Custody by jury – ONLY in Texas

famMany things make Texas unique. But one thing stands out for family law attorneys and litigants – the right to have a jury decide custody of your children. Texas is the ONLY state in the US to allow custody jury trials. Eleven states allow juries in for some aspect of divorce litigation (Colorado, Georgia, Illinois, Louisiana, Maine, Nevada, New York, North Carolina, Tennessee, Texas and Wisconsin), mostly on the grounds or entitlement for divorce only. See Case Law Development: Jury Trial in Divorce Actions.

That being said, very few parents ask for a jury trial, making them a very rare occurrence in Texas. Reasons for this may be the stress of laying your life – both good decisions and not-so-good ones – out for 12 peers to judge; or, the added legal cost of a jury trial; or the unpredictability of the outcome. Most custody cases in Texas settle by agreement because most parents would rather participate in making decisions about their children rather than allow strangers to make those decisions for you. Also, jury trials in custody cases are rare because temporary orders are generally entered at the beginning of a case and neither judges nor juries are likely to do something against the temporary orders.

The right to a jury trial regarding children is limited to issues of joint or sole conservatorship, which parent has the primary to establish the child’s residence, and whether there will be any restriction on the child’s residence. All other issues, such as possession periods with each parent, decision-making rights and duties, and child support, are decided by the Judge.

The first stage of a custody jury trial is jury selection – called voir dire. The pronunciation of this word is subject to much debate. The rest of the country and world uses a French pronunciation – such as in this video. But we Texans have to put our own spin on it and say it like “vorr dire” (rhymes with “tire”). See survey of pronunciations here. This is where the lawyers get to ask the panel members questions about their attitudes and opinions as it relates to issues in the case to see if they will be good for the particular case. It is more like “de-selection” than selection of a jury because each side gets a certain number of strikes and the panel members who remain after the strikes become the jurors.

Next comes opening statement, where each side gets to tell the jury in a persuasive manner what they believe the evidence will show.

The evidentiary portion of the trial will take the longest. This is where the meat of the case is presented – witnesses and documentary evidence – to prove each side’s allegations.

When the evidence closes, the lawyers and the Judge will work together to formulate the jury charge, a written document that gives the jurors instructions and questions pertaining to the case. When the charge is put together, then it is read to the jurors and the closing arguments are given. Closing arguments are the lawyer’s last time to address the jurors. The purpose of closing argument is to draw the jurors’ attention to particular pieces of evidence as it relates to the instructions and questions the jurors will be tasked with answering.

When closing arguments are finished, the jurors go to the jury room with the evidence and jury charge to make a decision. In custody cases, like civil cases generally, it is not necessary to have unanimity. A vote of 10 out of 12 jurors is sufficient to reach a verdict, as long as the same 10 agree on everything.

Custody Orders — Planning for the Future

change-is-inevitable-200x186Children grow and change over time, as do parents. People not only get older, but change jobs, remarry, divorce, sell houses, buy houses, have problems, and successes. Change is inevitable…. right? But, how does change effect children and custody orders?

The Texas Family Code allows custody orders to be modified until the child turns 18. All orders regarding children are subject to change until the kids grow up. But, not just any change is enough. The standard set in the law requires a “material and substantial” change of the children or the parents. See Texas Family Code section 156.101. What is that?

The dictionary definition of material is “having real importance”. The dictionary definition of substantial is “important, essential”. So the change must be really important to rise to the level of warranting a change of the orders regarding the children.

The second prong for modification is the best interest of the children. So, it’s not enough that a change be really important, material and substantial, but it also must be best for the children.

So the question arises, can you plan for changes that could occur in the future to keep from having to modify orders? The answer is YES as it relates to some issues. No for child support.

So, first on child support. Child support is set as of the date of the order, based on a backward-look at income and financial resources. So, child support may only be modified in the future based on changed financial situation that has already occurred.

As for other orders relating to children, such as conservatorship, possession and access, and other decisions, the parents can anticipate changes and agree on what to do when those changes happen. For example, parents can agree that the children are going to attend certain schools in the future. Parents can agree that they are going to handle extracurricular activities a certain way in the future. Parents can agree as to where the children will live and how their time will be split between the parents in the future. Maybe one possession schedule is good for really young children, but a different schedule will be implemented when the children get to a certain age. Or, parents can agree that they will live close together and raise the children together.

When parents agree on these things and anticipate changes that may happen in the future, when those changes then actually occur, they cannot be said to be really important (material and substantial) changes to warrant a modification contrary to the parents prior agreement. Something else unanticipated would have to intervene to make the change material or substantial. Preventing a parent from filing a modification simply over buyer’s remorse when the change actually happens encourages settlement and consistency for the children.

Texas public policy is to encourage settlement of disputes between parties, so allowing parents to reach agreements about their children and the future anticipated issues is consistent with public policy. Those agreements should be supported and upheld to prevent unnecessary judicial resources being spent to re-do what the parties agreed on.

Texas divorce case law update: grounds for divorce must be proven

texas_law_books_bannerThis case law update focuses on Alvarez v. Alvarez, an April 2015 case out of the San Antonio Court of Appeals. Husband filed for divorce on the no-fault grounds of insupportability. Wife answered but failed to appear at the final trial setting. At the default prove-up, Husband failed to state grounds for divorce. Generally, he would say “The marriage has become insupportable due to discord or conflict of personalities that destroys the legitimate ends of the marriage relationship. And, there is no reasonable expectation of reconciliation.” (Or, his lawyer would ask him a question along those lines.) But, in this case, that question was not asked and the Husband never stated grounds for divorce and never said the word “insupportabiliy”. The Wife appealed the default judgment – the reason, insufficient evidence to support the granting of divorce.

The San Antonio Court of Appeals agreed with Wife and reversed the default judgment. They held that there must be some evidence of grounds for divorce. If divorce on the no-fault grounds of insupportability is requested, the party must provide evidence that 1) the marriage has become insupportable due to discord or conflict, 2) that discord or conflict destroys the legitimate ends of the marriage ; and, 3) that there is no reasonable expectation of reconciliation. Without this evidence, testimony that the parties are separate and living apart is insufficient to support the divorce.

The lesson to be learned here is to always ask all of the questions at the divorce prove-up, especially in a default trial. If you don’t know all of the questions to ask, find a script. Or, do what I did 20+ years ago when I was learning the ropes as a Dallas divorce lawyer, go sit and watch prove-ups at the courthouse and listen to as many as you need to until you have it memorized. Take notes, if you must. But, always do the prove-up right. It could cost you and the client time, effort, and money if you mess it up.

Alvarez v. Alvarez, 2015 WL 876863 (Tex App. – San Antonio 2015, no pet. h.) (mem. op.).


Case law update: international divorce precludes subsequent divorce in America

This case law update focuses on the Ashfaq v. Ashfaq case out of Houston’s 1st District Court of Appeals. The question involved whether a divorce previously granted under the laws of Pakistan was effective to preclude a later-filed divorce in Texas.

Husband and Wife were married in Pakistan and lived there a short while until Husband returned to Texas. Wife remained in Pakistan for 2 years before she was granted a visa and was able to join Husband in Texas. Less than a year later, the couple returned to visit Pakistan and Husband had Wife’s parents take her to their home. Husband announced his intention to divorce her and returned to Texas. After the Pakistan divorce was final, Wife moved to Houston. Husband remarried another woman from Pakistan. A month after Husband’s second marriage, Wife filed for divorce in globe

Trial proceeded on Wife’s divorce petition in Texas, where Husband introduced evidence of Pakistani divorce laws through an expert witness in Pakistani law. The expert testified that a resident of Pakistan may obtain a divorce there, and a resident is anyone who maintains Pakistani citizenship, regardless of where the resident currently lives. It was undisputed that Wife was a Pakistani citizen and Husband had dual US and Pakistani citizenship. To obtain a divorce under Pakistani law, the husband must pronounce “talaq” (translated “I divorce you”) three times, then provide notice to the Wife and the Chairman of the Union Council. This provides the Wife opportunity to seek reconciliation and if, after 90 days, the parties have not reconciled, they are divorced. If the husband offers and the wife accepts return of her dowry, then the Wife has indicated her acceptance of the divorce and cannot later deny its validity. The expert testified that Husband followed the procedural requirements and the divorce was proper. He also testified that Wife accepted the return of her dowry.

The trial court determined that the Pakistani divorce was valid and dismissed the divorce. The trial court treated the rest of Wife’s pleading as a post-divorce petition to divide property and granted judgment. Wife appealed, arguing that Texas had jurisdiction over the divorced and Pakistani law should not have been recognized. The court of appeals noted that the US federal government recognizes the Pakistani procedure as valid proof of marital status for immigration purposes. Therefore, the judgment of the trial court dismissing the divorce for failure of jurisdiction was upheld. The court of appeals pointed out that Pakistani divorce procedures have been recognized as valid proof of marital status for immigration purposes, and in this case, the federal government must have recognized this divorce because it issued Husband’s new wife a visa.

This is a good case to review when addressing an international divorce case.

Ashfaq v. Ashfaq, __ S.W.3d __, 2015 WL 1925832 (Tex. App. — Houston [1st Dist. 2015, no pet. h.).


Changing the legal definition of marriage

interracial marriageRecent events have forced Texas and other states to change how the law looks at marriage. There is a lot of debate among Americans as to the relation between the legal definition of marriage and the religious definition of marriage. The U.S. Supreme Court’s decision in Obergefell changes nothing about the definition of marriage that religious institutions decide applies within their organizations. The decision does change the application of the government’s definition of marriage.

In some European and Latin American countries, the civil ceremony and religious ceremony must be held separately. In the U.S., civil marriages may be a part of religious ceremonies and held at the same time, but they are distinct and separate.

Many religious institutions have a static definition of marriage that does not match the legal definition. For example, the Catholic Church does not allow interfaith marriages and does not recognize divorce, so second marriages are not approved unless the former spouse died. Islam allows a man to have multiple wives; Judaism allows only one man and one woman to marry. Both Islam and Judaism believe that marriage lasts beyond death, so do not recognize divorce. Protestants generally believe that marriage is for the love between a man and woman. Buddhism does not have religious rules for marriage and allow people to follow the civil laws where they live.

In the United States, governments undertake to regulate marriage by providing certain rules and rights to married people under the law. For example, most states provide a minimum age limit to get married and limit the number of people to the marriages. Some states allow for common law marriages and other states do not. Some states provide restrictions on the familial relations that are permitted to marry.

Other governmental regulations by US States on marriage have changed over time. One law that existed regarding marriage that came under fire in the late 1960’s involved laws that prohibited couples of different races from getting married. These laws were declared unconstitutional in 1967 in the case of Loving v. Virginia, 288 U.S. 1 (1967).

Likewise, many states had “head and master” laws that prohibited married women from owning property. The husband could buy, sell and encumber property without the knowledge or consent of the wife. In 1981, the U.S. Supreme Court declared these marriage laws unconstitutional in Kirchberg v. Feenstra, 450 U.S. 455 (1981). In Texas, until the Marital Property Act of 1967, women were required to get a husband’s signature just to file a legal document. Louise Raggio, a Texas attorney and trail blazer for women’s rights sums up the situation of a woman at the altar in Texas: “When a man and woman got married, they were one, and he was the one.” The passing of the Marital Property Act, largely pushed ahead by Mrs. Raggio, gave women in Texas equal rights to their husbands, eliminating years of legal discrimination to married Texas women.

Now, most recently, the definition of marriage has changed once again. The Obergefell decision extends the right to civil marriage to same-sex couples, giving same-sex couples equal rights under the law as heteroseuxals. Now, states cannot deny a same-sex couple the right to marry that is extended to heterosexual couples. This is not the first time in U.S. history that the legal definition of marriage has changed. As the values of society change, the laws of society must change. And, for same-sex couples, that change has arrived.

Now, instead of distinguishing between heterosexual marriage and same-sex marriage — it is just marriage.

Marriage — liberty and justice for all

Justices_smThe US Supreme Court found marriage of Constitutional proportions and extended the right of marriage to same-sex couples. This broad sweeping Constitutional rights opinion will have profound effects on many aspects of our society, not just the right to marry. It will apply to right of adoption, inheritance, death benefits, divorce, and maybe other ways we haven’t even thought of yet.

For my extensive view of the opinion in Obergefell v. Hodges, see my post here: Marriage Equality — The Whole Enchilada.

Is June 26 the day for LGBT Right to Marry?

Did you know I started a new blog on LGBT family law rights in Texas? Today I posted about the significance of the date June 26 in the LGBT rights movement. The significant case of Lawrence v. Texas, which held unconstitutional statutes criminalizing homosexual conduct, was handed down by the US Supreme Court on June 26, 2003. And, the Windsor opinion finding portions of the federal Defense of Marriage Act unconstitutional as applied to same sex couples, came out on June 26, 2013. So, it is significant that the US Supreme Court announced late last week that they are having an opinion-issue date this Friday, June 26, 2015. Most people believe that the Obergefell decision on the rights of same sex couples to marry will come out that day.

See my extended blog post here: Expected marriage equality decision on Friday, June 26

Divorce Agreements, Einstein and the Nobel Prize

When negotiating a final divorce settlement, every divorcing person must decide for himself or herself what to give up in exchange for getting a divorce. Rolled into that decision is the priority of guilt, moral values, and the willingness or unwillingness to continue to participate in the conflict of the divorce process.

These decisions and feelings are not solely the province of “regular people” – famous people go through it too.

einstein wedding picture

Wedding photograph of Albert Einstein and Mileva Marić, January 6, 1903

Take Albert Einstein, for example. A few months ago a group of universities released Einstein’s papers to the public. (See Digital Einstein.) These included correspondence between Einstein and his first wife Mileva Maric. Many beautiful love letters are includes as their love begins. But the unravelling of their love showed two strong-willed, ambitious people who grew apart. Not unlike many people going through divorce.

In 1914 the couple separated after eleven years of marriage and twenty-eight years as a couple. Two years later, he suggested a divorce, but his wife developed health problems, so he retracted the idea. When her condition improved four years after their separation, Einstein against proposed divorce. The letter he wrote to his wife shows his desperation, almost to the point of a bribe.

Dear Mileva,

The endeavor finally to put my private affairs in some state of order prompts me to suggest the divorce to you for the second time. I am firmly resolved to do everything to make this step possible. In the case of a divorce, I would grant you significant pecuniary advantages through particularly generous concessions.

  1. 9,000 M [$1,560 then, $26,000 now] instead of 6,000 M, with the provision that 2,000 of it be deposited annually for the benefit of the children.
  2. The Nobel Prize — in the event of the divorce and in the event that it is bestowed upon me — would be ceded to you in full a priori. Disposal of the interest would be left entirely to your discretion. The capital would be despited in Switzerland and placed in safe-keeping for the children. My payments named under (1) would then fall away and be replaced by an annual payment which together with that interest totals 8,000 M. In this case you would have 8,000 M at your free disposition.
  3. The widow’s pension would be promised to you in the case of a divorce.

Naturally, I would make such huge sacrifices only in the case of a voluntary divorce. If you do not consent to the divorce, from now on, not a cent about 6,000 M per year will be sent to Switzerland. Now I request being informed whether you agree and are prepared to file a divorce claim against me. I would take care of everything here, so you would have neither trouble nor any inconveniences whatsoever.

The divorce agreement was finalized in June 1918, with the Nobel Prize money the centerpiece of the agreement.

Prof. Einstein shall instruct, in the event of a divorce and in case he receives the Nobel Prize, the [award money] to become the property of Mrs. Mileva Einstein and shall deposit this capital in trust at a Swiss bank.

The divorce was granted in 1919. In 1921, Einstein was awarded the Nobel Prize “for his services to Theoretical Physics” and the prize money was awarded a year later. True to his word, the money was transferred to his prior wife.

Throughout the process, Einstein had to grapple with his moral obligation to his wife, versus his desire to be divorced and be with his new love. He had to wrestle with the wife’s illness, and his inability to divorce her until she was healthy. Then, he had to make an offer to her that she would accept in order to obtain her agreement for divorce. He had to determine how important getting the divorce completed was versus giving up the bounty of what was the most important achievement of Einstein’s life.

Divorcing spouses go through a similar thoughts when evaluating their options for agreement. How much are they willing to give up – whether property or time with their children – to accomplish the divorce by agreement? Is the difference worth having a trial to a judge to reach an outcome? Or, where jury trials are allowed in certain situations in divorce cases, is it worth going all the way to a jury?

While divorce lawyers may advise their client as to the propriety of settlement options, only the client may make the ultimate decision to settle their case. Even if the lawyer disagrees with the settlement option, the client may still choose to settle against the lawyer’s advice. Sometimes that may be more preferable than the alternative of trial.

Hat tip to Brain Pickings June 12, 1918: Einstein’s Divorce Agreement and the Messiness of the Human Heart

To Return or Not Return the Engagement Ring… That is the Question

BROKEN-ENGAGEMENTLife is all hunky-dory when two people get engaged. They are hopeful for the future and look forward to a long life together. But, sometimes people don’t quite make it to the alter before it all falls apart. I dare say it is probably better to find out before the alter than after. Even so, what happens to the sparkly and expensive show of affection purchased to solemnize the occasions – the Engagement Ring? The bigger the rock, the more at stake; even small rocks may be big to some.

An engagement ring is what is called a “conditional gift” in Texas. Ownership does not convey until the condition is met – in this case, marriage. Upon marriage, the engagement ring is a gift, making it the sole property of the recipient spouse. To give the ring then breakoff the wedding, there has to be a really good reason to justify the breakup to get the ring back. Likewise, if the receiver gets the ring then dumps the giver, there better be a good reason to keep the ring. Maybe documented cheating is enough.

Other gifts given during the pre-wedding relationship are not conditional, so don’t expect those back in case of a breakup.

Texas Monthly had an interesting post detailing cases that have been filed to get the ring back after a pre-wedding breakup. Interesting read.


Presumption of MATERNITY in Texas?

Texas Family Code 160.106 Presumption of Maternity

Texas Family Code 160.106 Presumption of Maternity

Did you know that the presumptions of paternity apply also to presumptions of maternity? Little known Texas Family Code section 160.106 says that the provision of Chapter 160 relating to the determination of paternity apply to a determination of maternity. In looking at the provisions related to paternity, the presumption of parentage would apply to a child born during a marriage, to a parent who signs an acknowledgment of parentage, or to persons voluntarily named as a parent on a child’s birth certificate. What about in 160.202 (5) where paternity is presumed for a man who, during the first 2 years of a child’s life, resides in the household with the child and represented to others that the child was his own — does that paternity presumption apply also to maternity? According to 160.106 it does. This is one of the sticky situations that may come with the recognition of same-sex marriages in Texas involves the parental presumptions that will arise with children of such relationships. Take a lesbian couple where one mother decides to give birth to a child during the marriage.  Once Texas recognizes those marriages, the non-biological partner could claim a presumption of maternity by virtue of being married at the time of the birth. Or, even if the couple were not married, but lived together during the first 2 years of the child’s life and represented to others that they were both mothers, a presumption of parentage could apply. This statute is part of the Uniform Parentage Act which was also adopted by California. There, the case In re D.S. actually finds that the presumption of maternity code section was designed to provide an avenue for presumed parentage for same-sex couples:

“[I]n the context of same-sex relationships involving two women, courts have found a child may have a biological mother and a presumed mother, to the extent the woman who is the nonbiological [or nonadoptive] parent meets the requirements of one or more of the presumptions listed in section 7611.” (In re Bryan D. (2011) 199 Cal.App.4th 127, 138–139; see, e.g., S.Y. v. S.B. (2011) 201 Cal.App.4th 1023 [upholding application of section 7611, subdivision (d) to give parental rights to a former partner in a same-sex relationship who had received the adoptive mother’s children into her home and held them out as her own].)

See In re D.S. at There are some courts and some judges in Texas — and maybe even some lawyers — that will be shocked to see that Texas already has statutes that contemplate rights for same-sex couples. Some parts of this chapter already apply, even without recognition of same-sex marriage. That’s why it is so important to talk to a lawyer who knows about the intricate rights of same-sex couples and can advise accordingly.