Texas Divorce Blog

Covenant Marriage In Texas and Crisis Marriage Course- Two Stink Bomb Bills From Austin

2007-04-10T13:31:00.000-07:00

This piece is from the Texas Observer. Its about a real stinker of a bill (HB 180) trying to be passed in the Texas legislature to create something called a "covenant marriage" in which parties who enter into this special marriage could not file for a divorce unless they first go to counseling. Sounds innocuous enough, but here is the kicker: either the counselor or one spouse could forever keep the other spouse from EVER filing for a divorce. All they have to say is that the marriage is "salvagable" (whatever that means). This is simple blackmail. To say nothing of the increased costs of getting a divorce this counseling would create, think of the nightmare scenario of an abusive spouse having complete veto power over an abuse victim's ability to even file for divorce simply by saying he thinks the marriage is "salvageable". Sure, the counselor could give permission to file for divorce, but under this bill, the counseling is without any time limit, and as long as they are getting paid, why would a counselor end steady work?

Another lousy bill up for consideration is HB 2684 which would require parties to wait two years (TWO YEARS!) after filing before they can finalize a divorce. Under this bill, there would only be three ways to avoid being committed to this bleak divorce limbo/hell. One would be to attend a ten hour "crisis marriage education course". The cost of such a course could easily be in the thousands and would likely not be available in all counties. Another would be to file divorce "for cause" such as adultery. What will happen as a result? We will be taking a step backwards into the bad old days before no-fault divorce when people lied in court about fake cruelty or adultery just so they can get a divorce. Naturally the other party will have to hire a lawyer to protect themselves and mitigate the possibility that these lies will result in a judge awarding more property to the other, or perhaps taking their children away. The net result of the bill is not only that the pain and cost of divorce be increased, but that one or both parties are unfairly going to get their reputation dragged through the mud on public record or even possibly face criminal charges because of these "necessary lies". In addition, it will be harder for victims of domestic violence to get out of bad marriages. The other, would be to obtain a protective order. Already there are some unscrupulous parties who will file false protective orders to gain an advantage in a divorce. No doubt you will see a ten-fold increase of false statements of domestic abuse to avoid the bureacratic red tape put up if this bill passes. Not only would this be devastating to innocent parties falsely accused, but such "cry wolf" tactics could desensitze family law judges to the point where they might turn down protective orders when they are really justified.

These bills represent wrong-brained thinking about the source of the problem of increased divorce in this country and an artless solution that totally misses the mark. The bill may go to vote this week or next. All readers are encourage to call their representative in the Texas Legislature and tell them to vote against this bad bill before it becomes bad law.

What that state has joined, let no one tear asunder—without properly signed releases and a permission slip from a counselor.

To strengthen the bonds of matrimony, Rep. Bill Zedler wants to create a second tier of marriage licenses that would be $5 cheaper, but also make it harder to get a divorce.
The idea of “covenant” marriages—already allowed in Louisiana, Arkansas and Arizona—is that couples who obtain the We Really, Really Mean It marriage license will pledge a stronger troth. Those not interested could still get a garden-variety license that allows no-fault divorces.

“It’s easier to get out of a marriage than to get a lease on your car,” Zedler says. “You often see that some flare-up happens, and with the option of a no-fault divorce, one person can decide ‘I want out,’ and that’s it.”

Couples seeking a covenant license would have to receive premarital counseling. They couldn’t divorce unless both spouses and a counselor agree the marriage is unsalvageable. (Divorce without permission slips would be permitted in cases of imprisonment, abandonment, adultery, and abuse, with certain stipulations.)

It’s tempting to make jokes about picking between two levels of hell, but family violence counselors say Zedler’s bill is no laughing matter. Battered women do not need another potential barrier when trying to escape from an abusive relationship, they say.

Under Zedler’s bill, abused spouses in a covenant marriage would have to file a police report and get a court protective order before they could legally divorce. Zedler says he plans to amend the bill to require just a sworn affidavit.

Laura Wolf, director of public policy at the Texas Council on Family Violence, says no-fault divorce is often the best option for battered victims, who may have concerns about going to public authorities. Zedler’s affidavit would require victims to state on the record that they’re being abused.

“It may be safer for a victim of family violence not to have to disclose to the general public that that’s what’s happening in her home,” Wolf says. “It would potentially expose her to greater shame, greater danger, or it might provoke her batterer into contesting a divorce.”

Kathy Miller, president of the Texas Freedom Network, says two women are killed every week in Texas by an intimate partner. “Texas should do nothing to place barriers in the way of those women facing that situation,” Miller says.

Wolf points out that covenant marriages are already available through churches, though the covenants have no legal standing.

“People can opt into a covenant marriage in their own faith community today, but by the state creating this option, they put victims of domestic violence at risk,” Wolf says.

Zedler says he’s doing it for the kids: “If you look at what happens to children who are in a marriage versus a divorce, there is less child abuse, less crime, they are less likely to be in poverty. The end result is that it’s beneficial for us to create an environment that helps to maintain a marriage.”

Ex Husband Wants Alimony To End After Ex Wife Becomes A Man

2007-03-28T06:34:00.000-07:00

CLEARWATER, Fla. — Lawrence Roach agreed to pay alimony to the woman he divorced, not the man she became after a sex change, his lawyers argued in an effort to end the payments.

But the ex-wife's attorneys argued Tuesday that the operation doesn't alter the agreement.
Less than a week after commissioners in nearby Largo drew national attention by firing the city manager after he announced he was a transsexual, lawyers for Roach and his ex-wife grappled in another transsexual rights case that delves into relatively uncharted legal territory.

Only a 2004 Ohio case has addressed whether or not a transsexual can still collect alimony after a sex change, those involved say.

"There is not a lot out there to help us," Circuit Judge Jack R. St. Arnold said.
Roach and his wife, Julia, divorced in 2004 after 18 years of marriage. The 48-year-old utility worker agreed to pay her $1,250 a month in alimony. Since then, Julia Roach, 55, had a sex change and legally changed her name to Julio Roberto Silverwolf.

"It's illegal for a man to marry a man and it should likewise be illegal for a man to pay alimony to a man," said John McGuire, one of Roach's attorneys. "When she changed to man, I believe she terminated that alimony."

Silverwolf did not appear in court Tuesday and has declined to talk about the divorce. His lawyer, Gregory Nevins, said the language of the divorce decree is clear and firm — Roach agreed to pay alimony until his ex-wife dies or remarries.

"Those two things haven't happened," said Nevins, a senior staff attorney with the national gay rights group Lambda Legal.

Arnold found fault with several of Roach's legal arguments and noted that appeals courts have declined to legally recognize a sex change in Florida when it comes to marriage. The appellate court "is telling us you are what you are when you are born," Arnold said.

An Ohio appeals court ruled in September 2004 that a Montgomery County man must continue to pay alimony to his transsexual ex-wife because her sex change wasn't reason enough to violate the agreement.

Roach, who has since remarried, said he has been unable to convince state and federal lawmakers to tackle the issue. He said he will continue to fight.

The case is the second transsexual rights showdown in Pinellas County in less than a week. On Friday, city commissioners voted 5-2 to fire Largo's city manager, Steve Stanton, after he announced he was a transsexual.

Source- A.P.

Do It Yourself Divorce- Think Twice

2007-01-02T17:55:00.000-08:00

The following is a story from the Los Angelas Times and was picked up here locally by the Houston Chronicle. The traps of "Do-It-Yourself" Divorces are no less here in Texas than in California. Caveat Emptor! Buyers Beware! Scams are everywhere. If you are seeking a divorce, you absolutely should invest at least in a short consultation with an attorney experienced in divorce before you attempt to do anything on your own. Good attorneys (like myself) will not try to hustle you into an expensive divorce if you can't afford it and you can do it for yourself. However, our courts are incredibly "non user friendly". More often than not you will wind up paying fees twice: once to try to do it yourself, and then again to finally hire a lawyer to fix the mess you made. The old adage is very true: "Anyone who attempts to represent themselves in court has a fool for a lawyer."

LOS ANGELES - When Yanic Chan and Vanessa Van split up in 1995, they could not afford a lawyer. So, like thousands of other people without money, they filled out the divorce paperwork themselves, with help from a friend and courthouse staff.

In November 1997, Van went to the Riverside County Courthouse to enter a final judgment. "The clerk put the stamp on it," Van said. "I asked, 'Everything finished?' She said 'Yes.' "
Chan returned to his native Cambodia, fell in love and married again. Then, in 2006, he tried to bring his new wife to this country. That's when Van and Chan got a nasty surprise, one that court officials fear could be awaiting thousands of other former California couples: Their divorce had not gone through.

Driven by rising legal fees, a shortage of legal-aid lawyers and a do-it-yourself philosophy, about 80 percent of people in California handle their own divorces.
Accidental bigamyMany of them are not quite as divorced as they think they are. Some, like Chan, are even accidental bigamists.

Tens of thousands of others have some understanding that their divorces are not done. But stumped by complex paperwork and court procedures and unable to afford thousands of dollars for attorneys, they simply let their cases languish.

Court officials suspect the problem is vast. In Los Angeles County, perhaps more than one-third of all divorce petitions filed have not been finalized, according to Kathleen Dixon, who heads the Los Angeles County Superior Court's programs for self-represented people.
Officials don't have statistics because they don't monitor cases to make sure they are finished.
One Los Angeles County Superior Court judge, Mark Juhas, found that about one-third of the roughly 3,600 divorce cases filed in 2001 and 2002 and assigned to his courtroom remained open. Some of those couples may have reconciled, but Juhas suspects that many more are stuck or may even think they are divorced when they are not.

At one legal services center in the Van Nuys district of Los Angeles, officials say they see 20 people a month who wrongly thought they were divorced.

"They come in screaming," said Norma Valencia, a paralegal at the center operated by Neighborhood Legal Services. "They say, 'You don't understand my situation. I want a divorce right now.' "

In California, getting divorced takes at least three steps: filing divorce papers, serving them upon the spouse, and then writing and processing a judgment with the court. The process can be more complicated if there are children, or fights over assets. A divorce cannot become final until at least six months after the papers are served.

Increase in trendIncreasingly, across California and the nation, people are handling their own civil court matters. In San Diego County, one of the few counties where statistics are available, 46 percent of people represented themselves in divorces in 1992, but by 2000 that figure had climbed to 77 percent.

One reason: increasing fees for lawyers combined with decreasing legal-aid services for poor people, said Richard Zorzo, who coordinates a national network of organizations working on self-representation.

Also a factor, he said, is a "Home Depot philosophy of people feeling they can do things on their own." But the legal system wasn't organized with a do-it-yourself approach.

Juhas said the problem was brought home to him a few years ago, when a couple came before him on a routine matter. They had filed for a divorce a few years earlier, and both husband and wife had since remarried. Juhas said he looked down at their file and then back up at the couple. "I said, 'Do you realize your judgment was never entered?' "

Luckily for the couple Â and their new spouses Â Juhas finalized their divorce without invalidating their new marriages.

Can a Catholic Attorney Be a Divorce Attorney?

2006-08-26T22:04:00.000-07:00

Disclaimer: I have no moral authority. The only justification for the following opinion are my many hours of internet research, and soul searching and praying on this topic. I do not evangelize in my practice of law and I respect every person's choice on the topic of religion. I also believe in the necessity of the separation of church and state to allow our government to act for all the people regardless of religion or creed. However, I like everyone, daily struggle to reconcile my vocation with my religion, and I have seen very little about this topic written about from the attorney's perspective. Therefore, in the hope that others may benefit from these thoughts, I have decided to make this post.

In 2002, John Paul II advised Catholic attorneys that they should refuse to take civil cases that promoted divorce. Many people took that to mean that a Catholic attorney could not participate in any divorce actions. This simply is not true, and was not the message of the Pope.

Catholic attorneys should not become involved in civil matters that encourage or promote the division of the holy institution of marriage. However, Catholic attorneys, who take cases in which they act in good faith and moral purity, are merely promoting a peaceful and just resolution to disputes. Good Catholic divorce attorneys who allow themselves to be guided by the Holy Spirit, will find ways to counsel their clients towards a more Christ-like solution to their clients relationship problems. A good Catholic attorney should first and foremost guide his client toward reconciliation with their spouse and should not take any case in which he or she feels that so engaging will destroy a remaining chance of reconciliation. Furthermore, the faithful Catholic attorney should use every opportunity that presents themselves in the divorce process towards seeking reconciliation.

Beyond that I believe that Catholic attorneys can and should engage in the practice of divorce and family law. These Catholic attorneys may become the only voice of moral wisdom for a client who finds themselves in a confusing secular system of family courts. They may be the factor that will prevent a painful process from becoming descending into a vengeful winner-take-all battle that keeps Christ's love from entering the hearts of the clients. They may be the only rational voice for the best interest of the children of divorce- who are innocent victims caught in the middle and sometimes their welfare is forgotten about by embattled spouses.

It must be remembered that Catholic divorce attorneys are only dissolving the legal civil bonds. They cannot ever destroy the Holy bonds which tie a married couple together. A Catholic attorney can assist a party in ending the civil bonds that have tied them to another if the reasons are just- such as to obtain child support, or effect a just division of property so a spouse who is no longer being financially support can survive. Remember that the Catholic Church does not forbid a married man and woman to live apart if living together becomes destructive to them. The civil divorce only dissolves the legal and financial bonds. It can never dissolve the holy bond.

However, Ia Catholic attorney sins if they knowingly use their powers to obtain a divorce for unjust and sinful reasons such as so a client can marry another person or so they can otherwise commit adultery or other sins.

The following is an excerpt from the Catholic Encyclopedia which summarizes the duties of the Catholic Divorce Attorney:

"From the Decree of the Holy Office, 19 December, 1860, in answer to the Bishop of Southwark, it is clear that in England an attorney may undertake a case where there is question of judicial separation between husband and wife. Even in an action for divorce in a civil court he may defend the action against the plaintiff. If the marriage has already been pronounced null and void by competent ecclesiastical authority a Catholic attorney may impugn its validity in the civil courts. Moreover, for just reason, as, for example, to obtain a variation in the marriage settlement, or to prevent the necessity of having to maintain a bastard child, a Catholic lawyer may petition for a divorce in the civil court, not with the intention of enabling his client to marry again while his spouse is still living but with a view to obtaining the civil effects of divorce in the civil tribunal. This opinion at any rate is defended as probable by many good theologians. The reason is because marriage is neither contracted nor dissolved before the civil authority; in the formalities prescribed for marriage by civil law there is only question of the civil authority taking cognizance of who are married, and of the civil effects which now therefrom. "

Pistol Packing Preacher's Wife

2006-08-02T21:38:00.000-07:00

"A preacher's wife was arrested after police say she pulled a gun on her husband because she allegedly was upset over text messages he had sent to a member of a church youth group. Tammy Estes surrendered to law officers at the Pentecostal Church of God in Newport after a brief standoff at the church Sunday evening. No one was injured. She was taken to the Jackson County Detention Center. She was expected to be arraigned Monday. Police say a church service had just begun when Estes pulled a gun on her husband, preacher Larry Estes, about 7 p.m. According to congregation members, she was upset over messages Larry Estes allegedly exchanged with a youth group member and she demanded he admit infidelity."

Yahoo News Link to Article

Police Interference with Parent's Visitation Rights Did Not Violate Parent's Substantive or Procedural Due Process

2006-07-08T08:44:00.000-07:00

The United States Court of Appeals for the Ninth Circuit examines the constitutional interests at stake when police act in visitation disputes. The case involved an ongoing custody and visitation dispute. Father had sole custody of the son and Mother had visitation rights. Police were regularly called upon to intervene when the parent's transferred the child. In this case, Father came to pick up son from Mother and Mother insisted that she had a week of additional visitation time. Father then called the police to assist in retrieving his son. Mother alleged that Father knew the police officer that was called and that he and the officer had conspired to deprive her of visitation. The district court found sufficient factual questions regarding this alleged conspiracy to deny defendant's motion for summary judgment.

In reversing the district court, the court of appeals acknowledged that Mother had a liberty interest in her visitation with her son, but held that the officer's acted reasonably in interpreting the custody order and the deprivation of one week of visitation did not rise to the level of a federal constitutional violation.

The court noted the prudential considerations supporting this holding: "In so holding, we are mindful that this case arises in the intersection of several fields of law where federal courts have shown the greatest hesitation in creating new federal mandates. We will not disregard this justifiable caution lightly. Substantive due process vindicates those interests which are fundamental and, contrary to [Mother’s] theory, may not to be used as a font of tort law to be superimposed upon whatever systems may already be administered by the States.... If every custody dispute, including ones only concerning a weekend or even an hour of visitation, can give rise to a federal claim necessitating federal interpretation of a state custody order, federal courts could rapidly become de facto family courts. Such a result is not permitted by Supreme Court jurisprudence."

The court noted the fact-specific nature of its holding: "We need not hold that visitation rights will never give rise to a substantive due process claim.... We need not reach the question whether interference with a lengthy visitation period or repeated interference with shorter periods may give rise to a cognizable substantive due process claim. We need not decide here whether interference that affects the existence of visitation rights altogether, rather than discrete instances of visitation, might give rise to a viable claim. Nor need we reach the question whether custodial parents may bring suit. "

As to the procedural due process analysis, the court concluded that no pre-deprivation hearing was required in enforcing this visitation order, as Mother could have sought to have the order clarified at an earlier time and the state's interest in promptly enforcing these orders was significant.

Justice Silverman wrote separately to note his disagreement over the court's statement that “'a single instance of visitation, of a single week in duration', is not a fundamental right.... Even though a non-custodial parent may have visitation “only” every other weekend, to some parents that weekend is the moon and the stars." However, under the circumstances of this case, given the reasonableness of the police officer's actions, he agreed that the district court should be reversed.

Brittain v. Hansen, 9th Circuit No. 03-57012 (June 22, 2006)

Source: Family Law Prof Blog

Service of Process While In Texas for Divorce Mediation Can Establish Personal Jurisdiction

2006-06-24T09:13:00.000-07:00

If you live in Texas and voluntarily attend mediation in another state prior to a divorce case being filed, you may get slapped with service papers while attending the mediation. Also if you live in another state and come to Texas for a mediation, you may get slapped with a Texas lawsuit while here.

Although the Texas ADR Statute protects the confidentiality of the proceedings, there is nothing to protect the parties to a mediation (or any other persons present) from being approached by a process server and personally served with notice of a suit. Certainly a process server cannot trespass on private property, but you can be caught walking to or from the mediation site.

In addition, presence in the State of Texas for the purposes of mediation does not protected a person from "in personam" jurisdiction. The Court will likely consider your presence in the State of Texas for the purpose of mediation as grounds that you have submitted yourself to Texas jurisdication, and you are subject to lawsuit in this state. If this happens, you could not claim that the State of Texas does not have jurisdiction over you..even if you live in another state.

I am aware of no Texas statutory or case law on this exact point, but a recent Washington State case favored the trend that there are no protections from personal service for mediation.

Recently, the Washington Court of Appeals discussed the propriety of asserting personal jurisdiction on the basis of personal service of process on a divorce litigant while they are present in the state for a divorce mediation.

The court rejected the approach of those states that require the defendant be warned that he might be served with process when entering the state for settlement negotiations and held that the Washington court properly had personal jurisdiction over husband on the basis of the personal service and the fact that the couple had owned Washington property during the course of the marriage (though they resided in Ohio).

In re Marriage of Craze, 2006 Wash. App. LEXIS 1279 (June 19, 2006).

Therefore, if you are seeking to avoid having to attend a divorce, (or any other lawsuit) in a state other than where you live, be very wary before voluntarily entering the state to attend a mediation.

Latest Statistics: Less Texas Divorces, Less Texas Marriages

2006-06-10T16:26:00.000-07:00

The latest statisics reveal that there were 63,717 Texas divorces so far in 2005*. There were 4,676 less Texas divorces this year than over the same time period last year and 7,452 less than the same time period in 2003.

The number of marriages has also decreased. There were 141,156 marriages made so far in 2005*. However, this is 11,192 less marriages made than the pervious year and 11,296 less than the same time period in 2003.

*From January to October

Source: National Vital Statistics Reports Vol. 54, No. 17, May 10, 2006.

Til Death Do Us Divorce

2006-05-30T05:01:00.000-07:00

PITTSBURGH — Dr. John Yelenic and his wife separated in 2002, agreed to a divorce and even hammered out a property settlement.

But the Blairsville dentist was slain the day before he was to sign his divorce papers, setting the stage for what attorneys say is a first-of-its-kind request in Pennsylvania: a divorce decree after death.

The dentist's divorce attorney, Effie Alexander, says simply that Yelenic would have wanted it that way. Another attorney who represents Yelenic's estate believes the decree is needed to protect a property settlement an Indiana County judge approved last week.

But an expert in Pennsylvania family law says there is no reason to declare a dead man divorced because the dentist's wife and adopted son will receive support under the property settlement, which legally overrides his will.

"What difference does the decree really make?" said Pittsburgh attorney Jay Blechman, chairman of the family law section of the Pennsylvania Bar Association. "As far as I can tell, there isn't a difference."

Alexander isn't so sure.

"We are, along with the estate attorney, conducting research to determine if there's any significance to the decree being denied," she said.

Officials in at least one other state are grappling with posthumous divorces.

In Connecticut, Hayley Kissel is seeking to divorce her estranged husband, Andrew, a millionaire developer found slain in his Greenwich home last month. Millions of dollars are at stake.

Judge Kevin Tierney said Friday a death doesn't necessarily mean the marriage has been dissolved and suggested the case could end up in the court's complex litigation section if it is not resolved.

In Pennsylvania, Indiana County Judge Carol Hanna refused to issue the divorce decree after a May 19 hearing, but gave the dentist's divorce attorney until June 2 to file written arguments on why one should be issued.

"From my perspective, this is what John wanted," Alexander said. "You know how people say after someone is dead, `If there was one thing I could do for him now'? Well, this is really a personal thing for me and my law firm."

Yelenic and his wife, Michele, of Indiana, Pa., married in 1997 and adopted a son, J.J., now 8. The couple separated in 2002 and Michele Yelenic filed for divorce the next year, citing an irretrievable breakdown of the marriage.

John Yelenic, 39, was slain at his home on April 13. Investigators have not identified a suspect but believe his death was not random. They have refused to say how he died, other than that he bled to death after a violent attack.

The strange case of the Yelenics' divorce revolves around a January 2005 amendment to the state's divorce code and the implications of a bifurcated, or two-part, divorce _ one in which the divorce decree is issued separately from a property settlement.

A two-part divorce is used, for example, when a person wants to remarry without having to wait for the property settlement _ which is often far more complicated _ to be resolved, Blechman said.

Before the change in the law last year, the dead spouse's will or estate laws held sway if a property settlement hadn't been finalized, Blechman said.

Under the amendment, a judge can posthumously enforce a property settlement if grounds for the divorce existed when the spouse died. Judge Hanna approved the settlement based on an affidavit Yelenic had signed saying the couple have lived apart for more than two years, which is grounds for divorce in Pennsylvania.

Michele Yelenic's attorney, Daniel Lovette III, declined comment on the case. But Lovette said he doesn't oppose efforts by Alexander, the dentist's divorce attorney, and Paul Anthony Bell II, the estate attorney, to seek the posthumous divorce decree.

Bell sees the divorce decree as a way to tie up loose ends.

"It seems to everybody that the divorce decree being granted would definitely put a seal on" the property agreement, Bell said. "I guess we're all leery that something might come up as to the estate aspect of it if the decree is not granted."

Source: AP

Attempted Remarriage Before Dissolution of First Marriage Does Not Terminate Termporary Orders

2006-05-22T05:30:00.000-07:00

This case makes for a good variation on the void marriage problem. Here, Husband and Wife were married for over 13 years. Husband filed for divorce and the court issued temporary orders requiring Husband to pay maintenance to Wife. While the divorce was still pending, Wife, who had a significant alcohol problem, remarried in Nevada.

Husband asked the court to grant the divorce and to enter the judgment nunc pro tunc, arguing that a nunc pro tunc judgment dissolving the as of a date prior to her remarriage would render her most recent marriage valid and he would be relieved of the obligation to pay temporary spousal support. Husband also argued that Wife's remarriage, even though void, triggered the statutory provision that terminates support orders upon "death or remarriage." California statutes, like the majority of states (See November 8 Family Law Prof Blog post), terminates support orders as a matter of law upon remarriage. The trial court denied Husband's motions and the California Court of Appeals affirmed.

The court reasoned that "Since remarriage is a legal impossibility in California prior to dissolution of the existing marriage, it is reasonable to conclude that the Legislature never expected or intended that 'remarriage,' within the meaning of [the statute terminating support] would encompass an attempted remarriage prior to dissolution of the first marriage....Our conclusion is consistent with principles of common sense and justice. Application of [the statute] prior to dissolution would deprive the trial court of the discretion so necessary at this unsettled stage of the proceedings. It may be that a spouse's attempt to remarry prior to dissolution would warrant termination of temporary support where the conduct was evidence of a real change of circumstances. The court has discretion to terminate support in that case. But where the attempted remarriage is due to a lapse in judgment on the part of the supported spouse and where the supported spouse actually has no means of support, no funds to prosecute the litigation, and no control over the marital property that has yet to be divided, the attempted "remarriage" does not diminish the supported spouse's need for support pending trial. Automatic termination of the temporary support order in that situation would be manifestly unjust and would conflict with the purposes for which temporary spousal support is intended."

In re Campbell, 2006 Cal. App. LEXIS 155 (February 7, 2006)
Opinion on the web (last visited February 10, 2006 bgf)
Posted at Family Law Prof Blog

How May I Serve You?

2006-05-22T05:23:00.000-07:00

Of all stages of the divorce process, giving and receiving service of process is probably one of the most emotional and misunderstood.

In most cases getting served with notice of a divorce is never a complete suprise. People in a happy marriage don't generally just wake up next to their loving spouse and say "I'm gonna get a divorce today". However, despite the many signposts that may pop up in the months and years preceeding a divorce suit, there is often a sense of suprise and betrayal by the one being served- even if it is simply the thought that "that SOB did it before I had a chance to!"

So why is all this sneeking around with a stack of papers necessary?

It is a basic tenent of the law that the person being sued in court has the right to know the action is happening and to appear in court to defend against the actions. There are strict requirements for service of process and the family law practictioner who ingnores them risks the prospect of a default ruling being retried in a motion for new trial.

Only certain people may serve process. Under the Texas Rules of Civil Procedure, this is (1) any sheriff or constable or other person authorized by law; and (2) any person authorized by law who is at least 18 years old and has not interest in the outcome of the case. (TRCP 103).

Process may also be served by mail. The problems with that is that if the party does not personally sign the return green card, there is no proof of the service if the party then complains and seeks a new trial.

A party may sign a waiver of service that they have received notice of the suit. This is usually the easiest method, but many times parties refuse to sign anything thinking that they are giving up some sort of rights. Usually the only thing they are doing is forcing delaying the inevitable.

Alterntive forms or service are available if personal service or mail by service is not possible. Permission must be obtained by the court to use the methods covered by TRCP 106. These substitute services include delivering the citation to anyone over 16 years of age at the last known address of the person to be served. These require an affidavit as well as a court order.

Another method of service is by publication. Service may be obtained by publishing under Rule 116. There are special provisions in the Family Code under TFC 102.010 and 6.409 which allow the publication to be only once. Also, if there is the case does not involve children, service may be obtained by posting notice of citation at the courthouse door. (The only exception to that is if the name of the respondent is not known in a termination case.)

Whoa There Cowboy!: Temporary Restraining Orders

2006-05-22T05:22:00.000-07:00

The big thing about dealing with the Courts is timing. They do their best, but there are times when it seems like the Courts took their scheduling notes from the same book as the DMV.

A suit for divorce in Texas can take a MINIMUM of 60 days from start to finish. (TFC 6.702). More likely it can take upwards of nine months depending on the facts. During that time, most cases need the Court to intervene and set up some temporary orders so that everyone can "play nice" while the case is going on. I'll discuss temporary orders in more detail later.

Sometimes, the parties to a suit are in need of some IMMEDIATE intervention by the court to either keep the peace between the parties, make sure a parent does not disappear with a child, or ensure that one party does not destroy or use up the community property just to be a jerk. Unfortunately, once a suit has been filed it may take two, three, or at some times of the year, even four weeks before the case can be brought before the Judge. A lot of bad things can happen in that time.

The law's solution to this problem is called a Temporary Restraining Order (not to be confused with Temporary Orders-which will be discussed in a later post). A "TRO" is what we call an "ex parte" order- that is, it is signed by the judge without the need for a formal hearing of both parties. Often the TRO is presented to the judge on the same day that you file your original petition with the Court. The reason the courts can get away with signing an order without offering a hearing for both parties is that the nature of the TRO is very temporary relief. Your TRO will have a hearing date set on it by the clerk in which you will have to appear before the judge. (That is why the form is formally called a "Temporary Restraining Order and Notice of Temporary Order Hearing"). The law limits a TRO order to being effective for only 14 days. The idea is that the clerk of the court will give you a hearing in front of the judge within this time. Ha! Fat chance. In most of the larger counties, you will have to wait much longer. That is why the law allows the TRO to be renewed for an additional 14 days. (TRCP 680). Beyond that you are going to have to seek out a judge and explain why you need additional time under a TRO. Generally accepted reasons are that you have tried, but have not yet served the other party, or if the other party was served, they had too little time to find an attorney and prepare for the hearing.

Texas Family Code 6.501 sets out ten standard items that may be included in the TRO. If there are children, you can also include injunctions (what I call "thou shall nots")against disturbing the peace of the kids or removing them from a certain geographical area. There are limitations to what a court can order in a TRO because it is done without a fair hearing and a party has a right to have a hearing if an order would otherwise be unfair or impinge on constitutional rights. You can't exclued a spouse from living in their residence without a hearing (unless a protective order is also sought due to domestic violence). You can't prevent a party from making reasonable expense for basic living needs. You can't require a party to do something like pay bills or pay child support. If there is a pre-existing order on the children, a TRO cannot change the party appointed as the primary conservator.

Many lawyers file the TRO restricting only the other party. Some courts have a policy to only grant TROs if they are made mutual to both parties- and they will stamp the TRO with a big "MUTUAL" stamp so that the injunctions are binding on both the husband and the wife. This makes sense because neither party should be making harrasing phone calls, or making threats to the other party, and all the other "play nice" injunctions of 6.501. In fact more attorneys are simply making it mutual from the drafting stage.

Pleadings and Other Preliminaries

2006-05-22T04:52:00.000-07:00

So you decide that you are legally married and want to get a divorce. Where do you start? In most cases, you will file an "Original Petition for Divorce" with your local district court. The Origianl Petition contains all your pleadings and may be amended without seeking permission from the court up to seven days prior to final trial (as long such amendment doesn't unfairly "surprise" the other side with a whole new set of legal issues) (TRCP 63).

State law controls the requirments for a divorce in Texas. There are seven statutory grounds for divorce. The first, and by far the most common, is "insupportability" (TFC 6.001). This is the catch all grounds which brings Texas in line with the modern trend among most all states to allow people a "no fault" divorce. Basically, if you don't want to be married anymore, then you don't have to come up with an excuse. For strategic purposes, such as trying to get a disproprtionate share of the community estate, or obtain primary custody of a child, or to further a tort claim, then pleading a divorce "for cause" may be done. These grounds include Cruelty (6.002); Adultry (6.003); Conviction of a Felony (6.004); Abandonment (6.005); Living Apart (6.006); or Confinement in a Mental Hospital (6.007).

Although we'll discuss some of them in more detail in later postings, in general some of the things you may plead for in your initial petition is for spousal alimony(maintenance); temporary orders (court orders while the case is pending); temporary restraining orders (restricting the actions of one or both parties).
It is also usually necessary to plead that the court divide the community property. It is not necessary to get into any detail about the property- only that property exists and should be divided. Although it is possible to make a statement that there is no community property, it is my opinion that there is always some kind of community property even if you are getting divorced from your quicky marriage in Vegas and all you ever got together was a few poker chips from Harrah's. Better to plead for it now then cry about it later.

Related to this is the necessity to plead for any reimbursement or economic contribution claim (when community funds where unfairly spent on seperate property).
Also, you must generally make a pleading involving the children of the marriage (if any). Although a suit involving children is technically a seperate law suit (called a "Suit Involving the Parent Child Relationship" or "SAPCR"); in Texas, you must include the children issues in your divorce case and they are tried together as one case. The only exceptions to that is if you already have a SAPCR order in place (usually if there is a long seperation and one of the parties was seeking child support) or if the children are adults.

Name changes for an adult or a child are also plead for. Under TFC 6.706, the court shall change the name of a party specifically seeking the change, unless the court specificall gives a reason why it won't in the final decree. The name change requires that the person previously used the name being changed to and that the change is not to avoid creditors or avoid criminal prosecution. Now usually this is a woman changing her name back to her maiden name, but in theory a guy could do this too. I recommend to my clients that they plead for the change even if they are unsure about it. You can make sure in the end that you keep your name if you want to. (And by the way, no one can force you to change your name if you don't want to). Otherwise, if you change you name after the divorce, you have to file a seperate suit and pay the fees. If you do it now, it is free with your other fees.
And on the topic of fees, this varies for county to county. In Harris County Texas, fees to file a divorce are around $200.

Another thing that is commonly plead in the original petition is a request that the other side pay your attorney fees. You may not get them awarded to you by the judge at the end of the case, but you definately won't get them awarded to you if you don't plead for them at the beginning of the case.

Howdy!

2006-05-22T04:31:00.000-07:00