Dallas Divorce Law Blog : Dallas Texas Divorce Lawyer & Attorney : O'Neil Attorneys Law Firm : TX Child Support & Custody Issues

I recently came across an article on Time Magazine's website that was pretty interesting.  According to a study completed by the Pew Research Center, married men have a 60% higher income than they did in 1970, whereas unmarried men only experienced an increase of 16% in income. 

According to the study, one of the reasons that married men experienced a higher increase in income is because the percentage of men marrying women who earn as much, if not more, than they do has also increased since 1970.  Coupled with this is the fact that there has been a dramatic increase in the number of white collar women.

Another interesting point was that there is a decrease in divorce among college educated couples, and an increase in divorce between non-college educated couples.  Apart from the homogamy aspect of the studies, it was interesting to learn about correlation between income and duration of marriage. 

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I wanted to share with our readers a very special song I heard today by the Zac Brown Band called Highway 20 Ride about a father's visitation with his son.  Here's the video and lyrics.  Hope this is as meaningful to you and it was to me:

Highway 20 Ride:

I ride east every other Friday
But if I had it my way
A day would not be wasted on this drive
And I want so bad to hold you
Son, there’s things I haven't told you
Your mom and me couldn't get along

So I drive and I think about my life
And wonder why that I slowly die inside
Every time I turn that truck around
Right at the Georgia line
And I count the days
And the miles back home to you
On that Highway 20 ride

A day might come you'll realize
That if you see through my eyes
There was no other way to work it out
And a part of you might hate me
But son, please don’t mistake me
For a man that didn’t care at all

And I drive and I think about my life
And wonder why that I slowly die inside
Every time I turn that truck around
Right at the Georgia line
And I count the days
And the miles back home to you
On that Highway 20 ride

So when you drive
And the years go flying by
I hope you smile
If I ever cross your mind
It was the pleasure of my life
And I cherished every time
And my whole world
It begins and ends with you
On that Highway 20 ride....
 

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In a meeting yesterday with a client, he asked me why we couldn't agree for the attorney for his soon-to-be-ex wife to draft the final divorce decree so she would have to bear the cost of the attorney's time for this activity.  He wants to pinch the pennies and avoid paying me to do this.

I told him the story of "Joe" -- not his real name, obviously -- who chose not to hire an attorney and let his wife's attorney do all the work.  The wife's attorney drafted their agreement and drafted in creatively, even craftily, such that Joe didn't get exactly what he thought he was getting.

An attorney can advocate for a client in just the simple drafting of the wording of a document.  Sometimes this wording can mean the difference in having an enforceable court order or a piece of paper that is virtually meaningless.

Take the example given by Sam Hasler in the Indiana Divorce and Family Law Blog: 

Take this scenario: parties agree that one gets Y unless x happens. Being even more specific, assume that one party agrees to give the other half a pension, unless the other married.

What happens if the other party does not marry but lives with someone? Does the other party get the share of the pension?

Answer: Yes.

You get stuck with the language you put into an agreement. No better reason exists for getting a lawyer to at least read any agreement put together during any case. A lawyer provides to the parties an objective, critical for catching the problems that might arise out of a proposed agreement.

 

Married means married. If the Decree/agreement says married, then
living together does not matter. She gets the pension.

One of the most common examples that most people remember is President Clinton's lawyerly dispute about the meaning of the word "is" during his grand jury testimony.  Consider Timothy Noah's commentary in Slate magazine on September 13, 1998:

Years from now, when we look back on Bill Clinton's presidency, its defining moment may well be Clinton's rationalization to the grand jury about why he wasn't lying when he said to his top aides that with respect to Monica Lewinsky, "there's nothing going on between us." How can this be? Here's what Clinton told the grand jury (according to footnote 1,128 in Starr's report):

"It depends on what the meaning of the word 'is' is. If the--if he--if 'is' means is and never has been, that is not--that is one thing. If it means there is none, that was a completely true statement....Now, if someone had asked me on that day, are you having any kind of sexual relations with Ms. Lewinsky, that is, asked me a question in the present tense, I would have said no. And it would have been completely true."

In other words, President Clinton rationalized that "is" meant in the present moment, and he distinguished it from meaning over the past spanse of time.

I stress to clients the importance of having their lawyer draft the decree so that they know their best foot is put forward and as much of the advocacy of the nuances of small words -- like "is" -- can be avoided or massaged to their favor.

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Businesses can pose special challenges upon divorce. As Dallas divorce attorneys, we deal with these issues in many of our cases, with businesses acquired during the marriage and also businesses owned by one spouse before marriage.

Texas law typically treats corporations, partnerships, and other types of businesses as a separate legal entity – existing apart from shareholders and partners. Because these businesses are separate legal entities, only the spouse’s interest in the corporation, partnership or other business is up for division by the divorce court. This means that specific corporate assets are often off-limits in a divorce action. But, there is an exception to this rule when alter ego can be established.

If the business is found to be the “alter ego” of a spouse, divorce courts can “pierce the corporate veil” to move assets out of the corporation and divide them between the parties as part of the shareholder's community estate. A finding of alter ego sufficient to justify piercing in the divorce context requires the trial court to find:

 (1)       unity between the corporation and the spouse such that the separateness of the corporation has ceased to exist, and

(2)        the spouse's improper use of the corporation damaged the community estate beyond that which might be remedied by a claim for reimbursement.

The concepts of alter ego and piercing are applied in divorce cases to achieve an equitable result, that is, a just and right division of the marital estate. Generally, the divorce court will pierce to avoid leaving the community estate with virtually no property.

Whether you are a business owner, spouse of the business owner, or the attorney representing either party, when a business interest is part of the community estate, or owned by one spouse during the marriage, keep the equitable principles of alter ego and piercing the corporate veil in mind when evaluating the strategy for a divorce proceeding.

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Dallas County is one of several counties that has statutory probate courts.  In addition to statutory probate courts, Dallas County also has dedicated family district courts (some counties, i.e. Collin, have district courts of general jurisdiction).  Dallas divorce lawyers need to know that the jurisdiction between these two courts can sometimes overlap. 

In Dallas county, divorce suits are brought in the family district courts and suits pertaining to guardianship of an individual are brought in the probate court.  If a Dallas divorce case involves issues of guardianship, then under the Texas Probate Code, the probate court has jurisdiction to hear matters "appertaining to" or "incident to" the guardianship proceeding.  The effect of this is that the entire divorce proceeding can be transferred to the Dallas probate courts.

This overlap of jurisdiction can come up when one party to the divorce has been deemed incapacitated by the probate court and is seeking (or responding to) a divorce.  Another instance the overlap of jurisdiction can arise is when an adult disabled child has been declared incapacitated by the probate court and one of the parties to the divorce action is seeking adult disabled child support.  In addition to the Texas Probate Code, a provision of the Texas Family Code provides a probate court jurisdiction in a guardianship proceeding for the person after the person is an adult. 

Jurisdiction is a confusing area of the law, but it can make a huge impact on the outcome of a case.  Knowing which court you can have your matter heard in gives you additional options, and sometimes a more favorable outcome. 

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In some cases, dividing the small stuff in a divorce can be at least as costly and time consuming as dealing with the big stuff.  People often have an emotional attachment to the small stuff even though the items may not have monetary value. 

The small stuff, called "personal property", includes items such as dishes, linens, clothing, knick-knacks, furniture, art, computers, and even the family pets. The personal property divisible during divorce only includes those items purchased during the marriage that are not gifts or inheritance.  Items received as a gift, such as jewelry, would be considered the separate property of the person and not subject to division in the divorce.

The first step in dividing the personal property is to make a list of all of the "stuff" the spouses have and assess a value for each item.  Usually the value is what the item could actually sell for (like at a garage sale) . Then, the spouses should identify the "stuff" that each person wants.  For items desired only by one person, the division should be easy. 

If there are items that each person wants, several methods of negotiation can be used.  For example, one judge in Collin County often orders the parties to participate in the "coin flip" method.  So, one spouse flips the coin, the other spouse "calls it" heads or tails to pick a disputed item on the list.  Then the spouses take turns picking an item until all of the items are gone.

If the spouses are unable to reach an agreement on how to divide personal property, the issues can be presented to the judge in a trial for the judge to divide.  When this becomes necessary, I advise clients to think about division of personal property from a cost-effectiveness standpoint.  Often, the cost incurred in attorneys fees to argue over division of the personal property may very well exceed the value of the property or even the cost that a spouse might incur to replace the item or items.

See our prior article Custody Suit Over Pet Gets Expensive.

Hat tip to Daniel Margolin of The Oregon Divorce Blog for his post entitled How to divide personal property in a divorce for the idea for this article.

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A resident of Dallas county came and asked me for some advice on whether a divorce or annulment was his best option to proceed with.  As a Dallas divorce lawyer, I get a lot of questions on annulments versus divorces and I think its worth the time to post a blog on the differences between the two and under what circumstances an annulment is available.

A suit for annulment, as opposed to a suit divorce, is brought when there has been some legal impediment to the creation of a valid marriage; that is, the suit is for premarital causes rather than conduct that occurred during the marriage (as in a divorce).  Annulments have declined in popularity because in 1970 the Texas Legislature adopted no-fault grounds for divorce which made getting a divorce far easier.

There are four general grounds under which an annulment is possible. 

1.  A court can annul a marriage if a party to the marriage was at least 16 years of age, but under 18 years of age, at the time of marriage and did not have parental consent or court-ordered permission to marry.  Note, however, that an annulment under this ground is discretionary and the court must consider facts relevant to the welfare of the parties to the marriage (for example, whether the wife is pregnant).

2.  A court can also annul a marriage if at the time of the marriage the person seeking annulment was under the influence of drugs and/or alcohol and as a result lacked the capacity to consent to the marriage.  Also, the person seeking annulment cannot have voluntarily continued to live with the other party since the effects of the drugs/alcohol ended.  Note that we're not talking about a simple case of having a few drinks and then getting hitched.  Texas courts have held that the degree of intoxication must be so great as to have "dethroned reason, memory and judgment". 

3.  Another ground for annulment is impotency.  A court can annul a marriage if either party was permanently impotent at the time of marriage and the person seeking annulment did not know of the impotency at the time of marriage.  Also, the person seeking annulment cannot have continued to voluntarily live with the other person once they learned of the impotency.

4.  Fraud, duress and force are additional grounds for annulment.  A court can annul a marriage if one party was used fraud, duress or force to induce the person seeking annulment into marriage.  Just like the other grounds for annulment, the person seeking annulment cannot have voluntarily continued to live with the other party since learning of the fraud or being freed from the duress or force.

These are the grounds most people think of when considering an annulment.  Once an annulment is granted, the marriage will be considered void and its treated as if it never happened.  If an annulment is not granted, then the marriage will be considered valid indefinitely. 

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Part of any divorce in Dallas Texas is dividing the marital estate. A marital estate includes both the assets and debts that are considered community property and does not include any separate property assets of either spouse.

1.  Identify the property.

The first step in dividing the marital estate in a divorce is to identify all of the property that either spouse owns, without regard to when or how the property was acquired.

2.  Characterize the property.

The second step in dividing the marital estate involves characterizing the marital property as either community property or separate property. Community property includes any asset that was obtained during the marriage. For example, a person's earnings received during the marriage are community property so anything purchased with those earnings would also be community property. Any asset owned before the marriage or acquired through gift or inheritance would be that spouse's separate property and would not be subject to division by the divorce court. Likewise, any debt incurred during the marriage based on the spouse's credit would be a community debt. Any debt that was obtained prior to the marriage or during the marriage but where the creditor agreed to look only to the spouse's separate property for satisfaction, the debt would be separate.

3.  Value the community property.

Before a court -- or the parties in negotiations -- can assess whether a division of the marital estate is "just and right" under the law, a value must be assessed to each asset. For example, a residence or antique collection may need to be appraised. Often the marital estate will own an interest in a business entity, so the business entity will need to be valued. Pension plans can be troublesome to value because of the future time value of money. Debt values also need to be obtained.

4.  Undertake a just and right division of the community estate.

The legal standard for division of property in Texas is that the division must be "just and right". The courts are required to begin with a 50/50 division of the entire estate (assets and debts) and adjust from there based on whatever equities exist in a particular situation. Such equities may include that one spouse has a disability, or the other spouse has much greater earning capacity. Custody of children and the size of a spouse's separate estate can also be considered. The division does not have to be half of each asset. Much like a balance sheet in the business context, one asset can be awarded to one spouse and another asset can be awarded in its entirety to the other spouse with an adjustment for the value of each asset. Also, one asset may not be worth the same to a particular spouse as another asset. One spouse may value cash in the bank more highly and the other spouse may value maintaining retirement assets. All of these factors must be considered in the division.
 

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While it can be a sensitive subject, if a husband has doubts about his paternity of a child born to his wife during their marriage, it is critical that this issue be considered in the divorce proceeding and addressed as soon as possible. When paternity is at issue, time is of the essence both in the interest of stability for the child, as well as protecting the presumed father’s rights.  

In addition to biological and legal fathers, the Texas Family Code identifies several other types of fathers, including "presumed" fathers. If a man is married to the mother at the time the child is born, or was married to the mother less than 301 days before the child’s birth, he is considered a presumed father. Tex. Fam. Code §160.204(a)(1),(2). This status as a presumed father carries with it many legal implications.

The laws impacting presumed fathers can become particularly important in divorce proceedings involving adultery or infidelity by the child’s mother where paternity of one or more children of the marriage could be at issue. Under the Texas Family Code, while there is no time limitation for a suit to adjudicate parentage if the child has no presumed, alleged, or adjudicated father; yet a suit adjudicate parentage of a child with a presumed father must be brought within four years of the anniversary of the child’s birth. Tex. Fam. Code §160.607(a). In order to overcome this four year limitation, a presumed father must not have lived with the mother or engaged in sexual intercourse with her during the probable time of conception. Tex. Fam. Code §160.607(b)(1). The presumed father also must never have represented to others that the child was his own. Tex. Fam. Code §160.607(b)(2).

When two people live together as husband and wife, with a child born during their marriage, the requirements of Texas Family Code 160.607(b) are very often impossible to overcome. So, if there is a question as to the paternity of a child, genetic testing should be requested as early as possible and the suit to adjudicate parentage of the child should be brought before the child’s fourth birthday. This is important to ensure stability for the child involved. Here, as is the case with the rest of the Texas Family Code, the best interest of the child is the priority.

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I recently had a question from a potential client regarding common law marriage.  Turns out that this individual had separated from her husband in 1995 in New York (not divorced, but separated), the couple reconciled, moved to Texas in 1996 and have been living together since then.  Thirteen years later, she decides to move on and wants to know if she has to go through the formalities of a divorce here in Dallas.

First, Texas does not have "legal separation" like other states do.  The impact of this is that since this individual was never divorced in their home state, then legally she is still married.  Even if she were divorced, and then reconciled in Texas, there is another problem that risen -- informal (common law) marriage.

An informal or common law marriage is a marriage between a man and woman who agree to be married, live together as husband and wife, and hold themselves out to others as husband and wife, but who have not obtained a marriage license and participated in a marriage ceremony.  All three of these elements must exist at the same time for there to be a valid informal marriage.  if a valid informal marriage exists, a formal divorce proceeding is required to dissolve the marriage. Texas does NOT recognize informal divorces. 

Bottom line: this individual is likely still married and a divorce proceeding in Dallas County is required to end the marriage.  Even if the marriage ended in New York, there is the possibility a common law marriage exists which will also necessitate the need for divorce. 

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Most people do not have a clue how to find a good lawyer when they need one. In fact, statistics show that 68% of consumers spend two hours or fewer gathering information before selecting a lawyer.

1.  Determine the type of lawyer you need.

In most states, a licensed attorney may practice in any field of law, but most concentrate on very specific areas. Most states also have a process of specialization for attorneys. "In days gone by, most lawyers were general practitioners, meaning that they handled cases in a wide variety of practice areas. As the number of lawyers grew, the law became more complicated, and our society spread out, it has become necessary for lawyers to concentrate their efforts," says Michelle May O'Neil, a board-certified Dallas divorce lawyer . There are almost as many different practice areas as there are lawyers. For example, a lawyer who practices admiralty law might not be the best attorney to assist a person needing a divorce. Or, a construction lawyer might not be best suited for a real estate dispute.

2.  Utilize referral sources.

One of the best resources to find a lawyer that does the kind of law you need is through other lawyers. Everyone should know at least one lawyer they could call and ask for a referral. Even if the lawyer you know practices criminal law and you need someone to prepare a will, the criminal lawyer will be able to give you some referrals in the practice area you need. There are also referral lists maintained by most local and state bar associations. The downfall of using these services is that there is usually no screening on the qualifications of the particular lawyer with the individual need. It is then up to the consumer to inquire sufficiently into the lawyer's experience compared to the need of the consumer.

3.  Look online to research lawyers in the area you need.

The internet is an extremely beneficial source of locating a lawyer. Many websites maintain directories of lawyers nationwide. Most law firms these days maintain websites and usually you can find those through any search engine. Often lawyers are active in professional or community organizations which may be featured on a website. "My firm's website www.oneilanderson.com is a key tool in educating clients on what distinguishes my family law firm from another firm in Dallas," says Dallas Divorce Lawyer Michelle May O'Neil. "I find that most potential new clients read all or part of an attorney's website before meeting in person."

4.  Meet in person with a couple of lawyers.

The initial interview with an attorney that you are considering hiring is extremely important. Take with you to the interview all of the documents and other information that relates to your problem. Also take with you the names and addresses of the important people that have something to do with your case. Don't be afraid to ask your lawyer about his or her credentials. Ask how many cases similar to your's that she has handled. Prepare a list of questions to ask when you get there - what is the law related to your case? What are the realistic outcomes? What is the lawyer's philosophy for handling your case? Does she recommend an aggressive approach or one geared more toward settlement? Consider your comfort level with the attorney and the personal compatibility. Did you get a feeling of trust from the attorney? Did the attorney seem to know what she was talking about? Did the lawyer seem confident about your case? I never recommend that a person hire the first attorney they meet

5.  Establish reasonable expectations.

Many people have never dealt with a lawyer before, so they don't know what to expect. First and foremost, you should expect frank, honest advice. Your lawyer should point out for you the strong and weak points of your case and give you a realistic expectation of the potential outcomes. She should keep you informed and send you copies of documents pertaining to your case. If a lawyer gives you a guaranteed result, run the other way!!! Lawyers are prohibited from guaranteeing any particular outcome, so be very leery if this happens. Don't expect your lawyer to act as a psychologist, financial advisor, tax planner, or to give any other advice outside of her expertise. If you need advice in other areas, consult a professional in that area.
 

This post originally appeared on Avvo.com:  How To Find A Good Lawyer When You Need One.  Look at my AVVO profile here.

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