There are two types of property in a marriage:  separate property and community property.  Separate property is defined as anything either spouse owned before the marriage or anything either spouse received during the marriage through inheritance or a gift.  Community property is any property owned during the marriage that is not separate property.  Property issues can be very complex, and this post is designed to give just a brief overview of a few issues.

In Texas divorce cases, there is a presumption that all property is community property.  In order to prove separate property, the proponent must establish by clear and convincing evidence that the property is separate.  It will generally not be enough for one spouse to simply claim that he or she had certain property before the marriage or that it was received as a gift / inheritance.  He must show records to back it up.  Below are a few examples of separate property issues and how a party could prove them.

Example 1:  Husband owed Home 1 prior to marriage.  Wife moves into Home 1 with Husband.  Two years later, the couple sells Home 1 and uses the $50,000 proceeds from the sale of Home 1 as a down payment on Home 2.  Home 2 is now co-mingled community property and separate property.  Husband must be able to prove (a) that he owned Home 1 as his separate property prior to the marriage, and (b) exactly how much money from Home 1 was put down for Home 2.  He could show that Home 1 was his separate property by producing a deed for the house dated before the marriage and showing him as the owner.  He could show how much money from Home 1 was put down for Home 2 through closing records from the sale of Home 1 and the purchase of Home 2.  Through those records, Husband has established a separate property claim for $50,000 in Home 2.  Husband would be entitled to a dollar for dollar credit for that separate property.

Example 2:  Wife has a separate property bank account before the marriage that contains $100,000.  The account is in her name alone.  Wife marries Husband and continues to have her paycheck deposited into the account.  Her paycheck is community property, and now she is commingling community funds and separate funds.  If Wife is making withdrawals from the account over time, Wife will need to providing a tracing of the account to prove her separate property.   There are a variety of different tracing methods used in Texas.  The most common is the “community out first” rule.  This provides that all withdrawals are presumed to be community so long as there are community funds in the account.  Wife deposits an additional $20,000 into the account during the marriage.  She withdraws money numerous times, for a total of $30,000 in withdrawals.  Under the community out first rule, the first $20,000 out would be the community funds.  The next $10,000 would be her separate property.  In the end, the community would have $0 in the account and Wife would have $90,000 in separate property.  There are other methods of tracing that could lead to a different result.

Example 3:  Husband and Wife are married for 30 years.  Husband receives an inheritance of $50,000 ten years into the marriage.  Husband deposits the $50,000 into the parties’ joint bank account.  Over the years, hundreds of deposits and withdrawals are made from that account.  Twenty years later, the parties divorce.  Husband is unable to provide tracing to prove what happened to the $50,000 because it was hopelessly commingled with community funds.  Husband is most likely out of luck in trying to keep any of the inheritance as his separate property.   The community property presumption will prevail.

Separate and community property issues can be complex and far exceed what can be put into a single blog post.  It is important to have an attorney familiar with the rules and the various ways to characterize property in order to ensure that it is done right.  It is also important to have an attorney who will help you understand the cost benefit analysis of trying to prove separate property.  Is it worth it to spend thousands of dollars on a forensic accountant to trace the money in an account?  Maybe.  It depends on the amount of separate property at issue.

Divorce

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Temporary restraining orders (“TROs”) can encompass a wide variety of issues in family law cases dealing with both property and children.  Often they involve allegations of domestic violence or abuse.  A temporary restraining order is granted without a hearing based on affidavits by the requesting party.

In most cases, TROs are requested at the very beginning with the petition is filed.  In that case, the judge will grant the TRO “ex parte,” which means that the other side, the respondent, does not have the opportunity to appear or respond.  The judge simply reviews the petitioner’s affidavits and determines whether or not the affidavits, on their face, provides enough to grant the temporary restraining order.  The respondent can attempt to dissolve the TRO once it is entered, but most often it is dealt with at the hearing.

Occasionally something happens during a case that makes one side request a TRO.  In that case, the attorney for the party requesting the TRO must notify the other side that a request for a TRO is being filed and give the other side the opportunity to appear before the judge and contest the entry of the TRO.  If the other side files for a TRO against my client, I quickly get my client (and any other relevant witnesses) to draft affidavits with their side of the story.  I then meet the other attorney at the courthouse when he is presenting the TRO to the judge.  I give the judge my affidavits and try to prevent the entry of the TRO, if possible.  In cases where there are allegations of abuse, the judge will almost always err on the side of caution and grant the TRO pending a hearing.  The judge just simply cannot take the risk that the allegations are true.

After a TRO is granted, the court must hold a hearing within 14 days.  If there is no hearing within the time limit, the TRO will expire absent an agreement or another court order extending the TRO.

CPS

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If I had a nickel for every post I saw in a Facebook group looking for an “aggressive” family lawyer or a “pit bull” of a family law attorney, I would be a rich woman.  These types of requests make me cringe.  Instead, I wish people would seek out a good, knowledgeable attorney who will look out for their best interests and help them resolve the case in the best possible way.

More often than not, “aggressive” does not achieve those goals.  I know a handful of other attorneys who I would put into the “aggressive, pit bull” category, and they are awful to work with.  I feel terrible for my clients when there is one of these folks on the other side.  It almost always means higher bills, more discovery, more time spent in court, and more heartache in an already difficult situation.  Sure, you may be mad at your soon-to-be ex-spouse, and you may want to go after him with guns blazing.  An aggressive attorney is ready to go with those guns blazing at all costs, but is that really in your or your children’s best interest?  Or, would you be better off reaching a reasonable, fair settlement and moving on with your life without wasting tens of thousands of dollars on attorney’s fees?

In my opinion, the ideal attorney will do a great job on your behalf in court, but she will also help you try and avoid going to court at all.  She will work hard to keep your costs down, help you understand the process, help you know what is necessary and what is not in terms of discovery and court hearings, help you understand the most likely outcome if you do end up in court, and help you settle the case, if at all possible.

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Most, if not all, of the courts in Collin County, Dallas County and Denton County require the parties to mediate before going to trial.  Even when mediation is not required, I almost always recommend to clients that they attend mediation.  Mediation allows you to come up with creative solutions that a judge could never order.  It also allows you to have control over the final result, which a trial does not give you.

Probably 90-95% of my clients are sure that mediation is pointless going in, as they know that neither party is going to compromise enough to reach a settlement.  Yet somehow 90-95% of the cases that I take to mediation end up settling.  There is a reason that mediators have jobs.  If the parties and attorneys could settle cases on their own, mediation would not be necessary.

Typically at mediation, my client and I sit in one room and the opposing party and his or her attorney sit in another room.  At most mediations, we never even see the other side.  The mediator (who may or may not be an attorney) goes back and forth between the rooms to try and help the parties reach a settlement.  By definition, the mediator is neutral.  If the mediator takes sides, he or she will almost certainly lose the ability to negotiate with the other side.  The mediator will often play devil’s advocate in both rooms.

In my experience, the best family law mediators are attorneys with extensive family law experience who know the judges and who know what the most likely outcome at trial is going to be.  They also have a very good grasp of the Texas Family Code to be able to guide the parties when they want something they would never get in court.

Mediation is a slow process.  Although some mediations can be done in half a day, I have been in mediations lasting anywhere from 8-13 hours for family law cases.  The mediators generally provide snacks and lunch.

Occasionally I hear from people who are interested in mediating without lawyers.  Although this may sound like a good idea in theory, it can be a dangerous proposition.  Mediators cannot give legal advice, even when they are attorneys.  This can really cause a party to be blind in the negotiating process, as he or she will have no clue what the law is or what he or she is really entitled to.

Overall, I think mediation is a wonderful process and very helpful in reaching amicable resolutions in family law cases.

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Often times family law cases involve one party with pending criminal charges.  I most often see this connected to a family violence allegation, but any type of pending criminal charge is usually relevant in a family law matter.  If a party has pending criminal charges that touch on the issues in the family law case, they can be very detrimental to that party’s case.

If a party has pending criminal charges, that party will almost certainly not be allowed to testify by his or her criminal attorney.  If that party does not have a criminal attorney yet, the family law attorney should know enough about criminal law to strongly advise the party against testifying in the family law matter.  Even if the party believes he or she is completely innocent and has nothing to hide, any criminal law attorney will still tell his client not to testify.  For one, the party’s testimony could be used against him or her in the criminal case.  If the party makes any type of admission related to the incident the basis of the criminal charges, it could mean jail time, a worse plea agreement, and/or a more likely conviction.  Even if the party does not make any admissions, if his or her testimony changes in any way by the time the criminal case rolls around, it will damage the party’s credibility and increase the chances of a poor outcome in the criminal case.

The party with pending criminal charges will have to invoke the fifth amendment and refuse to testify in the family law case.  While pleading the fifth amendment in a criminal case cannot be held against you, the same is not true in a family law case.  If one party pleads the fifth, the judge can hold it against that party.  As a result, whenever possible, if I am representing a client with pending criminal charges, I try to delay the family law case as long as possible in the hopes that the criminal case is resolved.  Once the criminal case is resolved, that party is free to testify in the family law matter.  That testimony can no longer be used against him or her in the criminal case.

Juvenile Defense

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Temporary orders can be entered in any family law case to govern what will happen with various different aspects of the case while it is pending.  Temporary orders can relate to both the child(ren) and other financial matters.

Typical temporary orders related to children in either a divorce or custody case include: (1) designation of conservators as either temporary joint managing conservators or temporary sole managing conservator / possessory conservator; (2) the possession schedule be for the child with each of the parents; and (3) whether child support will be paid and, if so, how much.

Examples of additional financial matters to consider for temporary orders in a divorce case are: (1) who will get primary use of the marital residence; (2) how community bills are going to be paid during a pending divorce; (3) whether or not one party will pay temporary spousal maintenance to the other; and (4) who will get primary use of any vehicle(s).

Temporary orders can also govern how the parties treat each other while the case is pending and what is said or done in front of the children.  Temporary orders can either be reached by agreement, or they can be ordered by a court after a hearing.  Temporary orders hearings are like mini trials.  In Collin County, temporary orders hearings are limited to twenty minutes per side, which can really limit what you can do.  In other counties, such as Dallas County and Denton County, you are often given significantly more time for a temporary orders hearing.

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Texas is a community property state, and there is a presumption that ALL property in the name of either party at the time of divorce is community property.  Certain types of property are classified as separate property, specifically any property owned before the marriage or any property received by inheritance or gift during the marriage.  The big problem here is proving the amount and existence of the property as separate.

For example, Husband had several 401(k)s from employers he had before the marriage.  At some point during the marriage, he rolled the 401(k)s into a new account.  He is able to show the creation of the account during the marriage and that the funds came from these other accounts.  The only way the husband can show by clear and convincing evidence that the money in the account is his separate property is to produce statements from right before the marriage and trace those accounts to their current location.  If the account has been rolled over and there is no paperwork from the prior account, this can be very difficult to do.   Husband would have a much more difficult time in this scenario if he had rolled the separate property accounts into an account co-mingled with community property.  Establishing what is separate and what is community in a co-mingled account can be extremely difficult.

If you happen to receive separate property during the marriage, either by inheritance or gift, it is advisable to keep that property in its own, separate account.  Once you co-mingle the funds, it can be hard to prove which funds were separate and which funds were community, especially if some funds have been spent or moved around.  It is also critical to keep records reflecting where the separate funds came from so you can prove that money is, in fact, your separate property.

Although very few people expect to get divorced, the bottom line is that many people find themselves in that situation some day.  The moral of the story is to keep records of separate property accounts going all the way back to before the marriage or to the date you received the separate property.

Divorce

 

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Therapists often find themselves involved in child custody disputes.  Either the therapist was involved before the parents filed for divorce, or the parents or the court may identify a therapist to see the children during the midst of their pending litigation.  However a therapist may end up in your case, it is important to remember that they are there to help your children, and they are not there to help your litigation, though they may serve this roll as well at some point.

Therapists are rarely trained in their education to know what to do when faced with a family involved in active litigation, and because of this lack of training, well-meaning therapists will often find themselves in a position where they are either making custody recommendations on their own accord out of a perceived belief that they are helping your child, or they are asked by an attorney or a Judge to make a recommendation regarding a parent’s possession and access.  However, it has always been unethical for a therapist to make custody recommendations, and now, it is in violation of the Texas Family Code as well.

104.008 of the Texas Family Code, which became effective on March 1, 2016, specifically states that therapists cannot make recommendations for possession and access, though they can certainly testify to their assessments, their observations, and their treatment plan for their client.  In addition, a therapist’s ethical code also prohibits a therapist from making assessments of someone that they have not evaluated, and this is the reason that a therapist cannot recommend supervised access, for example, for a parent who they have never met or only met in the realm of a parent consult.

So, if you are thinking about identifying a therapist for your child in the midst of your divorce or modification proceedings, I would encourage you to identify a forensically trained therapist who knows these limitations and how to best help your child, and potentially your case, by maintaining those boundaries; while actively involving both parents.  However, if you already have a therapist involved in your case, be sure that they are not asked to provide a recommendation and that they are discouraged from doing so in order to ensure that the significant information that they do have to offer your case is not tainted by a recommendation that they cannot make.ChristySchmidt

Christy Bradshaw Schmidt, MA, LPC

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Child Custody Evaluator/Expert Consultant

www.txfamilylawforensics.com

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A right of first refusal is a common term included in many divorce and child custody cases.  I highly recommend to my clients that they request a right of first refusal.  A right of first refusal provides that if the parent in possession will be unable to watch the child for more than a certain period of time while the child is not in school (or sometimes daycare), that parent must give the parent not in possession the first right of refusal to care for the child.

For example, Mom and Dad have a custody order that provides for a right of first refusal if the parent in possession will be unavailable for a period of four or more hours.  Mom is scheduled to have the child this weekend, but Mom has to work this Saturday from 9-4.  Mom is therefore unable to care for the child for a period of more than four hours.  Mom must notify Dad and give him the first option to care for the child while she is at work.  Dad has no obligation to care for the child during that time, but he will get the first choice.  If he says no, Mom is responsible for finding someone else to care for the child.

Parents can choose any length of time for the right of first refusal.  Some parents choose four hours, six hours, eight hours, overnight, or even a period of several days.

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Texas courts favor residency restrictions in child custody orders as long as both parents have shown the ability to parent the child.    In general, if a non-custodial parent asks for a residency restriction, the court is almost certain to restrict the custodial parent’s residence to the county of the court plus the contiguous counties.  However, the residency restriction would state that if the non-custodial parent moves outside of the zone, the residency restriction no longer applies.  For example, if Mom and Dad get divorced in Collin County and Mom is awarded primary custody, Dad can request that Mom (and the children)’s residence be restricted to Collin County and the contiguous counties (the counties touching Collin County).  If Dad chooses to move to California or Houston or even Tarrant County (which is not contiguous to Collin County), the residency restriction would no longer apply and Mom would be able to move anywhere she wanted with the child absent a new court order.  (If Dad in this scenario were moving to Tarrant County, he could likely get a new residency restriction in place to avoid Mom moving far away.  That would require a modification proceeding and a new order.)

If parents are awarded a 50/50 custody schedule, then a residency restriction will be placed on the children. The restriction would require both parents to live within a certain zone, which could be the county and contiguous counties, or it could be smaller.  With a 50/50 schedule, the zone is often smaller because both parents need to be conveniently located to the children’s schools.

Residency restrictions are extremely hard to get around if the other parent wants to be involved in the child’s life.  If both parties agree, you can have an order entered without a residency restriction.  However, if the parties do not agree, the custodial parent is almost certainly going to be stuck in or near the county where the court case takes place.

CPS

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