirement and tax laws. The laws are sufficiently diverse, complex, and intertwined that the issues really can’t be boiled to a booklet or video to help you do it yourself. I offer a free Civilized Divorce Guidebook to folks whose mailing address is within 18 miles of my office, but the Guidebook is mostly for helping folks know what sort of options there are in solving problems, and doesn’t even attempt to tell someone what language to use in a divorce decree to solve the problem.

There’s very little opportunity for a “do-over” if you get a judge to sign a Final Decree of Divorce and later find out that you should have done things differently. Ironically, you can usually have a do-over regarding children’s issues (possession schedule, child support, and so forth) than you can with money, property, and debt issues, because the judge generally loses the authority to reopen a property division 30 days after the divorce decree is signed. Example: Owelty Deed.

Clerks at the courthouse, and judges, are PROHIBITED from helping you with your divorce. Nearly any question you’d ask a clerk is calling for legal advice, and clerks aren’t lawyers, so they cannot give legal advice. Judges must remain impartial, and telling someone how to do something would eliminate their impartiality. Judges can’t even tell you what to say to get the judge to sign an agreed divorce.

Anybody who acts as a mediator on a divorce and also draws up the papers for the divorce is either practicing law without a license (a felony), or is in danger of losing his or her law license. Mediators are supposed to be impartial, but drawing up divorce papers cannot be impartial (by Texas Supreme Court ruling).

And most lawyers will simply refuse to meet with a couple (both husband and wife) looking at divorce. It’s a conflict of interest for a lawyer to give legal advice to both sides of a lawsuit, and a divorce is a lawsuit.

Now, having said that, if a divorce is simple enough, you probably can do it yourself. Here’s what I mean by simple enough:

1. Either no minor kids of this marriage, or y’all expect to be agreeable on children’s issues until the children turn 18. If you want the divorce decree to ensure that you have certain rights regarding the children, you’d best have a lawyer draw it up.

2. Property division is a simple “you keep yours and I’ll keep mine”, where you don’t have to decide how to split something, and you’re not moving money out of anybody’s retirement account.

3. Either no real estate, or you plan to sell the house and split the proceeds. If one of you is going to own the home after the divorce, you’ll want a lawyer to draw up those papers.

4. Either no credit card debt, or each of you will be responsible for the balances on the credit cards you personally applied for.

Then, there are things that not only mean you shouldn’t do it yourself, but also mean that you won’t be agreeable, and you’ll both wind up with lawyers, and may have a trial or some hearings:

1. One of you thinks the other one is hiding money or debt

2. You need to deal with something that you don’t know the value of, such as a small business.

3. One of you has addiction issues.

4. One of you can’t be trusted with the children.

5. Generally, you can’t agree on EVERYTHING.

Some form publishers put in some sort of disclosure that the forms are not intended to be a substitute for a lawyer’s advice. And some go on to suggest that you can save a lot of money by drawing up the documents yourself and then paying a lawyer to review them. But I find it takes more attorney time to review someone else’s documents than to prepare them myself. Before I can review your documents, I have to at least mentally prepare the same document, then make sure you have everything in yours that I have in mine, that you didn’t put anything new in, that the way you said things means the same thing as the way I said it, and I have to figure out where you put the parts if they’re in a place where I didn’t put them. And I’m concerned that I have as much legal liability if the document isn’t right as if I had prepared it myself.

Discovery Level

2009-04-23T18:57:00.003-05:00

I recently had a client ask me about a paragraph in the Petition for Divorce I filed for him which contained the following paragraph:

"Discovery in this case is intended to be conducted under level 1 of rule 190 of the Texas Rules of Civil Procedure. No children are involved in this divorce case, and the value of the marital estate is more than zero but not more than $50,000."

Back in the olden dayes, when my dad was just beginning to practice law, you filed your suit, you showed up at the courthouse, you had a trial, told your story, and had the judge or jury decide who won and how much money changed hands.

The trouble was that if a little guy was suing a big company (like the streetcar company), he just didn't know if the big company had a history of doing negligent things, enough to get the jury mad enough to send a signal to the company to fix it. As a general rule, the Corporation had the upper hand.

Several decades ago, in order to make more cases settle (and make the judges not work so hard), they came up with "discovery", which is the process by which each of the parties involved in lawsuit could require the other side(s) to produce certain information. The theory is that the more information that changed hands about a lawsuit, the fairer everything was, and the more likely things would settle. So, the lawyer for Joe Schmoe, injured in s a streetcar accident, could make the streetcar company "produce" (or provide) information on who else was riding the streetcar that day, how many accidents like that the streetcar company had had in the last few years, how many times this conductor had been disciplined for showing up for work with alcohol on his breath, and so on.

Then, a couple of decades ago, discovery abuse gave rise to what they call "Rambo Litigation" in which one side would require so much information and so much work that folks would settle the case for an unfair amount just to get away from the Rambo litigation sausage factory. Joe Schmoe would conduct 8-hour depositions of darned near everybody that ever worked for the streetcar company, and would request every maintenance record on every streetcar going back 10 years.

Then, a little over a decade ago, they revised the rules, impemented Rule 190 of the Texas Rules of Civil Procedure, and standardized how much discovery could be conducted, and how it would be conducted, depending on the complexity of the case. Level 1 cases were the simplest cases, and limited discovery was permitted. Most cases were Level 2 cases, and more discovery was allowed. And if your case was more complex, you called it Level 3, and had a conference with the judge about what sort of discovery would be allowed.

In a divorce, it can only be Level 1 (most limited discovery) if there are no kids, and the value of the community property estate is more than zero but less than $50,000. Now, that's odd, because there's no reason why the discovery should be more involved if the value of the community property estate is less than zero (more debt than assets), but that's the way the legislature passed the bill.

I'll never file a case as Level 3, because I don't plan to conduct any discovery at all. If more discovery is necessary, my client would be hiring a different lawyer.

Question from Seminary #7

2009-04-20T10:43:00.003-05:00

Please speak to protective orders? Does a divorce have to be at least files before a wife can file restraining orders on her husband who might be harassing her or stalking her?

There's more on my web site here.

Most of these do require that a lawsuit has already been filed (or is filed at the time the protection is sought), such as a divorce or a paternity proceeding. And these are generally punishable by contempt. That is, you get the judge to issue the order, then you have the order served on the other party (to give them notice that they're ordered to do something or not do something). Then, if the other party violates the order, you have to set a hearing, give the other party notice, and then ask the judge to punish the other party for disobeying the order. So, it's not particularly quick, and not particularly cheap, but a judge can fine or jail someone who the judge finds to be in contempt of court.

In Dallas, Collin, Denton and several other counties, a Standing Order is attached to every Petition for Divorce which orders both parties to not mess with each other (such as by redirecting or opening mail, raiding bank accounts, taking the children out of state, and so forth). But to get any enforcement, you have to prove that the other side knew about the order, which usually means having them served by a process server or constable.

Then there's the Protective Order which normally arises from an arrest, and is issued by the judge or magistrate that sees the prisoner in jail and advises him of his rights. Here's how this works: Boyfriend ("BF") beats up Girlfriend ("GF"), who calls the police, who arrest BF and take him to jail. At the time of the arrest the police give GF a sheet of paper advising her of her right to request a Protective Order. While BF is in jail, GF goes to the same jail and fills out paperwork to request a protective order. The judge or magistrate will speak with GF, make sure she wants to do this*, and verifies that all the needed information is on the form. The judge signs the order and tells BF about it, and a copy of it is put in BF's personal property that he gets when he gets out of jail.

The Protective Order will typically order BF to stay at least 500 yards away from GF, GF's children, GF's place of employment, GF's residence (even if it's still BF's residence), GF's children's schools, and so forth. The Protective Order is faxed to the police or sheriff with jurisdiction at each of those locations. Now, if GF sees BF in a prohibited place, she calls 911, and the police immediately arrest BF and take him to jail until he can go in front of a judge to explain himself. This example talks about boyfriend and girlfriend, but the process is identical if the parties are married to one another.

*Judges are not wimpy about issuing Protective Orders, but when battered women learn that the batterer would be ordered specifically not to return to the home, the woman knows he won't be bringing his paycheck home, either. Because of the psychodynamics of the cycle of violence and the control issues of the batterer, the battered woman is so dependent on the batterer that she is unwilling to request the Protective Order.

I don't have any specific experience with stalking cases, and the victim should contact the police department.

Question from Seminary #6

2009-04-13T16:22:00.001-05:00

Last month I was invited to speak to the counseling class at Southwest Theological Seminary. They prepared a few questions in advance. This is one of them.

Do you see any significant differences that people's Christian faith plays in their attitudes toward divorce?

First, a soapbox/smokescreen. I think that much (but definitely not all) of what the Bible says about divorce is related to the fact that a man could upgrade to a trophy wife and leave the previous wife uttlerly destitute financially. Nowadays, in the USA, a divorced wife is unlikely to starve to death or sleep under a bridge.

I also have been told that the divorce rate among Christians, perhaps especially "evangelical" or "fundamental" Christians is actually higher than in the general population. Is it, in part, that Christians are more likely to formalize their union in the first place?

I think that Christians feel more guilt when a marriage goes bad, whether it's their fault or not. They really see it as having failed in a commitment to God and their spouse. But, they also recognize that while it takes 2 to marry, it only takes 1 to quit.

But I also see that Christians are more likely to have a support group to help them through the divorce, if they can get beyond their shame and seek the help.

Question from Seminary #5

2009-04-06T11:38:00.002-05:00

How is the increase in cohabitation affecting the nature of divorce as you see it?

I don't have a high-level or long-term perspective, and I guess this is a question better posed to an anthropologist or sociologist. But I do observe that cohabitation without benefit of marriage has long existed.

Question from Seminary #4

2009-03-30T05:59:00.002-05:00

Last month I was asked to speak to the counseling class at Dallas Theological Seminary. Here's one of the questions they submitted in writing:

What constitutes a common law marriage in Texas? Time together? mailing address? Are they any harder/easier to dissolve in a divorce?

See Sec. 2.401 of the Texas Family Code, referring to "informal marriage". It requires an "intent" to be married (such as a marriage ceremony where it turned out the judge or preacher really wasn't a judge or preacher), "representation" to others that you are married (meet my wife), and "cohabitation" with no specific duration required. I guess it could be as simple as the bartender pronouncing you man and wife, then at the hotel you register as Mr. and Mrs.

First, this doesn't come up very often. Usually if a couple shacks up then moves on, they don't bother trying to establish a marriage. Even if there are kids, it's easiest and cleanest to deal with this as a paternity suit instead of proving a marriage and then doing a divorce. But there are two contexts in which it does come up.

In a wrongful death suit, the widow/widower claims a marriage existed so as to claim money the "spouse" would have earned as community property. That is, in a couple who were not formally married, the husband is killed on the job, such as on an offshore drilling rig, and the "wife" needs to prove that they were married (informally) so that she can get wrongful death benefits from the insurance company. These are generally much easier to prove, partly because the main person who could disprove the marriage is dead, and partly because it can be really messy trying to claim in a jury trial that the insurance company shouldn't have to pay up because the widow/widower wasn't sufficiently married to the deceased.

In another context, sometimes one party to an "informal" marriage wants to prove the marriage exists in order to get divorced to get a share of community property (if the parties weren't married, then there is no community property). Classic example: man and woman shack up, and wife buys a winning lottery ticket. Is the jackpot community property? In these cases, the courts have adopted a fairly strict requirement of "attempted marriage" out of policy concerns. In order to obtain the benefits of marriage, one must really be married, or have reasonably thought that they were married, instead of simply finding it convenient to now state that they were married. So, for wife to get a share of husband's lottery ticket, she'll be arguing that they really attempted to get married, and husband will be arguing that if they had meant to be married, they would have followed through and done it legally.

Question from Seminary #3

2009-03-23T06:10:00.002-05:00

I was recently invited to speak to the counseling class at Dallas Theological Seminary, and here's another of the questions they submitted in advance:

What are the most common building blocks of a "covenant marriage" in the states that have them? How popular are they? If some couple wanted to construct such a marriage contract here, how would they piece one together? Again, pros/cons?

Again, I'm a low-level practitioner, not a high-level theorist, so I haven't studied what other states are doing. I have no idea how popular they are. I'm vaguely and mildly opposed to covenant marriage, as it tries to impart to temporal government enforcement of a spiritual agreement. State legislatures generally don't do a good job of enforcing spiritual and personal covenants. Can you imagine going to court and having a jury trial over the issue of whether you were "cherished" or "honored"?

There's a lot more to contract law than simply saying what happens when it's over, and specifying damages. It also provides for damages before it's over, such as specific performance (you have to deliver the bowling balls I ordered, even if it means that you get them from somewhere else). But we don't enforce anything else from a covenant marriage, such as what happens if husband spends too much time at work, or if wife is no longer interested in sex.

Having said that, I believe that covenant marriages will produce a lot more money for divorce lawyers by prolonging and complicating the divorce process. Unfortunately, it will also be at the expense of those who need to break away from a loser/addict/quitter and start over.

I don't know how one would piece together an enforceable contract that would simply make divorce more time-consuming, complicated, and expensive. But you could probably insert some sort of economic penalty clause (e.g., we agree that either party files for divorce, they only get 35% of the community property estate, unless they can show addiction, adultery, compulsive dissipation of assets, physical abuse ...)

Question from Seminary #2

2009-03-16T09:37:00.001-05:00

Last week I spoke to the counseling class at Dallas Theological Seminary, and here's another of their questions:

2. Your opinions on prenuptial agreements? Pros/Cons?

The biggest single "pro", as I see it, is that you can greatly simplify the basic law on separate property. The law is that income (rent, dividends, interest, but not appreciation) on separate property is community property. You can agree in a pre or post nup that income on separate property is separate property, making it a lot easier to keep separate property from becoming tainted by community property claims.

Another pro is to be able to provide that contributions to your retirement account are also separate property, making things even simpler in a divorce, provided that both parties come in with roughly equal earning capability.

A general pro of prenups is to protect an earning spouse from a deadbeat spouse, such as by limiting access to alimony. I see a lot of husbands making good money, where wives feel it their right to not contribute to the economic union, due to lack of initiative (not due to disability or to a joint decision that it's necessary to stay home with the kids).

One con is that the economically weaker partner can be weaker in the marriage, making it less of a union and more of an employment contract. Especially if the stronger partner has a business which can be classified as separate property, and can thus control how much of his "reward" for ownership and labor can be distributed as community property income and how much is reinvested in his separate property.

A bigger con is that one can provide for NO community property. So there's nothing that's "ours", in many ways subverting the goal of a marital union.

Question from Seminary #1

2009-03-09T15:35:00.002-05:00

Recently I was the guest lecturer for the counseling class at Dallas Theological Seminary. Here's one of the questions they asked, along with my answer.

We are aware that there is no such thing as a "legal separation" in Texas. But for states where it does exist, what are its advantages? Are there piecemeal ways to arrange an effective "legal separation" in Texas?

Premise: If it takes longer to get divorced, a significant number will reconcile instead. I Don't know the statistics on this.

Premise: If it has to take a while to get divorced, you also need to put in some protections for the community property estate, access to children, and various temporary measures in a divorce.

I'm not a high-level theorist, just a low-level Texas practitioner.

I'm not a fan of legal separation, as I believe it unduly complicates the divorce process. But, I believe that there are good attorney's fees to be earned in managing the process.

Having said that, let's address what you can do in temporary orders that you can't do with other stuff.

Most issues dealing with children (possession, parental rights, support) cannot really be addressed without filing for divorce and having temporary orders issued.

Most issues dealing with ownership and management of separate property and community property can be dealt with in a "post nup"

Spousal support is not workable outside of a divorce.

Move-out, stay-out, and stay-away stuff can't really be addressed outside of a divorce, except as ancillary to criminal proceedings (assault, stalking stuff)

Extra child support in an agreed Texas divorce

2009-02-10T14:41:00.006-06:00

I've got a Plano client right now who has reached an agreement with her husband for him to pay significantly more child support than the child support guidelines. And it occurs to me that her situation is instructive, from the questions I see in divorce forums.

Let me remind you that I'm only licensed to practice law in Texas, and can't speak to what the law is elsewhere.

First, this generally only happens in an agreed divorce. If it weren't agreed, and you went to trial, the judge would set the amount of child support, and would be guided by the child support guidelines passed by the legislature. In order to deviate from the guidelines, the judge would have to spell out his reasoning. And most judges will just use the guideline amount.

But the parties can agree that child support will be a figure significantly higher or lower than the guideline amount. The trouble is that the court retains jurisdiction to change child support until the child is 18 years old and has graduated high school. So, if the father agrees to pay child support of $2,500 per month when the guideline amount is the cap of $1,500 per month, he can come back to the judge a year after the divorce is final and ask the judge to reduce the amount of child support to the guideline cap ($1500 for one child). And the judge will almost certainly grant the request and reduce child support.

So, if you reach an agreement in a Decree for child support much more or much less than the guideline amount, you need to realize that this is not binding past a year or so, and either side can ask the judge to change the amount.

This is a particular challenge when folks try to use child support as a substitute for something else. I had a father of a 16-year old child who wanted to give the wife $24,000 extra from the property division in the divorce in return for not paying any child support at all. So, he was trying to use a disproportionate property division to prepay child support. Well, if the parties agreed, that's fine, but a year later the wife could have gone back to court and sought a modification from zero child support to whatever the guideline amount was. We went ahead and did the deal, but I just had to warn the father that if his ex-wife wanted to break the agreement, she could.

Another example: Dad wanted to help Mom get back on her feet financially (she hadn't worked outside the home in years), but Dad didn't want to structure it as alimony, perhaps because of the stigma of paying alimony, and perhaps because he didn't want to pay the legal fees to draw up the extra documentation for alimony. Guideline child support was $1200 per month, and Dad wanted to pay child support of $2200 per month for two years, and then have it drop back down to the guideline amount. Again, it was OK to do it this way, but Mom had to trust that Dad wasn't going to go back to court and seek to have child support reduced to the guideline amount.

Cruise Karaoke

2009-01-29T17:26:00.002-06:00

In early January we went on our first cruise, ever. My wife and I, my dad and his wife, and my son and his girlfriend drove down to Galveston and spent a week in the Caribbean on Voyager of the Seas (Royal Caribbean Line).

I've mentioned before that my son is a very talented musician, and I sorta get by on the harmonica and vocals. We took our axes on the cruise, thinking there might be some sort of Open Mike Blues Jam. There wasn't, and my son's new Telecaster just stayed in the cabin.

But they had a couple of different Karaoke things going. One was very traditional, and set up as a contest, so the finalists were announced near the end of the cruise for a gala time.

Then there was the Pig and Whistle pub, open late, a bit rowdy, sometimes with off-color lyrics. Derek Lewis held forth with his "Kamakazee Karaokee" [spelled the way it is on the back of my T-shirt]. His shtick is to call out to pedestrians on the grand mall, and convince them to come in and sing a song, without even knowing ahead of time what the song is. Hence the Kamakazee part.

I brought my harps, and he invited me to play along. We did some 12-bar blues, and he sang the lyrics to Margaritaville. Pretty surreal. But we sure had fun. He even burnt me a CD with a recording of it, but I'm not posting it here because of copyright concerns (don't have Jimmy Buffet's or Derek Lewis' permission).

The crowd was well lubricated, and I was duly made a Superstar, with all rights and privileges appertaining thereto. Including the right to buy and wear the official T-shirt, and two photochromic rings (may not be very visible in the picture).

The next night I went back and backed Derek up while he played Mustang Sally, which is one of my all-time favorites to do on harp. It's my theory that harmonica is a poor man's horn section. I think he burned a CD of that as well, but I didn't go by the following night to pick it up.

Tiny URLs and SEO

2009-01-29T16:06:00.002-06:00

I didn't set out to become a web expert, but I'm sure learning more than I expected to. Way back when the www was new, I had my web host guys take some paper brochures I had put together and turn them into web pages. Sooner or later, not sure why, I got Microsoft FrontPage and started maintaining my web site myself. Maybe I was just being cheap, maybe I was trying to be control freak, or maybe I just wanted to learn more about making sausage.

Somewhere along the way I learned that when a divorce client (or prospective client) asked me a question that I had been asked by someone else, I could save myself some time by putting the answer on my web site, and then just pointing folks to the canned answer. That's how my web site grew into the huge thing it is now.

Then I discovered a way to do form emails, so I could send someone a canned email, including a link to a part of my web site, and then customize the email for the particular occasion or particular client/prospect. For instance, after I efiled an Original Petition for Divorce, I'd attach a copy of the document to an email to the client, along with a form email on what happens next. I'd mention that if the case didn't get wrapped up, eventually the judge would send us a "move it or lose it" letter, and then I'd say "for more details, follow this link" where they'd get a page or so just on dismissal deadlines and what to do to keep it from getting dismissed. This became even more important when I made a few videos to explain things, and I had to email a link to the video, because I don't know how to put a video into an email.

Then, I learned a bit about Search Engine Optimization, or SEO. Part of the trick to getting Google to rank your pages high is to have a lot of the words folks are looking for (hardly a trick, it's the essence of what search engines are all about). But one thing I didn't realize is that Google also likes seeing the key words in the titles of the pages, and in the URL addresses.

After optimizing for SEO, a lot of the links I used a lot got fairly long, like this:
http://civilized-divorce.com/procedural-matters-plano-divorce.html#3

Now that's not so terribly long, but some email programs wrap a line when they get to as few as 40 characters, so that URL might show up in their email as
http://civilized-divorce.com/procedural-
matters-plano-divorce.html#3
or something like that. This results in a broken link, because a line break has been inserted into the middle of the address.

So, I began to wonder how I could shorten the URLs so they wouldn't be cut in half in an email, without losing all those groovy keywords.

I remembered hearing about TinyURL.com, and started reading up. There's a pretty good entry in Wikipedia about it. Turns out the guy who owns the domain had the same sort of problem I did, and he created an automated web site that will take a really long URL and shrink it down to something really small, like
http://tinyurl.com/12345
Then, you can send folks the short URL, and then his web site redirects the inquiry to the really long address you started with.

The only real problem Wikipedia mentioned in this regard is that some folks are using TinyURL to send unsuspecting folks to a malicious web site. But, what that means is that you can only trust a URL as much as you can trust the person who gave it to you. So, if you were going to click on my really long URL, you'd probably click on the TinyURL.

TinyURL also has a Custom Alias feature, and as best I can figure it out, what that means is that you can request what goes after the slash, and if nobody's taken it already, it's available. So I can put CivDiv in the TinyURL and folks have more confidence that it's really about me and Civilized Divorce.

So, while I could have taken
http://civilized-divorce.com/procedural-matters-plano-divorce.html#3
and turned it into something like
http://tinyurl.com/9ag8?llv
I've actually turned it into
http://tinyurl.com/CivDiv-DWOP
(DWOP is courthouse slang for Dismiss for Want Of Prosecution)

Another tip: when you get TinyURL to give you a new URL, be sure to copy it or write it down, because as best I can tell, there's no way to go back and find out what URLs it has created for you.

At any rate, this isn't intended as a web tutorial, but kind of marveling at how much I've learned about a topic I didn't set out to learn much about. But it is kind of a cool tip, if you email folks long links.

Answer and General Denial

2009-01-27T10:51:00.003-06:00

Often my clients express confusion and alarm when the attorney on the other side files an Answer which contains the following language: "Respondent enters a general denial" and "Respondent prays that Petitioner take nothing ..."

Definitions first. The side that starts the case, such as by filing the Original Petition for Divorce is called the Petitioner. The other side, which responds to the lawsuit, is the Respondent.

Second, on procedure. For the Petitioner to move forward with the case, he must prove that the other side knows about the lawsuit (divorce), and proves it one of three ways: (1) a constable or process server delivers written notice and then files a sworn statement that they delivered it; (2) Respondent signs a Waiver of Service before a notary public, and then it's filed with the court; or (3) Respondent (usually through an attorney) prepares and files an Answer.

But right now we're talking about the Answer and the alarming language in it. It's less confusing to examine the principles in a negligence suit than in a divorce. Suppose someone slips and falls on the front steps of your house, and they're hurt, and they sue you to get help with their medical bills through your homeowner's insurance policy. They'll file something with the court that says that you were negligent (such as by leaving the skateboard on the steps), that your negligence caused their injury, and that you should pay them $100,000 for their medical bills and pain. They've given notice of why they are suing, why it's your fault, and how much money they want. If you learn about the lawsuit and do nothing about it, they can go to the judge and get the judge to award them $100,000 because everything they've said must be taken as true because there was no objection or contrary evidence.

But you are smarter than that, and you have your attorney respond to the lawsuit, by filing an Answer. In the Answer, your attorney says you enter a general denial. This is more or less like a kid in a schoolyard saying "Did not!" or "Prove it!" It means that their mere statement that something is true in the Petition is not to be taken as conclusive proof, and they should be required to put on evidence to show that it's true, and you should be allowed to question the evidence and put on contrary evidence.

Your Answer will also "pray" that "petitioner take nothing." Well, first, let's deal with the Prayer. In this case, Prayer has an ancient meaning, which is not spiritual. A Prayer means a request. When you ask God to do something, that is a prayer to God. But a prayer to a court is simply a request for the court to do something.

Any well-drafted pleading filed with the court should end with what you'd like for the judge to do about it. And the principle applies that the judge is never going to give you more than you ask for. So, when the person slips and falls on your sidewalk, and he thinks the most he could get for his injuries is $75,000, he goes ahead and sues for $100,000 because he knows he won't get more than he asks for. Usually the amount sued for is incredibly high, but sometimes there are reasons to use a lower number. If your neighbor wanted to sue in small-claims court without a lawyer, he may have to sue for less than $5,000 or $10,000.

And when you file your Answer, you pray that Petitioner take nothing, or that the judge awards him zero.

The real effect of the Answer and General Denial is that the Respondent announces that he is ready to go, and if they have to go to trial, he is prepared to counter the Petitioner's statements and give reasons why Petitioner shouldn't get everything she asked for.