Dallas Divorce Lawyer Blog

What is the Status of Same-Sex Divorce in Texas?

May 19, 2014 | by Guest and Gray Law Firm

A federal judge in San Antonio struck down the ban on same-sex marriage earlier this year citing that the ban has “no legitimate governmental purpose.” In fact, the judge said that the ban is unconstitutional because it prevents equal rights across the board for marriage. Even though this seemed to be a large step for the LGBT community, the law prohibiting same-sex marriage is still in effect until the decision can complete the appeal process. Attorney General Greg Abbott plans to fight for Texas’ right to regulate the marriage institution.

Thus, the Texas ban continues on same-sex marriage but the question of same-sex divorce is becoming an ever increasing issue in the family law world. Reason being, because Texas does not recognize same-sex marriage it also in turn does not currently recognize same-sex divorce. That is, if you and your partner get married out of state and move back to Texas you only have two choices right now—either just separate indefinitely or declare the marriage void.

Texas Family Code Section 6.204(b) states that “a marriage between persons of the same sex for a civil union is contrary to the public policy of this state and is void in this state.” Further, subsection (c) states “The state or an agency or political subdivision of the state may not give effect to a (1) public act, record, or judicial proceeding that creates, recognizes, or validates a marriage between persons of the same sex or a civil union in this state or any other jurisdiction; or (2) right or claim to any legal protection, benefit, or responsibility asserted as a result of a marriage between persons of the same sex or civil union in this state or any other jurisdiction.” Therefore, even if you are legally married in another state you are not considered married in Texas and therefore do not have the rights a married couple would have including the right to divorce. Many people do not see divorce as a right until it is considered in the context of what you gain during a divorce. A divorcing couple has rights in that their property is considered community and there are claims to exclusive use of property, spousal support, child support, and even custody. On the contrary, if your marriage is declared void then it is as if the marriage never existed. Therefore, you would not have any rights to anything that was accumulated during the marriage such as children or property.

Modification of Custody in Less Than One Year: How Important is the Affidavit?

May 13, 2014 | by Guest and Gray Law Firm

You just finalized your divorce or custody matter, however it seems like every time you turn around you think that your child should live with you instead of the other parent primarily of the time. Even though it is has not even been a year yet since your final orders were rendered, it just seems as though something is constantly coming up and you are genuinely concerned. The other parent may be endangering the child’s physical welfare or emotional development such as engaging in criminal activity, drug usage, physical/mental/sexual abuse, or overall endangerment of the child. You want to change the custody orders now but you have been told that there are certain roadblocks in requesting the modification this soon. What should you expect?

Less than One Year Requirements

If you are filing your petition to change the parent who has the exclusive right to designate the child’s residence in less than one year, there are specific requirements that you must follow. In fact, you must qualify within these statutory parameters to even file your case. The most important and crucial requirement is the affidavit that must be attached to your petition. In fact, Texas Family Code Section 156.102 mandates that an affidavit must be attached to your pleadings and “(b) must contain, along with supporting facts, at least one of the following allegations: (1) that the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development; (2) that the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child; or (3) that the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least 6 months and the modification is in the best interest of the child.” Frequently, we see the first requirement being the grounds on which someone files a modification. Allegations are made that something bad has happened in the other parent’s care and this is why that parent should no longer have possession of the child. But, the key is that the allegations must be made in the affidavit. Many people get hung up on this requirement and many times affidavits fall short on their face.

Amicus vs. Ad Litem for Adoptions: What is the Best Option?

May 7, 2014 | by Guest and Gray Law Firm

If you are in the middle of an adoption—whether it is a stepparent, grandparent, aunt/uncle, or new parent adoption—you know that your child must have a representative in court to ensure the child’s best interest standard is being met. Many people do not realize that there are a few options for the courts in determining what option is best for your particular case. In adoptions, the two most primary appointments are either amicus attorney or attorney ad litem. But, which would be best for you?

Amicus Attorney

Amicus attorneys are appointed in termination/adoption suits not to specifically represent the child but rather to assist the court in protecting a child’s best interest. So, unlike the attorney ad litem an amicus attorney does not have an attorney-client relationship with the child. In fact, an amicus attorney can even relay what would otherwise be privileged communication from the child to the court if it is necessary to assist in the court’s decision. Amicus attorneys can be appointed for a number of reasons; but typically, they are appointed when the child is young and cannot express their desires to the court unlike a child who is 12 or older. Amicus attorneys do meet with the child and determine what their objectives are in the case; however, the amicus attorney does not have to act in favor of those objectives and must always advocate for the child’s best interest.

Pre-Adoptive Social Studies: What to Expect

May 6, 2014 | by Guest and Gray Law Firm

If you are in the middle of an adoption—whether it is a stepparent, grandparent, aunt/uncle, or new parent adoption—you know that you have to complete a social study in order to proceed forward with the adoption. Because this is a new concept to many people, it is better to gain knowledge regarding this process beforehand to put your mind at ease. You will find that this step is actually one of the more rewarding (absent the actual adoption day) throughout your case. It is your chance to tell the social worker all about your family and why you should be able to adopt the child.

Purpose of Pre-Adoptive Social Study

One of the purposes of the pre-adoptive social study is to guide the Court in its decision on the termination and adoption because the social worker is literally the eyes and ears for the Court. Reason being, the judge cannot visit your home and do a background check on all of the parties in the case to determine whether or not the adoption would be in the best interest of the child. Therefore, a social worker is appointed to do that and much more.

You Are NOT the Father—BUT You May Still Owe Child Support

May 6, 2014 | by Guest and Gray Law Firm

Are you facing a divorce with your spouse and you are concerned that you are not the father of your child? You have probably always had that feeling (given your spouse’s cheating history) that you are not the child’s biological father but you just have never acted on that feeling. However, now that you are facing a divorce you feel that it is important to raise this as an issue and deny your paternity. Absent addressing all of the issues that can arise with a denial of paternity, you need to know what can happen in the interim while the case is pending. You may not be the biological father, but you still may be the presumed father.

What is a presumed father?

You are the presumed father for all legal purposes if one of the following is true: you are married to the mother and the child was born during the marriage; you married the mother before the birth of the child even if the marriage could be invalid; you married the mother before the birth of the child and your name is on the birth certificate. This means, even if you are not the biological father of the child you are the father in the eyes of the law. Therefore, the judge can make orders according to that legal fact and most likely will do so.

Default Judgments in Divorce—What it Takes to Get a New Trial Granted

April 29, 2014 | by Guest and Gray Law Firm

You have been served with a petition for divorce and it states you have to file an answer by 10:00 a.m. on the Monday next after the expiration of 20 days. However, you have been working things out with your soon-to-be-ex spouse and you guys have agreed upon everything. Your spouse tells you that the service part is just part of the legal process and you do not have to do anything because you have already signed the agreed decree. However, once everything is said and done the district clerk’s office mails you a copy of the decree and it is not the one you signed. In fact, it contains terms that are the complete opposite as to what you agreed. You are shocked and you have no idea what to do; according to the final decree mailed to you, your ex-spouse is taking the children, the home, and the car.

You contact an attorney and find out that your ex-spouse actually waited for your answer period to expire and then went before the judge and asked for a “default” divorce on the basis of you not answering or making an appearance. The judge, not knowing the background of the case and relying upon the ex-spouse’s allegations, granted the default divorce and now you must work to get that reversed.

The good news is you do have a form of recourse. You can file a motion to set aside the default judgment and a motion for new trial. In order to be successful on this type of motion, it is important that you know the grounds for doing so. Luckily, several appellate courts have discussed this test, also known as the Craddock elements. It was recently discussed again by the Texarkana 6^th District Court of Appeals in In the Matter of the Marriage of Lucas Woods and Jessica Woods and In the Interest of L.K.L.W. and S.B.L.W., Children. This Court held that to analyze whether a motion for new trial should be granted and to set aside a default judgment, the trial courts must look at the following factors: “(1) the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or accident; (2) the motion for a new trial sets up a meritorious defense; and (3) granting the motion will occasion no delay or otherwise work an injury to the plaintiff.”

Temporary Injunctions in Business Litigation

April 27, 2014 | by Robert Guest

Non-compete Agreements

Kevin and Kathryn Conlin started Solarcraft, a company that designs and manufactures solar power products. They ran the company for just over a decade. In 2005, they sold a controlling interest in the company to Darrell Haun. At that point, the Conlins signed employment agreements with the company. The employment agreements contained non-compete provisions that prohibited the Conlins from engaging in any business that would be competitive with Solarcraft in the United States for three years after their employment was terminated.

Sometime between the signing of those agreements and early 2009, the Conlins stopped working for the company and Haun sued them for violating their non-compete agreements. Prior to the court ruling on Haun’s application for a temporary injunction, the parties signed an “Agreed Temporary Injunction” which contained provisions enjoining both parties from certain behavior. The order stated it would remain in effect until the case went to trial, but the blank in the order to be filled by a trial date was left blank.

Can I Appeal a Temporary Orders Hearing?

April 25, 2014 | by Guest and Gray Law Firm

You just finished the first big hearing in all family law cases that sets the status quo of the case and gives you an idea as to how the judge is leaning in your situation—the temporary orders hearing. You do not like the outcome and you feel that the judge was wrong in their decision. But, what do you do about it? Are you stuck with this ruling or can you appeal it? Unfortunately, the answer is “it depends.” Like all family law cases, the outcome will depend upon the venue and court you are located in.

If you are located in Dallas County, the answer is yes. There are district and associate judges in all family courts in Dallas County and all temporary orders hearings are held in front of the associate judges. Therefore, if you do not like the associate judge’s ruling on your temporary orders hearing you can take another bite at the apple in front of the district judge by requesting a “de novo hearing.” The key is, however, that you have an extremely limited time in order to do so and many people miss their deadline. Specifically, the legislature amended Texas Family Code Section 201.015(a) this past year to now state that “a party may request a de novo hearing before the referring court by filing with the clerk of the referring court a written request not later than the third working date after the date the party receives notice of the substance of the associate judge’s report.” So, basically the day that the associate judge renders their judgment—you must have your de novo on file within three working days from that date. If your de novo hearing request is timely and properly filed (there are specifics on its contents also), then the referring court (the district judge) will set your de novo hearing. This is your second chance where the district judge will re-hear the issues and evidence that are on appeal from the associate judge’s ruling. Just a side note that many people are confused on—the associate judge’s ruling remains in full force and effect until it is changed by the district judge. Therefore, you do need to comply with it until or when/if the district judge changes it.

If your case is in Rockwall County or Kaufman County, the answer is yes; but it is a higher hurdle and burden. You cannot appeal temporary orders hearings in these actual counties because you only have one judge—the district judge. But, you can appeal the decision of the district judge to the appellate courts on a temporary orders level through a petition for writ of mandamus. The legislature did not want to leave people without a vehicle to appeal temporary orders and so this option is available. The only problem with this type of pleading or action is that the burden is very high. In fact, if you are going to try to appeal it will most likely be based upon the “abuse of discretion” prong which is extremely difficult to prove. This is basically claiming that the district judge abused their discretion when making the ruling in the temporary orders. Therefore, you might just be spinning your wheels and many people do not end up filing a mandamus for several reasons (including the fact that you still have to have your final trial in front of the same district judge who will then know you filed a mandamus on them).

The Judge Did Not Divide the Assets Fairly in My Divorce, Can I Appeal?

April 23, 2014 | by Guest and Gray Law Firm

You have just finished a long bench trial in your divorce and you do not feel that the trial court was correct in its division of your assets and liabilities. In fact, you feel that the judge was completely wrong and you got the short end of the stick. So, you wonder what you can do about it. You absolutely can appeal, but you have a short window frame in order to do so and it is imperative you take certain steps in appealing.

The 7^th District Court of Appeals in Amarillo makes this fact abundantly clear in Kenneth Dale Rodgers, Appellant vs. Mary Elaine Rodgers, Appellee in determining whether or not (a) “the trial court abused its discretion in the division of the property” which (b) “materially affected a just and right division of the marital estate.” In that case, the husband was very unhappy with the property division and he appealed. However, the husband failed to request findings of fact and conclusions of law from the trial court within the required amount of time. Therefore, the appellate court had no idea what the basis of the trial court’s ruling was and was forced to go along with it. This is because, as the Court of Appeals held, you must request findings of fact and conclusions of law from the trial court and the trial court must then file those within a certain period of time. This allows the Court of Appeals to determine why the trial court held what it held. The record sometimes helps, but findings of fact and conclusions of law are obviously more solid and preferred by the appellate courts.

When you have a bench trial (trial before judge, not jury), Texas Rules of Civil Procedure Rules 296 and 297 mandate that you must file your request for findings of fact and conclusions of law from the trial court “within twenty days after the judgment is signed” and then the trial court must “file its findings of fact and conclusions of law within twenty days after a timely request has been made.” If you fail to do this, then “the trial court is presumed to have made all findings of fact necessary to support its judgment, and it must be affirmed on any legal theory that is supported by the evidence.” Rodgers v. Rodgers.

Enforcement of Property Division: Can You Get Jail Time?

April 22, 2014 | by Guest and Gray Law Firm

You have a final decree of divorce and you were either ordered to surrender a certain asset to your ex-spouse and you have not or you are the ex-spouse who is the recipient of the asset and have not received it yet. Regardless of which situation you are in, one can be pretty certain that an enforcement action is in your near future. The question becomes what type of relief can be sought on this type of case. This question is answered clearly as a big “no” in In re Cherilyn Ann Kinney, Relator by the Fifth District Court of Appeals in Dallas.

In some suits for enforcement (most commonly in suits to enforce child support), one means of relief sought is jail time–confinement of up to 60 days in county jail to be exact. However, in suits for enforcement of property division where one spouse was ordered a certain amount of money in the decree for a debt, lien, retirement division, etc. then jail time is not appropriate. In this particular case, the wife was awarded one of the homes and to compensate the husband he was awarded$40,000.00 secured by an owelty lien on the residence awarded to wife which the wife had to pay within six months of signing the decree. Needless to say, she did not pay the $40,000.00 within the time ordered and so her ex-husband filed an enforcement to make her do so. Unfortunately, they asked for jail time and the trial judge did just that and the wife was arrested on the spot and placed in the county jail.

On appeal, the Court of Appeals held that the “Texas Constitution provides, ‘No person shall ever be imprisoned for a debt’.” Tex. Const. art. 1, §18. In fact, the Texas Family Code is specific as to what property divisions are enforceable by contempt and that contempt does not mean imprisonment. Specifically, Texas Family Code Section 9.012(b) states “A court may not, enforce by contempt an award in a decree of divorce or annulment of a sum of money payable in a lump sum or in future installments payments in the nature of debt, except for (1) a sum of money in existence at the time the decree was rendered; or (2) a matured right to future payments. Therefore, the Court of Appeals did a legal analysis and concluded that the only way to determine if contempt is an option in an enforcement action, the decree must be specific enough—“the divorce decree must indicate the funds existed at the time the decree was rendered or specify particular community funds from which the amount is to be paid.”