Court is just like television.

Reality: If you are prepared, there shouldn’t be any shock and awe moments though you can expect to testify in court.  Texas requires “fair notice” in pleadings. As a result, you must properly plead in advance of trial everything you are requesting in terms of relief such as a disproportionate share of the marital estate, a fault ground for divorce, custom possession schedule and/or restrictions on possession.

My spouse knows this asset is my separate property so I don’t need to be worried about it.

Reality: Separate property is not considered in the overall property division. So, for example, if your retirement account before marriage was significant, don’t assume your spouse will concede and admit your spouse will say it’s community property. As community property, they could receive a portion of it as part of the just and right division of the marital estate. As your separate property, the court lacks the authority to award them any of your separate property. It’s your burden to prove each asset that is your separate property by clear and convincing or evidence.

The account is only in my name so it’s mine.

Reality: Texas is a community property state. Everything you and your spouse owns is presumed to be community property subject to division between you and your spouse upon divorce. Community property is basically all assets that are not separate property. Separate property is assets owned prior to the marriage, gifts or inheritance received during the marriage and certain proceeds from a personal injury lawsuit as set forth in Texas Family Code. Even if the account is titled “Jane Smith separate property”, the account is community property until Jane proves by clear and convincing evidence it’s her separate property.

Letters can be used as evidence instead of a person testifying in court.

Reality: A letter can only be used in court as evidence for limited purposes. Most likely, the reason you want to use a letter is “for the truth of the matter asserted”. If so, the statements contained in the letter will not be admissible in court due to hearsay. Furthermore, each party has a fundamental right to be able to cross-examine and ask questions of a witness. So, while letters, which are witness statements, can be useful in other ways, you should plan on your friends, experts, or other witnesses testifying in court.

The outcome of my case will be fair.

Reality: Fair does not determine the outcome of your case. If children are involved, the best interest of the children controls the outcome. When dividing property in a divorce, the court calculates a just and right division of the marital estate. A just and right division is a subjective test does not mean it will be fair to you. In Texas, a just and right division can mean an even 50/50 split. A just and right divisions can also mean a division that favors one party over the other.

When clients come in to meet with a divorce attorney, they are often recently separated and very emotional. Our clients often latch onto preconceptions to help them through this difficult time. From our initial consult, it is our job to help you through this emotional and challenging process and provide you realistic expectations for the outcome of your case. With that said, these are a few misconceptions we often have to discuss:

  1. I was the stay-at-home parent; therefore, I will get most of the parenting time with them now that we are separated.

Reality: A judge will not punish the working parent who did not stay home with the children in the divorce. Usually, that parent will at least get a standard possession order, which results in that parent getting the 1st, 3rd, and 5th weekends of the month, and at least two hours during the week, if not more. The judge will give the working parent an opportunity to become significantly involved in their children’s lives. It is up to that parent to take it!

  1. I am going to get everything since my spouse cheated on me.

Reality: This is a biggie for many clients. A spouse’s infidelity is emotionally unbearable; however, it often has little impact on a judge’s division of the property. The primary way infidelity becomes a problem in Texas’ divorce cases is when a spouse spent exorbitant amounts of money on their paramour. In Texas, we call that “Fraud on the Community.”

  1. I was the only working parent. Everything we have is mine.

Reality: Nope. Everything you acquired after you were both married is community property (except for items acquired by gift, devise, or inheritance). That means a judge can split it in a “just and right” manner. The judge will consider many factors ranging from how much separate property to who gets primary custody of the children.

  1. It is in my name; therefore, I own it.

Reality: Not necessarily. In Texas, the person who has the title of the property does not necessarily own it. There are a variety of rules that help attorneys and judges determine if the piece of property is their separate property or part of the community estate.

  1. When we divorce, the judge must split everything equally.

Reality: Nope. In Texas, a judge will make a decision based on a “just and right” division. There are cases in Texas that set forth the various factors a judge will consider. Judge’s can award a 90/10 split, 50/50 split, 30/70 split, etc. The power to make the property division lies with the judge, it is our job to explain to the judge why you deserve the division you are asking the judge to give you.

  1. I can handle my own divorce.

Reality: I once heard a Judge tell a party representing themselves: “A lawyer went to law school for three years, took a two-and-a-half-day exam, and sees these things everyday…and even they can’t get some things right.” The shortest, simplest marriages can often be some of the most difficult to handle. Being represented by an attorney, who understands the minutia of Texas Family Law is the best choice.

Start on January 1

The month of January is known as “divorce month”. Courts all over the country see an uptick in divorce filings in January. But, why do people get divorced in January more than any other month?

Website statistics show an 84% increase in searches related to divorce in January.

The holidays mark a festive period for families, one where memories are made and couples try to rebuild or fix their failing relationships. But while the holidays can be a joyous and happy time for families, they can also represent a turning point for couples who are experiencing problems in their marriages. This period can be full of overwhelming stress, familial tension, and financial burdens – all of which can put even more pressure on already strained relationships. And it is this pressure which can expose flaws in a marriage.

Most couples wait until the holidays are over before starting the divorce process. This could be because they want to protect their children and allow them to enjoy the holidays. It could also be a couple’s last-ditch effort to see if the marriage can work itself out.

In most cases, though, when the holidays are over, couples who tolerated each other during the festive period decide to take the plunge and file for divorce – which is why January sees such a sharp spike in divorce rates.

The arrival of the New Year not only marks the end of the festive season, but it also brings hope for change and fresh beginnings – and in some cases, the end of a marriage. And once the dust from holiday commitments settles, the first change many people look to make is in their marriage. This is just one of the reasons why January is such a popular month for divorce inquiries and filings.

“You have the right to remain silent. Anything you say can and will be used against you in a court of law.” True – you do have the right to remain silent and anything you say can and will be used against you. But what about the things you don’t say? Can your silence be used against you in a family case?

The United States Supreme Court and Texas Supreme Court agree that your silence can be used against you in a civil, family law case. This means that if you assert your 5th Amendment privilege in a civil case, the judge has the ability to make a negative inference against you in regards to that topic. For example, if you are asked at trial whether you use illicit drugs, you have the right to assert your Fifth Amendment privilege. The judge, however, can take your refusal to answer to mean that you do, in fact, use illicit drugs. As Justice Brandeis declared in United States v. Bilokumsky, speaking for a unanimous Court, “Silence is often evidence of the most persuasive character.” 263 U.S. 149 (1923).

The implications of the Fifth Amendment extend beyond trial testimony to the rules of discovery. The purpose of discovery is to allow the parties to obtain full knowledge of the facts and issue prior to trial and to prevent trial by ambush. West v. Solito, 563 S.W.2d 240, 243 (Tex. 1978); Gutierrez v. Dallas ISD, 729 S.W.2d 691, 693 (Tex. 1987). This principle applies to all discovery, including items subject to the Fifth Amendment privilege. A party may not “use the Fifth Amendment as a shield in discovery and a sword at trial, which would result in “trial by ambush.”” Alief Independent School Dist. v. Perry, 440 S.W.3d 228, 242 (Tex. App—Houston [14th Dist.]). In the Alief case, a party asserted his Fifth Amendment privilege against self-incrimination twice during discovery. He later decided he wanted to testify regarding these issues. He withdrew his privilege only eight days prior to trial. By waiting to waive his privilege until the eleventh hour, the opposing party effectively lost their ability to do any type of discovery on the issue. For that reason, the Court of Appeals agreed with the trial court’s decision to preclude that party from putting on evidence about the issues he asserted his Fifth Amendment privilege to.

This is not to say that if you assert your Fifth Amendment privilege it can never be waived. If you assert your Fifth Amendment privilege in discovery, but decide you ultimately want to testify about these issues at trial, you must timely withdraw your privilege and amend or supplement your discovery. Case law has not defined “timely,” however, Texas Rule of Civil Procedure 193.4(c) states that: “a party may not use—at any hearing or trial—material or information withheld from discovery under a claim of privilege, … without timely amending or supplementing the party’s response to that discovery.” To be safe, you should waive your privilege in advance of trial enough so that the other side has time to conduct discovery on the matter.

The purpose of these rules is to prevent trial by ambush and provide a constitutionally meaningful trial to all parties. Because pleading the Fifth in a family law case can carry hefty implications, it is important to speak with an attorney, who can help you navigate and decide which route is best for your case.

 

The Texas Supreme Court recently laid out what evidence is needed to prove up attorneys fees at trial. This case has been lauded as one of the most important cases to come out of the Texas Supreme Court. In Rohrmoos Venture v. UTSW DVA Healthcare LLP (578 S.W.3d 469), the Court addressed two different methods of calculating fees – the 8-factor test from the Arthur Andersen case (945 S.W.2d 812) versus the lodestar method – concluding that the lodestar method is the right place to start in calculating fees.

The lodestar method means that the court determines the attorneys fees to be awarded by multiplying the number of necessary hours reasonably spent by the trial attorney by the reasonable hourly rate.

The Rohrmoos opinion suggested that detailed billing records are strongly encouraged to prove up the elements of attorneys fees. This ruling will likely affect lawyers with alternative billing (like flat fee) arrangements. Further, this opinion suggests that lawyers could be subjected to thorough cross-examination on the fees expended. Opposing counsel could use the billing records as an opportunity to prod over work performed. Many cases will bring in outside experts on fee issues to offer testimony as to the reasonableness or necessity of the fees.

The Court hinted that agreement between attorneys in advance of trial as to the amount of fees would avoid contentious fee fights. But, without such agreement, the litigation will be more complex and lengthy.

A few weeks after the Rohrmoos case came down, the Texas Supreme Court reiterated its decision in Nath v. Texas Children’s Hospital (446 S.W.3d 355) where it applied the same requirements to attorney’s fees when awarded as a sanction as opposed to damages.

Here are some practice pointers based on Rohrmoos:

  • Keep contemporaneous billing records in all cases, including hybrid and contingent fee cases;
  • Try to stipulate to the fee award prior to trial;
  • Enter your fee agreement and billing records into evidence at trial;
  • Be careful about redacting your entries in the fee agreement;
  • Introduce evidence to explain why all entries included were reasonable and necessary;
  • Consider getting an outside expert to support or challenge the fee request.

Certain questions appear to remain open even after the Rohrmoos opinion, including:

  • How to calculate appellate attorney fees, which must be estimated in advance?
  • Whether the lodestar approach applies in a contract dispute between client and attorney where the question involves enforcement of a contingent fee contract?
  • Under what circumstances the amount of attorney’s fees should be decided by the jury or the judge and whether live testimony is required or may the evidence be established by affidavit?
  • May a lay witness law the factual elements of the lodestar method, or is expert testimony required?
  • What is the proper remedy when reverse – remand or rendition?

 

We have seen this issue arise more than once lately: A party files a jury demand and pays the fee close to but before the 30-day deadline prior to trial; however, the e-filing system delays acceptance of the filing and payment until after the 30-day deadline, so the trial court denies the jury trial. We believe the trial court is wrong to deny the jury trial in this instance.

Texas is the only state in the nation that allows jury trials in family law cases, particularly on custody cases. We try a LOT of jury trials — an inordinate percentage compared to most family law firms. But, what do you do when you submit your jury demand before the 30th day before trial and tender the fee on the same day, but the e-filing system or clerk delays posting it until after the deadline? Can the judge correctly deny the jury trial?

Texas Rule of Civil Procedure 216 requires a party to file their demand for a jury trial a reasonable time before the date set for trial of the cause on the non-jury docket, but not less than thirty days in advance. See Tex. R. Civ. Pro. 216(a). In Texas, an electronically filed document “is deemed filed when transmitted to the filing party’s electronic filing service provider…”. Tex. R. Civ. Pro. 21(f)(5). A document is considered timely filed “it if is electronically filed at any time before midnight (in the court’s time zone) of the filing deadline.” Id. A jury demand filed in “advance of the thirty-day deadline is presumed to have been made a reasonable time before trial.” Halsell v. Dehoyos, 810 S.W.2d 371 (Tex. 1991).

The associated jury fee must be “deposited with the clerk of the court within the time for making a written request for a jury trial.” See Tex. R. Civ. Pro. 216 (b). The timing rules for the jury demand apply to the jury fee as well. Huddle v. Huddle, 696 S.W.2d 895 (Tex. 1985). Thus, a jury fee that is deposited with the clerk in advance of the thirty-day deadline is presumed to have been made a reasonable time before trial. Id.

Finally, the Texas Supreme Court has recognized that, even when a party does not timely pay the jury fee, a trial court should accord the right to a jury trial if possible. Gen. Motors Corp. v. Gayle, 951 S.W.2d 469, 476 (Tex. 1997).

All of this to say that the minute you transmit the jury demand to e-filing it is considered timely. Likewise, depositing the payment of the jury fee with the e-filing system should be sufficient to comply with the deadline rules. But, even so, unless there is proof that some prejudice will come from allowing the jury trial, even if the filing is late, the trial court should in consideration of due process grant the jury trial. Always err on the side of a jury trial.

 

The 2nd Court of Appeals in Fort Worth issued a very important opinion today in a big win for O’Neil Wysocki’s appellate team on Michelle O’Neil and Karri Bertrand. The underlying order awarded Father the exclusive right to determine the children’s primary residence without regard to geographic restriction and gave each parent the independent right to make educational decisions. Mother filed to modify the orders and sought temporary orders in the modification suit. The trial court left the primary designation with Father but ordered the children to be enrolled in the Mother’s school district. In the intial hearing, the trial court made no finding of significant impairment, but later entered such finding.

Continue Reading Win: Clarification of standard for temporary orders in modification suit

I enjoyed this article in the Washington Post by Lisa Bonos. Is it possible to get divorced and not hate your ex? A divorce necessarily comes after a lot of emotion and turmoil in the relationship. Sorting through that emotion and processing to the other side of the hatred river takes emotional maturity and “adulting” (as the new millennial lingo goes).  The bottom line is that you have to love your kids more than you hate your ex. The article suggests six principles to keep in mind:

Continue Reading 6 steps to adulting and not hating your ex

What remedies are available to left-behind parents when a child is removed from the child’s primary country to another country?

There has been a recent uptick in the number of cases where a parent unilaterally removes a child from the child’s place of residence to another country in an attempt to be the child’s sole parent. The Hague Convention on the Civil Aspects of Child Abduction (read the text of the treaty here) is a multilateral treaty ratified by 98 countries as of May 2018 providing an expeditious protocol for the return of a child unilaterally removed from the home country. The treaty requires the country to return a child when wrongfully removed in breach of the custody rights of the left-behind parent. The law of the state/country where the child resided determines the “custody rights”, which provides some fluidity in the laws.

Continue Reading International child abduction remedies

Highly compensated individuals may have a laundry-list of deferred compensation awards going out over many years. Sometimes these compensation methods require negotiation transactions during a divorce that may or may not be legally permitted without full transparency. In most Texas courts, there are “standing orders” that automatically apply to every divorce that prohibit certain types of transactions. It is important to understand the marital assets in order to prevent the client from inadvertently violating one of these rules.

Continue Reading Non-cash compensation in a Texas divorce