Which court is the right court?

In a county versus county venue dispute, Husband filed in County A in Texas and, one month later, Wife filed in County B in Texas.  When cases involving the same subject matter are filed in different counties, the first filed suit has dominant jurisdiction. Normally, the second court would abate in favor of the first-filed proceeding.  However, this can be waived based on the conduct of the parties.  Even if a party files a plea in abatement in County B, but he continues to participate in the litigation in County B, even to the point of reaching a settlement agreement and consenting to final judgment, he cannot then later challenge County B’s subordinate jurisdiction and seek to return to County A. By his conduct, he has waived his complaint seeking abatement.

Bonacci v. Bonacci, __SW3d__, No. 08-11-00255-CV, 2013 WL 6835285 (Tex. App.—El Paso, 2013, no. pet. h.) (12/27/2013).

 

What if we aren't getting married - can we still agree on stuff?

Even if you aren’t getting married, couples can still reach agreements about their relationship or joint property in Texas. When two people live together but are not married, a cohabitation agreement can define the parameters of their financial relationship. For example, a cohabitating couple could agree as to how their money will be held jointly and separately, as well as who pays which of the household bills.  If an unmarried couple plans to purchase a house together, a cohabitation agreement can address each party’s ownership interest, how the mortgage will be paid, and how to handle the house in the event the parties end their relationship.

A cohabitation agreement is often used in Texas for same-sex couples who cannot marry under Texas law. 

Cohabitation agreements are not held to the same standard under Texas law as marital agreements. Instead, cohabitation agreements are treated simply as a contract.  Enforcement of cohabitation agreements is handled the same as enforcement of any other contract.

 

For help in drafting your prenup, contact the Texas board certified attorneys at O’Neil & Attorneys.

 

What is a Prenup?           

Does getting a prenup mean that my fiancé doesn’t trust me?

But I’m not wealthy. Do I really need one?

How much will a prenup cost?

Can I skip the lawyer fees and D.I.Y. my prenup?

How to I tell my spouse-to-be that I want a prenup?

What are the requirements of a prenup?

What are common clauses in a prenup?

Can we change the prenup later?

What is the procedure for getting a prenup?

How long before the wedding should we start the process of getting a prenup?

Can one attorney represent both of us in drafting the premarital agreement?

What happens to a prenup when the spouses get a divorce?

We didn’t get a prenup before we got married. Is it too late to get one now?

Hat tip: 9 Questions You Want To Know But Are Too Afraid To Ask About Prenups

 

 

 

April 15th Is an Important Deadline for Primary Conservators

Not only is April 15th an important deadline for every American when it comes to filing their annual taxes, in Texas April 15th is a deadline for primary conservators to designate their summer weekend possession time with the children.

In a Texas Standard Possession Order, the non-primary parent is awarded the 1st, 3rd, and 5th weekends of the summer months as well as 30 days extended summer possession. The primary parent in turn gets to pick one weekend, which occurs during the non-primary parent’s 30 day extended summer possession, to have the children. This election must be made in writing by April 15th or the primary parent loses the ability to have a weekend period of possession during the other parent’s 30 day extended summer possession.

Additionally, the primary parent gets to pick one of the 1st, 3rd, and 5th weekends during the summer months which would have been the non-primary parent’s weekend, to have possession of the children. The primary parent must elect in writing by April 15th or no later than fourteen days prior to the elected 1st, 3rd, and 5th summer weekend. This weekend period of possession cannot occur during the 30 day extended summer possession of the non-primary parent.

 

 

After the divorce, what else do I need to take care of?

I found Christie Gammill’s article in this winter’s Texas Family Law Section newsletter interesting in reminding attorneys that the divorce only ends the litigation but doesn’t end the “to-do” list for the client. Here is the list of action items that a divorced party may still need to address once the decree is entered. Ms. Gammill points out that a person doesn’t need to face this list alone.  He or she can employ professionals to accomplish many of these tasks.

 1.                Financial Planning

·        Review your financial goals with your advisor, including an updated cash flow analysis

2.                Banking / Brokerage / Advisory Accounts

·        Update your accounts by notifying the appropriate entities of account authorization changes and your name/address change, including banks, schools, utilities, and insurance companies

·        Sign and execute the processing of any forms necessary to change the account registrations

·        Name Change - obtain new Social Security card, Driver’s License, credit cards, passports etc.

3.                Revise/transfer titles on personal assets - House(s), Automobile(s), Boat, and Other Non-Financial Assets

4.                Retirement Plans/Accounts

·        Qualified Domestic Relations Order or “QDROs” these pertain to qualified plans such as 401(k)s, 403(b)s, Pensions, Profit Sharing Plans, Keogh’s, and Money Purchase Plans

o   Submit certified original QDRO along with necessary pages of your divorce decree to the respective company for approval. Once the QDRO is approved you will receive a letter stating it is in good order (or not).

o   Once the plan administrator processes the QDRO, a new shell account is setup within the company’s plan for the benefit of the non-employee spouse and the percentage or dollar amount awarded is transferred into the new account.

o   Once the funds have been divided and deposited into Alternate Payee’s account, he or she will receive documents via mail or e-mail to rollover or distribute the funds once the account has been segregated.

o   If you haven’t begun working with a financial advisor, you may engage one to aid you in this process

·        Non-Qualified Plans- includes but not limited to: IRAs, SEP IRAs, Simple IRAs, Roth IRAs, and Annuities

o   The holding firm or brokerage account will typically require their own papers and/or a letter of instruction from the original account holder to divide or transfer the account into someone else’s name.

o   Annuities can be complex and the implications of a transfer or ownership should be carefully evaluated before assigning to another party or transferring to an ex-spouse*.  

o   Be certain to obtain tax advice regarding consequences of transfers and liquidations of non-qualified plans. These will have a cost basis that will be important to keep track of in the future.

o   The brokerage firm will typically have its own IRA Rollover/Distribution Form to transfer funds incident to divorce. Your ex-spouse will need to sign the forms, and you will need to provide certain necessary pages of your decree to the brokerage forms.  It is recommended to have these papers ready to go at prove up of the divorce.

·        Follow up diligently on your Divorce Transfer Paperwork to ensure it is moving along and properly processed.

5.                In Health, Life, and Other Insurance

·        COBRA—allows you to stay on your ex-spouse’s employer sponsored health insurance up to 36 months after divorce. The will premium will be equal to 102% of current Employer cost, which may be a temporary solution to finding private health insurance. Stay informed of changing health care laws and options.

·        Private Health Insurance—consult with a health insurance broker who will spend time helping you in regards to medical conditions, premiums, physicians, and deductibles.

·        Life Insurance: You will want coverage at least equal to present value of future stream of payments of Child Support and Alimony or Property Settlement/distribution. You will also want to update beneficiaries on policies owned by you.

·        Property/Casualty Insurance: This is a great time to shop your existing/new coverage for auto, umbrella and homeowners/renters insurance.

6.                Social Security

·        You may be eligible for up to 50% of your ex-spouse’s Social Security Retirement Benefit if you were married for 10 years or longer. If you are unmarried, your benefit would be the greater of 100% of your own benefit, or 50% of your ex-spouse’s benefit at full retirement age. The earliest non-widow retirement benefit may be as early as age 62 and will have an applicable benefit reduction and may be permanently reduced.

7.                Real Estate

·        If you or your ex-spouse is required to re-finance the mortgage or take your name off of the mortgage, you will want to work with your attorney to get the appropriate documents signed and executed.

8.                Wills and Trusts

·        Update plans for your estate. Wills, Trusts, and Powers of Attorney will need revising.

·        If you have minor children: Special trusts need to be created for certain assets such as IRAs and some annuities. You may also need to revisit guardianship choices.

9.           Mortgage

·        Review options with Mortgage Planner regarding qualifying for a new home purchase or the refinance of a current home·       

·        Determine if vacating spouse will be compensated and how this will be structured/what types of loan programs are available.·     

·        If child support and/or alimony will be used for qualifying for new loan discuss current lender guidelines with a Mortgage Planner

10.         Professional Team of Advisors

Build a team of people to help you work through financial issues

Family Law Attorney – Team Leader: Custody, Property and Alimony expert; preparation and execution of legal documents. Will oversee timely payments on financial obligations or cooperation in the signing of any of the aforementioned documents

Financial Advisor – partners with other experts during your divorce; post-divorce financial planning and asset management and risk management. If you did not have the primary relationship with your advisor during your marriage, you may consider interviewing one of your own.           

CPA – income tax preparation and analysis for current and future personal and business tax returns; returns may be particularly complicated during the year of divorce

Estate Planning Attorney – new wills, trusts; see through trust if you have minor children

Health Insurance Broker & Mortgage Broker - assist in the areas above

 *it is recommended that you seek advice from a financial professional before making any changes to an annuity contract and you consult your tax advisor as well.

 

Is "Conscious Uncoupling" Really Possible?

Thanks to Gwyneth Paltrow and Chris Martin, “Conscious Uncoupling” has been front and center in the headlines. I discussed this trending phrase in my blog last week.

Psychotherapist Katherine Woodward Thomas, the creator of the concept “conscious uncoupling,” describes it as “a break up that is characterized by good will, generosity and respect and a process that leaves both parties feeling valued and appreciated for what they shared. It is a process where two people are striving to minimize the damage that they do to themselves and their children.”

In my experience, more often than not, there is one person who wants out of a marriage while the other spouse wants nothing more than to remain married. When this happens, two people are rarely ever on the same page as to the divorce. Texas is a “no fault” divorce state. This means for a divorce in Texas, one spouse wanting out of the marriage is enough to allow a divorce to take place. A person does not have to prove they were abandoned or any other reason why they want a divorce. A simple “I don’t want to be married anymore” will suffice.

How likely is it a couple will have a “conscious uncoupling?” The Huffington Post discussed the pitfalls of divorce and the issues present themselves during the divorce process that prohibit or hinder a “conscious uncoupling.” In theory a “conscious uncoupling” is a wonderful goal for a couple to strive for, while going through the divorce process. Realistically, there are many painful and stressful issues that arise during a divorce process such as the division of assets and debts, child support and custody.   How a couple handles these situations requires compassion, understanding, and a great deal of communication.

Has my marriage been a farce all of these years?

There is a strong presumption in Texas law in favor of marriage.  When a question arises as to the validity of a current marriage because of a prior marriage, the presumption says that the current marriage is the one that’s presumed valid. You would think there wouldn’t be very many cases on this issue, but I’ve actually seen a couple recently.  Here’s one of those:

In re A.M. is a case out of the Dallas Court of Appeals, released 12/16/13.  There, the husband (H2) argued that his marriage to Wife was void because Wife allegedly never divorced her prior husband (H1). In support, H2 provided documentation from two foreign governments showing no divorce between Wife and H1. Wife, however, provided a document, signed by H1, issued by an Islamic mosque in England reciting that Wife was “totally emancipated from the matrimonial relationship” with H1. Wife also provided a Pakistani divorce decree issued “in accordance [with] Mohammedan Law” which was also signed by H1. H2’s expert testified that H1’s alleged signatures to those documents were likely not genuine. Despite H1’s evidence to the contrary, the trial court found that Wife was divorced from H1 when she married H2—therefore the marriage between H2 and Wife was not void. Accordingly, the trial court granted the divorce between H2 and Wife and divided the community estate. H2 appealed.

The Dallas Court of Appeals held on to the fact that there was some evidence that the divorce between Wife and H1 happened. Since the trial court is the best judge of the credibility of the evidence, the trial court had discretion to believe Wife’s evidence and disregard H2’s evidence. Thus, the trial court properly disregarded the contradictory evidence in finding the prior marriage between Wife and H1 ended before the marriage to H2. “This presumption [in favor of the validity of the most recent marriage] is one of the strongest known to law; it is, in itself, evidence; and it may even outweigh positive evidence to the contrary.”

 

What is Conscious Uncoupling?

Last week Gwyneth Paltrow and Chris Martin announced the end of their marriage in the following statement on her website Goop.com:

“It is with hearts full of sadness that we have decided to separate. We have been working hard for well over a year, some of it together, some of it separated, to see what might have been possible between us, and we have come to the conclusion that while we love each other very much we will remain separate. We are, however, and always will be a family, and in many ways we are closer than we have ever been. We are parents first and foremost, to two incredibly wonderful children and we ask for their and our space and privacy to be respected at this difficult time. We have always conducted our relationship privately, and we hope that as we consciously uncouple and coparent, we will be able to continue in the same manner.”

As a family law attorney and follower of all things celebrity, I was intrigued by the phrase “conscious uncoupling.”  I was not the only person as it turns out.  Blogs, talk shows, national news, morning TV, you name it have been discussing the phrase conscious uncoupling ever since Gwyneth Paltrow released her March 25, 2014 statement. 

This morning, the Today Show interviewed psychotherapist Katherine Woodward Thomas, the creator of the concept “conscious uncoupling.” The phrase was created in 2011 as an approach to divorce in a “no drama” fashion that protects the children and avoids finger pointing.   As explained this morning by Ms. Thomas, conscious uncoupling is “a break up that is characterized by good will, generosity and respect and a process that leaves both parties feeling valued and appreciated for what they shared.  It is a process where two people are striving to minimize the damage that they do to themselves and their children.”  Does conscious uncoupling appeal to you?  Ms. Thomas offers online courses on the subject.

The bottom line is divorce is difficult.  There will still be the division of assets and debts and issues relating to the children such as child support and possession schedules.    Only time will tell if Gwyneth Paltrow and Chris Martin will be able to separate and divorce in a manner termed conscious uncoupling. 

 

Habeas granted - no jail for failure to pay a debt

The Dallas court of appeals granted the petition for writ of habeas corpus this week in a case where a lady was jailed for civil contempt of court for failure to pay a debt to her ex-husband. In the divorce decree, the wife was ordered to pay $40,000 to the husband as part of the property division contained in the decree.  The specific terms of the property awarded referenced the obligation as a “debt” but ordered a date specific by which she was to make the payment. The day after the passing of the payment deadline, the ex-husband filed for contempt of court against the ex-wife for nonpayment.  The Hunt County judge held her in civil contempt and ordered her to jail until she paid the $40,000.

Michelle O’Neil of O’Neil & Attorneys filed the emergency petition for writ of habeas corpus with the Dallas court of appeals on behalf of the ex-wife. The Dallas court immediately granted bond and ordered the ex-wife released from jail.  All total, she spent 4 nights in jail.

The Dallas court of appeals then granted the petition for writ of habeas corpus, vacating the Hunt County contempt order.  The court examined three legal principles:

1.      The constitutional prohibition against imprisonment for a debt – article I, section 18 of the Texas Constitution;

2.      Texas Family Code section 9.012(a), which provides for enforcement by contempt of an order requiring the delivery of specific property or an award of a right to future property; and,

3.      Texas Family Code section 9.012(b), which disallows contempt enforcement of an award of a sum of money in the nature of a debt unless the sum of money existed at the time the decree was entered or was a matured right to future payments.

Not every obligation to pay money in the future is a “debt”.  A payment of money to be made in the future is not “debt”, according to the court of appeals, if it represents the former spouse’s share of a specific fund, including a matured right to payments, which are community property and in existence at the time the divorce decree was rendered. For an award of money in a divorce decree to be enforceable by contempt, “the divorce decree must indicate the funds existed at the time the decree was rendered or specify particular community funds from which the amount is to be paid.”

In this case, the ex-husband argued that ex-wife had access to separate property to meet the obligation, but the Dallas court of appeals rejected this argument because the divorce court cannot divest someone of separate property.

So, the Dallas court of appeals concluded that the Hunt County Judge imprisoned the ex-wife for nonpayment of a debt in violation of the Texas Constitution, the contempt order was vacated and she was released and discharged from custody.

Hat tip to Betsy Branch of the Branch Law Firm in Rockwall Texas for the stellar job she did in representing the ex-wife at the trial court level and in fighting tooth and nail to protect her client’s constitutional rights under attack.  If you need a great, board certified family law attorney in Rockwall, you should call her.

Read the court’s full opinion in In re Kinney here.

 

April 1st Possession Designation is Upon Us

An important deadline contained in Texas divorce decrees in which to designate your intended 30 days of extended summer possession is April 1st.  The Texas Standard Possession Order awards a non-primary parent the 1st, 3rd, and 5th weekends of the summer months as well as 30 days extended summer possession in the summer.  The primary parent in turn gets to pick one of the 1st, 3rd, and 5th weekends, which would have been the non-primary parent’s weekend, to have possession of the children as well as one weekend during the non-primary parent’s 30 days of extended summer possession.

 The Texas Standard Possession Order states that April 1st is the deadline for the non-primary parent to give written notice to the primary parent of their intended dates for their 30 days of extended summer possession.  These 30 days can only be exercised in two periods of possession and each period of possession must be at least seven consecutive days.  Additionally, a parent’s extended summer possession can begin once school is dismissed and must end at least seven days before school resumes at the end of the summer. 


What happens if you miss the April 1st deadline? Should you not designate any extended summer possession dates by April 1st, you will be entitled to July 1 – 31st that summer.

A question that is frequently asked is “can I use a weekend of summer possession in addition to my extended summer possession to make my time with the children 32 days?”  The answer is yes, you can.  However, keep in mind that the primary parent has until April 15th each year to designate a weekend period of possession that will occur during your regular 1st, 3rd, and 5th weekend as well as a weekend during your extended summer possession.

 

Pornography in Texas Divorce

All too frequently, the issue of pornography comes up in divorces across the state of Texas.  Whether it is an addiction to pornography, sexting a photo to a spouse or paramour, or videos of sexual acts, pornography has taken the divorce stage front and center.

Recently, the Dallas Morning News reported a story of a woman by the name of “Lisa” whose ex-boyfriend posted nude photos of her he had secretly taken to dozens of websites.  Lisa did not become aware of the nude photos until she began receiving threats.  The Dallas police and prosecutors are building a case against Lisa’s ex-boyfriend for his online rampage and cyber bullying. 

Software Company McAfee released the following statement earlier this month:

“68 percent of more than 1,000 American adults in McAfee’s annual survey said that they have shared intimate messages or photos from their cellphone.  While that shouldn’t be such a big deal because it’s consenting adults doing it amongst each other, the fact of the matter is that we know throughout history that half of all relationships end and they are communicating this digital data to people who may very well not be in their life a month of a year from now.”

No matter how much you are in love or how much you trust your significant other and/or spouse, I strongly advise any person to not distribute or participate in any form of pornography - Unless you do not mind this exchange being viewed by an attorney, a judge or possibly a jury. The McAfee survey was also quoted as stating “roughly 9 percent of the survey respondents said an ex has threatened to post risqué photos of them online and about 57 percent of those people said the threat was carried out.”  The divorce process can be nasty and people can say and do things they would not ordinarily do under different circumstances.  Do not give your spouse any ammunition.