Texas Family Law Blog

new blog

2010-04-23T09:31:00.005-05:00

I have been working on a new blog for some time now. While it is not complete, it is up and running. I have begun posting on the new blog and have ceased posting on this blog.

Please visit my new site at chrislawyerblog.com.

divorce and the holidays

2009-12-28T21:01:00.003-06:00

In my last post I went over tips to survive Halloween. As the holidays progressed I read more good articles on how to help your kids survive the holidays. Dick Price posted an article entitled "7 Ways to Wreck Your Kids Holidays", and J. Benjamin Stevens posted "Tips to Follow for Holiday Parenting Time". These are great articles, and there are many more like it.

As I read these articles it got me thinking about who the articles were intended for and I noticed a common theme, or lack thereof. What about you? Separated parents can find new gaps in their life that were once filled with sports, dance class and of course the holidays. What to do?

There are many things you can do, but I suggest you take up a hobby. Never had a hobby? Now is the perfect time.

The one that jumps out at me is exercise. I love to exercise. Looking for something more than the standard treadmill on LA Fitness? Try Crossfit. I guarantee it will be the most challenging and rewarding exercise you have ever done. Local to the Dallas, Texas area? Check out Crossfit Deep Ellum. From somewhere else, search Crossfit and your local city.

Like to bike? In Plano, Dallas, or surrounding areas, check out DORBA. Somewhere else, search Mountain Biking and your city.

Not an exercise buff? How about photography or videography? Check out Vimeo and of course YouTube. How about cooking?

The point is, there are many things you can do for yourself to fill in the time once occupied by children's activities. All of us have things that we want to do but could never find the time. Now you have the time. Take care of yourself.

halloween and the divorcing parents

2009-10-29T12:30:00.002-05:00

I read an excellent article on Divorce 360 regarding how to handle the Halloween holiday when recently divorced or in the divorce process. As always, being reasonable and viewing your decisions and statements through the eyes of the children is the best way to handle things. If you need a little help with this, they offer 5 tips in their article "Tips to Help You and your Ex Make this Halloween Fund for the Kids":

1. Keep children informed.

Let the child know ahead of time what will happen on the holiday "so that different expectations will not arise," Shoshanna said.

2. Don't put the kids in the middle.

Don't ask, 'Do you want to spend Halloween at my house of your mom's (or dad's)?', " said Blackstone Ford. "That approach tests your child's allegiance. Better to ask, 'Where would you like to spend Halloween?"'

3. Share your children.

"If possible, see if you can share the time during a holiday so that all participate. Perhaps each parent can take half of the time. Or, for Halloween, for example, perhaps one parent can get the costumes and dress the child and the other parent go with them for the trick and treating," Shoshanna said.

4. Treat the other parent well.

According to Shoshanna, it is "very helpful for children to see that their parents are treating one another respectuflly during holiday times (as always). Don't use this occasion to reminisce about the pass or say negative things about your ex."

5. Make your own plans.

If you're a parent who is alone during a holiday, don't make a big deal about it or create upset about it in the child. Find a friend to share the time with. Or, use the time to volunteer and be with others. "You don't want to child to feel that they're enjoying the holiday while the other parent is sad or alone," Shoshanna said. "This may create guilt in them and prevent them from having a good time."

this is a good time to make a point about residency restrictions in Texas

2009-10-26T16:35:00.002-05:00

In a comment to my original post on the residency restriction in Texas, anonymous posts:

Chris, you said in your post that one way to maintain a geographical restriction is to stay active in your child's life well, I'm here to tell you, that's not the case in Guadalue County, Texas. I'm a joint managing conservator or my children and even though my ex-wife is the "custodial" parent, I proved in Court that the children spent more than half the time with me, I testified confidently that I had been to EVERY significant even in their life since the divorce, and showed that I had a daily relationship with them. The judge still allowed my ex-wife to take my children and live 5 hours away with them. SHe claimed that she had been searching for a teaching position for 2 years within the geographical restrictions and I brought public information requests from all the school districts surrounding her residence that showed that she had NEVER applied to them for a job. Still, she got the restriction lifted. So, by no fault of my own, without me doing anything but be a good father, never missed a child support payment PLUS i paid for their daycare, my children were taken away from me and I'm helpless to having the court make my kids another statistic.

This is a good opportunity to bring home a point that I find myself stressing over and over in response to comments to my posts and that is that you are always subject to the whims of a judge. Many times the specific facts of a case are less important than what judge it is before or how the judge feels about you as a person. Judges are people too and have opinions like the rest of us, wrong or right.

You might ask then, what am I to do in a situation similar to that of anonymous? Anonymous can and probably should appeal the ruling of the Court with regard to lifting the Texas residency restriction. If he does not already have an attorney then he should consult an appellate attorney to inquire as to appealing the judge's ruling. An appellate court is the checks and balances that help control how the lower courts behave.

Just some food for thought for those of you out there who are hyperfocused on the facts of their specific situation. Ask anonymous, he will tell you that sometimes you can do everything right and still not get what you feel you are entitled to.

Anonymous, good luck.

separating in Texas and online considerations

2009-10-14T13:21:00.001-05:00

If you are separated from your spouse or considering separation, I have attached a great article about how to separate your online life. From a legal perspective, this article has some good advise, most specifically in regard to passwords.

The majority of divorcing people I deal with in my practice have web-based email such as Yahoo or Hotmail. If you forget your passwords for those accounts there are certain questions you can answer to change the password. Problem is, your ex may know the answer to those questions and can then change the password giving them access to all your personal emails. Be careful with this and enjoy the following article:

How to break up in an online world—and avoid e-stalkers - Ars Technica

gay marriage (or divorce) in Texas wins it first big battle...

2009-10-02T11:35:00.001-05:00

but not the War. In what I think is a landmark ruling for gay divorces, a judge in Dallas County has ruled the ban on gay marriage in Texas is unconstitutional. Read about it in the article - Texas Lawyer Blog: State district judge finds Texas’ ban on gay marriage unconstitutional

The Texas Attorney General is fighting this tooth and nail in an attempt to uphold the ban on gay marriages and has vowed to see this all the way through to the Supreme Court.

The ruling by Judge Callahan in the 302nd District Court basically opens the door for this gay couple to get divorced. Kind of ironic if you ask me, supporting gay marriage so someone can get divorced. In any case, the couple in question here, who were married in another state, will most likely be divorced in a few weeks. When that happens the Attorney General's Office will certainly appeal to the Texas Court of Appeals level.

The case will probably then proceed to the Texas Supreme Court and then on to the United States Supreme Court.

I will update you as information becomes available.

same sex marriage in Texas

2009-08-12T10:52:00.004-05:00

I found an interesting blurb in a Texas case on gay marriage. You can find it in my discussion board here.

article on parents who continually miss visitation

2009-08-11T10:03:00.002-05:00

divorce360.com | Pulling the Plug on Visitation

Shared via AddThis

great articles on do it yourself divorces

2009-08-05T14:16:00.004-05:00

Click here to visit the site. Remember that I offer online divorce paperwork to handle your own divorce in Texas, under the Uncontested Divorce in Texas tab. You can visit that portion of my website by clicking here.

how to use an RSS feed

2009-07-22T15:04:00.002-05:00

Here is a great article on how to use an RSS feed to follow this blog and setting it up in Google Reader (like and email program to organize the sites you are following.

Internet Marketing Boomer

terminations and adoption in Texas part 2

2009-07-14T19:54:00.005-05:00

I know some of you have been on the edge of your seats to get to part 2. Sorry for the delay, been busy busy.

Okay, so we know now about terminating a parent's rights. That is the first step to completing an adoption in Texas. As I stated earlier, there can only be one father and one mother. If a step-father wants to adopt, then bio father must be terminated. However, if someone other than a step-parent wants to adopt then BOTH parent's parental rights must be terminated. This would mean grandparents, uncles, aunts, etc...

Okay, so on to adoptions. This discussion is about private adoptions in Texas and not adoptions through an agency. Everyone knows what an adoption is, so I will just give a brief discussion of what is required to complete the adoption. First you must have a home study done. A home study is where a social worker comes and visits your house and makes sure it is suitable for the child being adopted. The social worker then makes a report to the court that the home is suitable and the adoption should go through. If the home is not suitable, or the people in it are not, then you know the result of that. Social studies can range anywhere from a few hundred dollars to thousands dependent upon where you are and the requirements of that specific court.

The next major expense is the ad litem or amicus attorney. This person is an attorney and represents the interest of the child. An attorney for the child. In a step-parent adoption this requirement can sometimes be waived, but is a requirement in all other adoptions. The purpose of the amicus attorney is again to watch out for the best interests of the child and make a recommendation to the Court for or against the adoption. Guess who pays for this.

Next, the prospective adoptive parent or parents must have a criminal history report submitted to the court. This is done by submitting a fingerprint card to the Department of Public Safety who then mails a copy of the report to the court. Clean record, clean adoption. This is only required for the adopting parent. You bio parents out there with the arm length wrap sheets are safe!

Next there is the health and genetic report. This is not required in a step-parent adoption because the bio parent knows their medical background and probably that of the parent who will be terminated. When the adoption involves non-parents however, it is important to know the biological parent's medical background so that the child's health can be safeguarded. This is a form that must be filled out in detail and filed with the court.

There are a few affidavits that must be filed with the court that I won't go into here. Nothing major.

This is not an all inclusive list of the things that occur in an adoption, but it is pretty close. If you are contemplating an adoption I suggest you contact an attorney and let them handle it so that you do not miss anything. However, if you want to research it more yourself, all the requirements are set out in the Texas Family Code. You can find a link to the Texas Family Code at my website to the right under Resources.

One final word to address the questions that I know will arise. Typically a court will not terminate a parents rights unless there is proof to the court that there is someone who is going to step in and support the child. For example, mother makes $30,000 a year and is struggling to get by. She despises the father and wants to terminate his rights, but there is nobody adopting the child. Father does not pay child support. In this situation the Court most likely will not terminate the parental rights unless there is some other reason to do so, but not for failure to support the child. They want somebody supporting the child or obligated to support the child. They will not let the father off the hook so easy. In my scenario, if the mother made $100,000 per year or there were a step father adopting, the Court may change its position because they know the child will be taken care of financially.

Another point. What happens to child support in a termination? Current child support (i.e. child support in the future) terminates. Back child support is not terminated (absent an agreement by the person owed the money) because that obligation has already accrued and is due and owing. That simple.

Good luck.

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!

terminations and adoptions in Texas part 1

2009-02-09T14:29:00.003-06:00

I would like to post a bit on terminations and adoptions. I get tons of questions and emails regarding terminating a parents parental rights or a step parent wanting to adopt a step-child. I am going to give a very brief procedural layout for how this works in an attempt to answer some of these questions. In part 2 of my post I will discuss some of the hoops that must be jumped through to accomplish a termination and adoption.

Before anybody can adopt a child, either one or both biological parents must have their parental rights terminated. That means that if a step-father wants to adopt his step-child, the biological father's rights must be terminated. The point is, there can only be one father and one mother for each child whether that is biological or legally (through adoption).

A termination in Texas can only be completed by having "grounds" for the termination. Put simply "grounds" are reasons for the termination. You do not get to determine the reasons, the Texas legislature has set up the reasons for you. If you will look to the right, there is a link to my website. Please click on that link and go the the "resource links". There you can find the Texas Family Code. Specifically you need to look at Chapter 161, Section 161.001. There you will find your reasons. THERE ARE NO OTHERS! I can see the posts now...."can i terminate the father's rights cause he never visits". Is it in the list is just referenced? Then no. "Can I terminate the mother's rights cause she is crazy and talks to the walls." Is it on the list? Then no you cannot terminate for talking to walls.

The two most common reasons to accomplish a termination that I see are failure to support the child for one year or the signing of an affidavit of relinquishment. These are not the only ones, as you can see from the list, just the most common. Any of the others will work as well if they are applicable.

Failure to support a child is pretty obvious. That means that the parent has not financially supported their child. This can be failure through a court order or not. Bottom line, if you don't support your child, your rights can be terminated. The failure to support has to be recent (within 6 months of filing the petition to terminate). This means that you cannot use a parent's failure to support a child that occurred 5 years ago if the parent supports the child now.

The second is the affidavit of relinquishment. This is basically an agreed termination as the biological parent has agreed to terminate rights. The form for this is very specific and probably needs to be obtained from an attorney. This alone, as seen from the list, is grounds for termination.

In the first reason, or in any other reason other than the affidavit, you are going to have to go through a court hearing to get the rights terminated. That means filing a lawsuit, serving the party you are trying to terminate and setting a hearing where a judge will decide the issue.

With the affidavit, there is typically not the need for a full blown termination hearing as the parent has agreed to terminate. In some cases, this moves you straight to the adoption. I say in some cases because there are certain times when a person agrees to terminate their rights, but the court will not do it. I will discuss this below.

In any case, you have to complete the termination before you can complete the adoption. If you have to have a trial, then that needs to proceed and conclude before the adoption can proceed. If the affidavit is used and you do not run into the problem discussed below, then you are ready to proceed with the adoption.

Just because a biological parent agrees to sign an affidavit of relinquishment does not mean the court will terminate. The court is primarily concerned about the best interests of the child. One of the major interests the court protects is the support of the child. They will not allow a parent to terminate to avoid paying child support. They also will not allow a parent to terminate another parent's rights unless it is shown that there is someone to step in and take the place of the support provided or owed by the terminated parent or unless the parent seeking the termination of the other parent's rights can establish to the court that they can adequately meet the needs of the child financially. Even upon this showing, they still may not terminate. A parent is obligated to support their children and the court does not take this lightly. If there is someone out there who can support the child, the Court wants them supporting the child.

One more note regarding child support. While a termination of a parent's parental rights will terminate all future child support payments, it will not terminate amounts owed in the past. Those amounts have already accrued and cannot be undone.

This concludes Part 1. See you in Part 2!

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!

oops i forgot to mention....

2008-10-27T10:11:00.003-05:00

You can also purchase very inexpensive legal advise, for Texas, a la carte for $35.00 per issue. Basically you buy an email to me for $35 where you can list all your questions. This is designed for situations in which you want to represent yourself, but have a simple legal question or two that you do not know the answer to. For $35.00 you can get that answer or answers.

Now that is some cheap legal advise!

it lives!

2008-10-23T15:59:00.002-05:00

Okay it is official, my form website is up and running. You can visit it through my "uncontested divorce" page on www.chrislawyer.com or you can visit it directly at this address.

In addition to providing forms for uncontested (or agreed) divorces in Texas, I will soon have uncontested or agreed petitions to modify Texas orders or decrees already entered by the court.

For instance if you are already divorced but your child says they want to come live with you, and the other parent agrees, you can use my forms to file and finalize a modification of the custody provisions in your decree. Of course this is for Texas only.

Another example, and important in this economy, is when a divorce decree or order sets an amount of child support that is no longer correct because of changes in your job or you rate of pay, you can use my forms in a very inexpensive fashion to get your child support modified (assuming that your ex is in agreement).

If someone is interested in the forms, they can use them and the "pay for legal advise" section and get help with their specific legal situation. In this scenario you could file your own lawsuit using my forms and then get the help you need in representing yourself. Pretty cool.

If none of the above work, you can always retain me if you need to divorce or modify an order in the Dallas, Plano, Denton areas. Sorry, can't jet down to San Antonio to help you other folks.

Enough self promotion....thanks for reading this mish mash!

i'm still alive

2008-09-09T14:49:00.002-05:00

I still live and breathe. Things have been very hectic around the office with new clients (good), software malfunctions (bad) and a new project I have been working on in a further attempt to help people with their family law issues.

The new project is a form website for do it yourself divorces in Texas, do it yourself wills, etc... This form service will be fully integrated with my existing website as you can see on my here. My service will differ from the free divorce forms and the pay for divorce forms websites in that I will provide legal review of the forms to make sure they are correct. With the other divorce form websites you simply buy the form and you are on your own. On mine, you get my assistance with the forms and can even just buy a la carte legal advise. In the future I will try to integrate a do it yourself modification section for Texas so that you can do your own modifications.

I am very excited about this new service and will announce more about it in the future.

As for my blog posts, I am running a little dry on ideas, so if anyone has some topics that they think are interesting, please let me know and I will make a list.

Type to you soon.

holding parents feet to the fire

2008-06-04T15:08:00.006-05:00

A good portion my practice in Dallas and Collin county is enforcement of the court's orders as they relate to child support and visitation of children. These occur in situations where the Court has already entered orders regarding children, for instance a Final Decree of Divorce, an Order Modifying Prior Order of the Court, or Order in Suit Affecting the Parent-Child Relationship.

Once the court enters those orders, they expect you to follow them. If you do not, the aggrieved (pissed off) parent, can sue the other parent for contempt of court.

A suit in Texas for enforcement of a child support order is relatively simple process. An attorney must simply prove that a set amount was payable on a set date at a set place and time, and that those payment were not made. For example, Dad is ordered to pay $500 per month beginning on June 1, 2007 and each first of the month thereafter to the disbursement unit in San Antonio Texas, address 1234 Main Street. If June 2008 rolls around and Dad has not made those payments it is relatively simple to prove that he is in contempt. He knew when he was supposed to pay, how much to pay, and where to pay it. If he does not do it, he is in contempt.

Enforcement of visitation in Texas can be that simple as well, but it rarely ever is. The reason is that the ticked off parent (parent not receiving their visitation) doesn't do what they are supposed to do. Let me explain by example:

Father is awarded custody of the child. He is ordered to provide the child to the mother for her visitation on the first, third and Friday of each month at his residence at 6:00 p.m. Simple enough, correct? Let's add these facts - mom and dad do not get along (i know that is far fetched, but work with me here) and dad makes mom's visits as difficult as possible. Mom calls dad on the first Friday at about 4:00 p.m. to confirm she is picking up the child (which she is not required to do, but does because it takes her 45 minutes through traffic to get to dad's house) and dad says don't bother showing up because the child and I won't be there. The mom makes a note of this and decides to forego the traffic and mess. She'll wait until the next visitation on the third Friday. Same thing happens on third Friday, so mom makes a note of it. She decides if he does it again she is going to sue his pants off. Fifth Friday comes and dad does same thing. Mom decides to sue for enforcement or contempt for the father violating the court's order.

Ruling? Father is not in contempt! WHAT?!! He didn't provide the child, how can he not be in contempt? He is not in contempt because MOM failed to follow the Court's order too! For mom to hold dad in contempt, she needs to appear on the first, third and fifth Friday of each month at dad's house at 6:00 p.m., regardless of whether the child is there or not. That is what the court order said and that is what mother must do. If she follows the court's order, and then dad does not, dad is in contempt.

While my example references a common situation, this same logic applies to other areas of decrees or orders of the court. FOLLOW THE ORDER, NOT WHAT YOUR EX-SPOUSE OR MOM OR DAD OF YOUR CHILD TELLS YOU. If you are unclear how to follow your order or what to do, call a lawyer. Most lawyers will offer free consultations or charge a small fee to speak with them. I do divorces in Plano, Frisco, McKinney (Collin County), and in Dallas, Richardson, Carrollton (Dallas County). I also handle modifications and enforcements of orders.

Moral of the story: If you follow the decree, and ignore what people tell you, you should be well on your way to holding the other parent's feet to the fire!

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!

danger danger

2008-05-16T14:02:00.004-05:00

Just another quick post reminding anyone reading these posts to not accept what is written as the final word on what the law currently says. I just had a comment on my first post, which is years old, about how old you have to be to get married. The law has changed since I first wrote that post, so it is basically useless. THE BOTTOM LINE IS, DO NOT RELY ON MY BABBLINGS IN THIS BLOG AS THE LAW...CONTACT A LAWYER IN YOUR AREA TO CONFIRM EVERYTHING WRITTEN IN HERE.

The post is so old, the links don't even work anymore. This blog is intended to give you some general background as to family law, but it is not timeless, although my humor is. Thank you.

journaling in texas divorce and modification cases

2008-04-14T12:13:00.006-05:00

Okay, this submission will be a quickly, but VERY important. The subject is journaling. It can apply in divorce situations, but is most important in modifications of prior orders (i.e. taking someone back to court to get custody or change visitation).

A good bulk of my work is in the modification field and therefore I hear all kinds of stories and allegations. The problem with most stories and allegations is that they are coming from memory. This creates two problems, one they cannot recall the story exactly, or most importantly they cannot put a date on it. This creates unreliability in the evidence. It also creates a he said, she said scenario.

Client: "My ex never exercises his visitation and when he does, he is always late."

Lawyer: (Drooling at the excellent information he is about to get) "Can you get me a list of all those dates he missed and the dates and times of when he was late?"

Client: "Well, I do not remember all the dates, but it is pretty much a couple times a month."

Lawyer: (Rolls his eyes and sighs) "Okay well try to put something together."

What otherwise would have been excellent evidence is now pretty much worthless. When dad denies it, I have nothing to back up our statements. Too bad.

The way to combat this is to keep a journal of everything involved in your case or your child's life. If the parent is always late to pick up the child, document it. If the parent is constantly missing visitations, document it. If your ex says something particularly nasty on the phone in front of the child, document it. You get the point.

It doesn't have to be anything elaborate, just a simple calendar to refresh your memory down the road. Imagine you get in a courtroom and you are alleging that the other parent is constantly missing visitations. The other parent says that is not true, but does not really seem to have anything to back up their denial. On the other hand, you have your journal and know the exact dates, times and what was said for each missed visitation and can list them out for the judge in detail. Who do you think the judge will believe?

A simple little task, kept up with over time, can have such a HUGE impact on your case.

Two big things to consider however:

1. Do not be TOO detailed. This is not a diary. Remember that you may have to give the other side a copy of your journal if you use it at a hearing. If you know that the other side could be reading it, that will help you keep it simple.

2. Disregard this post if you are ever the opposing party on one of my cases!

residency restriction in texas

2008-03-20T14:20:00.005-05:00

As I am sitting here listening to March Madness I thought of a few items that seem to be reoccurring themes in my family law practice. As a family law attorney you sometimes lose sight of the simple issues that people deal with daily. I will discuss a few of those ideas in the next few posts.

Today I wanted to offer a few tips on residency restrictions in Texas. A residency restriction is a court imposed limitation on where the CHILD can live. You notice that i said child. The Court cannot tell the adults where they can and cannot live, but they can limit the residence of the child. Obviously, if you are the parent with custody of the child and the court limits the residence of the child, then your residence has been effectively limited too. Your option is to stay put or let the child live with the non-custodial parent.

The state legislature has said that they want to promote the relationship between the parent who does not have custody of the child and that child. The way they accomplish this is by assuring that there is frequent contact, i.e. a residency restriction.

The Courts have determined that in Texas a residency restriction can be as large as the state or as small as a neighborhood or school district. The size of the geographical area is within the court's discretion subject to the facts that they hear at trial. In Collin County (Plano) and Dallas County the courts will typically impose the Dallas and contiguous counties (counties touching Dallas) or the Collin and contiguous counties language by default. That can be changed with the proper facts.

There is one simple way to have a residency restriction put in place if you are not the one with custody of the child, and that is to stay active in the child's life. I cannot tell you how many times I have seen cases where my client wants a residency restriction but has not been active in the child's life. I think sometimes it is simply a control issue. If you want a residency restriction in Texas, you need to show that you are active in the child's life. That can mean simply exercising the visitation that you have been awarded or attending extracurricular activities. Attend some parent-teacher conferences, take the child to the doctor occasionally. You get the point.

If you are active in the child's life then the court will protect your interests because that is the "policy" of the State of Texas.

The things listed above also apply to parents who want to remove the residency restriction in Texas. If the parent without custody is active in the child's life, then chances are good that the court will not lift the restriction. However, if there is not active involvement, and the parent wishing to move has a good reason, chances are good that the court will lift that residency restriction.

The moral to this story is simple, stay involved in your child's life or suffer the consequences when a parent wants to move out of state.

grandparent’s rights in texas (Cont.)

2008-01-31T13:05:00.003-06:00

In my last post we discussed a very brief background of the evolution of grandparent's rights in Texas. Now I will provide you with a brief synopsis of the law as it currently stands. The information below is taken from the Texas Family Code and an excellent article written by Jimmy L. Verner, Jr. of Verner & Brumley, P.C. I really like the way Mr. Brumley organized and explained the current law as it relates to grandparents seeking rights to their grandchildren. I have made a few changes to the wording to try and simplify the legal jargon. I wanted to put a direct link to the article in this post, but it appears the link is broken on their website. This is the link to their "Resources" page where the article is located. There is tons of good information on this page.

Managing Conservatorship

A grandparent can seek managing conservatorship of a grandchild by original suit or intervention if one or more of the circumstances listed below exist. Managing conservatorship typically means custody in this type of case, but does not have to mean that. It could simply mean that the grandparent has rights to make decisions regarding the grandchild's up-brining. An "intervention" means that there is already a lawsuit pending regarding the child and the grandparent simply joins the lawsuit.

The grandparent has had actual care, control and possession of the grandchild for at least six months ending not more than 90 days preceding the date of filing the lawsuit. (The 90 day requirement ensures that the 6 month possession was recent and not years and years ago); OR
The grandchild and the grandchild's guardian, managing conservator, or parent have resided with the grandparent for at least 6 months ending not more than 90 days prior to filing the lawsuit IF the child's guardian, managing conservator, or parent is deceased at the time of the filing of the lawsuit; OR
The grandchild's present circumstances would significantly impair the grandchild's physical health or emotional development (meaning that where the child currently lives with the parent presents a danger to the child either emotionally or physically) ; OR
Both the grandchild's parents, the surviving parent, or the managing conservator either filed the lawsuit for the grandparent to have managing conservatorship or have agreed to it.

If any of the above four exists then there may be a case for the grandparent to seek custody or visitation of the grandchild.

Possessory Conservatorship

A grandparent may seek possessory conservatorship of a grandchild by original suit or intervention if one or more of the circumstances listed below exists. Possessory conservatorship is NOT custody and would be more like a visitation lawsuit. However, it differs from a visitation lawsuit in that the grandparent may be granted certain rights with regard to the up-brining of the grandchild.

Original Lawsuit OR Intervention

The grandparent has had actual care, control and possession of the grandchild for at least six months ending not more than 90 days preceding the date of filing the lawsuit. (The 90 day requirement ensures that the 6 month possession was recent and not years and years ago); OR
The grandchild and the grandchild's guardian, managing conservator, or parent have resided with the grandparent for at least 6 months ending not more than 90 days prior to filing the lawsuit IF the child's guardian, managing conservator, or parent is deceased at the time of the filing of the lawsuit;

The above two allow the grandparent to file and original suit or an intervention for possessory conservatorship if either is met.

ONLY an Intervention

A grandparent can file ONLY an intervention for possessory conservatorship if the following two are met:

The grandparent has had substantial past contact with the child; AND
The grandparent makes satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the grandchild's physical health or emotional development.

Grandparent Access (Visitation)

A grandparent may seek access to a grandchild by original suit or intervention if ALL THREE numbered circumstances exist PLUS one or more of the lettered circumstances exist:

At the time the lawsuit is filed, at least one biological or adoptive parent of the grandchild has not had that parent's rights terminated; AND
The grandparent requesting access to the grandchild proves that denial of access to the grandchild would significantly impair the grandchild's physical health or emotional well-being (this will take more than just the grandparent saying so … you would need a professional to confirm this); AND
The grandparent requesting access to the grandchild is a parent of a parent of the grandchild; AND
1. The parent has been incarcerated in jail or prison during the three month period preceding the filing of the lawsuit; OR
2. The parent has been found by a court to be incompetent (a separate lawsuit); OR
3. The parent is dead; OR
4. The parent does not have actual OR court-ordered possession of or access to the child.

You can see that this statute is very limited. Letters a. through d. severely limits who can file suit. This statute used to include a lettered provision for divorced or separated parents as well as the four you see, but that provision was removed as a result of the Troxel case referred to in my earlier post. You can see what the removal of this provision did to the ability of a grandparent to seek access to their grandchild.

This is simply a quick reference guide to the existing law for grandparents. If you are a grandparent and need help, contact a lawyer to discuss your options. DO NOT simply rely on this post and throw up your hands. There may still be a chance, and until you speak to a lawyer, you will never know.

You can visit my blog at http://chrislawyerblog.com/grandparents-rights/ for more information about me or to contact me.

grandparent’s rights in texas

2007-10-19T14:41:00.003-05:00

There is probably not a hotter topic than grandparent's rights in Texas. "Rights" typically refers to the right to have access and/or possession of a grandchild. There are scenarios where a grandparent can seek custody of a grandchild, which I may discuss later, but this topic is on visitation.

The issue of visitation with a grandchild typically does not arise in the context of a healthy family relationship, i.e. mom and dad and child together in a loving home. When that family unit is disrupted, either through divorce, separation, or death is when you will typically run into the situation where a grandparent is alienated from their grandchild. It seems the most common these days is the death of one of the parents of the child. You can imagine how difficult these issues become on the grandparents whose child has died and the surviving parent of the child. It seems that the more time that passes, the more difficult the situation becomes as the surviving parent establishes a new life. It seems to me that these are no win situations as both sides have legitimate arguments and everyone is hurting.

I do not recall grandparent rights cases coming up much early on in my career (in the90's). That could be because I was a fledgling attorney who did not attract that type of business, or maybe it is the baby boomer thing. In any case, I know about it now and it is a big topic.

Where things seemed to have really sparked was when the U.S. Supreme Court decided Troxel v. Granville in June 2000. The grandparents in this case were the Troxels. They were the paternal grandparents and their son had died. The surviving parent (Granville) allowed visitation with the Troxels but the visitation was limited. The Troxels wanted more visitation and sued the mother. The statute In Washington that allowed them to sue provided that "any person" could file a suit seeking visitation of a child and the trial court would grant it if it found it was in the best interest of the child. You can see how broad this statute was…any person? The garbage man? This statute was bound to take a fall, which it did. To finish the story, the grandparents got less visitation than they wanted, but more than the mother wanted to give. She (the mother) appealed it all the way to the Supreme Court of the United States.

The Supreme Court found two problems with the statute as written. First, it in no way took into account the parent's decisions regarding what was best for the child. The only people that were really involved was the person that filed the lawsuit and the judge who imposed what they thought was best. The second problem was that the grandparents had not proven that the mother was unfit. The Court stated that there was a presumption that a fit parent acted in the best interest of their child. The grandparents apparently did not even address this issue, and why would they because the statute did not require it. The second issue, the presumption, is the big one and is the one that has been used throughout the states and is now the standard here in Texas. Ultimately the Supreme Court found the Washington Statute unconstitutional.

Since Troxel was entered, the Texas courts have been scrambling to determine whether our statutes (as they existed then) were constitutional. In every case they found that it was. I will not go into each case here as most are now obsolete with the new statutes that are in place (to be discussed later). The first case to really adopt the "presumption" discussed above was the In Re: Pensom case out of San Antonio decided in 2003. That is the case that we relied upon for years to determine what we had to prove or disprove and now is reflected in the grandparent visitation statute. Over the years, the legislature has been active in the process as well…honing the grandparent statute so that it will comply more closely with the ruling Troxel. I will discuss the current version of the statute in the next post.

You can visit my blog at http://chrislawyerblog.com/grandparents-rights/ for more information about me or to contact me.

fyi…

2007-09-12T13:13:00.002-05:00

When reading my posts, especially ones from way back, remember that the law is a constantly changing and fluctuating entity. Point being, something that was discussed a year ago may not be the law now. So take anything you read in my posts with a grain of salt, and always verify the information with a lawyer of your choice. Or if you cannot afford or find a lawyer, research your specific issues by going to the heart of the matter….the Texas Family Code to which I have provided a link to the right.

do it yourself divorce continued….

2007-09-12T13:00:00.003-05:00

I have found an excellent resource for those of you out there pursuing your own "pro se" (representing yourself) divorce. I still think the first step is to contact your local district clerk's office and/or the court for their procedures. Additionally, the Texas Young Lawyers Associtation (TYLA) has put together some great information in assisting you through the legal quagmire. Their website is the www.tyla.org and more specifically the family law information can be found at www.tyla.org/family_law.html.

They have a "Pro Se Divorce Handbook" and "What to Expect in Family Court". Both of these are excellent resources as they pull the curtain back a bit from the process. They've done such a fine job that I think I may not need to do it myself. So it's on to a new topic…..

2007-06-07T14:42:00.002-05:00

do it yourself divorce in Texas Part 2

Many months ago we discussed where to file your divorce and how to contact the clerks for help with your “pro se” divorce. In this episode we will discuss the starting paperwork.

If you are still unclear where to file, please review my earlier posts or log onto my website http://www.chrislawyer.com/, go to the “Resource Links” page and click on the Texas Family Code link at the bottom of “Organizations”. From there you want to go to Title 1, Chapter 6 - Suit for Dissolution of Marriage. The specific code sections are Sections 6.301 through 6.308. These should help.

Again, I am not your lawyer. I don't represent you unless you retain me and sign an attorney employment contract. The forms below are just for purposes of illustration and are not intended to apply in every case, or your case for that matter. If you use these, and they are wrong for your jurisdiction, or incomplete, do not blame me...I have warned you not to use them. To get up to date forms, go to your local law library or hire an attorney!

To begin a divorce you will need an Original Petition for Divorce. This document “petitions” the court for the relief you are seeking, or in English, tells the court what you want them to do.

The requirements for what is to be included in the petition are found following the instructions above for my website Sections 6.401 and 6.402.

Section 6.401 discusses the “Caption” for your pleading. The caption is the top part of the document as seen on the left.

Section 6.402 discusses the requirements for the language in the “pleadings” or in English, the “paperwork”. The statute is telling you that you need to list the grounds for divorce, which has been discussed earlier in my blog. Typically that will be “insupportability” which is the no fault divorce in Texas. The statue also tells you to not put factual allegations in your document, just the general requests for the court. To the left is a sample petition for divorce. Notice that there are no facts in there like "my wife beat me on the head with a frying pan", or "I want the

toaster oven from our wedding, and the lifetime supply of funnel cakes we won at the fair". No facts, just simple requests.

Remember, this is a simple divorce scenario with no property or children. Part 1 is the discovery level. It has to be included, but what it is is not really important at this point. If discovery is involved in your case, you need an attorney. Typically if your estate is less than $50,000 and there are no children, then it is Level 1. If there are children or the estate is worth more than $50,000 it is Level 2.

Part 2 is self explanatory. Part 3 is where you tell the court that you are in the right court because you met the residency requirement discussed above and in my prior post. Part 4 regards service. Any person sued for divorce in Texas is entitled to know that they are being sued for divorce. You can show the court that your soon to be ex knows about the divorce either by 1. having the constable serve them with papers or 2. having them sign a Waiver of Service. We will discuss this issue in later posts. Part 5 should be self explanatory and simply tells the court there has been no protective order filed. If one has, you need to make the court aware of it, and you made need a lawyer.

Part 6 is easy, date of your demise (i mean divorce) and the greatest day of your life (separation). Kidding. Not always fun and games...but sometimes it is! Part 7 is the grounds for divorce which has been discussed in earlier posts. Insupportability is the no fault divorce. You can list other grounds if you like, but you probably need an attorney if you are concerned about grounds for divorce. Part 8, children, none according to our scenario. If you have em, your form will look different as they will be listed in the "caption" and there are other sections to include regarding conservatorship, visitation and child support. If you have child related issues, you may need a lawyer.

Part 9 deals with property. This example says that there is property, but the parties are trying to reach agreements as to its division. Another example of language here would be "no community property was accumulated by the parties" or something to that effect. Part 10 is where you pray (and beg) for the court to give you a divorce. Just legal mumbo jumbo.

At the bottom you would sign it in the appropriate place and you are ready to file your documents. In my next post we will discuss how to file your petition for divorce.

These documents can be found at any law library in "form" books. Track down a legal library in your area and ask them for a form book for divorces. These are NOT the ones that you find at Borders, etc..., these are forms approved by the State of Texas and should provide you with the most reliable forms.

do it yourself divorce in Texas Part 1

2007-03-07T15:32:00.003-06:00

UPDATE: I now offer online forms that are created and reviewed by an attorney (me). Once created, the documents are forwarded to you with instructions on how to proceed in representing yourself in your own divorce. Visit my website at http://chrislawyerblog.com/uncontested-divorce/ for further information.

This is a topic requested by a reader of this blog, and I thought it may be an interesting read and topic for some of you. This series will be a very general type of discussion of the procedures involved and may or may not apply to you. I will simply discuss a simple uncontested divorce in Texas with no children or no property. If you have children, or you have property, most of the procedures will apply to you, but your documents must have more information in them.

Just to be clear, I am not your attorney. I do not represent you. If you would like me to represent you, go to my website www.chrislawyer.com and send me an email. Once you have paid my retainer and signed a retainer agreement, then and only then will I represent you. Additionally, I am not advising you to take any action or refrain from taking any action...I am simply pulling back the curtain a bit to shed some light on things you may not know so that you can help yourself.

Part 1 of this discussion will begin with you reading my prior post on "where to file". If you are reading this, we know you are married and we know you want a divorce, so you have to figure out where to file. Typically it will be in the county where you are living, if you have lived there for longer than 90 days. Again, read my prior post. If you are still unclear, then your divorce may be more detailed than this blog is set up for. You will need an attorney if the answer is not abundantly clear.

Once you have determined where you are going to file, the first thing you should do is contact the "district clerk of court" in the county where you are going to file and ask them if they have any information packets for "pro se" divorces. "Pro se" simply means you represent yourself. Many courts have information for you that will be VERY beneficial in getting you through the process. DO NOT call the courts and ask them how to do it, or what you need to do because they will simply turn you away with the "we cannot provide legal advise" answer. All you are looking for is preprinted information that the district courts of that county may have prepared for pro se litigants (you). If they do not have any, fine. Where I practice in Dallas County and Collin County, I am pretty sure they both have preprinted information for pro se litigants when they are doing their own divorce.

If you do not know how to find your district clerk, log onto www.google.com and enter "District Clerk _____ County" with the blank being your county.

That is it for Part 1. I am going to keep this simple for you and for myself, so we are going to take it slowly and methodically. In Part 2 we will talk about the documents that you need to create that will need to be filed with the District Clerk of Court that you identified above.

UPDATE: I now offer online forms that are created and reviewed by an attorney (me). Once created, the documents are forwarded to you with instructions on how to proceed in representing yourself in your own divorce. Visit my website at http://chrislawyerblog.com/uncontested-divorce/ for further information.

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!

2007-02-15T14:44:00.001-06:00

your questions answered (or at least some of them)

“I have a question: There is a steak dinner on the line. How many times can you get married in the state of Texas? thank you-“

As many times as you can afford. If you give up fifty percent of your estate every time you get divorced, eventually you wont have enough money to get the marriage license….so maybe there is a limit! Hmmmm.

Of course it took me so long to respond that I fear the steak turned into beef jerky. Sorry.

"I have a question more so than a comment. I know a young soldier that got back from Iraq and was dating a female before he left for his duty. When he was away she found his check book and wrote check (good/bad), and claimed that they were married. He is trying to obtain is losses from her, but it seems that the "Informal Marriage" law is working in her favor. What can he do to clear his name and this matter. -Helpless Friend"

Hire a lawyer, and tell him to quit letting his girlfriends live with him. Smile.

"Chris, I am an attorney too. I have an interesting situation shaping up in probate court. An ex wife will be claiming that she and decedent were common law married at the time of his death (apparently based primarily on the fact that they remained friendly and he spent a few nights at her house). I think that the deadman's statute Evidence 601(b) should preclude her from trying to show his intent. Any thoughts?"

I agree with your evidentiary argument, but I am not sure intent will matter. She will have to establish that she meets ALL the criteria. It sounds like she will have a hard time proving that they cohabitated. Staying over a few nights is not even remotely close to cohabitating. Second, she will need to produce witnesses that say they held themselves out as married…and you can produce witnesses that say they didn’t. If she overcomes these, then you may need to argue about intent, etc…with regard to the “agreement” to be married.

If you get this post, keep me up to date with what happened.

"I am new to this Blogging thing but I really have a huge question about family law and my research took me to your blog. I have joint custody with my son's father. That was established in 98', now 2007 I want full custody of my son. The father has been in and out of jail for not paying child support. He's a truck driver that has no real schedule. His wife would pick up my son when he wasn't home so I was sharing custody with my son's step mother instead of him. Now the father says that he and his wife are getting a divorce but they are still living in the same home until other living arrangements can be made. If he goes through with the divorce or separation, how can I get full custody of my son since he's hardly ever in the same city as we live in? Stacey"

Stacey, there is just too much I don’t know to be able to answer your question (or not answer it). My suggestion is that you log onto www.findlaw.com and find a family attorney in your area. They also have a service called Legal Connection www.legalconnection.com that can match you up with a lawyer. Good luck.

"Since it says that you can’t get married again within 30 days of divorcing.....I'm wondering what if you were divorced on say the 2nd of Dec. then married someone else on the 9th of Dec. in another state and both of you still reside in Texas Is that marriage valid?"

I had another questions similar to this. To be honest, I really don’t know the answer to this question without doing some research (which I would be happy to do for a small feeJ)

I suggest that you read my earlier posts with regard to voidable and void marriages and see if you can find the answer in there. Voidable marriages can be fixed, but void cannot.

"If you have a void marriage do you still have to wait the mandatory 60 days after filing."

Not if you file a petition to declare marriage void. You can finalize it as quickly as you can complete the paperwork.

"If a man marries someone knowing while still married to someone else does the second marriage become void or does there have to be an annulment? If so, do the same guidelines apply to annulment as they do to divorce in Texas (i.e. the 60 waiting period after filing)? "

The second marriage is void and you have to file a petition to declare the marriage void. IT IS NOT AN ANNULMENT. There is no 60 day waiting period to finalize and annulment or a suit to declare marriage void.

This type of void marriage can be fixed however….just get the first marriage terminated and continue to live together as man and wife and hold yourself out as same. Voila, you are married.

"Is it possible to have a religious ceremony to "bless" an informal or common law marriage in Texas? I know some states, clergy is not allowed to perform the ceremony w/o a marriage license and w/o filing it. What is the case in Texas? "

Isn’t this really a question for the church? If they can, then you can…if they can’t then no, you cannot.

"Great site Chris. I also wanted to ask about obtaining divorce without a lawyer (don't worry--they won't go extinct). However this is for the more complicated case with a child in the mix. My wife and I are both PhDs with the same income and assets. We know exactly what we want, which is a 6/7 custodial arrangement (child spends 6 days with wife, one with me), equal division of assets (retaining joint ownership of real estate), and child support equal to 6/7 15% of my net income. Seems like since we know what we want we should just be able to file on our own (using one of the better interview-driven software kits). My wife and I work very well together negotiating these things. Comments? Perhaps a blog entry? -Thom "

Great idea Thom…I think I will try to post a blog segment on performing your own divorce in Texas. The problem you may run into is the “better interview-driven software kits”. I have never seen one that is any good. However, if you get along with your spouse now AND in the future then you should not have problems with her.

You need to make sure however that you meet all the court’s requirements. I would suggest calling the court where you would file and see if they have any pre-printed packets regarding pro se (represent yourself) divorces. They cannot give you legal advice, but sometimes that have a list of procedures.

"If I am about to try to prove my marriage was a valid informal marriage. Do me and my husband have to come to court if we have broken up? It has been way less than two years since we broke up. "

No, he does not have to be there if he waives being served and enters his appearance in that waiver. If he doesn’t then he is entitled to notice of the lawsuit and the hearing and may have to be there.

Get yourself a lawyer and they can help you through all of this.

"Chris, what happens in the case where a couple realize their marriage is void, they don't have kids and they don't also own any property, and they left the marriage immediately they realized the marriage was void, do they still need to go to court to declaration the marriage void. What happened was one of the parties thought his divorce was final when it actually wasn’t."

Well if there is no property and no kids, then I guess not. As far as Texas is concerned there is no marriage. Did you have a marriage certificate, ceremony, etc… If yes, you may have to have a proceeding because there is paper out there that could cause confusion down the road…again.
See above post for how to fix this situation…if you want to.

"Could you write some about custody? Do you have any advice (other than 'get real') for a father who is trying to get at least 50% custody of his kids? Both parents are good parents, and the father is very active in his children's upbringing - which is why I would like to see a 50/50 custody arrangement. Oh, and is there anything the father can do that would keep the mother from moving 100 miles (and 3 counties) away from the original place of residence with the kids? Thanks, and Happy Holidays "

I will try and get to custody eventually, but that is a HUGE subject and each case is really different determined by the facts of that specific case.

Yes, there is something you can do to keep her from moving…get a lawyer, file a lawsuit and ask for a residency restriction.

"Have a dilemma in Lubbock Texas. I have a child support order that the ex refuses to pay. She has never worked and never plans to really so I can’t garnish wages. The judgment is 8 years old and the obligor has remarried to a man with a successful business. Can I enforce this child support judgment against any of the obligor’s spouses assets or income since Texas is a community property state. If so I will have to do it soon because the child turns 17 in less than a year and I know the State Child Support Enforcement Agency will still be bogged up in government red tape with my daughter left out in the cold. Secondly will I, or can I renew it before the expiration date like a standard Judgment if I need more time to follow through on enforcing it myself? any help is greatly appreciated, Rick "

You do have a dilemma….you live in Lubbock! Kidding, I went to law school there. Yes, you can sue her for the back amounts. As long as you have an order, she is obligated to pay the court ordered amount every month, regardless of if she has a job or not. You would simply file a motion for enforcement by contempt.

Once filed and served, she would be ordered to appear. She can claim that she was unemployed if she likes, but that is only one piece of the puzzle. She also has to prove that she could not borrow the funds, nor knew of any source to get the funds. Sounds to me like she has plenty of funds she could have gotten her hands on. Courts aren’t stupid and typically do not buy the poverty argument. She could have gotten job couldn’t she? She is not disabled, correct?

As far as the limitations on filing…go to my website www.chrislawyer.com, click on the resources link, click on the Texas Family Code link, and look at §157.005.

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!

i'm a slacker

2006-12-07T10:35:00.001-06:00

i’m a slacker!

For anybody out there that reads my blog on any consistent basis, I apologize for being such a slacker. It has been so busy around here that I have not had time to post in a while (excuse).

If anybody out there has specific questions, please feel free to fire away. Also, if anybody has ideas they would like talked about in the blog, let me know. Perhaps some fresh ideas will put a spark under my a$# to keep this thing up to date. It seems the whole Texas Family Code thing is getting a little boring for me.

maintenance

2006-09-14T15:18:00.001-05:00

maintenance (a.k.a. spousal support) in Texas divorces and can I get me some?

Okay, today we are going to talk about spousal maintenance or spousal support. This issue comes up all the time in divorce situations. It is not a direct question like “can I get spousal support” as much as it is “how can I survive if I leave my spouse”.

Maintenance is defined in §8.001 of the Texas Family Code as an award in a divorce, annulment or suit to declare a marriage void of periodic payments from the future income of one spouse for the support of the other spouse.

Maintenance is not designed to divide property, allocate debt, or to punish a party, it is simply a band aid designed to help a spouse (after divorce) to get on his/her feet. For that reason, the legislature has made it applicable in only certain situations and for a limited period of time.

Under §8.003 of the Texas Family Code, the court may order maintenance only if:

The spouse from whom payment is sought was convicted (including deferred adjudication) for a criminal offense involving family violence AND the offense occurred within two years of the date that the request for divorce, annulment, etc…was filed OR it occurred while the divorce was pending; or

The marriage was in excess of 10 years AND

The spouse seeking support lacks sufficient property, including property divided by the Family Code (i.e. by the judge) to provide minimum reasonable needs, AND

Is unable to support himself/herself because of a physical or mental disability OR is the custodian of a child with a physical or mental disability that requires that parent to stay home with the child (of any age) OR the spouse lacks the earning ability in the labor market to provide the minimum needs for that spouse.

Payments will be limited to the shortest amount of time to get that spouse on his or her feet or to be able to meet his or her reasonable minimum needs.

For a list of the factors that the court considers in answering the many questions you may be asking yourself about the requirements above, see §8.052 of the Texas Family Code.

There is a presumption AGAINST spousal support unless the spouse has a physical or mental disability or can prove to the court (thereby overcoming the presumption) that the spouse has done all they can to find suitable employment or develop the skills necessary to get that employment but was unable to find employment. This presumption also does not apply to the parent with custody of a child with a mental or physical disability as discussed above.

A court cannot order support for longer than three years, but as I stated above, is to limit it to the shortest amount of time possible. If there is a mental or physical disability involved to the spouse or the child of the spouse, the time is indefinite and the court has discretion in the length of time the court will order support. Ay disability is subject to future court review and must continue during the time the support is provided.

How much can the court order? The court cannot order more than the lesser of $2,500 or 20 percent of the spouse’s average monthly gross income. I will not get into how that is calculated here. If you are in a situation where you need to calculate this, call a lawyer.

When does it end? When either spouse dies, when the parties remarry (yeah, right), or if the party receiving support COHABITS WITH ANOTHER PERSON IN A PERMANENT PLACE OF ABODE ON A CONTINUING CONJUGAL BASIS. I capitalized this because it is the one that will arise most often. What it means would have to be determined on case by case basis by the judge. There are probably a million different scenarios with a million different answers to this one.

There are two additional types of alimony or support that I did not discuss above. The first is temporary support that the court orders while the case is pending. Anybody can qualify for this, provided that the evidence is there to overcome the presumption discussed above. So, a person married less than 10 years can qualify for temporary support while the case is pending, but will not get spousal support after the divorce (unless some other provision qualifies them for it).

The other type is called contractual alimony and involves an agreement or “contract” between the parties to certain future payments to a spouse after the divorce. Bottom line, regardless of the length of marriage, etc…the parties are free to agree on contractual alimony under any terms they like. The big difference between this and the spousal maintenance or support discussed above is the enforceability of the order. Without getting too detailed, contractual alimony is considered a debt, and in Texas you cannot be put in jail for failure to pay a debt. Spousal maintenance or temporary spousal support is not a debt and therefore the spouse not paying as ordered could potentially be put in jail for contempt of court. If you need further analysis of this point, you really need to contact a lawyer because it is somewhat of a tricky issue in determining which you have or are thinking of agreeing to.

Until next time....

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!

where to file

2006-07-24T12:55:00.001-05:00

Okay, we know the grounds for filing for a divorce, but where do we file? The Texas Family Code Section 6.301 sets out the general requirements for filing a divorce in Texas. In order to maintain a suit in Texas, either the person filing the divorce OR the person being sued for divorce must have resided in the State of Texas for six (6) months and in the county where the divorce is filed for ninety (90) days PRIOR TO THE DATE THE DIVORCE IS FILED.

There are two important notes in the above paragraph. First, a divorce can be filed where either the person filing the divorce lives in Texas or where the person being sued for divorce lives. For example, husband and wife separate and Husband moves to Fort Worth in January 2005. Wife stays in Dallas County, Texas where the family had resided. Husband wants to file for divorce. He can file in Tarrant County because he has resided in Texas for 6 months and Tarrant County for 90 days prior to filing, or he can file in Dallas County because his wife has resided in the State of Texas for 6 months and Dallas County for the 90 days prior to his filing.

The second important note is how the time is calculated. The determining point in time is the date the request for divorce is filed. In my above example, let’s say that Husband had a really bad new years eve and decided to move to Fort Worth on January 1, 2006, leaving his hung over spouse behind. Later, say the first week of March 2006, he decides to file for divorce. In this example, Husband has lived in Texas for 6 months, but has only lived in Tarrant County for approximately 60 days. For purposes of filing for divorce, in the first week of March, he would file in Dallas County because his wife has had residency there for 90 days PRIOR TO THE DATE THE DIVORCE IS FILED. If he waited until on or after April 1, 2006, he could file in Tarrant County. If he cannot wait that long, he has to file using his wife’s residency because he has not established residency anywhere else. He is a man with no home.

Another little side note... let’s say Husband has lived in Tarrant County for 90 days and files for divorce in Tarrant County. Once he filed in Tarrant County, he can move to any other county he likes and the suit will be maintained in Tarrant County. You do not have to continue to live in the county where you file; you just have to live in that county for 90 days prior to filing the suit.

These same rules stated above still apply when a party lives out of state as well, with one small exception. For example, in the above scenarios, Husband moves to Oklahoma City instead of moving to Tarrant County. He moves on January 1, 2006 and decides he will file for divorce on July 1, 2006. Even though he is now a resident of Oklahoma, he can file for divorce in Dallas County because Wife has lived in the state of Texas for six (6) months.

You may notice that I did not mention anything about the ninety (90) days in the above scenario. That is the difference between both parties being in state and one party being out of state. It is irrelevant how long Wife has lived in Dallas County; Husband can file in the county where she resides at any time as long as she has lived in Texas for 6 months prior to his filing. By example, again, Husband moves to Oklahoma City on January 1, 2006, and on the same day Wife decides to move to Austin with her family. Husband decides to file for divorce on January 3, 2006. He could file in Travis County (Austin) against Wife because she has been a resident of Texas for 6 months prior to his filing for divorce.

Military personnel – Where would a person in the armed forces or other government job that requires relocation, outside the control of the party, file for divorce? Persons stationed outside Texas, who consider Texas their home state, can file for divorce in Texas in the county where they consider themselves to reside. Many times that place will be where their parents live, or other family member. The requirements of six (6) months in Texas and ninety (90) days in a Texas county are deemed met even though the party is stationed elsewhere.

The second situation for military personnel is those stationed here in Texas. They can file for divorce in Texas as long as they meet the six month and ninety day requirements discussed above.

Divorces are typically filed in the District Court of the given county. In certain situations a divorce may have to be filed in another court such as a probate court, but those cases are few and far between. Some counties only have one district court, while others have multiple district courts. In multiple district court counties, the clerk of the district courts determines which district court the case will be assigned to, for instance the 301st District Court or the 330th District Court.

The document that begins the divorce suit is the Original Petition for Divorce. This document is simply a request made by the person filing the divorce to the district court to do certain things that the person filing the petition has requested. It is not an order, but simply a request for the court to take action. Many times a person will think that because their petition asked that the spouse not be allowed to sell property, for instance, that the spouse is prohibited from selling property. That is incorrect. The petition for divorce may ask the court to do that, but the court has not ordered anybody to do or refrain from doing anything. The court does that through orders, which will be discussed later.

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!

grounds for divorce

2006-05-12T12:47:00.002-05:00

divorce

The big day has arrived…the discussion about divorces. This is a huge topic, so I will have to divide it into sections. Today we will discuss the grounds for getting a divorce. This is a serious subject and can be a devastating stage in someone’s life. I have tried to add a little humor to the subject to make it an easier read. If you are in the middle of a divorce, or contemplating divorce and you do not think humor is appropriate, you can rest assured that I take each and every case that walks through my door deadly serious, and I play to win. Then again…a little humor never hurt anyone….

grounds for getting a divorce in Texas

There are basically 7 “grounds” for getting a divorce in Texas. Grounds are basically reasons to get a divorce. Back in the ancient days these used to matter more than they do now because now they have the no fault (insupportability) divorce. In the old days they did not have this and you had to have “grounds”.

insupportability

This is the most common reason for divorce. In my practice, I plead this in every divorce. You can plead other grounds (below) in addition to this one, but this one is most common. With this one you simply allege that the marriage has become insupportable because of discord and conflict, which destroys the legitimate ends of the marriage relationship and there is no reasonable expectation of reconciliation.

How is that for legal mumbo jumbo? This is the no contest divorce clause and translated means you and your spouse are not getting along and won’t be getting along ever again…SO GIVE ME A DIVORCE!

cruelty

You can get a divorce if your spouse is guilty of cruel treatment to the extent that further living together is not possible. LOL. Just about anybody reading this who is considering divorce probably feels like this applies to them. In my practice I sometimes allege this, but cannot say that I have ever used it as the grounds.

adultery

BAM! This is a big one. The definition is having sexual intercourse with one person while married to another. Two interesting little tidbits on this one…first, you will notice that it says “sexual intercourse”, so I guess all you bad little boys and girls out there (and I know you are out there considering some of the rumors I have been hearing about my readers) who are just doing the kissing thing or any other mouth activities are safe (wink wink). You are still guilty of being naughty.

The second interesting thing about the wording (or maybe it isn’t interesting) is that it says having intercourse with one “person” while married to another. So….any of my readers out there who may still be in the closet, this could apply to you.

As far as going to court over this ground, I have one thing to say…PROVE IT! I cannot tell you how many times this is raised in a divorce and about nine times out of ten there is no way to prove it. Even if you can prove your spouse is running around with another “person” that in and of itself is not proof of “sexual intercourse”. Get it? Good!

Many times people (lawyers) use this ground to attempt to get their client a bigger share of the divorce property pot.

conviction of a felony

You can get a divorce in Texas if your spouse has been convicted of a felony AND has been imprisoned for at least a year AND has not been pardoned. Pretty self explanatory. The funny part about this one is one last little item of the statute that says a divorce may not be granted under this section if the convicted spouse was convicted on the testimony of the other spouse!

Translated that says if your mean a#$ put me in here, guess what, you can’t divorce me! BOO YA! Kidding of course.

abandonment

You can get a divorce in Texas if your spouse hauled butt on you with the intention of abandoning you and has not returned for a year. Simple.

I get a lot of calls from people stating that there spouse just moved out and abandoned them…”I want to claim abandonment”. Well, we now know the requirements.

living apart

You can get a divorce on this ground if you and your spouse have lived apart without cohabitation (living together) for at least three years. Why not just use abandonment? What constitutes “abandonment” versus just separating and “living apart”? Enquiring minds want to know!

I don’t know the answer to these questions. I could find it, but quite honestly, why? Just get an “insupportable” divorce. Actually, there may be strategic reasons for using grounds other than “insupportability”, but not in your typical case.

confinement in mental hospital

If, at the time you file for divorce, your spouse is confined in a mental hospital, and has been for three years, and it looks like they are not getting any better, you can seek a divorce.

So there you go…7 grounds for getting divorced in Texas. Like I said earlier, almost all divorces that I have been involved with are granted on the grounds of insupportability. However, there are situations when alleging other grounds can be advantageous to your case.

To learn more about me, visit my new blog at www.theDallasDivorceBlog.com or www.PlanoDivorceBlog.com

Until next time….

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!

annulment

2006-05-03T15:08:00.001-05:00

Voidable Marriages - otherwise known as an Annulment

From the start, let’s differentiate this topic from my previous post. A void marriage is a marriage that never existed because of some impediment or problem with the marriage itself. A voidable marriage on the other hand is a valid marriage, but for a reason discussed below the State of Texas and the courts will let one of the married parties out of it.

Following are the grounds for an annulment in Texas.

Underage:

Under the age of 14 - Section 6.101 of the Family Code states that a marriage entered into by a person under the age of 14 can be challenged by an annulment proceeding anytime before that child reaches the age of 14. If the child is married before 14, but the lawsuit is filed after the child turns 14, the lawsuit is barred (cannot be filed) unless it is filed within the later of 1) 90 days after the person filing the annulment learned or should have learned of the marriage; or 2) 90 days after the date the child married turned 14. A suit cannot ever be filed if the child married before 14 years of age reaches the age of 18.

(It is important to note that a child cannot file a lawsuit, so any discussion of filing of lawsuits would be by the parent, guardian, etc… of the child. Another important note is that a court, in any under 14 marriage, can give permission if requested.)

So…if a child is married before the age of 14, everyone knows about it, and nothing is ever done, it seems that it is a valid marriage and only a divorce can dissolve it. That is creepy.

At least 14 but under 18 - Section 6.102 of the Family Code states that unless the court allows the marriage, or a parent consents, a suit to annul the marriage can be filed anytime by a parent or guardian before the child reaches 18 years of age.

At this age level, the court has discretion in whether they grant the annulment or not based upon the facts. In the scenario above (under 14) it is not discretionary and the court must grant the annulment.

Note that a parent can consent to this age level marriage.

Influence of Alcohol or Narcotics – Section 6.105 of the Family Code - This one is kind of obvious…if you are wasted when you get married, it can be annulled. To determine if this is the case, the Court looks to whether at the time of the marriage the person seeking the annulment was under the influence of alcohol or narcotics to the level that their consent to marriage is questionable and the person seeking the annulment did not live with the spouse since they sobered up.

Impotency – Section 6.106 of the Family Code - Ouch! I don’t even like to type that word! Bottom line guys, if you marry a girl when you are impotent and you don’t tell her, you could be getting an annulment. The only way this will not happen is if your wife continues to reside with you after learning of the impotency. Next topic!

Fraud, Duress, Force - Section 6.107 of the Family Code – To qualify for this one you must show that the other party used fraud, duress or force to get you to marry them and you did not live with them after you learned of the fraud or were released from the duress or force. In layman’s terms, if they trick you into getting married by lying or whatever, or they threaten you, you may be entitled to an annulment.

Mentally Incompetent - Section 6.108 of the Family Code – This one can be filed by a guardian on behalf of the incompetent person or by the mentally well person. If brought by someone on behalf of the mentally challenged person you must show that they did not have the mental ability to consent to the marriage and that they did not continue to live with the mentally competent person when they learned of the marriage.

A suit brought by the mentally competent party must show that they did not know the other person was mentally incompetent and that when they learned of the mental incompetency they ceased to live with the incompetent person.

Concealed Divorce - Section 6.109 of the Family Code – This one allows an annulment if you marry a person who was divorced from another person within 30 days of the marriage, you did not know this, and when you learned of it you did not continue to live with the person.

You can only use this provision within 1 year of the date of the marriage.

(Note: you will learn later that when you are divorced there is a thirty day waiting period before you can get remarried, unless the court waives the waiting period.)

Marriage within 72 hours of Licensing - Section 6.110 of the Family Code – You learned earlier in my blog (I think) that you have to get a license to get married in Texas (unless it is an informal marriage) and once you get that license you have to wait 72 hours, unless waived by the court. This section says that if you do not wait the 72 hours you can get an annulment.

You can only use this one for thirty days after the marriage.

A few final notes:

A marriage that was otherwise voidable for one of the reasons above disappears if one of the married parties dies;

There is no waiting period – you will learn later that a divorce cannot be finalized until 60 days after the petition for divorce is filed – that is not the case here.

You will notice that there is no provision for the duration of the marriage. I cannot tell you how many telephone calls I get asking if they can get an annulment because they have only been married for a month or a year or whatever. THERE IS NO ANNULMENT BECAUSE YOU HAVE BEEN MARRIED FOR ONLY A SHORT TIME. If you do not otherwise qualify under a provision above, it does not matter if you were married for one day…you must get a divorce.

void marriages

2006-04-14T14:28:00.001-05:00

interesting and exciting ways to end your marriage

Okay, so here I am again, recollecting my promise last time that I would update this blog more often! Obviously I did not perform. This is a lot of pressure! LOL. It really is a lot of work to keep one of these things active. I had no idea it would be so hard. The longer you procrastinate, the harder it gets. Anyhow, here we go, what everyone has been waiting for…..DIVORCE (and other cool ways to end it all)….followed closely in popularity by termination of parental rights.

Void Marriages

The first and somewhat uninteresting way to end your marriage is the “void” marriage. A void marriage means that the marriage never existed in the first place, even if you thought you were married. You could have been “married” for 10 years, but if the marriage is void, guess what, you have been single for 10 years! Dang, the fun you could have had!

A void marriage could arise in two likely scenarios, marrying your brother or sister (gross) or other members of your family who are too closely related (and I said this wasn’t interesting). I believe I talked about this earlier, many, many months ago. The second scenario is when you get hitched but you ain’t undone the old hitch, or explained less southern, you get married when you are still married to someone else. I know I have talked about this one earlier.

I can hear all three of you out there reading this shouting the same thing at your computer…. “Chris, Chris, please tell us who we can and can’t marry in our family cause we want to get married!” Even though it is gross if you marry anyone in your family, the State of Texas says you can’t marry the following people:

An ancestor or descendant, by blood or marriage. (Writer’s note: Ancestors? That sounds like some who is dead! Wow, now that opens up a whole new can of worms! Kidding, I think it means moms, dads, grandma, grandpa, and of course your own kids, or their kids, etc…)

A brother or sister, of the whole or half blood, or by adoption. (Do I need to explain half bloods? Okay, half blood is when one of your parents creates a beautiful new child with another person besides your mommy or daddy. A step child on the other hand has no blood relation; they are the son or daughter from a prior marriage of your new mommy or daddy. I guess we can marry our step sisters and brothers…oh goodie.)

A parent’s brother or sister, of the whole or half blood. (Obviously aunts and uncles, and we understand the half blood thing, right?)

A son or daughter of a brother or sister of the whole or half blood or by adoption. (Nieces and nephews).

So there you go. Everyone else is fair game. So that hot cousin you see every year at the family reunion…fair game! Kidding….as I stated earlier, and I’ll state again…gross! Even step sisters/brothers…gross!

With regard to the prior existing marriage issue, I ALREADY DISCUSSED IT BELOW! GEEZ!

What about the children of these horrific void marriages you ask? Well, we know who the mommy is, and the daddies (used to be called Husband until this nasty void marriage issue arose) well, they are still the presumed father of the kiddos and thereby have all the rights, duties, powers, and obligations of a parent. No paternity tests needed!

Now I hear you mumbling something like….”uh oh, I think I may have done gone out and got myself a void marriage, what do I do?” Well, in short you file a petition to declare the marriage void (NOT AN ANNULMENT….which will be discussed next). The better answer is, log onto my website (to the side over there), shoot me an email, and retain my services! If you don’t like me, hire someone else, but I definitely advise that you hire a lawyer so that your property interests and children are protected.

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. I can guarantee you that I am not covering every facet of the family code, and there may be hidden gems in the Family Code that could make or break your case based upon your specific fact situation. No recipients of content from this blog, retained client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. ALL CASES ARE DIFFERENT BECAUSE OF THE FACTS PARTICULAR TO YOUR CASE; THEREFORE YOU NEED A LAWYER TO DISCUSS THOSE SPECIFIC FACTS. I expressly disclaim all liability in respect to actions taken or not taken based on any or all of the content of this blog. Talk to a lawyer first, preferably me, it is that simple!

the putative marriage

2006-03-13T10:53:00.001-06:00

I had intended to begin my discussion of the divorce at this point, but stumbled across another issue that I will touch on briefly.

Getting Married

The “Putative” Marriage in Texas

In all my years of dealing with marriages (or the breaking them up) I do not believe I have ever run across a putative marriage. So we, you and I, are learning something new today. Isn’t this fun!

Putative Marriage

The putative marriage does not exist in the Family Code, only in case law. Basically a putative marriage is created when to people (man and woman) believe that they are married, but are not because of some impediment to their marriage, i.e. one party is still married to someone else. This scenario creates a void marriage pursuant to §6.202 of the Family Code. Parties in a putative marriage have two choices:

File suit to declare their marriage void and end it all, or

Clear up the impediment to their marriage by getting a divorce in the prior marriage or otherwise fixing the problem that caused the putative marriage in the first place.

If the second choice is taken, and the prior marriage dissolved, the later marriage now becomes a valid marriage. If the first choice is taken, the courts have held that the putative spouse can hold the same property rights and rights to children as in a normal divorce.

This is a very simple explanation of a somewhat complex theory, but I think the idea is pretty clear.

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. No recipients of content from this blog, client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. I expressly disclaim all liability in respect to actions taken or not taken based on any or all the content of this blog. Talk to a lawyer first, preferably me!

the informal or common law marriage

2006-03-07T15:03:00.003-06:00

So much for my posting weekly. Obviously I was unable to meet my wild expectations. So for my loyal readers out there, all two of you, I apologize. Now on to more discussions of how to get hitched…followed in the near future with how to rip it all up when it all goes so horribly wrong! What an uplifting topic.

Getting Married

The “Informal” Marriage or Common Law Marriage in Texas

Section §2.401 of the Texas Family Code (I’m going to call it the Family Code or Code from here on out) provides the law governing informal marriages. Generally it states that a man and a woman (very important wording alert) may prove an informal or common law marriage in Texas by showing:

1. They filed a declaration of their marriage with in a county in Texas, or
2. a) They agreed to be married, and after that agreement they, b) lived together in Texas as husband and wife; and c) the represented to others that they were married.

Requirements not mentioned above are that each party must be unmarried at the time of their agreement, otherwise the common law marriage would be void pursuant to §6.202 of the Family Code. You could overcome this if the party or parties that are married end those marriages and then continue live together as husband and wife and hold themselves out as being married. See §6.202(b). The marriage must also be created in Texas and it must be entered into by tow persons over the age of eighteen. The over eighteen provision is important as it relates to the formal marriage discussed in a prior topic where you can get formally married under the age of eighteen.

How do you prove that you agreed to be married? Well, filing a declaration pursuant to number 1 above would solve that problem. Direct evidence would also support that there was an agreement such as testimony by either party that there was an agreement or from some other person that there was an agreement. I can almost guarantee you however that if somebody disputes a common law marriage they are going to deny there ever was an agreement. So if there is no filed declaration and there is a dispute as to an agreement, how else could you prove it? The courts have held that circumstantial evidence can be used to prove an informal marriage. What circumstantial evidence is enough? It is tough to say and it would seem that the courts look at it on a case by case basis.

Living together is pretty self explanatory and should be relatively easy to prove or disprove, but it must be in Texas.

Finally, there is the “holding out” requirement or representing to others that you were married. Again, establishing this is really on a case by case basis. No one set of facts is controlling. Courts have held that both parties must participate in this “holding out” and that an occasional reference to the other party as your spouse is not sufficient. In order for this requirement to be met, the entire world must think you are married.

Once you are common law married, it is as if you went through the more formal marriage discussed earlier. There is no distinction between the two except as discussed below.

The difference between a formal marriage and a valid informal marriage comes when you separate. When you separate under a formal marriage, you are still married. There is no “legal separation” in Texas so theoretically you could remain separated and still married forever. In an informal marriage however, the legislature has said that if you separate in an informal marriage, and you do not file a court action within two years after you separate, it is presumed that there was no informal or common law marriage at all. See §2.401(b) of the family code.

Obviously if somebody files an action within the two years after separation, the court will decide the issue. Likewise, if someone files an action over two years after the separation, the court will still hear the case, the difference is that now the person claiming that there is a marriage has to “rebut” the presumption that no marriage existed. If it was a fifty fifty proposition had it been filed within two years of separation, it would be VERY difficult to rebut the presumption if it was filed after the two years.

What happens if nobody ever files anything? This could really present some serious problems. If both parties go their separate ways never to speak again, then I guess they were never married. However, what if they go their separate ways for 5 years, and during that time the man of that relationship formally marry another woman. Let’s say they have been married for one year and have a child. And what if the former woman of that relationship decides after 5 years she wants to file a divorce suit? We know that she has rebuttable presumption to overcome, but let’s assume she does overcome it and the court finds that there was a common law marriage. OUCH! Now the courts have told this guy he is still married to this woman and his current marriage is void! Oh man would I hate to be that guy. You see the problem that could arise. Let me say this, if you find yourself in this situation, or any part of this situation, contact me at http://www.chrislawyer.com/ (shameless plug) and let me help you through this.

The moral of the above fact scenario, other than you should have contacted me, is that if you find yourself in a similar scenario, hire a lawyer to get a court order finding that you are not married!

One final note on filing a declaration, if you file one pursuant to number 1 above, guess what, you are married! Neither party will have to prove any of the things set out in number 2 nor will the two year filing requirement apply. If you file the declaration, congratulations on your new marriage.

So there it is the informal marriage. Kind of a scary proposition for all you guys and girls out there living with your significant others. My advice? Move the he*& out! Kidding.

If you would like to know more about me, or see my new blog, please visit www.theDallasDivorceBlog.com.

Until next week…or month (grin).

The information contained in this blog is provided for informational (and sometimes entertainment) purposes only and should not be construed as legal advice on any subject matter. No recipients of content from this blog, client or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice. I expressly disclaim all liability in respect to actions taken or not taken based on any or all the content of this blog. Talk to a lawyer first, preferably me!

the texas marriage

2006-02-02T17:34:00.001-06:00

Well, here we go…a review of the Texas Family Code. The headings I have used do not exactly track the Texas Family Code, but specific sections will be referenced as we move along. You may want to leave the family code link opened so that you can continually refer to it.

If anyone ever happens to look at this family law blog…please feel free to comment or ask questions as we go along.

Getting Married

The “Formal” Marriage

Generally, a marriage validly created in one state will be recognized in all other states. I say “generally” because of the new hot topic of gay marriages. Below we will discuss how Texas generally side-steps this issue.

If you are married in another state, but reside in Texas, the laws of the State of Texas apply to you regardless of where you were married. Any marriage entered into in the State of Texas is presumed valid unless evidence is offered otherwise.

The first step in getting married in Texas is to obtain a license. The requirements for the license can be found under §§2.001 through 2.501.

Only a man and a woman can apply for a marriage license in Texas. Persons of the same sex cannot be issued a license. This is set out in §2.001. Texas continues with this line of thought later in §6.204 by prohibiting “civil unions” or anything purporting to give persons of the same sex marital rights. This applies to laws of other states as well. It is against the State of Texas’ “public policy”. Therefore gay marriages from other states are not recognized here.

I will not bore you with other license requirements except to answer the common questions of how old you have to be to get married. Typically, you have to be over 18 years of age to get a license. You can get married at age 14 or older if you meet the requirements set out in §2.003. You can even be married at ages under 14 if you ask the court to allow it and they do!

You cannot marry persons related by whole or half blood or by adoption. A marriage attempted in violation of this is “void”, i.e. it never existed. Don’t be to down, first cousin’s can still marry! Yee ha!

Another important point for those of you who are recently divorced, you cannot obtain a license to marry if you were divorced in the prior thirty days unless you are marrying the person you just divorced (yikes) or the court waives the requirement. IMPORTANT NOTE, if you absolutely must jump back into the fire within thirty days, get the judge to waive the prohibition in your decree of divorce. They will almost always grant the request.

Next week we tackle the “informal” marriage.

first post

2006-01-26T20:31:00.001-06:00

This is my inaugural post to my new blog. The purpose of this blog is twofold: 1) promote my website and 2) to provide a place for the masses to learn about family law in Texas.

If anyone ever actually reads this blog, I would be happy to discuss whatever topics are of interest.

The initial plan is to cover each major section of the Texas Family Code and hopefully translate it into language everyone can understand. That is the plan. We’ll see how that goes, and if anyone ever looks at it! I will attempt to add a new topic each week.

Until next week…..